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Justice Blackmun | 1,978 | 11 | majority | United States v. LaSalle Nat. Bank | https://www.courtlistener.com/opinion/109901/united-states-v-lasalle-nat-bank/ | cf. Abel v. United The likelihood that discovery would be broadened or the role of the grand jury infringed is substantial if post-referral use of the summons authority were permitted. For example, the IRS, upon referral, loses its ability to compromise both the criminal and the civil aspects of a fraud 26 U.S. C. 7122 (a). After the referral, the authority to settle rests with the Department of Justice. teragency cooperation on the calculation of the civil liability is then to be expected and probably encourages efficient settlement of the dispute. But such cooperation, when combined with the inherently intertwined nature of the criminal and civil elements of the suggests that it is unrealistic to attempt to build a partial information barrier between the two branches of the executive. Effective use of information to determine civil liability would inevitably result in criminal discovery. *313 The prophylactic restraint on the use of the summons effectively safeguards the two policy interests while encouraging maximum interagency cooperation.[15] C Prior to a recommendation for prosecution to the Department of Justice, the IRS must use its summons authority in good faith. 400 U. S., ; United v. Powell, Powell, the Court announced several elements of a good-faith exercise: "[The Service] must show that the will be conducted pursuant to a legitimate purpose, that the inquiry may be relevant to the purpose, that the information sought is not already within the Commissioner's *314 possession, and that the administrative steps required by the Code have been followed [A] court may not permit its process to be abused. Such an abuse would take place if the summons had been issued for an improper purpose, such as to harass the taxpayer or to put pressure on him to settle a collateral dispute, or for any other purpose reflecting on the good faith of the particular" A number of the Courts of Appeals, including the Seventh Circuit in this 554 F.2d, 9, have said that another improper purpose, which the Service may not pursue in good faith with a summons, is to gather evidence solely for a criminal[16] The courts have based their conclusions in part on Donaldson's explanation of the Reisman dictum. The language of Donaldson, however, must be read in the light of the recognition of the interrelated criminal/civil nature of a tax fraud inquiry. For a fraud to be solely criminal in nature would require an extraordinary departure from the normally inseparable goals of examining whether the basis exists for criminal charges and for the assessment of civil penalties. this respondents submit that such a departure did |
Justice Blackmun | 1,978 | 11 | majority | United States v. LaSalle Nat. Bank | https://www.courtlistener.com/opinion/109901/united-states-v-lasalle-nat-bank/ | civil penalties. this respondents submit that such a departure did indeed occur because Special Agent Olivero was interested only in gathering evidence for a criminal prosecution. We disagree. The institutional responsibility of the Service to calculate and to collect civil fraud penalties and fraudulently reported or unreported taxes is not necessarily overturned by a single agent who attempts to build a criminal The *315 review process over and above his conclusions is multilayered and through. Apart from the control of his immediate supervisor, the agent's final recommendation is reviewed by the district chief of the telligence Division, 26 CFR 601.107 and ; ternal Revenue Manual, ch. 9600, 9621.1, 9622.1, 9623 ; see The Office of Regional Counsel also reviews the before it is forwarded to the National Office of the Service or to the Justice Department. 26 CFR 601.107 ; ternal Revenue Service Organization and Functions 1116 (3), (1974); ternal Revenue Manual, ch. 9600, 9624, 9631.2, 9631.4 If the Regional Counsel and the Assistant Regional Commissioner for telligence disagree about the disposition of a another complete review occurs at the national level centered in the Criminal Tax Division of the Office of General Counsel. ternal Revenue Service Organization and Functions 1113.-(11) 22, (1974); ternal Revenue Manual, ch. 9600, 9651 (1) Only after the officials of at least two layers of review have concurred in the conclusion of the special agent does the referral to the Department of Justice take place. At any of the various stages, the Service can abandon the criminal prosecution, can decide instead to assert a civil penalty, or can pursue both goals. While the special agent is an important actor in the process, his motivation is hardly dispositive. It should also be noted that the layers of review provide the taxpayer with substantial protection against the hasty or overzealous judgment of the special agent. The taxpayer may obtain a conference with the district telligence Division officials upon request or whenever the chief of the Division determines that a conference would be in the best interests of the Government. 26 CFR 601.107 (2) ; ternal Revenue Manual, ch. 9300, 9356.1 If prosecution has been recommended, the chief notifies the taxpayer of *316 the referral to the Regional Counsel. 26 CFR 601.107 ; ternal Revenue Manual, ch. 9300, 9355 As in Donaldson, then, where we refused to draw the line between permissible civil and impermissible criminal purposes at the entrance of the special agent into the 400 U.S., we cannot draw it on the basis of the agent's personal intent. To do so would unnecessarily frustrate the enforcement |
Justice Blackmun | 1,978 | 11 | majority | United States v. LaSalle Nat. Bank | https://www.courtlistener.com/opinion/109901/united-states-v-lasalle-nat-bank/ | personal intent. To do so would unnecessarily frustrate the enforcement of the tax laws by restricting the use of the summons according to the motivation of a single agent without regard to the enforcement policy of the Service as an institution. Furthermore, the inquiry into the criminal enforcement objectives of the agent would delay summons enforcement proceedings while parties clash over, and judges grapple with, the thought processes of each investigator.[17] See United This obviously is undesirable and unrewarding. As a result, the question whether an has solely criminal purposes must be answered only by an examination of the institutional posture of the IRS. Contrary to the assertion of respondents, this means that those opposing enforcement of a summons do bear the burden to disprove the actual existence of a valid civil tax determination or collection purpose by the Service. After all, the purpose of the good-faith inquiry is to determine whether the agency is honestly pursuing the goals of 7602 by issuing the Without doubt, this burden is a heavy one. Because criminal and civil fraud liabilities are coterminous, the Service rarely will be found to have acted in bad faith by pursuing the former. On the other hand, we cannot abandon this aspect of the good-faith inquiry altogether.[18] We shall not countenance *317 delay in submitting a recommendation to the Justice Department when there is an institutional commitment to make the referral and the Service merely would like to gather additional evidence for the prosecution. Such a delay would be tantamount to the use of the summons authority after the recommendation and would permit the Government to expand its criminal discovery rights. Similarly, the good-faith standard will not permit the IRS to become an information-gathering agency for other departments, including the Department of Justice, regardless of the status of criminal s.[19] *318 D summary, then, several requirements emerge for the enforcement of an IRS [20] First, the summons must be issued before the Service recommends to the Department of Justice that a criminal prosecution, which reasonably would relate to the subject matter of the summons, be undertaken. Second, the Service at all times must use the summons authority in good-faith pursuit of the congressionally authorized purposes of 7602. This second prerequisite requires the Service to meet the Powell standards of good faith. It also requires that the Service not abandon in an institutional sense, as explained in Parts III-A and III-C above, the pursuit of civil tax determination or collection. IV On the record before us, respondents have not demonstrated sufficient justification to preclude enforcement of the IRS |
Justice Blackmun | 1,978 | 11 | majority | United States v. LaSalle Nat. Bank | https://www.courtlistener.com/opinion/109901/united-states-v-lasalle-nat-bank/ | not demonstrated sufficient justification to preclude enforcement of the IRS summonses. No recommendation to the Justice Department for criminal prosecution has been made. Of the Powell criteria, respondents challenge only one aspect of the Service's showing: They suggest that Olivero already may possess the evidence requested in the summonses. Brief for Respondents 16-19. Although the record shows that Olivero had uncovered the names and identities of the LaSalle National Bank land trusts, it does not show that the Service knows the value of the trusts or their income or the allocation of interests therein. Because production of the bank's complete records on the trusts reasonably could be expected to reveal part or all of this information, which would be material to the computation *319 of Gattuso's tax liability, the Powell criteria do not preclude enforcement. Finally, the District Court refused enforcement because it found that Olivero's personal motivation was to gather evidence solely for a criminal prosecution. The court, however, failed to consider whether the Service in an institutional sense had abandoned its pursuit of Gattuso's civil tax liability.[21] The Court of Appeals did not require that inquiry. On the record presently developed, we cannot conclude that such an abandonment has occurred. The judgment of the Court of Appeals is therefore reversed with instructions to that court to remand the to the District Court for further proceedings consistent with this opinion. It is so ordered. MR. JUSTICE STEWART, with whom THE CHIEF JUSTICE, MR. JUSTICE REHNQUIST, and MR. |
Justice Stewart | 1,974 | 18 | majority | United States v. General Dynamics Corp. | https://www.courtlistener.com/opinion/108986/united-states-v-general-dynamics-corp/ | On September 22, 1967, the Government commenced this suit in the United District Court for the Northern District of Illinois, challenging as violative of 7 of the Clayton Act, as amended, 15 U.S. C. 18, the acquisition of the stock of United Electric Coal Companies by Material Service Corp. and its successor, General Dynamics Corp. After lengthy discovery proceedings, a trial was held from March 30 to April 22, 1970, and on April 13, 1972, the District Court issued an opinion and judgment finding no violation of the Clayton Act. The Government appealed directly to this Court pursuant to the Expediting Act, 15 U.S. C. 29, and we noted probable jurisdiction. I At the time of the acquisition involved here, Material Service Corp. was a large midwest producer and supplier of building materials, concrete, limestone, and coal. All of its coal production was from deep-shaft mines operated by it or its affiliate, appellee Freeman Coal Mining Corp., and production from these operations *489 amounted to 6.9 million tons of coal in 1959 and 8.4 million tons in 1967. In 1954, Material Service began to acquire the stock of United Electric Coal Companies. United Electric at all relevant times operated only strip or open-pit mines in Illinois and Kentucky; at the time of trial in 1970 a number of its mines had closed and its operations had been reduced to four mines in Illinois and none in Kentucky.[1] In 1959, it produced 3.6 million tons of coal, and by 1967, it had increased this output to 5.7 million tons. Material Service's purchase of United Electric stock continued until 1959. At this point Material's holdings amounted to more than 34% of United Electric's outstanding shares andall parties are now agreed on this pointMaterial had effective control of United Electric. The president of Freeman was elected chairman of United Electric's executive committee, and other changes in the corporate structure of United Electric were made at the behest of Material Service. Some months after this takeover, Material Service was itself acquired by the appellee General Dynamics Corp. General Dynamics is a large diversified corporation, much of its revenues coming from sales of aircraft, communications, and marine products to Government agencies. The trial court found that its purchase of Material Service was part of a broad diversification program aimed at expanding General Dynamics into commercial, nondefense business. As a result of the purchase of Material Service, and through it, of Freeman and United Electric, General Dynamics became the Nation's fifth largest commercial coal producer. During the early 1960's General Dynamics increased its equity in United |
Justice Stewart | 1,974 | 18 | majority | United States v. General Dynamics Corp. | https://www.courtlistener.com/opinion/108986/united-states-v-general-dynamics-corp/ | the early 1960's General Dynamics increased its equity in United *490 Electric by direct purchases of United Electric stock, and by 1966 it held or controlled 66.15% of United Electric's outstanding shares. In September 1966 the board of directors of General Dynamics authorized a tender offer to holders of the remaining United Electric stock. This offer was successful, and United Electric shortly thereafter became a wholly owned subsidiary of General Dynamics. The thrust of the Government's complaint was that the acquisition of United Electric by Material Service in 1959 violated 7 of the Clayton Act[2] because the takeover substantially lessened competition in the production and sale of coal in either or both of two geographic markets. It contended that a relevant "section of the country" within the meaning of 7 was, alternatively, the State of Illinois or the Eastern Interior Coal Province Sales Area, the latter being one of four major coal distribution areas recognized by the coal industry and comprising Illinois and Indiana, and parts of Kentucky Tennessee, Iowa, Minnesota, Wisconsin, and Missouri.[3] *491 At trial controversy focused on three basic issues: the propriety of coal as a "line of commerce," the definition of Illinois or the Eastern Interior Coal Province Sales Area as a relevant "section of the country," and the probability of a lessening of competition within these or any other product and geographic markets resulting from the acquisition. The District Court decided against the Government on each of these issues. As to the relevant product market, the court found that coal faced strong and direct competition from other sources of energy such as oil, natural gas, nuclear energy, and geothermal power which created a cross-elasticity of demand among those various fuels. As a result, it concluded that coal, by itself, was not a permissible product market and that the "energy market" was the sole "line of commerce" in which anticompetitive effects could properly be canvassed. Similarly, the District Court rejected the Government's proposed geographic markets on the ground that they were "based essentially on past and present production statistics and do not relate to actual coal consumption patterns." The court found that a realistic geographic market should be defined in terms of transportation arteries and freight charges that determined the cost of delivered coal to purchasers and thus the competitive position of various coal producers. In particular, it found that freight rate districts, designated by the Interstate Commerce Commission for determining rail transportation rates, of which there were four in the area served by the appellee companies, were the prime determinants for the *492 geographic competitive |
Justice Stewart | 1,974 | 18 | majority | United States v. General Dynamics Corp. | https://www.courtlistener.com/opinion/108986/united-states-v-general-dynamics-corp/ | companies, were the prime determinants for the *492 geographic competitive patterns among coal producers. In addition, the court concluded that two large and specialized coal consumption units were sufficiently differentiable in their coal use patterns to be included as relevant geographic areas.[4] In lieu of the State of Illinois or the Eastern Interior Coal Province Sales Area, the court accordingly found the relevant geographic market to be 10 smaller areas, comprising the two unique consumers together with four utility sales areas and four nonutility sales areas based on the ICC freight rate districts. Finally, and for purposes of this appeal most significantly, the District Court found that the evidence did not support the Government's contention that the 1959 acquisition of United Electric substantially lessened competition in any product or geographic market. This conclusion was based on four determinations made in the court's opinion, First, the court noted that while the number of coal producers in the Eastern Interior Coal Province declined from 144 to 39 during the period of 1957-1967, this reduction "occurred not because small producers have been acquired by others, but as the inevitable result of the change in *493 the nature of demand for coal." Consequently, the court found, "this litigation presents a very different situation from that in such cases as United and United where the Supreme Court was concerned with `preventing even slight increases in concentration.' n. 2." Second, the court noted that United Electric and Freeman were "predominantly complementary in nature" since "United Electric is a strip mining company with no experience in deep mining nor likelihood of acquiring it [and] Freeman is a deep mining company with no experience or expertise in strip mining." Third, the court found that if Commonwealth Edison, a large investor-owned public utility, were excluded, "none of the sales by United Electric in the period 1965 to 1967, the years chosen by the Government for analysis, would have or could have been competitive with Freeman, had the two companies been independent," because of relative distances from potential consumers and the resultant impact on relative competitive position. Finally, the court found that United Electric's coal reserves were so low that its potential to compete with other coal producers in the future was far weaker than the aggregate production statistics relied on by the Government might otherwise have indicated. In particular, the court found that virtually all of United Electric's proved coal reserves were either depleted or already committed by long-term contracts with large customers, and that United Electric's power to affect the price of coal was thus severely limited and |
Justice Stewart | 1,974 | 18 | majority | United States v. General Dynamics Corp. | https://www.courtlistener.com/opinion/108986/united-states-v-general-dynamics-corp/ | affect the price of coal was thus severely limited and steadily diminishing. On the basis of these considerations, the court concluded: "Under these circumstances, continuation of the affiliation between United Electric and Freeman is not adverse *494 to competition, nor would divestiture benefit competition even were this court to accept the Government's unrealistic product and geographic market definitions." II The Government sought to prove a violation of 7 of the Clayton Act principally through statistics showing that within certain geographic markets the coal industry was concentrated among a small number of large producers; that this concentration was increasing; and that the acquisition of United Electric would materially enlarge the market share of the acquiring company and thereby contribute to the trend toward concentration. The concentration of the coal market in Illinois and, alternatively, in the Eastern Interior Coal Province was demonstrated by a table of the shares of the largest two, four, and 10 coal-producing firms in each of these areas for both 1957 and 1967 that revealed the following:[5] Eastern Interior Coal Province Illinois 1957 1967 1957 1967 Top 2 firms 29.6 48.6 37.8 52.9 Top 4 firms 43.0 62.9 54.5 75.2 Top 10 firms 65.5 91.4 84.0 98.0 These statistics, the Government argued, showed not only that the coal industry was concentrated among a small number of leading producers, but that the trend had been toward increasing concentration.[6] Furthermore, the undisputed *495 fact that the number of coal-producing firms in Illinois decreased almost 73% during the period of 1957 to 1967 from 144 to 39 was claimed to be indicative of the same trend. The acquisition of United Electric by Material Service resulted in increased concentration of coal sales among the leading producers in the areas chosen by the Government, as shown by the following table:[7] 1959 1967 Share of Share of Share of Share of top 2 top 2 top 2 top 2 but for given Percent but for given Percent merger merger increase merger merger increase Province 33.1 37.9 14.5 45.0 48.6 8.0 Illinois 36.6 44.3 22.4 44.0 52.9 20.2 Finally, the Government's statistics indicated that the acquisition increased the share of the merged company *496 in the Illinois and Eastern Interior Coal Province coal markets by significant degrees:[8] Province Illinois Share Share Rank (percent) Rank (percent) 1959 Freeman 2 7.6 2 15.1 United Electric 6 4.8 5 8.1 Combined 2 12.4 1 23.2 1967 Freeman 5 6.5 2 12.9 United Electric. 9 4.4 6 8.9 Combined 2 10.9 2 21.8 In prior decisions involving horizontal mergers between competitors, this Court has found prima facie violations |
Justice Stewart | 1,974 | 18 | majority | United States v. General Dynamics Corp. | https://www.courtlistener.com/opinion/108986/united-states-v-general-dynamics-corp/ | mergers between competitors, this Court has found prima facie violations of 7 of the Clayton Act from aggregate statistics of the sort relied on by the United in this case. In Brown the Court reviewed the legislative history of the most recent amendments to the Act and found that "[t]he dominant theme pervading congressional consideration of the 1950 amendments was a fear of what was considered to be a rising tide of economic concentration in the American economy." A year later, in United the Court clarified the relevance of a statistical demonstration of concentration in a particular industry and of the effects *497 thereupon of a merger or acquisition with the following language: "This intense congressional concern with the trend toward concentration warrants dispensing, in certain cases, with elaborate proof of market structure, market behavior, or probable anticompetitive effects. Specifically, we think that a merger which produces a firm controlling an undue percentage share of the relevant market, and results in a significant increase in the concentration of firms in that market, is so inherently likely to lessen competition substantially that it must be enjoined in the absence of evidence clearly showing that the merger is not likely to have such anticompetitive effects." See also United ; United ; United v. Brewing The effect of adopting this approach to a determination of a "substantial" lessening of competition is to allow the Government to rest its case on a showing of even small increases of market share or market concentration in those industries or markets where concentration is already great or has been recently increasing, since "if concentration is already great, the importance of preventing even slight increases in concentration and so preserving the possibility of eventual deconcentration is correspondingly great." United v. Aluminum of America, citing United at 365 n. 42. While the statistical showing proffered by the Government in this case, the accuracy of which was not discredited by the District Court or contested by the appellees, would under this approach have sufficed to *498 support a finding of "undue concentration" in the absence of other considerations, the question before us is whether the District Court was justified in finding that other pertinent factors affecting the coal industry and the business of the appellees mandated a conclusion that no substantial lessening of competition occurred or was threatened by the acquisition of United Electric. We are satisfied that the court's ultimate finding was not in error. In Brown v. United we cautioned that statistics concerning market share and concentration, while of great significance, were not conclusive indicators of anticompetitive effects: |
Justice Stewart | 1,974 | 18 | majority | United States v. General Dynamics Corp. | https://www.courtlistener.com/opinion/108986/united-states-v-general-dynamics-corp/ | of great significance, were not conclusive indicators of anticompetitive effects: "Congress indicated plainly that a merger had to be functionally viewed, in the context of its particular industry." -322. "Statistics reflecting the shares of the market controlled by the industry leaders and the parties to the merger are, of course, the primary index of market power; but only a further examination of the particular marketits structure, history and probable futurecan provide the appropriate setting for judging the probable anticompetitive effect of the merger." at 322 n. 38. See also United at In this case, the District Court assessed the evidence of the "structure, history and probable future" of the coal industry, and on the basis of this assessment found no substantial probability of anticompetitive effects from the merger. Much of the District Court's opinion was devoted to a description of the changes that have affected the coal industry since World War II. On the basis of more than three weeks of testimony and a voluminous record, the court discerned a number of clear and significant developments *499 in the industry. First, it found that coal had become increasingly less able to compete with other sources of energy in many segments of the energy market. Following the War the industry entirely lost its largest single purchaser of coalthe railroadsand faced increasingly stiffer competition from oil and natural gas as sources of energy for industrial and residential uses. Because of these changes in consumption patterns, coal's share of the energy resources consumed in this country fell from 78.4% in 1920 to 21.4% in 1968. The court reviewed evidence attributing this decline not only to the changing relative economies of alternative fuels and to new distribution and consumption patterns, but also to more recent concern with the effect of coal use on the environment and consequent regulation of the extent and means of such coal consumption. Second, the court found that to a growing extent since 1954, the electric utility industry has become the mainstay of coal consumption. While electric utilities consumed only 15.76% of the coal produced nationally in 1947, their share of total consumption increased every year thereafter, and in 1968 amounted to more than 59% of all the coal consumed throughout the Nation.[9] Third, and most significantly, the court found that to an increasing degree, nearly all coal sold to utilities is transferred under long-term requirements contracts, under which coal producers promise to meet utilities' coal consumption requirements for a fixed period of time, and at predetermined prices. The court described the mutual benefits accruing to both producers and consumers |
Justice Stewart | 1,974 | 18 | majority | United States v. General Dynamics Corp. | https://www.courtlistener.com/opinion/108986/united-states-v-general-dynamics-corp/ | described the mutual benefits accruing to both producers and consumers of *500 coal from such long-term contracts in the following terms: "This major investment [in electric utility equipment] can be jeopardized by a disruption in the supply of coal. Utilities are, therefore, concerned with assuring the supply of coal to such a plant over its life. In addition, utilities desire to establish in advance, as closely as possible, what fuel costs will be for the life of the plant. For these reasons, utilities typically arrange long-term contracts for all or at least a major portion of the total fuel requirements for the life of the plant. "The long-term contractual commitments are not only required from the consumer's standpoint, but are also necessary from the viewpoint of the coal supplier. Such commitments may require the development of new mining capacity. Coal producers have been reluctant to invest in new mining capacity in the absence of long-term contractual commitments for the major portion of the mine's capacity. Furthermore, such long-term contractual commitments are often required before financing for the development of new capacity can be obtained by the producer." These developments in the patterns of coal distribution and consumption, the District Court found, have limited the amounts of coal immediately available for "spot" purchases on the open market, since "[t]he growing practice by coal producers of expanding mine capacity only to meet long-term contractual commitments and the gradual disappearance of the small truck mines has tended to limit the production capacity available for spot sales." *501 Because of these fundamental changes in the structure of the market for coal, the District Court was justified in viewing the statistics relied on by the Government as insufficient to sustain its case. Evidence of past production does not, as a matter of logic, necessarily give a proper picture of a company's future ability to compete. In most situations, of course, the unstated assumption is that a company that has maintained a certain share of a market in the recent past will be in a position to do so in the immediate future. Thus, companies that have controlled sufficiently large shares of a concentrated market are barred from merger by 7, not because of their past acts, but because their past performances imply an ability to continue to dominate with at least equal vigor. In markets involving groceries or beer, as in Von's and statistics involving annual sales naturally indicate the power of each company to compete in the future. Evidence of the amount of annual sales is relevant as a prediction of future competitive strength, |
Justice Stewart | 1,974 | 18 | majority | United States v. General Dynamics Corp. | https://www.courtlistener.com/opinion/108986/united-states-v-general-dynamics-corp/ | sales is relevant as a prediction of future competitive strength, since in most markets distribution systems and brand recognition are such significant factors that one may reasonably suppose that a company which has attracted a given number of sales will retain that competitive strength. In the coal market, as analyzed by the District Court, however, statistical evidence of coal production was of considerably less significance. The bulk of the coal produced is delivered under long-term requirements contracts, and such sales thus do not represent the exercise of competitive power but rather the obligation to fulfill previously negotiated contracts at a previously fixed price. The focus of competition in a given time frame is not on the disposition of coal already produced but on the procurement of new long-term supply contracts. In this situation, a company's *502 past ability to produce is of limited significance, since it is in a position to offer for sale neither its past production nor the bulk of the coal it is presently capable of producing, which is typically already committed under a long-term supply contract. A more significant indicator of a company's power effectively to compete with other companies lies in the state of a company's uncommitted reserves of recoverable coal. A company with relatively large supplies of coal which are not already under contract to a consumer will have a more important influence upon competition in the contemporaneous negotiation of supply contracts than a firm with small reserves, even though the latter may presently produce a greater tonnage of coal. In a market where the availability and price of coal are set by long-term contracts rather than immediate or short-term purchases and sales, reserves rather than past production are the best measure of a company's ability to compete. The testimony and exhibits in the District Court revealed that United Electric's coal reserve prospects were "unpromising." United's relative position of strength in reserves was considerably weaker than its past and current ability to produce. While United ranked fifth among Illinois coal producers in terms of annual production, it was 10th in reserve holdings, and controlled less than 1% of the reserves held by coal producers in Illinois, Indiana, and western Kentucky. Many of the reserves held by United had already been depleted at the time of trial, forcing the closing of some of United's midwest mines.[10]*503 Even more significantly, the District Court found that of the 52,033,304 tons of currently mineable reserves in Illinois, Indiana, and Kentucky controlled by United, only four million tons had not already been committed under long-term contracts. United was found |
Justice Stewart | 1,974 | 18 | majority | United States v. General Dynamics Corp. | https://www.courtlistener.com/opinion/108986/united-states-v-general-dynamics-corp/ | not already been committed under long-term contracts. United was found to be facing the future with relatively depleted resources at its disposal, and with the vast majority of those resources already committed under contracts allowing no further adjustment in price. In addition, the District Court found that "United Electric has neither the possibility of acquiring more [reserves] nor the ability to develop deep coal reserves," and thus was not in a position to increase its reserves to replace those already depleted or committed. Viewed in terms of present and future reserve prospects and thus in terms of probable future ability to competerather than in terms of past production, the District Court held that United Electric was a far less significant factor in the coal market than the Government contended or the production statistics seemed to indicate. While the company had been and remained a "highly profitable" and efficient producer of relatively large amounts of coal, its current and future power to compete for subsequent long-term contracts was severely limited by its scarce uncommitted resources.[11] Irrespective of the company's size when viewed as a producer, its weakness as a competitor was properly *504 analyzed by the District Court and fully substantiated that court's conclusion that its acquisition by Material Service would not "substantially lessen competition." The validity of this conclusion is not undermined, we think, by the three-faceted attack made upon it by the Government in this Courtto which we now turn. III First, the Government urges that the court committed legal error by giving undue consideration to facts occurring after the effective acquisition in 1959.[12] In this Court stated that postacquisition evidence tending to diminish the probability or impact of anticompetitive effects might be considered in a 7 case. See also United v. E. I. du Pont de Nemours & 597 et seq., 602 et seq. But in Consolidated and in United the probative value of such evidence was found to be extremely limited, and judgments against the Government were in each instance reversed in part because "too much weight" had been given to postacquisition events. The need for such a limitation is obvious. If a demonstration that no anticompetitive effects had occurred at the time of trial or of judgment constituted a permissible defense to a 7 divestiture suit, violators could stave off such actions *505 merely by refraining from aggressive or anticompetitive behavior when such a suit was threatened or pending.[13] Furthermore, the fact that no concrete anticompetitive symptoms have occurred does not itself imply that competition has not already been affected, "for once the two companies are |
Justice Stewart | 1,974 | 18 | majority | United States v. General Dynamics Corp. | https://www.courtlistener.com/opinion/108986/united-states-v-general-dynamics-corp/ | not already been affected, "for once the two companies are united no one knows what the fate of the acquired company and its competitors would have been but for the merger." FTC v. Consolidated at And, most significantly, 7 deals in "probabilities, not certainties," Brown v. United and the mere nonoccurrence of a substantial lessening of competition in the interval between acquisition and trial does not mean that no substantial lessening will develop thereafter; the essential question remains whether the probability of such future impact exists at the time of trial. *506 In this case, the District Court relied on evidence relating to changes in the patterns and structure of the coal industry and in United Electric's coal reserve situation after the time of acquisition in 1959. Such evidence could not reflect a positive decision on the part of the merged companies to deliberately but temporarily refrain from anticompetitive actions, nor could it reasonably be thought to reflect less active competition than that which might have occurred had there not been an acquisition in 1959. As the District Court convincingly found, the trend toward increased dependence on utilities as consumers of coal and toward the near-exclusive use of long-term contracts was the product of inevitable pressures on the coal industry in all parts of the country. And, unlike evidence showing only that no lessening of competition has yet occurred, the demonstration of weak coal resources necessarily and logically implied that United Electric was not merely disinclined but unable to compete effectively for future contracts. Such evidence went directly to the question of whether future lessening of competition was probable, and the District Court was fully justified in using it. Second, the Government contends that reliance on depleted and committed resources is essentially a "failing company" defense which must meet the strict limits placed on that defense by this Court's decisions in United v. Third National in Nashville, ; Citizen Publishing ; and United v. Greater Buffalo The failing-company doctrine, recognized as a valid defense to a 7 suit in Brown was first announced by this Court in International v. FTC, and was preserved by explicit references in the legislative history of the modern amendments to 7. H. R. Rep. No. 1191, 81st Cong., 1st Sess., 6 ; S. Rep. No. 1775, 81st Cong., 2d Sess., *507 7 (1950). A company invoking the defense has the burden[14] of showing that its "resources [were] so depleted and the prospect of rehabilitation so remote that it faced the grave probability of a business failure" International and further that it tried and failed to |
Justice Stewart | 1,974 | 18 | majority | United States v. General Dynamics Corp. | https://www.courtlistener.com/opinion/108986/united-states-v-general-dynamics-corp/ | failure" International and further that it tried and failed to merge with a company other than the acquiring one, Citizen Publishing ; Greater Buffalo The Government asserts that United Electric was a healthy and thriving company at the time of the acquisition and could not be considered on the brink of failure, and also that the appellees have not shown that Material Service was the only available acquiring company. These considerations would be significant if the District Court had found no violation of 7 by reason of United Electric's being a failing company, but the District Court's conclusion was not, as the Government suggests, identical with or even analogous to such a finding. The failing-company defense presupposes that the effect on competition and the "loss to [the company's] stockholders and injury to the communities where its plants were operated," International will be less if a company continues to exist even as a party to a merger than if it disappears entirely from the market. It is, in a sense, a "lesser of two evils" approach, in which the possible threat to competition resulting from an acquisition is deemed preferable to the adverse impact on competition and other losses if the company goes out of business.[15]*508 The appellees' demonstration of United's weak reserves position, however, proved an entirely different point. Rather than showing that United would have gone out of business but for the merger with Material Service, the finding of inadequate reserves went to the heart of the Government's statistical prima facie case based on production figures and substantiated the District Court's conclusion that United Electric, even if it remained in the market, did not have sufficient reserves to compete effectively for long-term contracts. The failing-company defense is simply inapposite to this finding and the failure of the appellees to meet the prerequisites of that doctrine did not detract from the validity of the court's analysis. Finally, the Government contends that the factual underpinning of the District Court's opinion was not supported by the evidence contained in the record, and should be re-evaluated by this Court. The findings and conclusions of the District Court are, of course, governed by the "clearly erroneous" standard of Fed. Rule Civ. Proc. 52 (a) just as fully on direct appeal to this Court as when a civil case is being reviewed by a court of appeals. The record in this case contains thousands of pages of transcript and hundreds of exhibits. Little purpose would be served by discussing in detail each of the Government's specific factual contentions. Suffice it to say that we find |
Justice Stewart | 1,974 | 18 | majority | United States v. General Dynamics Corp. | https://www.courtlistener.com/opinion/108986/united-states-v-general-dynamics-corp/ | specific factual contentions. Suffice it to say that we find the controlling findings and conclusions contained in the District Court's careful and lengthy opinion to be supported by the evidence in the record and not clearly erroneous. One factual claim by the Government, however, goes to the heart of the reasoning of the District Court and thus is worthy of explicit note here. The Government *509 asserts that the paucity of United Electric's coal reserves could not have the significance perceived by the District Court, since all companies engaged in extracting minerals at some point deplete their reserves and then acquire new reserves or the new technology required to extract more minerals from their existing holdings. United Electric, the Government suggests, could at any point either purchase new strip reserves or acquire the expertise to recover currently held deep reserves. But the District Court specifically found new strip reserves not to be available: "Evidence was presented at trial by experts, by state officials, by industry witnesses and by the Government itself indicating that economically mineable strip reserves that would permit United Electric to continue operations beyond the life of its present mines are not available. The Government failed to come forward with any evidence that such reserves are presently available." In addition, there was considerable testimony at trial, apparently credited by the District Court, indicating that United Electric and others had tried to find additional strip reserves not already held for coal production, and had been largely unable to do so. Moreover, the hypothetical possibility that United Electric might in the future acquire the expertise to mine deep reserves proves nothingor too much. As the Government pointed out in its brief and at oral argument, in recent years a number of companies with no prior experience in extracting coal have purchased coal reserves and entered the coal production business in order to diversify and complement their current operations. The mere possibility that United Electric, in common with all other companies with the inclination and the corporate treasury to do so, could some day expand into an essentially new line of business does not depreciate the validity of *510 the conclusion that United Electric at the time of the trial did not have the power to compete on a significant scale for the procurement of future long-term contracts, nor does it vest in the production statistics relied on by the Government more significance than ascribed to them by the District Court. IV In addition to contending that the District Court erred in finding that the acquisition of United Electric would not |
Justice Stewart | 1,974 | 18 | majority | United States v. General Dynamics Corp. | https://www.courtlistener.com/opinion/108986/united-states-v-general-dynamics-corp/ | in finding that the acquisition of United Electric would not substantially lessen competition, the Government urges us to review the court's determinations of the proper product and geographic markets. The Government suggests that while the "energy market" might have been an appropriate "line of commerce," coal also had sufficient "practical indicia" as a separate "line of commerce" to qualify as an independent and consistent submarket. Cf. United -457. It also suggests that irrespective of the validity of the criteria adopted by the District Court in selecting its 10 geographic markets, competition between United Electric and Material Service within the larger alternative geographic markets claimed by the Government established those areas as a permissible "section of the country" within the meaning of 7. While under normal circumstances a delineation of proper geographic and product markets is a necessary precondition to assessment of the probabilities of a substantial effect on competition within them, in this case we nevertheless affirm the District Court's judgment without reaching these questions. By determining that the amount and availability of usable reserves, and not the past annual production figures relied on by the Government, were the proper indicators of future ability to compete, the District Court wholly rejected the Government's *511 prima facie case. Irrespective of the markets within which the acquiring and the acquired company might be viewed as competitors for purposes of this 7 suit, the Government's statistical presentation simply did not establish that a substantial lessening of competition was likely to occur in any market. By concluding that "divestiture [would not] benefit competition even were this court to accept the Government's unrealistic product and geographic market definitions," 341 F. Supp., the District Court rendered superfluous its further determinations that the Government also erred in its choice of relevant markets. Since we agree with the District Court that the Government's reliance on production statistics in the context of this case was insufficient, it follows that the judgment before us may be affirmed without reaching the issues of geographic and product markets. The judgment of the District Court is affirmed. It is so ordered. MR. JUSTICE DOUGLAS, with whom MR. JUSTICE BRENNAN, MR. JUSTICE WHITE, and MR. |
Justice Thomas | 2,005 | 1 | dissenting | Clark v. Martinez | https://www.courtlistener.com/opinion/137741/clark-v-martinez/ | Title 8 U.S. C. 1231(a)(6) states that aliens whom the Secretary of Homeland Security has ordered removed "may be detained beyond the removal period." Nevertheless, in this Court construed this provision "to contain an implicit `reasonable time' limitation" on the Secretary's power to detain admitted aliens "[b]ased on our conclusion that indefinite detention of" those aliens "would raise serious constitutional " "Aliens who have not yet gained initial admission to this country," the Court assured us, "would present a very different question." Today, the Court holds that this constitutional distinctionwhich "made all the difference" to the Court, at 693is actually irrelevant, because "[t]he operative language of 1231(a)(6) applies without differentiation to all three categories of aliens that are its subject." Ante, at 378. While I wholeheartedly agree with the Court's fidelity to the text of 1231(a)(6), the Court's analysis cannot be squared with And even if it could be so squared, was wrongly decided and should be overruled. I respectfully dissent. I I begin by addressing the majority's interpretation of The Court's interpretation is not a fair reading of that case. It is also not required by any sound principle of statutory construction of which I am aware. To the contrary, *389 what drives the majority's reading is a novel "lowest common denominator" principle. Ante, at 380. A The majority's reading of is implausible. held that interpreting 1231(a)(6) to authorize indefinite detention of admitted aliens later found removable would raise serious due process -696. The Court therefore read the statute to permit the Attorney General (now the Secretary of Homeland Security) to detain admitted aliens only as long as reasonably necessary to remove them from the country. The majority concedes that explicitly reserved the question whether its statutory holding as to admitted aliens applied equally to inadmissible Ante, at 379. This reservation was front and center in It appeared in the introduction and is worth repeating in full: "In these cases, we must decide whether [ 1231(a)(6)] authorizes the Attorney General to detain a removable alien indefinitely beyond the removal period or only for a period reasonably necessary to secure the alien's removal. We deal here with aliens who were admitted to the United States but subsequently ordered removed. Aliens who have not yet gained initial admission to this country would present a very different question. Based on our conclusion that indefinite detention of aliens in the former category would raise serious constitutional concerns, we construe the statute to contain an implicit `reasonable time' limitation, the application of which is subject to federal-court review." 533 U.S., The Court reserved this |
Justice Thomas | 2,005 | 1 | dissenting | Clark v. Martinez | https://www.courtlistener.com/opinion/137741/clark-v-martinez/ | subject to federal-court review." 533 U.S., The Court reserved this question because the constitutional questions raised by detaining inadmissible aliens are different from those raised by detaining admitted It stated that the detention period in 1231(a)(6) was limited *390 because it "read [the statute] in light of the Constitution's demands." And it repeatedly emphasized constitutional distinctions among various groups of aliens, for which 1231(a)(6) makes no distinctions. See ; ; The majority's reading of is inconsistent with these qualifications. If it were true that ' interpretation of 1231(a)(6) applied to all aliens regardless of the constitutional concerns involved in each case, then the question of how 1231(a)(6) applies to them would not be "very different" depending on the alien before the Court. The question would be trivial because the text of 1231(a)(6) plainly does not distinguish between admitted and nonadmitted There would also have been no need for the Court to go out of its way to leave aside "terrorism or other special circumstances," or to disavow "consider[ation of] the political branches' authority to control entry into the United States," for the construction the majority extracts from would have applied across the board, And the Court's rationalization that its construction would therefore "leave no unprotected spot in the Nation's armor," -696 would have been incorrect. The constitutional distinctions that pervade are evidence that the "very different" statutory question it reserved turned on them. The Court thus tethered its reading of 1231(a)(6) to the specific class of aliens before it. The term this Court read into the statute was not simply a presumptive *391 6-month period, but a presumptive 6-month period for admitted Its reading of the statute "in light of the Constitution's demands," that is, depended on the constitutional considerations at work in "the cases before [it]," One would expect the Court today, then, to follow the same two-step procedure it employed in It should first ask whether the statute is ambiguous and, if so, whether one of the possible interpretations raises constitutional doubts as applied to respondent Martinez and petitioner Benitez. Step one is dictated by : Section 1231(a)(6) is not clear on whether it permits indefinite detention. The Court should then move to the second step and ask whether either of the statute's possible interpretations raises constitutional doubts as applied to Benitez and Martinez. If so, the Court would apply avoidance to adopt the interpretation free from constitutional doubt (as itself did). The Court's reasons for departing from this reading of are unpersuasive. The Court says that its reading is necessary to avoid "invent[ing] a statute rather than |
Justice Thomas | 2,005 | 1 | dissenting | Clark v. Martinez | https://www.courtlistener.com/opinion/137741/clark-v-martinez/ | reading is necessary to avoid "invent[ing] a statute rather than interpret[ing] one," ante, at 378; to preclude "giving the same detention provision a different meaning" depending on the aliens before the Court, ante, at 380 ; and to forestall establishing "the dangerous principle that judges can give the same statutory text different meanings in different cases," ante, at 386. I agree that we should adopt none of these principles, but this is no warrant for the reading of that the majority advocates. established a single and unchanging, if implausible, meaning of 1231(a)(6): that the detention period authorized by 1231(a)(6) depends not only on the circumstances surrounding a removal, but also on the type of alien ordered removed. I grant that this understanding of could result in different detention periods for different classes of aliens indefinite detention for some, limited detention for others. *392 But it does not follow that this reads the meaning of the statute to "change" depending on the alien involved, any more than the meaning of the statute could be said to "change" simply because the time that is "reasonably necessary to effect removal" may differ depending on the type of alien involved, as both the Court's opinion, ante, at 386, and JUSTICE O'CONNOR's concurring opinion, ante, at 387, concede it may. A statute's sense is the same even if what it requires depends on factual context. In support of its reading of the Court relies on a statement in a dissent in that 1231(a)(6) could not be given a different reading for inadmissible Ante, at 379-380 (citing -711, 717 ). That dissenting view, as the very quotation the majority stresses demonstrates, rested on the dissent's premise that "it is not a plausible construction of 1231(a)(6) to imply a time limit as to one class but not to another." But the majority disagreed with that assumption and adopted a contrary interpretation of 1231(a)(6). For as the dissent recognized, ' "logic might be that inadmissible and removable aliens can be treated differently." That was ' logic precisely, as its repeated statements limiting its decision to inadmissible aliens show. To interpret properly, we must take its logic as given, not the logic of the reductio ad absurdum of that I joined in dissent. B The majority strains to recharacterize because it thinks that "[i]t is not at all unusual to give a statute's ambiguous language a limiting construction called for by one of the statute's applications, even though other of the statute's applications, standing alone, would not support the same limitation." Ante, at 380. In other words, it claims, |
Justice Thomas | 2,005 | 1 | dissenting | Clark v. Martinez | https://www.courtlistener.com/opinion/137741/clark-v-martinez/ | same limitation." Ante, at 380. In other words, it claims, "[t]he lowest common denominator, as it were, must govern." I disagree. *393 As an initial matter, this principle is inconsistent with itself. As explained above, the limiting construction adopted as to admitted aliens does not necessarily govern the other applications of 1231(a)(6). If the majority is correct that the "lowest common denominator" governs, then the careful distinction drew between admitted aliens and nonadmitted aliens was irrelevant at best and misleading at worst. Under this reading, would have come out the same way even if it had involved inadmissible aliens, for the "lowest common denominator" of the statute remains the same regardless of the identity of the alien before the Court. Again, this understanding of is implausible. Beyond the Court offers scant support for the idea that statutes should be stripped down to their "lowest common denominator[s]." It attempts to distinguish and ante, at 383, and n. 6, yet these cases employed exactly the procedure that the majority today says is impermissible. They construed 28 U.S. C. 1367(d),[1] a tolling provision, to apply to States and political subdivisions of States only to the extent that doing so would raise a constitutional doubt as applied to either entity. Jinks was explicit on this point: "Although we held in [Raygor] that 1367(d) does not apply to claims filed in federal court against States but subsequently dismissed on sovereign immunity grounds, we did so to avoid interpreting the statute in a manner that would raise `serious constitutional doubt' in light of our decisions protecting a State's sovereign immunity *394 from congressional abrogation [N]o such constitutional doubt arises from holding that petitioner's claim against respondentwhich is not a State, but a political subdivision of a Statefalls under the definition of `any claim asserted under subsection (a) [of 1367].'" This passage reads the meaning of 1367(d)which applies to "any claim asserted under subsection (a)" of 1367to hinge on the constitutional context. The Court is correct that Jinks and Raygor "hold that the single and unchanging disposition of 1367(d) does not apply to claims against States." Ante, at 383. But as the Court concedes, Jinks reached that holding only after analyzing whether the constitutional doubts at issue in Raygor applied to the county defendant. Ante, at 383-384, n. 6. The Court's failure to do the same here cannot be reconciled with Jinks and Raygor: the Court should ask whether the constitutional concerns that justified the requirement of a clear statement in apply as well to inadmissible The Court's "lowest common denominator" principle is also in tension with |
Justice Thomas | 2,005 | 1 | dissenting | Clark v. Martinez | https://www.courtlistener.com/opinion/137741/clark-v-martinez/ | Court's "lowest common denominator" principle is also in tension with There, we rejected an argument that the federal bribery statute, 18 U.S.C. 666(a)(1)(B), should be construed to avoid constitutional doubts, in part on the ground that there was "no serious doubt about the constitutionality of 666(a)(1)(B) as applied to the facts of this case." Unlike the Court's approach to avoidance today, we disclaimed examination of the constitutionality of applications not before the Court: "Whatever might be said about 666(a)(1)(B)'s application in other cases, the application of 666(a)(1)(B) did not extend federal power beyond its proper bounds." The Court is mistaken that this passage in Salinas was a rejection of a constitutional argument on its merits. Ante, at 381, n. 5. Salinas, the petitioner, phrased his question presented solely in terms of the proper statutory interpretation of *395 666(a)(1)(B), Brief for Petitioner, O. T. 1996, No. 96-738, p. i, and never claimed that the statute was unconstitutional, see generally C More importantly, however, the Court's "lowest common denominator" principle is inconsistent with the history of the canon of avoidance and is likely to have mischievous consequences. The modern canon of avoidance is a doctrine under which courts construe ambiguous statutes to avoid constitutional doubts, but this doctrine has its origins in a very different form of the canon. Traditionally, the avoidance canon was not a doctrine under which courts read statutes to avoid mere constitutional doubts. Instead, it commanded courts, when faced with two plausible constructions of a statuteone constitutional and the other unconstitutionalto choose the constitutional reading.[2] The traditional version of the canon thus requires courts to reach the issue whether the doubtful version of the statute is constitutional before adopting the construction that saves the statute from constitutional invalidity. A court faced with an ambiguous statute applies traditional avoidance by asking whether, given two plausible interpretations of that statute, one would be unconstitutional as applied to the plaintiff; and, if that interpretation is actually unconstitutional as applied to the plaintiff, the court picks the other (constitutional) reading. *396 The court does not inquire whether either of the interpretations would be unconstitutional if applied to third parties not before the court, unless the challenge is facial or otherwise implicates third-party rights. This history suggests that the "lowest common denominator" principle is mistaken. Courts applying the modern version of the canon of avoidance should no more look to the rights of third parties than do courts using the traditional version. Under modern avoidance, in other words, an ambiguous statute should be read to avoid a constitutional doubt only if the statute |
Justice Thomas | 2,005 | 1 | dissenting | Clark v. Martinez | https://www.courtlistener.com/opinion/137741/clark-v-martinez/ | read to avoid a constitutional doubt only if the statute is constitutionally doubtful as applied to the litigant before the court (again, unless the constitutional challenge involves third-party rights). Yet the Court's lowest common denominator principle allows a limiting construction of an ambiguous statute prompted by constitutional doubts to infect other applications of the statute even if the statute raises no constitutional doubt as applied to the specific litigant in a given case and even if the constitutionally unproblematic application of the statute to the litigant is severable from the constitutionally dubious applications. The lowest common denominator principle thus allows an end run around black-letter constitutional doctrine governing facial and as-applied constitutional challenges to statutes: A litigant ordinarily cannot attack statutes as constitutionally invalid based on constitutional doubts concerning other litigants or factual circumstances. The Court misses the point by answering that the canon of constitutional avoidance "is not a method of adjudicating constitutional questions by other means," and that the canon rests on a presumption that "Congress did not intend the alternative which raises serious constitutional doubts." Ante, at 381. That is true, but in deciding whether a plausible interpretation "raises serious constitutional doubts," a court must employ the usual rules of constitutional adjudication. *397 See ante, at 381 (noting that whether an interpretation is constitutionally doubtful turns on whether it raises "a multitude of constitutional problems"); -696 Those rules include doctrines governing third-party constitutional challenges and the like. Moreover, the reason that courts perform avoidance at all, in any form, is that we assume "Congress intends statutes to have effect to the full extent the Constitution allows." United States v. Booker, ante, at 320 (THOMAS, J., dissenting in part). Only my approach would extend 1231(a)(6) to its full constitutional bound consistent with modern avoidance, by narrowing the statute on a case-by-case basis only if constitutional concerns are actually present. By contrast, under the majority's lowest common denominator principle, a statute like 1231(a)(6) must be narrowed once and for all based on constitutional concerns that may never materialize. In short, once narrowed in 1231(a)(6) now limits the Executive's power to detain unadmitted alienseven though indefinite detention of unadmitted aliens may be perfectly constitutional. All of this shows why the sole support the majority offers for its lowest common denominator principle can be squared with my analysis. That support is a plurality opinion of this Court (reaffirmed by footnote dictum in Leocal v. Ashcroft, ante, at 11-12, n. 8), that stated that the rule of lenity applies to statutes so long as they have some criminal applications. Ante, at 380 |
Justice Thomas | 2,005 | 1 | dissenting | Clark v. Martinez | https://www.courtlistener.com/opinion/137741/clark-v-martinez/ | long as they have some criminal applications. Ante, at 380 (citing United States v. Thompson/Center Arms Co., 504 U. S 505, 517 (1992)). To the extent that the rule of lenity is a constitutionally based clear statement rule, it is like vagueness doctrine, as its purpose is to ensure that those subjected to criminal prosecution have adequate notice of the conduct that the law prohibits. Cf., e. g., Thompson/Center Arms is thus distinguishable, because our rules governing third-party *398 challenges (rightly or wrongly) are more lenient in vagueness cases.[3], by contrast, was a straightforward as-applied constitutional challenge. It concerned a constitutional doubt that arose from 1231(a)(6)'s application to the respondents there, not its hypothetical application to other aliens, as its careful distinction between admitted and inadmissible aliens shows. To the extent that the rule of lenity is a nonconstitutionally based presumption about the interpretation of criminal statutes, the Thompson/Center Arms interpretive principle is fundamentally different from the canon of constitutional avoidance, because the rule of lenity is wholly independent of the rules governing constitutional adjudication. Either way, this case does not support the majority's restatement of modern avoidance principles. The cases at bar illustrate well the exception to the normal operation of as-applied constitutional adjudication that the Court's approach creates. Congress explicitly provided that unconstitutional applications of 1231(a)(6) should be severed from constitutional applications.[4] Congress has thus indicated that courts should examine whether 1231(a)(6) raises a constitutional doubt application by application. After all, under the severability clause, if had held unconstitutional the indefinite detention of respondents and Ma, the constitutionality of the Secretary's indefinite detention of Benitez and Martinez would remain an open question. Although did not formally hold 1231(a)(6) to be unconstitutional as applied to the aliens before it, the same procedure should be followed when analyzing *399 whether 1231(a)(6) raises a constitutional doubt.[5] The Court today limits applications of 1231(a)(6) that may well be constitutional solely on the basis of constitutional doubts as to other applications, and despite that the severability clause contemplates application-by-application examination of the statute's constitutionality. The Court misapprehends my interpretive approach. It suggests that I would "spare [us] the necessity of ever finding a statute unconstitutional as applied," ante, at 384, and "would render every statute a chameleon, its meaning subject to change depending on the presence or absence of constitutional concerns in each individual case," ante, at 382. My approach does none of this. I simply would read ambiguous statutes to avoid as-applied constitutional doubts only if those doubts are present in the case before the Court. This leaves plenty of room for |
Justice Thomas | 2,005 | 1 | dissenting | Clark v. Martinez | https://www.courtlistener.com/opinion/137741/clark-v-martinez/ | case before the Court. This leaves plenty of room for as-applied invalidation of statutes that are unambiguously unconstitutional. Nor would I permit a court to read every statute's meaning to depend on constitutional That is permissible, in my view, only if the statute is ambiguous. Granted, I am thereby guilty of leaving courts free to interpret ambiguous statutes "as becoming inoperative when they `approach constitutional limits.'" Ante, at 384. That is hardly an absurd result unless one considers the modern canon of constitutional *400 avoidance itself to be absurd. Every application of that canon, by rejecting a plausible interpretation of a statute, reads the statute to be inoperative to the extent it raises a constitutional doubt or "limit." In truth, the Court's aggressive application of modern constitutional avoidance doctrine poses the greater danger. A disturbing number of this Court's cases have applied the canon of constitutional doubt to statutes that were on their face clear. See, e. g., 3-336 ; Public ; This Court and others may now employ the "lowest common denominator" approach to limit the application of statutes wholesale by searching for hypothetical unconstitutional applications of themor, worse yet, hypothetical constitutional doubtsdespite the absence of any facial constitutional problem (at least, so long as those hypothetical doubts pose "a multitude of constitutional problems," ante, at 380-381). This is so even if Congress has expressed its clear intent that unconstitutional applications should be severed from constitutional applications, regardless of whether the challenger has third-party standing to raise the constitutional issue, and without the need to engage in full-fledged constitutional analysis. This danger is real. In St. this Court held that the Immigration and Nationality Act (INA) did not divest district courts of jurisdiction under 28 U.S. C. 2241 over habeas actions filed by criminal aliens to challenge removal The Court did so because it thought that otherwise the statute would preclude any avenue of judicial review of removal of criminal aliens, thus raising a serious Suspension Clause question. This was a construction of (among other provisions) 8 U.S. C. 1252(a)(1) and 1252(b)(9), and 28 U.S. C. 2241, none of which distinguishes between criminal and noncriminal *401 -314. The INA, however, clearly allows noncriminal aliens, unlike criminal aliens, a right to judicial review of removal decisions in the courts of appeals under the review provisions of 1252(a)(1), and St. involved only criminal After St. therefore, one would have thought that "noncriminal aliens seeking to challenge their removal [would] still presumably be required to proceed directly to the court of appeals by way of petition for review, under the restrictive modified |
Justice Thomas | 2,005 | 1 | dissenting | Clark v. Martinez | https://www.courtlistener.com/opinion/137741/clark-v-martinez/ | by way of petition for review, under the restrictive modified Hobbs Act review provisions set forth in 1252(a)(1)," rather than sue directly under the habeas statute. Yet lower courts, relying on a version of the Court's "lowest common denominator" principle, have held just the opposite: They have entertained noncriminal aliens' habeas actions challenging removal ; see also ; The logic in allowing noncriminal aliens, who have a right to judicial review of removal decisions, to take advantage of constitutional doubt that arises from precluding any avenue of judicial review for criminal aliens, see St. escapes me. II The Court is also mistaken in affording stare decisis effect. was wrong in both its statutory and its constitutional analysis for the reasons expressed well by the dissents in that case. See -718 ; I continue to adhere to those views and will not repeat the analysis of my colleagues. I write only to explain why I do not consider to bind us. cast itself as a statutory case, but that fact should not prevent us from overruling it. It is true that we give stronger stare decisis effect to our holdings in statutory *402 cases than in constitutional cases. See, e. g., This rule, however, is not absolute, and we should not hesitate to allow our precedent to yield to the true meaning of an Act of Congress when our statutory precedent is "unworkable" or "badly reasoned." ). "[W]e have never applied stare decisis mechanically to prohibit overruling our earlier decisions determining the meaning of statutes." The mere fact that Congress can overturn our cases by statute is no excuse for failing to overrule a statutory precedent of ours that is clearly wrong, for the realities of the legislative process often preclude readopting the original meaning of a statute that we have upset. ' reading of 1231(a)(6) is untenable. Section 1231(a)(6) provides that aliens whom the Secretary of Homeland Security has ordered removed "may be detained beyond the removal period." There is no qualification to this authorization, and no reference to a "reasonable time" limitation. Just as we exhaust the aid of the "traditional tools of statutory construction," Chevron U. S. A. before deferring to an agency's interpretation of a statute, so too should we exhaust those tools before deciding that a statute is ambiguous and that an alternative plausible construction of the statute should be adopted. Application of those traditional tools begins and ends with the text of 1231(a)(6). ' observation that "if Congress had meant to authorize long-term detention of unremovable aliens, it certainly could have spoken in clearer terms," |
Justice Thomas | 2,005 | 1 | dissenting | Clark v. Martinez | https://www.courtlistener.com/opinion/137741/clark-v-martinez/ | unremovable aliens, it certainly could have spoken in clearer terms," proves nothing. Congress could have spoken more clearly in any statutory case in which the statute does not mention the particular factual scenario before *403 the Court. Congress provided for a "reasonable time" limit to detentions pending removal in other portions of 1231. Its failure to do the same in 1231(a)(6) confirms what is unmistakable from its terms: that there is no time limit on the Secretary's power to detain There is no textually evident alternative construction that would avoid the constitutional doubts identified by the majority. Even apart from the Court's incredible reading of 1231(a)(6), the normal reason for affording our statutory holdings strong stare decisis effectthat Congress is free to overrule them if it disagreesdoes not apply to is a statutory case in name only. Although the majority purported to find indefinite detention only constitutionally doubtful, its lengthy analysis strongly signaled to Congress that indefinite detention of admitted aliens would be unconstitutional. Indeed, far from avoiding that constitutional question in the Court took it head on, giving it extended treatment. ; but see ante, at 381 (noting the "fundamenta[l]" tenet that "[t]he canon [of constitutional avoidance] is not a method of adjudicating constitutional questions by other means"). makes clear that the Court thought indefinite detention to be more than constitutionally suspect, and there is evidence that some Members of Congress understood as much.[6] This is why the Court's assurance that if "the security of our b *404 will be compromised if [the United States] must release into the country inadmissible aliens who cannot be removed[,] Congress can attend to it," ante, at 386, rings hollow. Short of constitutional amendment, it is only within the power of this Court to correct ' error. The Court points to 8 U.S. C. 1226a(a)(6) (2000 ed., Supp. II), a statute that Congress passed shortly after as evidence that Congress can correct ' mistake. Ante, at 386, n. 8. This statute only confirms my concern that is legislatively uncorrectable. Section 1226a(a)(6) authorizes detention for a period of six months beyond the removal period of aliens who present a national security threat, but only to the extent that those aliens' removal is not reasonably foreseeable. Ante, at 386, n. 8. Yet conceded that indefinite detention might not violate due process in "certain special and narrow nonpunitive circumstances where a special justification, such as harm-threatening mental illness, outweighs the individual's constitutionally protected interest in avoiding physical restraint." Moreover, set a 6-month presumptive outer limit on the detention power. Congress crafted 1226a(a)(6) to operate within the |
Justice White | 1,970 | 6 | majority | Brady v. United States | https://www.courtlistener.com/opinion/108137/brady-v-united-states/ | In 1959, petitioner was charged with kidnaping in violation of 18 U.S. C. 1201 (a).[1] Since the indictment charged that the victim of the kidnaping was not liberated unharmed, petitioner faced a maximum penalty of death if the verdict of the jury should so recommend. Petitioner, represented by competent counsel throughout, first elected to plead not guilty. Apparently because the trial judge was unwilling to try the case without a jury, petitioner made no serious attempt to reduce the possibility of a death penalty by waiving a jury trial. Upon learning that his codefendant, who had confessed to the authorities, would plead guilty and be available to testify against him, petitioner changed his plea to guilty. His plea was accepted after the trial judge twice questioned him as to the voluntariness of his plea.[2]*744 Petitioner was sentenced to 50 years' imprisonment, later reduced to 30. In petitioner sought relief under 28 U.S. C. 2255, claiming that his plea of guilty was not voluntarily given because 1201 (a) operated to coerce his plea, because his counsel exerted impermissible pressure upon him, and because his plea was induced by representations with respect to reduction of sentence and clemency. It was also alleged that the trial judge had not fully complied with Rule 11 of the Federal Rules of Criminal Procedure.[3] *745 After a hearing, the District Court for the District of New Mexico denied relief. According to the District Court's findings, petitioner's counsel did not put impermissible pressure on petitioner to plead guilty and no representations were made with respect to a reduced sentence or clemency. The court held that 1201 (a) was constitutional and found that petitioner decided to plead guilty when he learned that his codefendant was going to plead guilty: petitioner pleaded guilty "by reason of other matters and not by reason of the statute" or because of any acts of the trial judge. The court concluded that "the plea was voluntarily and knowingly made." The Court of Appeals for the Tenth Circuit affirmed, determining that the District Court's findings were supported by substantial evidence and specifically approving the finding that petitioner's plea of guilty was voluntary. We granted certiorari, to consider the claim that the Court of Appeals was in error in not reaching a contrary result on the authority of this Court's decision in United We affirm. I In United the defendants were indicted under 1201 (a). The District Court dismissed the 1201 (a) count of the indictment, holding *746 the statute unconstitutional because it permitted imposition of the death sentence only upon a jury's recommendation and |
Justice White | 1,970 | 6 | majority | Brady v. United States | https://www.courtlistener.com/opinion/108137/brady-v-united-states/ | of the death sentence only upon a jury's recommendation and thereby made the risk of death the price of a jury trial. This Court held the statute valid, except for the death penalty provision; with respect to the latter, the Court agreed with the trial court "that the death penalty provision imposes an impermissible burden upon the exercise of a constitutional right" The problem was to determine "whether the Constitution permits the establishment of such a death penalty, applicable only to those defendants who assert the right to contest their guilt before a jury." The inevitable effect of the provision was said to be to discourage assertion of the Fifth Amendment right not to plead guilty and to deter exercise of the Sixth Amendment right to demand a jury trial. Because the legitimate goal of limiting the death penalty to cases in which a jury recommends it could be achieved without penalizing those defendants who plead not guilty and elect a jury trial, the death penalty provision "needlessly penalize[d] the assertion of a constitutional right," and was therefore unconstitutional. Since the "inevitable effect" of the death penalty provision of 1201 (a) was said by the Court to be the needless encouragement of pleas of guilty and waivers of jury trial, Brady contends that requires the invalidation of every plea of guilty entered under that section, at least when the fear of death is shown to have been a factor in the plea. Petitioner, however, has read far too much into the opinion. The Court made it clear in that it was not holding 1201 (a) inherently coercive of guilty pleas: "the fact that the Federal Kidnaping Act tends to discourage defendants from insisting upon their innocence and demanding trial by jury hardly implies that *747 every defendant who enters a guilty plea to a charge under the Act does so involuntarily." Cited in support of this n. 25, was where a plea of guilty (non vult) under a similar statute was sustained as voluntary in spite of the fact, as found by the District Court, that the defendant was greatly upset by the possibility of receiving the death penalty. Moreover, the Court in rejected a suggestion that the death penalty provision of 1201 (a) be saved by prohibiting in capital kidnaping cases all guilty pleas and jury waivers, "however clear [the defendants'] guilt and however strong their desire to acknowledge it in order to spare themselves and their families the spectacle and expense of protracted courtroom proceedings." "[T]hat jury waivers and guilty pleas may occasionally be rejected" was no ground |
Justice White | 1,970 | 6 | majority | Brady v. United States | https://www.courtlistener.com/opinion/108137/brady-v-united-states/ | and guilty pleas may occasionally be rejected" was no ground for automatically rejecting all guilty pleas under the statute, for such a rule "would rob the criminal process of much of its flexibility." Plainly, it seems to us, ruled neither that all pleas of guilty encouraged by the fear of a possible death sentence are involuntary pleas nor that such encouraged pleas are invalid whether involuntary or not. prohibits the imposition of the death penalty under 1201 (a), but that decision neither fashioned a new standard for judging the validity of guilty pleas nor mandated a new application of the test theretofore fashioned by courts and since reiterated that guilty pleas are valid if both "voluntary" and "intelligent." See[4] *748 That a guilty plea is a grave and solemn act to be accepted only with care and discernment has long been recognized. Central to the plea and the foundation for entering judgment against the defendant is the defendant's admission in open court that he committed the acts charged in the indictment. He thus stands as a witness against himself and he is shielded by the Fifth Amendment from being compelled to do sohence the minimum requirement that his plea be the voluntary expression of his own choice.[5] But the plea is more than an admission of past conduct; it is the defendant's consent that judgment of conviction may be entered without a triala waiver of his right to trial before a jury or a judge. Waivers of constitutional rights not only must be voluntary but must be knowing, intelligent acts done with sufficient awareness of the relevant circumstances and likely consequences.[6] On neither score was Brady's plea of guilty invalid. *749 II The trial judge in 1959 found the plea voluntary before accepting it; the District Court in after an evidentiary hearing, found that the plea was voluntarily made; the Court of Appeals specifically approved the finding of voluntariness. We see no reason on this record to disturb the judgment of those courts. Petitioner, advised by competent counsel, tendered his plea after his codefendant, who had already given a confession, determined to plead guilty and became available to testify against petitioner. It was this development that the District Court found to have triggered Brady's guilty plea. The voluntariness of Brady's plea can be determined only by considering all of the relevant circumstances surrounding it. Cf. ; One of these circumstances was the possibility of a heavier sentence following a guilty verdict after a trial. It may be that Brady, faced with a strong case against him and recognizing that his |
Justice White | 1,970 | 6 | majority | Brady v. United States | https://www.courtlistener.com/opinion/108137/brady-v-united-states/ | with a strong case against him and recognizing that his chances for acquittal were slight, preferred to plead guilty and thus limit the penalty to life imprisonment rather than to elect a jury trial which could result in a death penalty.[7] But *750 even if we assume that Brady would not have pleaded guilty except for the death penalty provision of 1201 (a), this assumption merely identifies the penalty provision as a "but for" cause of his plea. That the statute caused the plea in this sense does not necessarily prove that the plea was coerced and invalid as an involuntary act. The State to some degree encourages pleas of guilty at every important step in the criminal process. For some people, their breach of a State's law is alone sufficient reason for surrendering themselves and accepting punishment. For others, apprehension and charge, both threatening acts by the Government, jar them into admitting their guilt. In still other cases, the post-indictment accumulation of evidence may convince the defendant and his counsel that a trial is not worth the agony and expense to the defendant and his family. All these pleas of guilty are valid in spite of the State's responsibility for some of the factors motivating the pleas; the pleas are no more improperly compelled than is the decision by a defendant at the close of the State's evidence at trial that he must take the stand or face certain conviction. Of course, the agents of the State may not produce a plea by actual or threatened physical harm or by mental coercion overbearing the will of the defendant. But nothing of the sort is claimed in this case; nor is there evidence that Brady was so gripped by fear of the death penalty or hope of leniency that he did not or could not, with the help of counsel, rationally weigh the advantages of going to trial against the advantages of pleading guilty. Brady's claim is of a different sort: that it violates the Fifth Amendment to influence or encourage a guilty plea by opportunity or promise of leniency and that a guilty plea is coerced and invalid if influenced by the fear of a possibly higher penalty for *751 the crime charged if a conviction is obtained after the State is put to its proof. Insofar as the voluntariness of his plea is concerned, there is little to differentiate Brady from (1) the defendant, in a jurisdiction where the judge and jury have the same range of sentencing power, who pleads guilty because his lawyer advises him that |
Justice White | 1,970 | 6 | majority | Brady v. United States | https://www.courtlistener.com/opinion/108137/brady-v-united-states/ | power, who pleads guilty because his lawyer advises him that the judge will very probably be more lenient than the jury; (2) the defendant, in a jurisdiction where the judge alone has sentencing power, who is advised by counsel that the judge is normally more lenient with defendants who plead guilty than with those who go to trial; (3) the defendant who is permitted by prosecutor and judge to plead guilty to a lesser offense included in the offense charged; and (4) the defendant who pleads guilty to certain counts with the understanding that other charges will be dropped. In each of these situations,[8] as in Brady's case, the defendant might never plead guilty absent the possibility or certainty that the plea will result in a lesser penalty than the sentence that could be imposed after a trial and a verdict of guilty. We decline to hold, however, that a guilty plea is compelled and invalid under the Fifth Amendment whenever motivated by the defendant's desire to accept the certainty or probability of a lesser penalty rather than face a wider range of possibilities extending from acquittal to conviction and a higher penalty authorized by law for the crime charged. The issue we deal with is inherent in the criminal law and its administration because guilty pleas are not *752 constitutionally forbidden, because the criminal law characteristically extends to judge or jury a range of choice in setting the sentence in individual cases, and because both the State and the defendant often find it advantageous to preclude the possibility of the maximum penalty authorized by law. For a defendant who sees slight possibility of acquittal, the advantages of pleading guilty and limiting the probable penalty are obvious his exposure is reduced, the correctional processes can begin immediately, and the practical burdens of a trial are eliminated. For the State there are also advantages the more promptly imposed punishment after an admission of guilt may more effectively attain the objectives of punishment; and with the avoidance of trial, scarce judicial and prosecutorial resources are conserved for those cases in which there is a substantial issue of the defendant's guilt or in which there is substantial doubt that the State can sustain its burden of proof.[9] It is this mutuality of advantage that perhaps explains the fact that at present well over three-fourths of the criminal convictions in this country rest on pleas of guilty,[10] a great many of them no doubt motivated at least in part by the hope or assurance of a lesser penalty than might be imposed if there |
Justice White | 1,970 | 6 | majority | Brady v. United States | https://www.courtlistener.com/opinion/108137/brady-v-united-states/ | of a lesser penalty than might be imposed if there were a guilty verdict after a trial to judge or jury. Of course, that the prevalence of guilty pleas is explainable does not necessarily validate those pleas or *753 the system which produces them. But we cannot hold that it is unconstitutional for the State to extend a benefit to a defendant who in turn extends a substantial benefit to the State and who demonstrates by his plea that he is ready and willing to admit his crime and to enter the correctional system in a frame of mind that affords hope for success in rehabilitation over a shorter period of time than might otherwise be necessary. A contrary holding would require the States and Federal Government to forbid guilty pleas altogether, to provide a single invariable penalty for each crime defined by the statutes, or to place the sentencing function in a separate authority having no knowledge of the manner in which the conviction in each case was obtained. In any event, it would be necessary to forbid prosecutors and judges to accept guilty pleas to selected counts, to lesser included offenses, or to reduced charges. The Fifth Amendment does not reach so far. held that the admissibility of a confession depended upon whether it was compelled within the meaning of the Fifth Amendment. To be admissible, a confession must be " `free and voluntary: that is, must not be extracted by any sort of threats or violence, nor obtained by any direct or implied promises, however slight, nor by the exertion of any improper influence.' " -543. More recently, carried forward the Bram definition of compulsion in the course of holding applicable to the States the Fifth Amendment privilege against compelled self-incrimination.[11] *754 Bram is not inconsistent with our holding that Brady's plea was not compelled even though the law promised him a lesser maximum penalty if he did not go to trial. Bram dealt with a confession given by a defendant in custody, alone and unrepresented by counsel. In such circumstances, even a mild promise of leniency was deemed sufficient to bar the confession, not because the promise was an illegal act as such, but because defendants at such times are too sensitive to inducement and the possible impact on them too great to ignore and too difficult to assess. But Bram and its progeny did not hold that the possibly coercive impact of a promise of leniency could not be dissipated by the presence and advice of counsel, any more than held that the possibly coercive |
Justice White | 1,970 | 6 | majority | Brady v. United States | https://www.courtlistener.com/opinion/108137/brady-v-united-states/ | of counsel, any more than held that the possibly coercive atmosphere of the police station could not be counteracted by the presence of counsel or other safeguards.[12] Brady's situation bears no resemblance to Bram's. Brady first pleaded not guilty; prior to changing his plea to guilty he was subjected to no threats or promises in face-to-face encounters with the authorities. He had competent counsel and full opportunity to assess the advantages and disadvantages of a trial as compared with those attending a plea of guilty; there was no hazard of an impulsive and improvident response to a seeming but unreal advantage. His plea of guilty was entered in open court and before a judge obviously sensitive to *755 the requirements of the law with respect to guilty pleas. Brady's plea, unlike Bram's confession, was voluntary. The standard as to the voluntariness of guilty pleas must be essentially that defined by Judge Tuttle of the Court of Appeals for the Fifth Circuit: " `[A] plea of guilty entered by one fully aware of the direct consequences, including the actual value of any commitments made to him by the court, prosecutor, or his own counsel, must stand unless induced by threats (or promises to discontinue improper harassment), misrepresentation (including unfulfilled or unfulfillable promises), or perhaps by promises that are by their nature improper as having no proper relationship to the prosecutor's business (e. g. bribes).' F. 2d at page 115."[13] Under this standard, a plea of guilty is not invalid merely because entered to avoid the possibility of a death penalty.[14] *756 III The record before us also supports the conclusion that Brady's plea was intelligently made. He was advised by competent counsel, he was made aware of the nature of the charge against him, and there was nothing to indicate that he was incompetent or otherwise not in control of his mental faculties; once his confederate had pleaded guilty and became available to testify, he chose to plead guilty, perhaps to ensure that he would face no more than life imprisonment or a term of years. Brady was aware of precisely what he was doing when he admitted that he had kidnaped the victim and had not released her unharmed. It is true that Brady's counsel advised him that 1201 (a) empowered the jury to impose the death penalty and that nine years later in United the Court held that the jury had no such power as long as the judge could impose only a lesser penalty if trial was to the court or there was a plea of guilty. But |
Justice White | 1,970 | 6 | majority | Brady v. United States | https://www.courtlistener.com/opinion/108137/brady-v-united-states/ | the court or there was a plea of guilty. But these facts do not require us to set aside Brady's conviction. Often the decision to plead guilty is heavily influenced by the defendant's appraisal of the prosecution's case against him and by the apparent likelihood of securing leniency should a guilty plea be offered and accepted. Considerations like these frequently present imponderable questions for which there are no certain answers; judgments may be made that in the light of later events seem improvident, although they were perfectly *757 sensible at the time. The rule that a plea must be intelligently made to be valid does not require that a plea be vulnerable to later attack if the defendant did not correctly assess every relevant factor entering into his decision. A defendant is not entitled to withdraw his plea merely because he discovers long after the plea has been accepted that his calculus misapprehended the quality of the State's case or the likely penalties attached to alternative courses of action. More particularly, absent misrepresentation or other impermissible conduct by state agents, cf. Von a voluntary plea of guilty intelligently made in the light of the then applicable law does not become vulnerable because later judicial decisions indicate that the plea rested on a faulty premise. A plea of guilty triggered by the expectations of a competently counseled defendant that the State will have a strong case against him is not subject to later attack because the defendant's lawyer correctly advised him with respect to the then existing law as to possible penalties but later pronouncements of the courts, as in this case, hold that the maximum penalty for the crime in question was less than was reasonably assumed at the time the plea was entered. The fact that Brady did not anticipate United does not impugn the truth or reliability of his plea. We find no requirement in the Constitution that a defendant must be permitted to disown his solemn admissions in open court that he committed the act with which he is charged simply because it later develops that the State would have had a weaker case than the defendant had thought or that the maximum penalty then assumed applicable has been held inapplicable in subsequent judicial decisions. This is not to say that guilty plea convictions hold no hazards for the innocent or that the methods of taking guilty pleas presently employed in this country are *758 necessarily valid in all respects. This mode of conviction is no more foolproof than full trials to the court or to the |
Justice White | 1,970 | 6 | majority | Brady v. United States | https://www.courtlistener.com/opinion/108137/brady-v-united-states/ | foolproof than full trials to the court or to the jury. Accordingly, we take great precautions against unsound results, and we should continue to do so, whether conviction is by plea or by trial. We would have serious doubts about this case if the encouragement of guilty pleas by offers of leniency substantially increased the likelihood that defendants, advised by competent counsel, would falsely condemn themselves. But our view is to the contrary and is based on our expectations that courts will satisfy themselves that pleas of guilty are voluntarily and intelligently made by competent defendants with adequate advice of counsel and that there is nothing to question the accuracy and reliability of the defendants' admissions that they committed the crimes with which they are charged. In the case before us, nothing in the record impeaches Brady's plea or suggests that his admissions in open court were anything but the truth. Although Brady's plea of guilty may well have been motivated in part by a desire to avoid a possible death penalty, we are convinced that his plea was voluntarily and intelligently made and we have no reason to doubt that his solemn admission of guilt was truthful. Affirmed. MR. JUSTICE BLACK, while adhering to his belief that United was wrongly decided, concurs in the judgment and in substantially all of the opinion in this case. [For opinion of MR. JUSTICE BRENNAN, concurring in the result, see post, p. 799.] |
Justice Powell | 1,984 | 17 | majority | United States v. Doe | https://www.courtlistener.com/opinion/111110/united-states-v-doe/ | This case presents the issue whether, and to what extent, the Fifth Amendment privilege against compelled self-incrimination applies to the business records of a sole proprietorship. I Respondent is the owner of several sole proprietorships. In late 1980, a grand jury, during the course of an investigation of corruption in the awarding of county and municipal contracts, served five subpoenas on respondent. The first two demanded the production of the telephone records of several of respondent's companies and all records pertaining to four bank accounts of respondent and his companies. The subpoenas were limited to the period between January 1, 1977, and the dates of the subpoenas. The third subpoena demanded the production of a list of virtually all the business records of one of respondent's companies for the period between *607 January 1, 1976, and the date of the subpoena.[1] The fourth subpoena sought production of a similar list of business records belonging to another company.[2] The final subpoena demanded production of all bank statements and cancelled checks of two of respondent's companies that had accounts at a bank in the Grand Cayman Islands. II Respondent filed a motion in Federal District Court seeking to quash the subpoenas. The District Court for the District of New Jersey granted his motion except with respect to those documents and records required by law to be kept or disclosed to a public agency.[] In reaching its decision, the *608 District Court noted that the Government had conceded that the materials sought in the subpoena were or might be incriminating. The court stated that, therefore, "the relevant inquiry is whether the act of producing the documents has communicative aspects which warrant Fifth Amendment protection." In re Grand Jury Empanelled March 19, 1980, The court found that the act of production would compel respondent to "admit that the records exist, that they are in his possession, and that they are authentic." While not ruling out the possibility that the Government could devise a way to ensure that the act of turning over the documents would not incriminate respondent, the court held that the Government had not made such a showing. The Court of Appeals for the Third Circuit affirmed. In re Grand Jury Empanelled March 19, 1980, 680 F.2d 27 It first addressed the question whether the Fifth Amendment ever applies to the records of a sole proprietorship. After noting that an individual may not assert the Fifth Amendment privilege on behalf of a corporation, partnership, or other collective entity under the holding of[4] the Court of Appeals reasoned that the owner of a |
Justice Powell | 1,984 | 17 | majority | United States v. Doe | https://www.courtlistener.com/opinion/111110/united-states-v-doe/ | the Court of Appeals reasoned that the owner of a sole proprietorship acts in a personal rather than a representative capacity. As a result, the court held that respondent's claim of the privilege was not foreclosed by the reasoning of Bellis. 680 F. 2d, at 1. The Court of Appeals next considered whether the documents at issue in this case are privileged. The court noted that this Court held in 425 U.S. 91 that the contents of business records ordinarily are *609 not privileged because they are created voluntarily and without compulsion. The Court of Appeals nevertheless found that respondent's business records were privileged under either of two analyses. First, the court reasoned that, notwithstanding the holdings in Bellis and Fisher, the business records of a sole proprietorship are no different from the individual owner's personal records. Noting that Third Circuit cases had held that private papers, although created voluntarily, are protected by the Fifth Amendment,[5] the court accorded the same protection to respondent's business papers.[6] Second, it held that respondent's act of producing the subpoenaed records would have "communicative aspects of its own." 680 F.2d, at 5. The turning over of the subpoenaed documents to the grand jury would admit their existence and authenticity. Accordingly, respondent was entitled to assert his Fifth Amendment privilege rather than produce the subpoenaed documents. The Government contended that the court should enforce the subpoenas because of the Government's offer not to use respondent's act of production against respondent in any *610 way. The Court of Appeals noted that no formal request for use immunity under 18 U.S. C. 6002 and 600 had been made. In light of this failure, the court held that the District Court did not err in rejecting the Government's attempt to compel delivery of the subpoenaed records. We granted certiorari to resolve the apparent conflict between the Court of Appeals' holding and the reasoning underlying this Court's holding in Fisher. 461 U.S. 91 (198). We now affirm in part, reverse in part, and remand for further proceedings. III A The Court in Fisher expressly declined to reach the question whether the Fifth Amendment privilege protects the contents of an individual's tax records in his possession.[7] The rationale underlying our holding in that case is, however, persuasive here. As we noted in Fisher, the Fifth Amendment protects the person asserting the privilege only from compelled self-incrimination. 425 U.S., at 96. Where the preparation of business records is voluntary, no compulsion is present.[8] A subpoena that demands production of documents *611 "does not compel oral testimony; nor would it ordinarily compel |
Justice Powell | 1,984 | 17 | majority | United States v. Doe | https://www.courtlistener.com/opinion/111110/united-states-v-doe/ | "does not compel oral testimony; nor would it ordinarily compel the taxpayer to restate, repeat, or affirm the truth of the contents of the documents sought." Applying this reasoning in Fisher, we stated: "[T]he Fifth Amendment would not be violated by the fact alone that the papers on their face might incriminate the taxpayer, for the privilege protects a person only against being incriminated by his own compelled testimonial communications. 84 U.S. 757 ]; United 88 U.S. 218 ]; and 88 U.S. 26 ]. The accountant's workpapers are not the taxpayer's. They were not prepared by the taxpayer, and they contain no testimonial declarations by him. Furthermore, as far as this record demonstrates, the preparation of all of the papers sought in these cases was wholly voluntary, and they cannot be said to contain compelled testimonial evidence, either of the taxpayers or of anyone else. The taxpayer cannot avoid compliance with the subpoena merely by asserting that the item of evidence which he is required to produce contains incriminating writing, whether his own or that of someone else." -410. This reasoning applies with equal force here. Respondent does not contend that he prepared the documents involuntarily[9]*612 or that the subpoena would force him to restate, repeat, or affirm the truth of their contents. The fact that the records are in respondent's possession is irrelevant to the determination of whether the creation of the records was compelled. We therefore hold that the contents of those records are not privileged.[10] B Although the contents of a document may not be privileged, the act of producing the document may be. A government subpoena compels the holder of the document to perform an act that may have testimonial aspects and an incriminating effect. As we noted in Fisher: *61 "Compliance with the subpoena tacitly concedes the existence of the papers demanded and their possession or control by the taxpayer. It also would indicate the taxpayer's belief that the papers are those described in the subpoena. 54 U.S. 118, The elements of compulsion are clearly present, but the more difficult issues are whether the tacit averments of the taxpayer are both `testimonial' and `incriminating' for purposes of applying the Fifth Amendment. These questions perhaps do not lend themselves to categorical answers; their resolution may instead depend on the facts and circumstances of particular cases or classes thereof." In Fisher, the Court explored the effect that the act of production would have on the taxpayer and determined that the act of production would have only minimal testimonial value and would not operate to incriminate the taxpayer. |
Justice Powell | 1,984 | 17 | majority | United States v. Doe | https://www.courtlistener.com/opinion/111110/united-states-v-doe/ | testimonial value and would not operate to incriminate the taxpayer. Unlike the Court in Fisher, we have the explicit finding of the District Court that the act of producing the documents would involve testimonial self-incrimination.[11] The Court of Appeals agreed.[12] The District Court's finding essentially rests on its *614 determination of factual issues. See United 418 U.S. 68, Therefore, we will not overturn that finding unless it has no support in the record. Traditionally, we also have been reluctant to disturb findings of fact in which two courts below have concurred. 458 U.S. 61, 62 We therefore decline to overturn the finding of the District Court in this regard, where, as here, it has been affirmed by the Court of Appeals.[1] IV The Government, as it concedes, could have compelled respondent to produce the documents listed in the subpoena. *615 Title 18 U.S. C. 6002 and 600 provide for the granting of use immunity with respect to the potentially incriminating evidence.[14] The Court upheld the constitutionality of the use immunity statute in *616 The Government did state several times before the District Court that it would not use respondent's act of production against him in any way. But counsel for the Government never made a statutory request to the District Court to grant respondent use immunity.[15] We are urged to adopt a doctrine of constructive use immunity. Under this doctrine, the courts would impose a requirement on the Government not to use the incriminatory aspects of the act of production against the person claiming the privilege even though the statutory procedures have not been followed. We decline to extend the jurisdiction of courts to include prospective grants of use immunity in the absence of the formal request that the statute requires.[16] As we stated in Pillsbury (198), in passing the use immunity statute, "Congress gave certain officials in the Department of Justice exclusive authority to grant immunities." at 25-254 "Congress foresaw the courts as playing only a minor role in the immunizing process" The decision to seek use immunity necessarily involves a balancing of the Government's interest in obtaining information against the risk that immunity will frustrate the Government's attempts to prosecute the subject of the investigation. See United Congress expressly left this decision exclusively to the Justice *617 Department. If, on remand, the appropriate official concludes that it is desirable to compel respondent to produce his business records, the statutory procedure for requesting use immunity will be available.[17] V We conclude that the Court of Appeals erred in holding that the contents of the subpoenaed documents were privileged under |
Justice Souter | 1,997 | 20 | second_dissenting | Printz v. United States | https://www.courtlistener.com/opinion/118148/printz-v-united-states/ | I join Justice Stevens's dissenting opinion, but subject to the following qualifications. While I do not find anything dispositive in the paucity of early examples of federal employment of state officers for executive purposes, for the reason given by Justice Stevens, ante, at 948-949, neither would I find myself in dissent with no more to go on than those few early instances in the administration of naturalization *971 laws, for example, or such later instances as state support for federal emergency action, see ante, at 949-950; ante, at 905-910, 916-917 (majority opinion). These illustrations of state action implementing congressional statutes are consistent with the Government's positions, but they do not speak to me with much force. In deciding these cases, which I have found closer than I had anticipated, it is The Federalist that finally determines my position. I believe that the most straightforward reading of No. 27 is authority for the Government's position here, and that this reading is both supported by No. 44 and consistent with Nos. 36 and 45. Hamilton in No. 27 first notes that because the new Constitution would authorize the National Government to bind individuals directly through national law, it could "employ the ordinary magistracy of each [State] in the execution of its laws." The Federalist No. 27, p. 174 (J. Cooke ed. 1961) (A. Hamilton). Were he to stop here, he would not necessarily be speaking of anything beyond the possibility of cooperative arrangements by agreement. But he then addresses the combined effect of the proposed Supremacy Clause, U. S. Const., Art. VI, cl. 2, and state officers' oath requirement, U. S. Const., Art. VI, cl. 3, and he states that "the Legislatures, Courts and Magistrates of the respective members will be incorporated into the operations of the national government, as far as its just and constitutional authority extends; and will be rendered auxiliary to the enforcement of its laws." The Federalist No. 27, at 174-175 (emphasis in original). The natural reading of this language is not merely that the officers of the various branches of state governments may be employed in the performance of national functions; Hamilton says that the state governmental machinery "will be incorporated" into the Nation's operation, and because the "auxiliary" status of the state officials will occur because they are "bound by the sanctity of an oath," I take him to mean that their auxiliary functions *972 will be the products of their obligations thus undertaken to support federal law, not of their own, or the States', unfettered choices.[1] Madison in No. 44 supports this reading in *973 |
Justice Souter | 1,997 | 20 | second_dissenting | Printz v. United States | https://www.courtlistener.com/opinion/118148/printz-v-united-states/ | choices.[1] Madison in No. 44 supports this reading in *973 his commentary on the oath requirement. He asks why state magistrates should have to swear to support the National Constitution, when national officials will not be required to oblige themselves to support the state counterparts. His answer is that national officials "will have no agency in carrying the State Constitutions into effect. The members and officers of the State Governments, on the contrary, will have an essential agency in giving effect to the Federal Constitution." No. 44, at 307 (J. Madison). He then describes the state legislative "agency" as action necessary for selecting the President, see U. S. Const., Art. II, 1, and the choice of Senators, see U. S. Const., Art. I, 3 (repealed by Amdt. 17). The Federalist No. 44, at 307. The Supremacy Clause itself, of course, expressly refers to the state judges' obligations under federal law, and other numbers of The Federalist give examples of state executive "agency" in the enforcement of national revenue laws.[2] *974 Two such examples of anticipated state collection of federal revenue are instructive, each of which is put forward to counter fears of a proliferation of tax collectors. In No. 45, Hamilton says that if a State is not given (or declines to exercise) an option to supply its citizens' share of a federal tax, the "eventual collection [of the federal tax] under the immediate authority of the Union, will generally be made by the officers, and according to the rules, appointed by the several States." No. 45, at 313. And in No. 36, he explains that the National Government would more readily "employ the State officers as much as possible, and to attach them to *975 the Union by an accumulation of their emoluments," No. 36, at 228, than by appointing separate federal revenue collectors. In the light of all these passages, I cannot persuade myself that the statements from No. 27 speak of anything less than the authority of the National Government, when exercising an otherwise legitimate power (the commerce power, say), to require state "auxiliaries" to take appropriate action. To be sure, it does not follow that any conceivable requirement may be imposed on any state official. I continue to agree, for example, that Congress may not require a state legislature to enact a regulatory scheme and that New was rightly decided (even though I now believe its dicta went too far toward immunizing state administration as well as state enactment of such a scheme from congressional mandate); after all, the essence of legislative power, within the limits |
Justice Souter | 1,997 | 20 | second_dissenting | Printz v. United States | https://www.courtlistener.com/opinion/118148/printz-v-united-states/ | after all, the essence of legislative power, within the limits of legislative jurisdiction, is a discretion not subject to command. But insofar as national law would require nothing from a state officer inconsistent with the power proper to his branch of tripartite state government (say, by obligating a state judge to exercise law enforcement powers), I suppose that the reach of federal law as Hamilton described it would not be exceeded, cf. I should mention two other points. First, I recognize that my reading of The Federalist runs counter to the view of Justice Field, who stated explicitly in United that the early examples of state execution of federal law could not have been required against a State's will. But that statement, too, was dictum, and as against dictum even from Justice Field, Madison and Hamilton prevail. Second, I do not read any of The Federalist *976 material as requiring the conclusion that Congress could require administrative support without an obligation to pay fair value for it. The quotation from No. 36, for example, describes the United States as paying. If, therefore, my views were prevailing in these cases, I would remand for development and consideration of petitioners' points, that they have no budget provision for work required under the Act and are liable for unauthorized expenditures. Brief for Petitioner in No. 95-1478, pp. 4-5; Brief for Petitioner in No. 95-1503, pp. 6-7. Justice Breyer, with whom Justice Stevens joins, dissenting. I would add to the reasons Justice Stevens sets forth the fact that the United States is not the only nation that seeks to reconcile the practical need for a central authority with the democratic virtues of more local control. At least some other countries, facing the same basic problem, have found that local control is better maintained through application of a principle that is the direct opposite of the principle the majority derives from the silence of our Constitution. The federal systems of Switzerland, Germany, and the European Union, for example, all provide that constituent states, not federal bureaucracies, will themselves implement many of the laws, rules, regulations, or decrees enacted by the central "federal" body. Constitutionalism and the Many Faces of Federalism, ; D. The Constitution of the Federal Republic of Germany 66, 84 (1994); Mackenzie-Stuart, Foreword, Comparative Constitutional Federalism: Europe and America ix ; Kimber, A Comparison of Environmental Federalism in the United States and the European Union, They do so in part because they believe that such a system interferes less, not more, with the independent authority of the "state," member nation, or other subsidiary |
Justice Souter | 1,997 | 20 | second_dissenting | Printz v. United States | https://www.courtlistener.com/opinion/118148/printz-v-united-states/ | independent authority of the "state," member nation, or other subsidiary government, and helps *977 to safeguard individual liberty as well. See Council of European Communities, European Council in Edinburgh, 11-12 Dec. 1992, Conclusions of the Presidency 20-21 (1993); D. Lasok & K. Bridge, Law and Institutions of the European Union 114 (1994); ; Frowein, Integration and the Federal Experience in Germany and Switzerland, in 1 Integration Through Law 573, 586-587 (M. Cappelletti, M. Seccombe, & J. Weiler eds. 1986); Of course, we are interpreting our own Constitution, not those of other nations, and there may be relevant political and structural differences between their systems and our own. Cf. The Federalist No. 20, pp. 134-138 (C. Rossiter ed. 1961) (J. Madison and A. Hamilton) (rejecting certain aspects of European federalism). But their experience may nonetheless cast an empirical light on the consequences of different solutions to a common legal problemin this case the problem of reconciling central authority with the need to preserve the liberty-enhancing autonomy of a smaller constituent governmental entity. Cf. No. 42, at 268 (J. Madison) (looking to experiences of European countries); No. 43, at 275, 276 (J. Madison) (same). And that experience here offers empirical confirmation of the implied answer to a question Justice Stevens asks: Why, or how, would what the majority sees as a constitutional alternativethe creation of a new federal gun-law bureaucracy, or the expansion of an existing federal bureaucracybetter promote either state sovereignty or individual liberty? See ante, at 945, 959 (Stevens, J., dissenting). As comparative experience suggests, there is no need to interpret the Constitution as containing an absolute principleforbidding the assignment of virtually any federal duty to any state official. Nor is there a need to read the Brady Act as permitting the Federal Government to overwhelm a state civil service. The statute uses the words "reasonable effort," 18 U.S. C. 922(s)(2)words that easily can encompass *978 the considerations of, say, time or cost necessary to avoid any such result. Regardless, as Justice Stevens points out, the Constitution itself is silent on the matter. Ante, at 944, 954, 961 (dissenting opinion). Precedent supports the Government's position here. Ante, at 956, 960-961, 962-970 (Stevens, J., dissenting). And the fact that there is not more precedentthat direct federal assignment of duties to state officers is not commonlikely reflects, not a widely shared belief that any such assignment is incompatible with basic principles of federalism, but rather a widely shared practice of assigning such duties in other ways. See, e. g., South ; ; New ; See also ante, at 973-974 (Souter, J., dissenting). |
Justice Stevens | 1,995 | 16 | majority | Mastrobuono v. Shearson Lehman Hutton, Inc. | https://www.courtlistener.com/opinion/117907/mastrobuono-v-shearson-lehman-hutton-inc/ | New York law allows courts, but not arbitrators, to award punitive damages. In a dispute arising out of a standardform contract that expressly provides that it "shall be governed by the laws of the State of New York," a panel of arbitrators awarded punitive damages. The District Court and Court of Appeals disallowed that award. The question presented is whether the arbitrators' award is consistent with the central purpose of the Federal Arbitration Act to *5 ensure "that private agreements to arbitrate are enforced according to their terms." Information Sciences, I In petitioners, Antonio Mastrobuono, then an assistant professor of medieval literature, and his wife Diana Mastrobuono, an artist, opened a securities trading account with respondent Shearson Lehman Hutton, Inc. (Shearson), by executing Shearson's standard-form Client's Agreement. Respondent Nick DiMinico, a vice president of Shearson, managed the Mastrobuonos' account until they closed it in 1987. In petitioners filed this action in the United States District Court for the Northern District of Illinois, alleging that respondents had mishandled their account and claiming damages on a variety of state and federal law theories. Paragraph 13 of the parties' agreement contains an arbitration provision and a choice-of-law provision. Relying on the arbitration provision and on 3 and of the Federal Arbitration Act (FAA), 9 U.S. C. 3, respondents filed a motion to stay the court proceedings and to compel arbitration pursuant to the rules of the National Association of Securities Dealers. The District Court granted that motion, and a panel of three arbitrators was convened. After conducting hearings in Illinois, the panel ruled in favor of petitioners. In the arbitration proceedings, respondents argued that the arbitrators had no authority to award punitive damages. Nevertheless, the panel's award included punitive damages of $00,000, in addition to compensatory damages of $159,327. Respondents paid the compensatory portion of the award but filed a motion in the District Court to vacate the award of punitive damages. The District Court granted the motion, and the Court of Appeals for the Seventh Circuit affirmed, Both courts relied on the choice-of-law provision in paragraph 13 *55 of the parties' agreement, which specifies that the contract shall be governed by New York law. Because the New York Court of Appeals has decided that in New York the power to award punitive damages is limited to judicial tribunals and may not be exercised by arbitrators, the District Court and the Seventh Circuit held that the panel of arbitrators had no power to award punitive damages in this case. We granted certiorari, because the Courts of Appeals have expressed differing views on whether |
Justice Stevens | 1,995 | 16 | majority | Mastrobuono v. Shearson Lehman Hutton, Inc. | https://www.courtlistener.com/opinion/117907/mastrobuono-v-shearson-lehman-hutton-inc/ | the Courts of Appeals have expressed differing views on whether a contractual choice-of-law provision may preclude an arbitral award of punitive damages that otherwise would be proper. Compare and with Raytheon and We now reverse.[1] II Earlier this Term, we upheld the enforceability of a predispute arbitration agreement governed by Alabama law, even though an Alabama statute provides that arbitration agreements are unenforceable. Terminix Writing for the Court, Justice Breyer observed that Congress passed the FAA "to overcome courts' refusals to enforce agreements to arbitrate." See also Information Sciences, ; Dean Witter Reynolds After determining that the FAA applied to the parties' arbitration agreement, we readily concluded that the federal statute pre-empted Alabama's statutory prohibition. -273, 281-282. Petitioners seek a similar disposition of the case before us today. Here, the Seventh Circuit interpreted the contract to incorporate New York law, including the rule that arbitrators may not award punitive damages. Petitioners ask us to hold that the FAA pre-empts New York's prohibition against arbitral awards of punitive damages because this state law is a vestige of the "` "ancient"` " judicial hostility to arbitration. See 513 U. S., quoting Petitioners rely on Southland and in which we held that the FAA pre-empted two California statutes that purported to require judicial resolution of certain disputes. In Southland, we explained that the FAA not only "declared a national policy favoring arbitration," but actually "withdrew the power of the states to require a judicial forum for the resolution of claims which the contracting parties agreed to resolve by arbitration." Respondents answer that the choice-of-law provision in their contract evidences the parties' express agreement that punitive damages should not be awarded in the arbitration of any dispute arising under their contract. Thus, they claim, this case is distinguishable from Southland and Perry, in which the parties presumably desired unlimited arbitration but state law stood in their way. Regardless of whether the FAA pre-empts the decision in contracts not expressly incorporating New York law, respondents argue that the parties may themselves agree to be bound by just as they may agree to forgo arbitration altogether. In other words, if the contract says "no punitive damages," that *57 is the end of the matter, for courts are bound to interpret contracts in accordance with the expressed intentions of the partieseven if the effect of those intentions is to limit arbitration. We have previously held that the FAA's proarbitration policy does not operate without regard to the wishes of the contracting parties. In Information Sciences, the California Court of Appeal had construed a contractual provision to mean |
Justice Stevens | 1,995 | 16 | majority | Mastrobuono v. Shearson Lehman Hutton, Inc. | https://www.courtlistener.com/opinion/117907/mastrobuono-v-shearson-lehman-hutton-inc/ | Court of Appeal had construed a contractual provision to mean that the parties intended the California rules of arbitration, rather than the FAA's rules, to govern the resolution of their dispute. Noting that the California rules were "manifestly designed to encourage resort to the arbitral process," and that they "generally foster[ed] the federal policy favoring arbitration," n. 5, we concluded that such an interpretation was entirely consistent with the federal policy "to ensure the enforceability, according to their terms, of private agreements to arbitrate," After referring to the holdings in Southland and Perry, which struck down state laws limiting agreed-upon arbitrability, we added: "But it does not follow that the FAA prevents the enforcement of agreements to arbitrate under different rules than those set forth in the Act itself. Indeed, such a result would be quite inimical to the FAA's primary purpose of ensuring that private agreements to arbitrate are enforced according to their terms. Arbitration under the Act is a matter of consent, not coercion, and parties are generally free to structure their arbitration agreements as they see fit. Just as they may limit by contract the issues which they will arbitrate, see Mit- subishi [Motors ], so too may they specify by contract the rules under which that arbitration will be conducted." 89 U. S., at *58 Relying on our reasoning in respondents thus argue that the parties to a contract may lawfully agree to limit the issues to be arbitrated by waiving any claim for punitive damages. On the other hand, we think our decisions in Southland, and Perry make clear that if contracting parties agree to include claims for punitive damages within the issues to be arbitrated, the FAA ensures that their agreement will be enforced according to its terms even if a rule of state law would otherwise exclude such claims from arbitration. Thus, the case before us comes down to what the contract has to say about the arbitrability of petitioners' claim for punitive damages. III Shearson's standard-form "Client Agreement," which petitioners executed, contains 18 paragraphs. The two relevant provisions of the agreement are found in paragraph 13.[2] The first sentence of that paragraph provides, in part, that the entire agreement "shall be governed by the laws of the *59 State of New York." App. to Pet. for Cert. The second sentence provides that "any controversy" arising out of the transactions between the parties "shall be settled by arbitration" in accordance with the rules of the National Association of Securities Dealers (NASD), or the Boards of Directors of the New York Stock Exchange and/or |
Justice Stevens | 1,995 | 16 | majority | Mastrobuono v. Shearson Lehman Hutton, Inc. | https://www.courtlistener.com/opinion/117907/mastrobuono-v-shearson-lehman-hutton-inc/ | Boards of Directors of the New York Stock Exchange and/or the American Stock Exchange. The agreement contains no express reference to claims for punitive damages. To ascertain whether paragraph 13 expresses an intent to include or exclude such claims, we first address the impact of each of the two relevant provisions, considered separately. We then move on to the more important inquiry: the meaning of the two provisions taken together. See Restatement (Second) of Contracts 202(2) (1979) ("A writing is interpreted as a whole"). The choice-of-law provision, when viewed in isolation, may reasonably be read as merely a substitute for the conflictof-laws analysis that otherwise would determine what law to apply to disputes arising out of the contractual relationship. Thus, if a similar contract, without a choice-of-law provision, had been signed in New York and was to be performed in New York, presumably "the laws of the State of New York" would apply, even though the contract did not expressly so state. In such event, there would be nothing in the contract that could possibly constitute evidence of an intent to exclude punitive damages claims. Accordingly, punitive damages would be allowed because, in the absence of contractual intent to the contrary, the FAA would pre-empt the rule. See and n. 8, infra Even if the reference to "the laws of the State of New York" is more than a substitute for ordinary conflict-of-laws analysis and, as respondents urge, includes the caveat, "detached from otherwise-applicable federal law," the provision might not preclude the award of punitive damages because New York allows its courts, though not its arbitrators, to enter such awards. See 353 *. In other words, the provision might include only New York's substantive rights and obligations, and not the State's allocation of power between alternative tribunals.[3] Respondents' argument is persuasive only if "New York law" means "New York decisional law, including that State's allocation of power between courts and arbitrators, notwithstanding otherwise-applicable federal law." But, as we have demonstrated, the provision need not be read so broadly. It is not, in itself, an unequivocal exclusion of punitive damages claims.[] The arbitration provision (the second sentence of paragraph 13) does not improve respondents' argument. On the contrary, when read separately this clause strongly implies that an arbitral award of punitive damages is appropriate. It explicitly authorizes arbitration in accordance with NASD rules;[5] the panel of arbitrators in fact proceeded under that *61 set of rules.[6] The NASD's Code of Arbitration Procedure indicates that arbitrators may award "damages and other relief." NASD Code of Arbitration Procedure ¶ 371(e) While not a |
Justice Stevens | 1,995 | 16 | majority | Mastrobuono v. Shearson Lehman Hutton, Inc. | https://www.courtlistener.com/opinion/117907/mastrobuono-v-shearson-lehman-hutton-inc/ | NASD Code of Arbitration Procedure ¶ 371(e) While not a clear authorization of punitive damages, this provision appears broad enough at least to contemplate such a remedy. Moreover, as the Seventh Circuit noted, a manual provided to NASD arbitrators contains this provision: "B. Punitive Damages "The issue of punitive damages may arise with great frequency in arbitrations. Parties to arbitration are informed that arbitrators can consider punitive damages as a remedy." Thus, the text of the arbitration clause itself surely does not supportindeed, it contradictsthe conclusion that the parties agreed to foreclose claims for punitive damages.[7] *62 Although neither the choice-of-law clause nor the arbitration clause, separately considered, expresses an intent to preclude an award of punitive damages, respondents argue that a fair reading of the entire paragraph 13 leads to that conclusion. On this theory, even if "New York law" is ambiguous, and even if "arbitration in accordance with NASD rules" indicates that punitive damages are permissible, the juxtaposition of the two clauses suggests that the contract incorporates "New York law relating to arbitration." We disagree. At most, the choice-of-law clause introduces an ambiguity into an arbitration agreement that would otherwise allow punitive damages awards. As we pointed out in when a court interprets such provisions in an agreement covered by the FAA, "due regard must be given to the federal policy favoring arbitration, and ambiguities as to the scope of the arbitration clause itself resolved in favor of arbitration." 89 U.S., See also Moses H. Cone Memorial[8] Moreover, respondents cannot overcome the common-law rule of contract interpretation that a court should construe ambiguous language against the interest of the party that drafted it. See, e. g., United States Fire Ins. 29 N.E.2d 1203, ; 6 N.Y. 2d 899, 77 N.E.2d 212, 213-21 *63 ;[9] Restatement (Second) of Contracts 206; United Respondents drafted an ambiguous document, and they cannot now claim the benefit of the doubt. The reason for this rule is to protect the party who did not choose the language from an unintended or unfair result.[10] That rationale is well suited to the facts of this case. As a practical matter, it seems unlikely that petitioners were actually aware of New York's bifurcated approach to punitive damages, or that they had any idea that by signing a standard-form agreement to arbitrate disputes they might be giving up an important substantive right. In the face of such doubt, we are unwilling to impute this intent to petitioners. Finally respondents' reading of the two clauses violates another cardinal principle of contract construction: that a document should be read to |
Justice Stevens | 1,995 | 16 | majority | Mastrobuono v. Shearson Lehman Hutton, Inc. | https://www.courtlistener.com/opinion/117907/mastrobuono-v-shearson-lehman-hutton-inc/ | of contract construction: that a document should be read to give effect to all its provisions and to render them consistent with each other. See, e. g., In re Halas, 10 Ill. 2d 83, 70 N.E.2d 960, 96 ; Crimmins Contracting 7 N.Y. 2d 166, 52 N.E.2d 1097, ; TrumpEquitable Fifth Avenue 106 A.D. 2d 22, 2, 85 N. Y. S. 2d 65, 67 ; Restatement (Second) of Contracts 203(a) and Comment b; 202(5). We think the best way to harmonize the choice-oflaw *6 provision with the arbitration provision is to read "the laws of the State of New York" to encompass substantive principles that New York courts would apply, but not to include special rules limiting the authority of arbitrators. Thus, the choice-of-law provision covers the rights and duties of the parties, while the arbitration clause covers arbitration; neither sentence intrudes upon the other. In contrast, respondents' reading sets up the two clauses in conflict with one another: one foreclosing punitive damages, the other allowing them. This interpretation is untenable. We hold that the Court of Appeals misinterpreted the parties' agreement. The arbitral award should have been enforced as within the scope of the contract. The judgment of the Court of Appeals is, therefore, reversed. It is so ordered. |
Justice Douglas | 1,974 | 10 | majority | Saxbe v. Bustos | https://www.courtlistener.com/opinion/109115/saxbe-v-bustos/ | Some aliens who have their homes in Canada or Mexico commute daily to places of employment in this country and others do so on a seasonal basis, a practice permitted by the Immigration and Naturalization Service. The question is whether the practice on the facts of these cases conforms with the Immigration and Nationality Act. It turns on the meaning of 101 (a) (27) (B), as amended, 8 U.S. C. 1101 (a) (27) (B), which defines as one variety of "special immigrant" an immigrant "lawfully admitted for permanent residence, who is returning from a temporary visit abroad." Those who qualify under 1101 (a) (27) (B) may be permitted entry without the usual documentation requirements. 8 U.S. C. 1181 (b). The regulations[1] implement 1181 (b) by allowing such an immigrant to use an alien registration receipt card, normally called a "green card," in lieu of an immigrant visa and without *67 regard to numerical limitations[2] if he is "returning to an unrelinquished lawful permanent residence in the United States after a temporary absence abroad not exceeding 1 year." The Act presumes that an alien is an immigrant "until he establishes that he is entitled to a nonimmigrant status";[3] and it defines "immigrant" as every alien who cannot bring himself into an enumerated class of nonimmigrants.[4] One class of nonimmigrants[5] is "an alien having a residence in a foreign country which he has no intention of abandoning (ii) who is coming temporarily to the United States to perform temporary services or labor, if unemployed persons capable of performing such service or labor cannot be found in this country." An alien does not qualify as a nonimmigrant under this class of nonimmigrants if he seeks to perform temporary labor at a time when unemployed persons capable of performing that labor can be found in this country.[6] If he cannot quality as a nonimmigrant some other way, such an alien is subject to the Act's numerical limitations, unless he is included in the classes of "immediate relatives" of a United States citizen or "special immigrants."[7] On the other hand, as already noted, one variety of "special immigrant" is an alien "lawfully admitted for permanent residence, who is returning from a temporary visit abroad."[8] One who so qualifies is excluded *68 from the labor certification provisions in 8 U.S. C. 1182 (a) (14).[9] The term "lawfully admitted for permanent residence" is defined as "the status of having been lawfully accorded the privilege of residing permanently in the United States as an immigrant such status not having changed."[10] An alien achieves that status in the first |
Justice Douglas | 1,974 | 10 | majority | Saxbe v. Bustos | https://www.courtlistener.com/opinion/109115/saxbe-v-bustos/ | having changed."[10] An alien achieves that status in the first instance by complying with any applicable numerical limitations and with the Act's other requirements for admission, details not important here. After his initial admission on that basis, he is free to leave this country temporarily and to re-enter without regard to numerical limitations. The Act authorizes the Attorney General to re-admit such an alien without a visa or other formal documentation. 1181 (b). He has exercised that authority, allowing such an immigrant to return with what was called in the briefs and oral argument the "green card." This suit was brought by the United Farm Workers Organizing Committee[11] for declaratory and injunctive *69 relief against the practice of giving alien commuters the documentation and labor certification benefits of classification as immigrants "lawfully admitted for permanent residence" who are "returning from a temporary visit abroad."[12] The District Court dismissed the action without opinion. The Court of Appeals held that the admission of daily commuters was proper but that the admission of seasonal commuters was not, 156 U. S. App. D. C. 304, We granted the petition and cross-petition in light of a conflict between the decision below and that of the Court of Appeals for the Ninth Circuit in Our conclusions are that commuters are immigrants, that they are "lawfully admitted for permanent residence," and that they are "returning from a temporary visit abroad" when they enter the United States. Moreover, the wording and legislative history of the statute and the long administrative construction indicate that the same treatment is appropriate for both daily and seasonal commuters. Commuters are thus different from those groups of aliens who can be admitted only on certification by the Secretary of Labor that unemployed persons cannot be found in this country and that the employment of the aliens "will not adversely affect the wages and working conditions of the workers in the United States." 8 U.S. C. 1182 (a) (14). We thus agree with the conclusion *70 of the Ninth Circuit in Gooch. Accordingly, we affirm the judgment now before us as respects daily commuters and reverse it as respects seasonal commuters. A main reliance of plaintiffs is on the provision of the Act[13] which in the much-discussed subsection (15) (H) (ii) provides that one category of alien nonimmigrant is "an alien having a residence in a foreign country which he has no intention of abandoning (ii) who is coming temporarily to the United States to perform temporary services or labor, if unemployed persons capable of performing such service or labor cannot be found in |
Justice Douglas | 1,974 | 10 | majority | Saxbe v. Bustos | https://www.courtlistener.com/opinion/109115/saxbe-v-bustos/ | of performing such service or labor cannot be found in this country." Under the argument tendered, these alien commuters partially meet the definition of nonimmigrants in subsection (15) (H) (ii) in that they have a foreign residence which they do not intend to abandon and come here temporarily to perform temporary service, but fail to satisfy subsection (15) (H) (ii) completely in that they do not show that unemployed people capable of performing the services cannot be found in this Nation. That should invoke the presumption in the Act, already noted, that an alien is an immigrant until or unless he proves he is a nonimmigrant.[14] We agree, moreover, with the Ninth Circuit that this provision "was intended to confer nonimmigrant status on certain aliens who were needed in the American labor force but who, unlike commuters, would be unable to achieve admittance under immigrant status." The administrative construction of this subsection (15) (H) (ii) by the Immigration Service[15] has been that it does not cover an alien, like the commuter, who has a "permanent residence" here and who comes to perform a job of a permanent character, even though the *71 period of his service is limited. To repeat, the Act provides that "[e]very alien shall be presumed to be an immigrant until he establishes to the satisfaction of the consular officer and the immigration officers that he is entitled to a nonimmigrant status under section 1101 (a) (15)."[16] Before an alien can be classified as a nonimmigrant under subsection (15) (H) (ii) his prospective employer must submit a petition on his behalf under 8 U.S. C. 1184 (c); and after the INS approves the petition, the alien must apply for nonimmigrant status and demonstrate that he in fact qualifies for that status.[17] We conclude that commuters are not nonimmigrants under subsection (15) (H) (ii). None of the other categories of nonimmigrants are applicable, and thus under 1184 (b) the commuters are immigrants. The fact that an alien commuter who has not shown he must be classified as a nonimmigrant must be classified as an immigrant is not the end of our The question remains whether he may properly be treated as one who is in the group defined as "special immigrants" under subsection (27) (B),[18] that is, whether commuters are "lawfully admitted for permanent residence" when they have no actual residence in this country. Section 1101 (a) (20) defines "lawfully admitted for permanent residence" as "the status of having been lawfully accorded the privilege of residing permanently in the United States as an immigrant in accordance with the |
Justice Douglas | 1,974 | 10 | majority | Saxbe v. Bustos | https://www.courtlistener.com/opinion/109115/saxbe-v-bustos/ | the United States as an immigrant in accordance with the immigration laws, such status not having changed" (italics added). The definition makes the phrase descriptive of a status or privilege which need not be reduced to a permanent residence to be satisfied, so long as that status has not changed. *72 One argument of the plaintiffs is that the status has changed because residence in this country was never claimed. But we read the Act as did the Ninth Circuit in the Gooch case to mean that the change in status which Congress had in mind was a change from an immigrant lawfully admitted for permanent residence to the status of a nonimmigrant pursuant to 8 U.S. C. The status referred to in 1101 (a) (20) is acquired when an alien satisfies (1) any numerical limitations on the entry of immigrants,[19] (2) requirements as to qualitative matters such as health, morals, and economic status,[20] and (3) the need for an immigrant visa.[21] The applicant must also state whether he plans to remain in the United States permanently.[22] But the Act does not declare or suggest that the status will be denied him, if he does not intend to reside permanently here. As we read the Act, the "status" acquired carries several important privileges: He may remain in the United States indefinitely; he is free to work in this country; he may return to this country after a temporary absence abroad; and he has the privilege of establishing a permanent residence in the United States. Thus we conclude that commuters are immigrants "lawfully admitted for permanent residence." As did both the majority and dissent in Gooch, we also find that commuters can be viewed as "returning from a temporary visit abroad." -81, 82 n. 1. The court below so agreed as respects daily commuters, disagreeing only as to seasonal commuters. Neither the court below nor the Court of Appeals in Gooch took the position now taken in dissent here. *73 Our conclusion reflects the administrative practice, dating back at least to 1927 when the Bureau of Immigration was a part of the Department of Labor.[23] In 1940 the Bureau was transferred to the Department of Justice[24] where it remains today. On April 1, 1927, it issued General Order No. 86.[25] Under the order, commuters were *74 required to gain admission as immigrants before they could have border crossing privileges. The order provides that "[a]liens who have complied with the requirements of this General Order governing permanent admission will be considered as having entered for permanent residence." "Thus," said the Court of |
Justice Douglas | 1,974 | 10 | majority | Saxbe v. Bustos | https://www.courtlistener.com/opinion/109115/saxbe-v-bustos/ | having entered for permanent residence." "Thus," said the Court of Appeals in the instant cases, "the daily commuter was born," 156 U. S. App. D. C., at 304, This longstanding administrative construction is entitled to great weight, particularly when, as here, Congress has revisited the Act and left the practice untouched. Such a history of administrative construction and congressional acquiescence may add a gloss or qualification to what is on its face unqualified statutory language. Massachusetts ; United As the defendants below acknowledge, the meaning of the phrase "lawfully admitted for permanent residence" in 1101 (a) (27) (B) may not be identical to the meaning of the same language in other sections of the *75 Act where the same history of administrative construction is not present. We see no difference in the treatment of daily commuters and seasonal commuters. The status of the seasonal commuter is the same as the status of the daily commuter because the identical statutory words cover each. The Court of Appeals, however, rested essentially on a different legislative history of seasonal commuters than had obtained in cases of daily commuters. Prior to 1917 there were essentially no limitations on the practice of commuting from Mexico or Canada to the United States. Legislation was passed in 1917, 1921, and 1924.[26] But under those statutes commuters remained able freely to cross the border subject only to qualitative restrictions in the 1917 Act. As already noted, the administrative approach changed in 1927 when the Bureau of Immigration issued its General Order No. 86. While the 1952 Act, made no mention of commuters and while the 1965 amendments of the 1952 Act, were likewise silent as respects commuters, the Court of Appeals assumed that the longstanding practice of allowing daily commuters was not repealed sub silentio; and we agree. The Court of Appeals, however, took quite a different view of the seasonal commuter because of its different history. The seasonal commuter dates back at least to 1943 when this Government and Mexico agreed to the seasonal importation of Mexican agricultural workers. Congress legislated on the in 1951,[27] requiring farmers in this Nation to make reasonable efforts to attract domestic workers prior to certification by the Secretary of Labor of the need for foreign labor. *76 That was known as the bracero program and the Court of Appeals called the seasonal commuter merely a new name for the former bracero. That is quite inaccurate. The braceros were at the start nonimmigrants; the seasonal commuters were immigrants. Some braceros, indeed quite a few, H. R. Rep. No. 722, 88th Cong., 1st |
Justice Douglas | 1,974 | 10 | majority | Saxbe v. Bustos | https://www.courtlistener.com/opinion/109115/saxbe-v-bustos/ | a few, H. R. Rep. No. 722, 88th Cong., 1st Sess., 7 (1963), acquired permanent residence status. The seasonal commuter, like the daily commuter, has always been in that category. In 1964 the bracero type of seasonal program lapsed; and the next year Congress amended the Immigration and Nationality Act by making stricter the certification by the Secretary of Labor of the need for foreign labor and requiring findings on the lack of any adverse effect of the employment of aliens on the wages and working conditions of workers in this country. But that provision, which we have quoted,[28] does not apply to aliens lawfully admitted for permanent residence returning from a temporary visit abroad and to certain close relatives. An alien who first sought admission after the effective date of the 1965 Amendment would need a certificate of the Secretary of Labor; but if he already was an alien lawfully admitted to the United States for permanent residence and returning from a temporary visit abroad, the 1965 amendments would not affect him. The purpose of Congress was to limit new admissions of alien laborers, not to prejudice the status of aliens who, whether daily or seasonal commuters, had acquired permanent residence here and were returning to existing jobs.[29] *77 We have mentioned General Order No. 86 issued on April 1, 1927, which treated the commuters as immigrants (not nonimmigrants), who on obtaining their admission cards would be "considered as having entered for permanent residence."[30] Cf.[31] The thrust of General Order No. 86 was to lift aliens who were natives of Canada and Mexico from the quota provisions for nonimmigrants. Thus, they entered from that time down to date, with nonquota immigration documents. That regulation was carried forward in various regulations before 1952.[32] The practice was reviewed and sustained in various published administrative decisions.[33] Some suggested that the 1952 Act eliminated the alien commuter. The Board of Immigration Appeals, however, reaffirmed the validity of the practice. Matter of H O , Thereafter repeated administrative decisions[34] affirmed the adherence to the alien-commuter concept. We do not labor the administrative construction phase of these cases further, because when the 1952 Act was reported, the Senate Judiciary Committee tendered a voluminous report of *78 nearly 1,000 pages touching on the alien commuters, describing the practice in some detail, and including the sections which we have discussed in this opinion. The commuters from Canada and Mexico were treated as lawfully admitted immigrants. No doubt as to the desirability of the practice was expressed. It is clear that S. Rep. No. 1515, 81st Cong., |
Justice Douglas | 1,974 | 10 | majority | Saxbe v. Bustos | https://www.courtlistener.com/opinion/109115/saxbe-v-bustos/ | It is clear that S. Rep. No. 1515, 81st Cong., 2d Sess. (1950) (the Omnibus Study Report), reveals a congressional acceptance of the system. The changes relevant to commuters in the 1965 amendments were, as stated in Gooch, minor and technical and contain no suggestion of a change in the commuter -81. H. R. Rep. No. 745, 89th Cong., 1st Sess. (1965); S. Rep. No. 748, 89th Cong., 1st Sess. (1965). Since 1965 there have been numerous reports by committees of the Congress on the alien commuter which indicate that Congress is very knowledgeable about the and has not reached a consensus that the administrative policy reaching back at least to General Order No. 86 is wrong. We know from the Western Hemisphere Report[35] that the dimensions of the are considerable. Daily commuters from Mexico number more than 42,000 of whom 25,000 are engaged in occupations other than agriculture. The total of Canadian commuters exceeds 10,000. Seasonal commuters number at least 8,300 according to the Service's estimate. The United States Commission on Civil Rights estimates that if Mexican commuters were cut off, they would lose $50 *79 million annually.[36] The State Department estimates there are 250,000 family members dependent on income earned by commuters[37] and that commuters account for 25% to 30% of the income earned by the labor force in some Mexican border communities.[38] Termination of the alien commuter practice might well have a great impact on American border communities because the Mexicans who have the status of permanent residents could settle here, increasing the s of housing and education in the border towns this side of the Rio Grande. Former Secretary of State Rogers submitted to the District Court an affidavit stating that any "sudden judicial termination of the commuter system, displacing the present immigrant commuters, would have a serious deleterious effect upon our relations with both Mexico and Canada." Our conclusion is twofold. First, the provisions of the Act which sanction daily commuters are the ones that also support seasonal commuters. We would have to read the same language in two opposed ways to sanction the daily commuter program and strike down the seasonal commuter program. There is no difference in administrative treatment of the two classes of commuters. Second, if alien commuters are to be abolished or if seasonal commuters are to be treated differently from daily commuters, the Congress must do it. The changes suggested implicate so many policies and raise so many s of a political, economic, and social nature that it is fit that the Judiciary recuse itself. At times judges must legislate |
Justice Kennedy | 1,989 | 4 | majority | Public Employees Retirement System of Ohio v. Betts | https://www.courtlistener.com/opinion/112321/public-employees-retirement-system-of-ohio-v-betts/ | The Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S. C. 621 et seq. ( ed. and Supp. V), forbids arbitrary discrimination by public and private employers against employees on account of age. Under 4(f)(2) of the Act, 29 U.S. C. 623(f)(2), however, age-based employment decisions taken pursuant to the terms of "any bona fide employee benefit plan such as a retirement, pension, or insurance plan, which is not a subterfuge to evade the purposes of" the Act, are exempt from the prohibitions of the ADEA. In the case before us, we must consider the meaning and scope of the 4(f)(2) *162 I A In 1933, the State of Ohio established the Public Employees Retirement System of Ohio (PERS) to provide retirement benefits for state and local government employees. Public employers and employees covered by PERS make contributions to a fund maintained by PERS to pay benefits to covered employees. Under the PERS statutory scheme, two forms of monthly retirement benefits are available to public employees upon termination of their public employment. Age-and-service retirement benefits are paid to those employees who at the time of their retirement (1) have at least 5 years of service credit and are at least 60 years of age; (2) have 30 years of service credit; or (3) have 25 years of service credit and are at least 55 years of age. Ohio Rev. Code Ann. 145.33, 145.34 Disability retirement benefits are available to employees who suffer a permanent disability, have at least five years of total service credit, and are under the age of 60 at retirement. 145. The requirement that disability retirees be under age 60 at the time of their retirement was included in the original PERS statute, and has remained unchanged since 1959. Employees who take disability retirement are treated as if they are on leave of absence for the first five years of their retirement. Should their medical conditions improve during that time, they are entitled to be rehired. 145.39. Employees receiving age-and-service retirement, on the other hand, are not placed on leave of absence, but they are permitted to apply for full-time employment with any public employer covered by PERS after 18 months of retirement. Ohio Rev. Code Ann. 145.381(C) Once an individual retires on either age-and-service or disability retirement benefits, he or she continues to receive that type of benefit throughout retirement, regardless of age. *163 B Appellee June M. Betts was hired by the Hamilton County Board of Mental Retardation and Developmental Disabilities as a speech pathologist in The board is a public agency, |
Justice Kennedy | 1,989 | 4 | majority | Public Employees Retirement System of Ohio v. Betts | https://www.courtlistener.com/opinion/112321/public-employees-retirement-system-of-ohio-v-betts/ | a speech pathologist in The board is a public agency, and its employees are covered by PERS. In because of medical problems, appellee became unable to perform her job adequately and was reassigned to a less demanding position. Appellee's medical condition continued to deteriorate, however, and by May 1985, when appellee was 61 years of age, her employer concluded that she was no longer able to perform adequately in any employment capacity. Appellee was given the choice of retiring or undergoing medical testing to determine whether she should be placed on unpaid medical leave. She chose to retire, an option which gave her eligibility for age-and-service retirement benefits from PERS. Because she was over 60 at the time of retirement, however, appellee was denied disability retirement benefits, despite her medical condition. Before 1976, the fact that appellee's age disqualified her for disability benefits would have had little practical significance, because the formula for calculating disability benefits was almost the same as the formula used to determine age-and-service benefits. In 1976, however, the PERS statutory scheme was amended to provide that disability retirement payments would in no event constitute less than 30 percent of the disability retiree's final average salary. Ohio Rev. Code Ann. 145.36 No such floor applies in the case of employees receiving age-and-service retirement payments. The difference was of much significance in appellee's case: her age-and-service retirement benefits amount to $158.50 per month, but she would have received nearly twice that, some $5 per month, had she been permitted to take disability retirement instead. Appellee filed an age discrimination charge against PERS with the Equal Employment Opportunity Commission *164 (EEOC), and filed suit in the United States District Court for the Southern District of Ohio, claiming that PERS' refusal to grant her application for disability retirement benefits violated the ADEA. The District Court found that PERS' retirement scheme was discriminatory on its face, in that it denied disability retirement benefits to certain employees on account of their age. The court rejected PERS' reliance on 4(f)(2) of the ADEA, which exempts from the Act's prohibitions certain actions taken in observance of "the terms of any bona fide employee benefit plan such as a retirement, pension, or insurance plan, which is not a subterfuge to evade the purposes of [the Act]" 29 U.S. C. 623(f)(2). Relying on interpretive regulations promulgated by the EEOC, the District Court held that employee benefit plans qualify for the 4(f)(2) exemption only if any age-related reductions in employee benefits are justified by the increased cost of providing those benefits to older employees. Because the PERS |
Justice Kennedy | 1,989 | 4 | majority | Public Employees Retirement System of Ohio v. Betts | https://www.courtlistener.com/opinion/112321/public-employees-retirement-system-of-ohio-v-betts/ | of providing those benefits to older employees. Because the PERS plan provided for a reduction in available benefits at age 60, a reduction not shown to be justified by considerations of increased cost, the court concluded that PERS' plan was not entitled to claim the protection of the 4(f)(2) -1204.[1] A divided panel of the Court of Appeals affirmed. and Developmental Disabilities, The majority agreed with the District Court that the 4(f)(2) exemption is available only to those retirement plans that can provide age-related cost justifications or "a substantial business purpose" for any age-based reduction in benefits. The *165 majority rejected PERS' reliance on United Air Lines, which held that retirement plans adopted prior to the enactment of the ADEA need not be justified by any business purpose, concluding that Congress had "expressly repudiated" this decision when it amended the ADEA in 848 F.2d, Because PERS had failed to provide any evidence that its discrimination against older workers was justified by age-related cost considerations, the majority concluded that summary judgment was appropriate. Judge Wellford dissented. Nothing that PERS' plan was adopted long before enactment of the ADEA, he argued that under United Air Lines, it could not be a "subterfuge to evade the purposes" of the Act. Judge Wellford rejected the EEOC's regulations requiring cost justifications for all age-based reductions in benefits, finding that nothing in the statute's language imposed such a requirement. We noted probable jurisdiction, and now reverse. II Under 4(a)(1) of the ADEA, it is unlawful for an employer "to fail or refuse to hire or discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age." 29 U.S. C. 623(a)(1). Notwithstanding this general prohibition, however, 4(f)(2) of the ADEA provides that it is not unlawful for an employer "to observe the terms of any bona fide employee benefit plan such as a retirement, pension, or insurance plan, which is not a subterfuge to evade the purposes of this chapter, except that no such employee benefit plan shall excuse the failure to hire any individual, and no such employee benefit plan shall require or permit *166 the involuntary retirement of any individual because of the age of such individual." 29 U.S. C. 623(f)(2). On its face, the PERS statutory scheme renders covered employees ineligible for disability retirement once they have attained age 60. Ohio Rev. Code Ann. 145. PERS' refusal to grant appellee's application for disability benefits therefore qualifies as an action "to observe the terms of" the plan. All parties apparently concede, |
Justice Kennedy | 1,989 | 4 | majority | Public Employees Retirement System of Ohio v. Betts | https://www.courtlistener.com/opinion/112321/public-employees-retirement-system-of-ohio-v-betts/ | observe the terms of" the plan. All parties apparently concede, moreover, that PERS' plan is "bona fide," in that it " `exists and pays benefits.' " ; see Finally, whatever the precise meaning of the phrase "any employee benefit plan such as a retirement, pension, or insurance plan," see infra, at 173-175, it is apparent that a disability retirement plan falls squarely within that category. Cf. 29 CFR 1625.10(f)(1)(ii) Accordingly, PERS is entitled to the protection of the 4(f)(2) exemption unless its plan is "a subterfuge to evade the purposes of" the Act.[2] We first construed the meaning of "subterfuge" under 4(f)(2) in United Air Lines, In the employer's retirement plan required employees to retire at the age of 60. After being forced to retire by the terms of the plan, sued under the ADEA, claiming that the forced retirement was a violation of the Act, and that the mandatory retirement provision was not protected by the 4(f)(2) exemption because it was a subterfuge to evade the purposes of the Act.[3] We rejected both positions. *167 With respect to mandatory retirement, we found that the statutory language and legislative history provided no support for the proposition that Congress intended to forbid age-based mandatory retirement. Turning to the claim that the mandatory retirement provision was a "subterfuge to evade the purposes of" the Act, we rejected the conclusion of the court below that forced retirement on the basis of age must be deemed a subterfuge absent some business or economic purpose for the age-based distinction. Instead, we held that the term "subterfuge" must be given its ordinary meaning as "a scheme, plan, stratagem, or artifice of evasion." Viewed in this light, the retirement plan at issue could not possibly be characterized as a subterfuge to evade the purposes of the Act, since it had been established in 1941, long before the Act was enacted. As we observed, "[t]o spell out an intent in 1941 to evade a statutory requirement not enacted until 1967 attributes, at the very least, a remarkable prescience to the employer. We reject any such per se rule requiring an employer to show an economic or business purpose in order to satisfy the subterfuge language of the Act." As an initial matter, appellee asserts that is no longer good law. She points out that in 1978, less than a year after was decided, Congress amended 4(f)(2) to overrule 's validation of mandatory retirement based on age. See Pub. L. 95-256, 2(a), The result of that amendment was the addition of what now is the final clause of 4(f)(2). |
Justice Kennedy | 1,989 | 4 | majority | Public Employees Retirement System of Ohio v. Betts | https://www.courtlistener.com/opinion/112321/public-employees-retirement-system-of-ohio-v-betts/ | addition of what now is the final clause of 4(f)(2). The legislative history of the 1978 amendment contains various references to the definition of subterfuge, and according to appellee these reveal clear congressional intent to disapprove the reasoning of The Conference Committee Report on the 1978 amendment, for example, expressly discusses and rejects stating that "[p]lan provisions in effect prior to the date of enactment are not exempt under section 4(f)(2) by virtue of the fact that they *168 antedate the act or these amendments." H. R. Conf. Rep. No. 95-950, p. 8 See also 124 Cong. Rec. 7881 (remarks of Rep. Hawkins) ("The conferees specifically disagree with the Supreme Court's holding and reasoning in [], particularly its conclusion that an employee benefit plan which discriminates on the basis of age is protected by section 4(f)(2) because it predates the enactment of the ADEA"); ; PERS disputes appellee's interpretation of this legislative history, asserting that it refers only to benefit plans that permit involuntary retirement and not to the more general issue whether a pre-Act plan can be a subterfuge in other circumstances. We need not resolve this dispute, however. The 1978 amendment to the ADEA did not add a definition of the term "subterfuge" or modify the language of 4(f)(2) in any way, other than by inserting the final clause forbidding mandatory retirement based on age. We have observed no more than one occasion that the interpretation given by one Congress (or a committee or Member thereof) to an earlier statute is of little assistance in discerning the meaning of that statute. See ; Consumer Product Safety ; United ; 6 U.S. 590, ; see also Congress changed the specific result of by adding a final clause to 4(f)(2), but it did not change the controlling, general language of the statute. As Congress did not amend the relevant statutory language, we see no reason to depart from our holding in that the term "subterfuge" is to be given its ordinary meaning, and that as a result an employee benefit plan adopted prior to enactment of the ADEA cannot be a subterfuge. See ; *169 According to PERS, our reaffirmation of should resolve this case. The PERS system was established by statute in 1933, and the rule that employees over age 60 may not qualify for disability retirement benefits has remained unchanged since 1959. The ADEA was not made applicable to the States until 1974. See Pub. L. 93-, 28(a)(2), codified at 29 U.S. C. 630(b)(2). Since the age-60 requirement predates application of the ADEA to PERS, PERS argues that, |
Justice Kennedy | 1,989 | 4 | majority | Public Employees Retirement System of Ohio v. Betts | https://www.courtlistener.com/opinion/112321/public-employees-retirement-system-of-ohio-v-betts/ | predates application of the ADEA to PERS, PERS argues that, under its plan cannot be a subterfuge to evade the purposes of the ADEA. While remains of considerable relevance to our decision here, we reject the argument that it is dispositive. It is true that the age-60 rule was adopted before 1974, and is thus insulated under from challenge as a subterfuge. The plan provision attacked by appellee, however, is the rule that disability retirees automatically receive a minimum of 30 percent of their final average salary upon retirement, while disabled employees who retire after age 60 do not. The 30 percent floor was not added to the plan until 1976, and to the extent this new rule increased the age-based disparity caused by the pre-Act age limitation, does not insulate it from challenge. See EEOC v. at n. 4; ; No "remarkable prescience" would have been required of PERS in 1976 for it to formulate the necessary intent to evade the ADEA, and thus the automatic rule of is inapplicable. See 434 U.S., Accordingly, we must turn to an inquiry into the precise meaning of the 4(f)(2) exemption in the context of post-Act plans. III Appellee and her amici say that 4(f)(2) protects age-based distinctions in employee benefit plans only when justified by the increased cost of benefits for older workers. They cite an interpretive regulation promulgated by the Department * of Labor, the agency initially charged with enforcing the Act, in 1979. -30662 (1979), codified at 29 CFR 860.120 redesignated 29 CFR 1625.10 The regulation recites that the purpose of the exemption "is to permit age-based reductions in employee benefit plans where such reductions are justified by significant cost considerations," and that "benefit levels for older workers may be reduced to the extent necessary to achieve approximate equivalency in cost for older and younger workers." 1625.10(a)(1). With respect to disability benefits in particular, the regulation provides that "[r]eductions on the basis of age in the level or duration of benefits available for disability are justifiable only on the basis of age-related cost considerations" 1625.10(f)(1)(ii). Under these provisions, employers may reduce the value of the benefits provided to older workers as necessary to equalize costs for workers of all ages, but they cannot exclude older workers from the coverage of their benefit plans altogether. The requirement that employers show a cost-based justification for age-related reductions in benefits appears nowhere in the statute itself. The EEOC as amicus contends that this rule can be drawn either from the statutory requirement that age-based distinctions in benefit plans not be a subterfuge |
Justice Kennedy | 1,989 | 4 | majority | Public Employees Retirement System of Ohio v. Betts | https://www.courtlistener.com/opinion/112321/public-employees-retirement-system-of-ohio-v-betts/ | that age-based distinctions in benefit plans not be a subterfuge to evade the purposes of the Act, or from the portion of 4(f)(2) limiting its scope to actions taken pursuant to "any bona fide employee benefit plan such as a retirement, pension, or insurance plan." Brief for EEOC as Amicus Curiae 9-14. We consider these alternatives in turn. A The regulations define "subterfuge" as follows: "In general, a plan or plan provision which prescribes lower benefits for older employees on account of age is not a `subterfuge' within the meaning of section 4(f)(2), provided that the lower level of benefits is justified by age-related cost considerations." 29 CFR 1625.10(d) Various lower courts *171 have accepted this definition. E. g., ; see also As the analysis in makes apparent, however, this approach to the definition of subterfuge cannot be squared with the plain language of the statute. Although 's holding, that pre-Act plans can never be a subterfuge, is not dispositive here, its reasoning is nonetheless controlling, for we stated in that case that "subterfuge" means "a scheme, plan, stratagem, or artifice of evasion," which, in the context of 4(f)(2), connotes a specific "intent to evade a statutory requirement." 434 U.S., The term thus includes a subjective element that the regulation's objective cost-justification requirement fails to acknowledge. Ignoring this inconsistency with the plain language of the statute, appellee and the EEOC suggest that the regulation represents a contemporaneous and consistent interpretation of the ADEA by the agencies responsible for the Act's enforcement and is therefore entitled to special deference. See ; see also Chevron U. S. A. But, of course, no deference is due to agency interpretations at odds with the plain language of the statute itself. Even contemporaneous and longstanding agency interpretations must fall to the extent they conflict with statutory language. Contrary to the suggestion of the EEOC and appellee, moreover, the cost-justification requirement was not adopted contemporaneously with enactment of the ADEA. The cost-justification rule had its genesis in an interpretive bulletin issued by the Department of Labor in January 1969. 323, codified at 29 CFR 860.120(a) (1970). To be sure, that regulation provided that plans which reduced benefits on the basis of age would "be considered in compliance with the statute" if the benefit reductions were justified *172 by age-related cost considerations, but it did not purport to exclude from the 4(f)(2) exemption all plans that could not meet a cost-justification requirement.[4] Rather, this original version of the cost-justification rule was nothing more than a safe harbor, a nonexclusive objective test for employers to use in determining |
Justice Kennedy | 1,989 | 4 | majority | Public Employees Retirement System of Ohio v. Betts | https://www.courtlistener.com/opinion/112321/public-employees-retirement-system-of-ohio-v-betts/ | a nonexclusive objective test for employers to use in determining whether they could be certain of qualifying for the 4(f)(2) It was not until 1979 that this regulatory safe harbor was transformed into the exclusive means of escaping classification as a subterfuge. Appellee and her amici rely in large part on the legislative history of the ADEA and the 1978 amendments. In view of our interpretation of the plain statutory language of the subterfuge requirement, however, this reliance on legislative history is misplaced. See ; The "subterfuge" exception to the 4(f)(2) exemption cannot be limited in the manner suggested by the regulation. *173 B The second possible source of authority for the cost-justification rule is the statute's requirement that the 4(f)(2) exemption be available only in the case of "any bona fide employee benefit plan such as a retirement, pension, or insurance plan." The EEOC argues, and some courts have held, that the phrase "such as a retirement, pension, or insurance plan" is intended to limit the protection of 4(f)(2) to those plans which have a cost justification for all age-based differentials in benefits. See cert. denied, ; The argument is as follows: the types of plans listed in the statute share the common characteristic that the cost of the benefits they provide generally rises with the age of their beneficiaries. This common characteristic suggests that Congress intended the 4(f)(2) exemption to cover only those plans in which costs rise with age. The obvious explanation for the limitation on the scope of 4(f)(2), the argument continues, is that the purpose of the exemption is to permit employers to reduce overall benefits paid to older workers only to the extent necessary to equalize costs for older and younger workers. There are a number of difficulties with this explanation for the cost-justification requirement. Perhaps most obvious, it requires us to read a great deal into the language of this clause of 4(f)(2), language that appears on its face to be nothing more than a listing of the general types of plans that fall within the category of "employee benefit plan." The statute's use of the phrase "any employee benefit plan" seems to imply a broad scope for the statutory exemption, and the "such as" clause suggests enumeration by way of example, not an exclusive listing. Nor is it by any means apparent *174 that the types of plans mentioned were intentionally selected because the cost to the employer of the benefits provided by these plans tends to increase with age. Indeed, many plans that fall within these categories do not share that |
Justice Kennedy | 1,989 | 4 | majority | Public Employees Retirement System of Ohio v. Betts | https://www.courtlistener.com/opinion/112321/public-employees-retirement-system-of-ohio-v-betts/ | plans that fall within these categories do not share that particular attribute at all, defined-contribution pension plans perhaps being the most obvious example.[5] We find it quite difficult to believe that Congress would have chosen such a circuitous route to the result urged by appellee and the EEOC. The interpretation is weakened further by the fact that the regulation itself does not support it. According to 29 CFR 1625.10(b) "[a]n `employee benefit plan' is a plan, such as a retirement, pension, or insurance plan, which provides employees with what are frequently referred to as `fringe benefits.' " This definition makes no mention of the limitation urged by the EEOC, and indeed seems sufficiently broad to encompass a wide variety of plans providing fringe benefits to employees, regardless of whether the cost of those benefits increases with age. The regulation's discussion of the cost-justification requirement is reserved for the subsection defining "subterfuge." 1625.10(d).[6] Under these *175 circumstances, this aspect of the EEOC's argument is entitled to little, if any, deference. Cf. For these reasons, we conclude that the phrase "any bona fide employee benefit plan such as a retirement, pension, or insurance plan" cannot reasonably be limited to benefit plans in which all age-based reductions in benefits are justified by age-related cost considerations. Accordingly, the interpretive regulation construing 4(f)(2) to include a cost-justification requirement is contrary to the plain language of the statute and is invalid. IV Having established that the EEOC's definition of subterfuge is invalid, we turn to the somewhat more difficult task of determining the precise meaning of the term as applied to post-Act plans. We begin, as always, with the language of the statute itself. The protection of 4(f)(2) is unavailable to any employee benefit plan "which is a subterfuge to evade the purposes of" the Act. As set forth in 2(b) of the ADEA, the purposes of *176 the Act are "to promote employment of older persons based on their ability rather than age; to prohibit arbitrary age discrimination in employment; to help employers and workers find ways of meeting problems arising from the impact of age on employment." 29 U.S. C. 621(b). On the facts of this case, the only purpose that the PERS plan could be a "subterfuge to evade" is the goal of eliminating "arbitrary age discrimination in employment." As the presence of the various exemptions and affirmative defenses contained in 4(f) illustrates, Congress recognized that not all age discrimination in employment is "arbitrary." In order to determine the type of age discrimination that Congress sought to eliminate as arbitrary, we must look |
Justice Kennedy | 1,989 | 4 | majority | Public Employees Retirement System of Ohio v. Betts | https://www.courtlistener.com/opinion/112321/public-employees-retirement-system-of-ohio-v-betts/ | that Congress sought to eliminate as arbitrary, we must look for guidance to the substantive prohibitions of the Act itself, for these provide the best evidence of the nature of the evils Congress sought to eradicate. Indeed, our decision in compels this approach, for it rejected the contention that the purposes of the Act can be distinguished from the Act itself: "The distinction relied on is untenable because the Act is the vehicle by which its purposes are expressed and carried out; it is difficult to conceive of a subterfuge to evade the one which does not also evade the other." Accordingly, a post-Act plan cannot be a subterfuge to evade the ADEA's purpose of banning arbitrary age discrimination unless it discriminates in a manner forbidden by the substantive provisions of the Act. Section 4(a), the ADEA's primary enforcement mechanism against age discrimination by employers, forbids employers "(1) to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age; "(2) to limit, segregate, or classify his employees in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely *177 affect his status as an employee, because of such individual's age; or "(3) to reduce the wage rate of any employee in order to comply with this chapter." 29 U.S. C. 623(a). The phrase "compensation, terms, conditions, or privileges of employment" in 4(a)(1) can be read to encompass employee benefit plans of the type covered by 4(f)(2). Such an interpretation, however, would in effect render the 4(f) (2) exemption nugatory with respect to post-Act plans. Any benefit plan that by its terms mandated discrimination against older workers would also be facially irreconcilable with the prohibitions in 4(a)(1) and, therefore, with the purposes of the Act itself. It is difficult to see how a plan provision that expressly mandates disparate treatment of older workers in a manner inconsistent with the purposes of the Act could be said not to be a subterfuge to evade those purposes, at least where the plan provision was adopted after enactment of the ADEA. On the other hand, if 4(f)(2) is viewed as exempting the provisions of a bona fide benefit plan from the purview of the ADEA so long as the plan is not a method of discriminating in other, non-fringe-benefit aspects of the employment relationship, both statutory provisions can be given effect. This interpretation of the ADEA would reflect a congressional judgment that age-based restrictions in |
Justice Kennedy | 1,989 | 4 | majority | Public Employees Retirement System of Ohio v. Betts | https://www.courtlistener.com/opinion/112321/public-employees-retirement-system-of-ohio-v-betts/ | ADEA would reflect a congressional judgment that age-based restrictions in the employee benefit plans covered by 4(f)(2) do not constitute the "arbitrary age discrimination in employment" that Congress sought to prohibit in enacting the ADEA. Instead, under this construction of the statute, Congress left the employee benefit battle for another day, and legislated only as to hiring and firing, wages and salaries, and other non-fringe-benefit terms and conditions of employment. To be sure, this construction of the words of the statute is not the only plausible one. But the alternative interpretation would eviscerate 4(f)(2). As JUSTICE WHITE wrote in his separate concurrence in "[b]ecause all retirement *178 plans necessarily make distinctions based on age, I fail to see how the subterfuge language, which was included in the original version of the bill and was carried all the way through, could have been intended to impose a requirement which almost no retirement plan could meet." Not surprisingly, the legislative history does not support such a self-defeating interpretation, but to the contrary shows that Congress envisioned a far broader role for the 4(f)(2) When S. 830, the bill that was to become the ADEA, was originally proposed by the administration in January 1967, it contained no general exemption for benefit plans that differentiated in benefits based on age.[7] Senator Javits, one of the principal moving forces behind enactment of age discrimination legislation, generally favored the administration's bill, but believed that a broader exemption for employee benefit plans was needed. Accordingly, he proposed an amendment substantially along the lines of present-day 4(f)(2). 113 Cong. Rec. 7077 (1967). One factor motivating Senator Javits' amendment was the concern that, absent some exemption for benefit plans, the Act might "actually encourage employers, faced with the necessity of paying greatly increased premiums, to look for excuses not to hire older workers when they might have done so under a law granting them a degree of flexibility with respect to such matters."[8] Reducing the cost of *179 hiring older workers was not the only purpose of the proposed amendment, however. Its goals were far more comprehensive. As Senator Javits put it, "the age discrimination law is not the proper place to fight" the battle of ensuring "adequate pension benefits for older workers," and 4(f)(2) was therefore intended to be "a fairly broad for bona fide retirement and seniority systems." Later, referring to the effect of his proposed amendment on the provisions of employee benefit plans, Senator Javits stated that "[i]f the older worker chooses to waive all of those provisions, then the older worker can obtain the benefits |
Justice Kennedy | 1,989 | 4 | majority | Public Employees Retirement System of Ohio v. Betts | https://www.courtlistener.com/opinion/112321/public-employees-retirement-system-of-ohio-v-betts/ | those provisions, then the older worker can obtain the benefits of this act" And finally, in his individual views accompanying the Senate Report on S. 830, Senator Javits observed: "I believe the bill has also been improved by the adoption of language, based on an amendment which I had offered, exempting the observance of bona fide seniority systems and retirement, pension, or other employment benefit plans from its prohibitions." S. Rep. No. 90th Cong., 1st Sess., 14 (1967) (emphasis added). Other Members of Congress expressed similar views. Senator Yarborough, the principal sponsor and floor manager of the administration bill, observed that 4(f)(2), "when it refers to retirement, pension, or insurance plan, means that a man who would not have been employed except for this law does not have to receive the benefits of the plan." 113 Cong. Rec. 31255 (1967). Indeed, at least one Congressman opposed the ADEA precisely because it permitted employers to exclude older employees from participation in benefit plans altogether when the terms of the plans mandated that result. While the Committee Reports on the ADEA do not address the matter in any detail, they do state that 4(f)(2) "serves to emphasize the primary purpose of the bill hiring of older workers by permitting employment without necessarily including such workers in employee benefit plans." S. Rep. No. ; H. R. Rep. No. 90th *180 Cong., 1st Sess., 4 (1967). That explanation does not support a narrow reading of the 4(f)(2) The Committee Reports, moreover, refute a reading of 4(f)(2) that would limit its protection to pre-Act plans, for they make it clear that the exemption "applies to new and existing employee benefit plans, and to both the establishment and maintenance of such plans." S. Rep. No. ; H. R. Rep. No. In short, the legislative history confirms that the broader reading of 4(f)(2) is the correct one, and that Congress intended to exempt employee benefit plans from the coverage of the Act except to the extent plans were used as a subterfuge for age discrimination in other aspects of the employment relation. While this result permits employers wide latitude in structuring employee benefit plans, it does not render the "not a subterfuge" proviso a dead letter. Any attempt to avoid the prohibitions of the Act by cloaking forbidden discrimination in the guise of age-based differentials in benefits will fall outside the 4(f)(2) Examples of possible violations of this kind can be given. Under 4(d) of the ADEA, for example, it is unlawful for an employer to discriminate against an employee who has "opposed any action |
Justice Kennedy | 1,989 | 4 | majority | Public Employees Retirement System of Ohio v. Betts | https://www.courtlistener.com/opinion/112321/public-employees-retirement-system-of-ohio-v-betts/ | to discriminate against an employee who has "opposed any action made unlawful by" the Act or has participated in the filing of any age-discrimination complaints or litigation. Nothing in 4(f)(2) would insulate from liability an employer who adopted a plan provision formulated to retaliate against such an employee. See 29 CFR 1625.10(d)(5) Similarly, while 4(f)(2) generally protects age-based reductions in fringe benefits, an employer's decision to reduce salaries for all employees while substantially increasing benefits for younger workers might give rise to an inference that the employer was in fact utilizing its benefits plan as a subterfuge for age-based discrimination in wages, an activity forbidden by 4(a)(1). These examples are not exhaustive, but suffice to illustrate the not-insignificant protections provided to older employees by the subterfuge proviso in the 4(f)(2) *181 V As construed above, 4(f)(2) is not so much a defense to a charge of age discrimination as it is a description of the type of employer conduct that is prohibited in the employee benefit plan context. By requiring a showing of actual intent to discriminate in those aspects of the employment relationship protected by the provisions of the ADEA, 4(f)(2) redefines the elements of a plaintiff's prima facie case instead of establishing a defense to what otherwise would be a violation of the Act. Thus, when an employee seeks to challenge a benefit plan provision as a subterfuge to evade the purposes of the Act, the employee bears the burden of proving that the discriminatory plan provision actually was intended to serve the purpose of discriminating in some non-fringe-benefit aspect of the employment relation. This result is supported by our longstanding interpretation of the analogous provision of Title VII, the statute from which "the prohibitions of the ADEA were derived in haec verba." Section 703(h) of Title VII states that "[n]otwithstanding any other provision of this subchapter, it shall not be an unlawful employment practice for an employer to apply different standards of compensation, or different terms, conditions, or privileges of employment pursuant to a bona fide seniority system,. provided that such differences are not the result of an intention to discriminate because of race, color, religion, sex, or national origin" 42 U.S. C. 2000e-2(h). Despite the fact that 703(h), like 4(f)(2), appears on first reading to describe an affirmative defense, we have "regarded [ 703(h)] not as a defense but as a provision that itself `delineates which employment practices are illegal and thereby prohibited and which are not.' " Although the use of the phrase "subterfuge to evade the purposes of [the Act]" in 4(f)(2) renders the |
Justice Kennedy | 1,989 | 4 | majority | Public Employees Retirement System of Ohio v. Betts | https://www.courtlistener.com/opinion/112321/public-employees-retirement-system-of-ohio-v-betts/ | evade the purposes of [the Act]" in 4(f)(2) renders the scope of its protection for employee benefit plans broader than the scope of the protection for seniority systems provided by 703(h), the similar structure and purpose of the two provisions supports the conclusion that ADEA plaintiffs must bear the burden of showing subterfuge. Applying this structure to the facts here, it follows that PERS' disability retirement plan is the type of plan subject to the 4(f)(2) exemption, and PERS' refusal to grant appellee's request for disability benefits was required by the terms of the plan. Because appellee has failed to meet her burden of proving that the reduction in benefits at age 60 was the result of an intent to discriminate in some non-fringe-benefit aspect of the employment relation, summary judgment for appellee was inappropriate. On remand, the District Court should give appellee an opportunity to demonstrate the existence of a genuine issue of material fact on this issue. See Celotex 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 Kennedy | 2,001 | 4 | majority | TrafFix Devices, Inc. v. Marketing Displays, Inc. | https://www.courtlistener.com/opinion/118411/traffix-devices-inc-v-marketing-displays-inc/ | Temporary road signs with warnings like "Road Work Ahead" or "Left Shoulder Closed" must withstand strong gusts of wind. An inventor named Robert Sarkisian obtained two utility patents for a mechanism built upon two springs (the dual-spring design) to keep these and other outdoor signs upright despite adverse wind conditions. The holder of the now-expired Sarkisian patents, respondent Marketing Displays, Inc. (MDI), established a successful business in the manufacture and sale of sign stands incorporating the patented feature. MDI's stands for road signs were recognizable to buyers and users (it says) because the dual-spring design was visible near the base of the sign. *26 This litigation followed after the patents expired and a competitor, TrafFix Devices, Inc.,sold sign stands with a visible spring mechanism that looked like MDI's. MDI and TrafFix products looked alike because they were. When TrafFix started in business, it sent an MDI product abroad to have it reverse engineered, that is to say copied. Complicating matters, TrafFix marketed its sign stands under a name similar to MDI's. MDI used the name "WindMaster," while TrafFix, its new competitor, used "WindBuster." MDI brought suit under the Trademark Act of 1946 (Lanham Act), as amended, 15 U.S. C. 1051 et seq., against TrafFix for trademark infringement (based on the similar names), trade dress infringement (based on the copied dual-spring design), and unfair competition. TrafFix counterclaimed on antitrust theories. After the United States District Court for the Eastern District of Michigan considered cross-motions for summary judgment, MDI prevailed on its trademark claim for the confusing similarity of names and was held not liable on the antitrust counterclaim; and those two rulings, affirmed by the Court of Appeals, are not before us. I We are concerned with the trade dress question. The District Court ruled against MDI on its trade dress claim. After determining that the one element of MDI's trade dress at issue was the dualspring design, it held that "no reasonable trier of fact could determine that MDI has established secondary meaning" in its alleged trade dress, In other words, consumers did not associate the look of the dualspring design with MDI. As a second, independent reason to grant summary judgment in favor of TrafFix, the District Court determined the dual-spring design was functional. On this rationale secondary meaning is irrelevant because there can be no trade dress protection in any event. In ruling on the functional aspect of the design, the District Court *27 noted that Sixth Circuit precedent indicated that the burden was on MDI to prove that its trade dress was nonfunctional, and not on TrafFix |
Justice Kennedy | 2,001 | 4 | majority | TrafFix Devices, Inc. v. Marketing Displays, Inc. | https://www.courtlistener.com/opinion/118411/traffix-devices-inc-v-marketing-displays-inc/ | that its trade dress was nonfunctional, and not on TrafFix to show that it was functional (a rule since adopted by Congress, see 15 U.S. C. 1125(a)(3) (1994 ed., Supp. V)), and then went on to consider MDI's arguments that the dual-spring design was subject to trade dress protection. Finding none of MDI's contentions persuasive, the District Court concluded MDI had not "proffered sufficient evidence which would enable a reasonable trier of fact to find that MDI's vertical dual-spring design is non functional." Summary judgment was entered against MDI on its trade dress claims. The Court of Appeals for the Sixth Circuit reversed the trade dress ruling. The Court of Appeals held the District Court had erred in ruling MDI failed to show a genuine issue of material fact regarding whether it had secondary meaning in its alleged trade dress, and had erred further in determining that MDI could not prevail in any event because the alleged trade dress was in fact a functional product configuration, The Court of Appeals suggested the District Court committed legal error by looking only to the dual-spring design when evaluating MDI's trade dress. Basic to its reasoning was the Court of Appeals' observation that it took "little imagination to conceive of a hidden dual-spring mechanism or a tri or quad-spring mechanism that might avoid infringing [MDI's] trade dress." The Court of Appeals explained that "[i]f TrafFix or another competitor chooses to use [MDI's] dual-spring design, then it will have to find some other way to set its sign apart to avoid infringing [MDI's] trade dress." It was not sufficient, according to the Court of Appeals, that allowing exclusive use of a particular feature such as the dual-spring design in the guise of trade dress would "hinde[r] competition somewhat." Rather, "[e]xclusive use of a feature must `put competitors at a significant non-reputation-related disadvantage' before trade *28 dress protection is denied on functionality grounds." ). In its criticism of the District Court's ruling on the trade dress question, the Court of Appeals took note of a split among Courts of Appeals in various other Circuits on the issue whether the existence of an expired utility patent forecloses the possibility of the patentee's claiming trade dress protection in the product's design. Compare Sunbeam Products, Thomas & Betts and Midwest Industries, with Air Circulation Systems, To resolve the conflict, we granted certiorari. II It is well established that trade dress can be protected under federal law. The design or packaging of a product may acquire a distinctiveness which serves to identify the product with its manufacturer or source; |
Justice Kennedy | 2,001 | 4 | majority | TrafFix Devices, Inc. v. Marketing Displays, Inc. | https://www.courtlistener.com/opinion/118411/traffix-devices-inc-v-marketing-displays-inc/ | serves to identify the product with its manufacturer or source; and a design or package which acquires this secondary meaning, assuming other requisites are met, is a trade dress which may not be used in a manner likely to cause confusion as to the origin, sponsorship, or approval of the goods. In these respects protection for trade dress exists to promote competition. As we explained just last Term, see Stores, various Courts of Appeals have allowed claims of trade dress infringement relying on the general provision of the Lanham Act which provides a cause of action to one who is injured when a person uses "any word, term name, symbol, or device, or any *29 combination thereof which is likely to cause confusion as to the origin, sponsorship, or approval of his or her goods." 15 U.S. C. 1125(a)(1)(A). Congress confirmed this statutory protection for trade dress by amending the Lanham Act to recognize the concept. Title 15 U.S. C. 1125(a)(3) (1994 ed., Supp. V) provides: "In a civil action for trade dress infringement under this chapter for trade dress not registered on the principal register, the person who asserts trade dress protection has the burden of proving that the matter sought to be protected is not functional." This burden of proof gives force to the well-established rule that trade dress protection may not be claimed for product features that are functional. at 164-; Two And in we were careful to caution against misuse or over extension of trade dress. We noted that "product design almost invariably serves purposes other than source identification." Trade dress protection must subsist with the recognition that in many instances there is no prohibition against copying goods and products. In general, unless an intellectual property right such as a patent or copyright protects an item, it will be subject to copying. As the Court has explained, copying is not always discouraged or disfavored by the laws which preserve our competitive economy. Bonito Boats, Allowing competitors to copy will have salutary effects in many instances. "Reverse engineering of chemical and mechanical articles in the public domain often leads to significant advances in technology." The principal question in this case is the effect of an expired patent on a claim of trade dress infringement. A prior patent, we conclude, has vital significance in resolving the trade dress claim. A utility patent is strong evidence that the features therein claimed are functional. If trade dress protection is sought for those features the strong evidence *30 of functionality based on the previous patent adds great weight to the statutory |
Justice Kennedy | 2,001 | 4 | majority | TrafFix Devices, Inc. v. Marketing Displays, Inc. | https://www.courtlistener.com/opinion/118411/traffix-devices-inc-v-marketing-displays-inc/ | on the previous patent adds great weight to the statutory presumption that features are deemed functional until proved otherwise by the party seeking trade dress protection. Where the expired patent claimed the features in question, one who seeks to establish trade dress protection must carry the heavy burden of showing that the feature is not functional, for instance by showing that it is merely an ornamental, incidental, or arbitrary aspect of the device. In the case before us, the central advance claimed in the expired utility patents (the Sarkisian patents) is the dualspring design; and the dual-spring design is the essential feature of the trade dress MDI now seeks to establish and to protect. The rule we have explained bars the trade dress claim, for MDI did not, and cannot, carry the burden of overcoming the strong evidentiary inference of functionality based on the disclosure of the dual-spring design in the claims of the expired patents. The dual springs shown in the Sarkisian patents were well apart (at either end of a frame for holding a rectangular sign when one full side is the base) while the dual springs at issue here are close together (in a frame designed to hold a sign by one of its corners). As the District Court recognized, this makes little difference. The point is that the springs are necessary to the operation of the device. The fact that the springs in this very different-looking device fall within the claims of the patents is illustrated by MDI's own position in earlier litigation. In the late 1970's, MDI engaged in a long-running intellectual property battle with a company known as Winn-Proof. Although the precise claims of the Sarkisian patents cover sign stands with springs "spaced apart," U. S. Patent No. 3,646,696, col. 4; U. S. Patent No. 3,662,482, col. 4, the Winn-Proof sign stands (with springs much like the sign stands at issue here) were found to infringe the patents by the United States District Court for the District of Oregon, and the Court of Appeals for the *31 Ninth Circuit affirmed the judgment. Although the WinnProof traffic sign stand (with dual springs close together) did not appear, then, to infringe the literal terms of the patent claims (which called for "spaced apart" springs), the WinnProof sign stand was found to infringe the patents under the doctrine of equivalents, which allows a finding of patent infringement even when the accused product does not fall within the literal terms of the claims. ; see generally Warner-Jenkinson In light of this past rulinga ruling procured at MDI's own |
Justice Kennedy | 2,001 | 4 | majority | TrafFix Devices, Inc. v. Marketing Displays, Inc. | https://www.courtlistener.com/opinion/118411/traffix-devices-inc-v-marketing-displays-inc/ | light of this past rulinga ruling procured at MDI's own insistenceit must be concluded the products here at issue would have been covered by the claims of the expired patents. The rationale for the rule that the disclosure of a feature in the claims of a utility patent constitutes strong evidence of functionality is well illustrated in this case. The dual-spring design serves the important purpose of keeping the sign upright even in heavy wind conditions; and, as confirmed by the statements in the expired patents, it does so in a unique and useful manner. As the specification of one of the patents recites, prior art "devices, in practice, will topple under the force of a strong wind." U. S. Patent No. 3,662,482, col. 1. The dual-spring design allows sign stands to resist toppling in strong winds. Using a dual-spring design rather than a single spring achieves important operational advantages. For example, the specifications of the patents note that the "use of a pair of springs as opposed to the use of a single spring to support the frame structure prevents canting or twisting of the sign around a vertical axis," and that, if not prevented, twisting "may cause damage to the spring structure and may result in tipping of the device." U. S. Patent No. 3,646,696, col. 3. In the course of patent prosecution, it was said that "[t]he use of a pair of spring connections as opposed to a single spring connection forms an important part of this combination" because it *32 "forc[es] the sign frame to tip along the longitudinal axis of the elongated ground-engaging members." App. 218. The dual-spring design affects the cost of the device as well; it was acknowledged that the device "could use three springs but this would unnecessarily increase the cost of the device." These statements made in the patent applications and in the course of procuring the patents demonstrate the functionality of the design. MDI does not assert that any of these representations are mistaken or inaccurate, and this is further strong evidence of the functionality of the dual-spring design. III In finding for MDI on the trade dress issue the Court of Appeals gave insufficient recognition to the importance of the expired utility patents, and their evidentiary significance, in establishing the functionality of the device. The error likely was caused by its misinterpretation of trade dress principles in other respects. As we have noted, even if there has been no previous utility patent the party asserting trade dress has the burden to establish the nonfunctionality of alleged trade dress features. |
Justice Kennedy | 2,001 | 4 | majority | TrafFix Devices, Inc. v. Marketing Displays, Inc. | https://www.courtlistener.com/opinion/118411/traffix-devices-inc-v-marketing-displays-inc/ | burden to establish the nonfunctionality of alleged trade dress features. MDI could not meet this burden. Discussing trademarks, we have said "`[i]n general terms, a product feature is functional,' and cannot serve as a trademark, `if it is essential to the use or purpose of the article or if it affects the cost or quality of the article.' " 514 U. S., at ). Expanding upon the meaning of this phrase, we have observed that a functional feature is one the "exclusive use of [which] would put competitors at a significant nonreputation-related disadvantage." 514 U.S., at The Court of Appeals in the instant case seemed to interpret this language to mean that a necessary test for functionality is "whether the particular product configuration is a competitive necessity." 200 F.3d, See also This was incorrect as a comprehensive definition. As explained in and a feature is also functional when it is essential to the use or purpose of the device or when it affects the cost or quality of the device. The decision did not purport to displace this traditional rule. Instead, it quoted the rule as had set it forth. It is proper to inquire into a "significant non-reputation-related disadvantage" in cases of esthetic functionality, the question involved in Where the design is functional under the formulation there is no need to proceed further to consider if there is a competitive necessity for the feature. In by contrast, esthetic functionality was the central question, there having been no indication that the green-gold color of the laundry press pad had any bearing on the use or purpose of the product or its cost or quality. The Court has allowed trade dress protection to certain product features that are inherently distinctive. Two In Two however, the Court at the outset made the explicit analytic assumption that the trade dress features in question (decorations and other features to evoke a Mexican theme in a restaurant) were not functional. The trade dress in those cases did not bar competitors from copying functional product design features. In the instant case, beyond serving the purpose of informing consumers that the sign stands are made by MDI (assuming it does so), the dual-spring design provides a unique and useful mechanism to resist the force of the wind. Functionality having been established, whether MDI's dual-spring design has acquired secondary meaning need not be considered. There is no need, furthermore, to engage, as did the Court of Appeals, in speculation about other design possibilities, such as using three or four springs which might serve the same 200 F.3d, Here, |
Justice Kennedy | 2,001 | 4 | majority | TrafFix Devices, Inc. v. Marketing Displays, Inc. | https://www.courtlistener.com/opinion/118411/traffix-devices-inc-v-marketing-displays-inc/ | four springs which might serve the same 200 F.3d, Here, the functionality of the spring design means that competitors need not explore *34 whether other spring juxtapositions might be used. The dual-spring design is not an arbitrary flourish in the configuration of MDI's product; it is the reason the device works. Other designs need not be attempted. Because the dual-spring design is functional, it is unnecessary for competitors to explore designs to hide the springs, say, by using a box or framework to cover them, as suggested by the Court of Appeals. The dual-spring design assures the user the device will work. If buyers are assured the product serves its purpose by seeing the operative mechanism that in itself serves an important market need. It would be at cross-purposes to those objectives, and something of a paradox, were we to require the manufacturer to conceal the very item the user seeks. In a case where a manufacturer seeks to protect arbitrary, incidental, or ornamental aspects of features of a product found in the patent claims, such as arbitrary curves in the legs or an ornamental pattern painted on the springs, a different result might obtain. There the manufacturer could perhaps prove that those aspects do not serve a purpose within the terms of the utility patent. The inquiry into whether such features, asserted to be trade dress, are functional by reason of their inclusion in the claims of an expired utility patent could be aided by going beyond the claims and examining the patent and its prosecution history to see if the feature in question is shown as a useful part of the invention. No such claim is made here, however. MDI in essence seeks protection for the dual-spring design alone. The asserted trade dress consists simply of the dual-spring design, four legs, a base, an upright, and a sign. MDI has pointed to nothing arbitrary about the components of its device or the way they are assembled. The Lanham Act does not exist to reward manufacturers for their innovation in creating a particular device; that is the purpose of the patent law and its period of exclusivity. The Lanham Act, furthermore, does not protect trade dress in a functional design simply *35 because an investment has been made to encourage the public to associate a particular functional feature with a single manufacturer or seller. The Court of Appeals erred in viewing MDI as possessing the right to exclude competitors from using a design identical to MDI's and to require those competitors to adopt a different design simply to avoid |
Justice Kennedy | 2,001 | 4 | majority | TrafFix Devices, Inc. v. Marketing Displays, Inc. | https://www.courtlistener.com/opinion/118411/traffix-devices-inc-v-marketing-displays-inc/ | those competitors to adopt a different design simply to avoid copying it. MDI cannot gain the exclusive right to produce sign stands using the dual-spring design by asserting that consumers associate it with the look of the invention itself. Whether a utility patent has expired or there has been no utility patent at all, a product design which has a particular appearance may be functional because it is "essential to the use or purpose of the article" or "affects the cost or quality of the article." 456 U. S., at TrafFix and some of its amici argue that the Patent Clause of the Constitution, Art. I, 8, cl. 8, of its own force, prohibits the holder of an expired utility patent from claiming trade dress protection. Brief for Petitioner 33-36; Brief for Panduit Corp. as Amicus Curiae 3; Brief for Malla Pollack as Amicus Curiae 2. We need not resolve this question. If, despite the rule that functional features may not be the subject of trade dress protection, a case arises in which trade dress becomes the practical equivalent of an expired utility patent, that will be time enough to consider the matter. 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 Stevens | 1,991 | 16 | dissenting | Mireles v. Waco | https://www.courtlistener.com/opinion/112655/mireles-v-waco/ | Judicial immunity attaches only to actions undertaken in a judicial capacity. In determining whether an action is "judicial," we consider the nature of the act and whether it is a "function normally performed by a judge."[*] Respondent Howard Waco alleges that petitioner Judge Raymond Mireles ordered police officers "to forcibly and with excessive force seize and bring" respondent into petitioner's courtroom. App. to Pet. for Cert. B-3, ¶ 7(a). As the Court acknowledges, ordering police officers to use excessive force is "not a `function normally performed by a judge.' " Ante, at 12 (quoting 435 U. S., at ). The Court nevertheless finds that judicial immunity is applicable because of the action's "relation to a general function normally performed by a judge." Ante, at 13. Accepting the allegations of the complaint as true, as we must in reviewing a motion to dismiss, petitioner issued two commands to the police officers. He ordered them to bring respondent into his courtroom, and he ordered them to commit a battery. The first order was an action taken in a judicial capacity; the second clearly was not. Ordering a battery has no relation to a function normally performed by a judge. If an interval of a minute or two had separated the two orders, it would be undeniable that no immunity would attach to the latter order. The fact that both are alleged to *15 have occurred as part of the same communication does not enlarge the judge's immunity. Accordingly, I respectfully dissent. |
Justice Marshall | 1,983 | 15 | dissenting | Missouri v. Hunter | https://www.courtlistener.com/opinion/110824/missouri-v-hunter/ | The Double Jeopardy Clause forbids either multiple prosecutions or multiple punishment for "the same offence." See, e. g., North ; United ; Ex parte Lange, Respondent was convicted of both armed criminal action and the lesser included offense of first-degree robbery, and he was sentenced for both crimes. Had respondent been tried for these two crimes in separate trials, he would plainly have been subjected to multiple prosecutions for "the same offence" in violation of the Double Jeopardy Clause.[1] See ; For the reasons stated below, I do not believe that the phrase "the same offence" should be interpreted to mean one thing for purposes of the prohibition against multiple prosecutions and something else for purposes of the prohibition against multiple punishment. First-degree robbery and armed criminal action constitute the same offense under the test set forth in To punish respondent for first-degree robbery, the State was not required *370 to prove a single fact in addition to what it had to prove to punish him for armed criminal action.[2] The punishment imposed for first-degree robbery was not predicated upon proof of any act, state of mind, or result different from that required to establish armed criminal action. Respondent was thus punished twice for the elements of first-degree robbery: once when he was convicted and sentenced for that crime, and again when he was convicted and sentenced for armed criminal action. A State has wide latitude to define crimes and to prescribe the punishment for a given crime. For example, a State is free to prescribe two different punishments (e. g., a fine and a prison term) for a single offense. But the Constitution does not permit a State to punish as two crimes conduct that constitutes only one "offence" within the meaning of the Double Jeopardy Clause. For whenever a person is subjected to the risk that he will be convicted of a crime under state law, he is "put in jeopardy of life or limb." If the prohibition against being "twice put in jeopardy" for "the same offence" is to have any real meaning, a State cannot be allowed to convict *371 a defendant two, three, or more times simply by enacting separate statutory provisions defining nominally distinct crimes. If the Double Jeopardy Clause imposed no restrictions on a legislature's power to authorize multiple punishment, there would be no limit to the number of convictions that a State could obtain on the basis of the same act, state of mind, and result. A State would be free to create substantively identical crimes differing only in name, or to |
Justice Marshall | 1,983 | 15 | dissenting | Missouri v. Hunter | https://www.courtlistener.com/opinion/110824/missouri-v-hunter/ | create substantively identical crimes differing only in name, or to create a series of greater and lesser included offenses, with the first crime a lesser included offense of the second, the second a lesser included offense of the third, and so on.[3] Contrary to the assertion of the United States in its amicus brief, Brief for United States as Amicus Curiae 18-19, the entry of two convictions and the imposition of two sentences cannot be justified on the ground that the legislature could have simply created one crime but prescribed harsher punishment for that crime. This argument incorrectly assumes that the total sentence imposed is all that matters, and that the number of convictions that can be obtained is of no *372 relevance to the concerns underlying the Double Jeopardy Clause. When multiple charges are brought, the defendant is "put in jeopardy" as to each charge. To retain his freedom, the defendant must obtain an acquittal on all charges; to put the defendant in prison, the prosecution need only obtain a single guilty verdict. The prosecution's ability to bring multiple charges increases the risk that the defendant will be convicted on one or more of those charges. The very fact that a defendant has been arrested, charged, and brought to trial on several charges may suggest to the jury that he must be guilty of at least one of those crimes. Moreover, where the prosecution's evidence is weak, its ability to bring multiple charges may substantially enhance the possibility that, even though innocent, the defendant may be found guilty on one or more charges as a result of a compromise verdict. The submission of two charges rather than one gives the prosecution "the advantage of offering the jury a choice a situation which is apt to induce a doubtful jury to find the defendant guilty of the less serious offense rather than to continue the debate as to his innocence."[4] The Government's argument also overlooks the fact that, quite apart from any sentence that is imposed, each separate criminal conviction typically has collateral consequences, in both the jurisdiction in which the conviction is obtained and in other jurisdictions. See ; The number of convictions is often critical to the collateral consequences that an individual faces. For example, a defendant who has only one prior conviction will generally not be subject to sentencing under a habitual offender statute. Furthermore, each criminal conviction itself represents a pronouncement by the State that the defendant has engaged in conduct warranting the moral condemnation of the community. See Hart, The Aims of the Criminal |
Justice Marshall | 1,983 | 15 | dissenting | Missouri v. Hunter | https://www.courtlistener.com/opinion/110824/missouri-v-hunter/ | of the community. See Hart, The Aims of the Criminal Law, 23 Law & Contemp. Prob. 401, 404-405 (1958). Because a criminal conviction constitutes a formal judgment of condemnation by the community, each additional conviction imposes an additional stigma and causes additional damage to the defendant's reputation. See cert. denied, A statutory scheme that permits the prosecution to obtain two convictions and two sentences therefore cannot be regarded as the equivalent of a statute that permits only a single conviction, whether or not that single conviction can result in a sentence of equal severity. The greater the number of possible convictions, the greater the risk that the defendant faces. The defendant is "put in jeopardy" with respect to each charge against him. The very fact that the State could simply convict a defendant such as respondent of one crime and impose an appropriate punishment for that crime demonstrates that it has no legitimate interest in seeking multiple convictions and multiple punishment. The creation of multiple crimes serves only to strengthen the prosecution's hand. It advances no valid state interest that could not just as easily be achieved without bringing multiple charges against the defendant. In light of these considerations, the Double Jeopardy Clause cannot reasonably be interpreted to leave legislatures completely free to subject a defendant to the risk of multiple punishment on the basis of a single criminal transaction. In the context of multiple prosecutions, it is well established *374 that the phrase "the same offence" in the Double Jeopardy Clause has independent content that two crimes that do not satisfy the Blockburger test constitute "the same offence" under the Double Jeopardy Clause regardless of the legislature's intent to treat them as separate offenses.[5] Otherwise multiple prosecutions would be permissible whenever authorized by the legislature. The Court has long assumed that the Blockburger test is also a rule of constitutional stature in multiple-punishment cases,[6] and I would not hesitate to hold that it is. If the prohibition against being "twice put in jeopardy" for "the same offence" is to provide meaningful protection, the phrase "the same offence" must have content independent of state law in both contexts. Since the Double Jeopardy Clause limits the power of all branches of government, including the legislature, there is no more reason to treat the test as simply a rule of statutory construction in multiple-punishment cases than there would be in multiple-prosecution cases. I respectfully dissent. |
Justice Sotomayor | 2,018 | 24 | dissenting | Lucia v. SEC | https://www.courtlistener.com/opinion/4509420/lucia-v-sec/ | The Court today and scholars acknowledge that this Court’s Appointments Clause jurisprudence offers little guidance on who qualifies as an “Officer of the United States.” See, e.g., ante, at 6 (“The standard is no doubt framed in general terms, tempting advocates to add what- ever glosses best suit their arguments”); Plecnik, Officers Under the Appointments Clause, 11 Pitt. Tax Rev. 201, 204 (2014). The lack of guidance is not without conse- quence. “[Q]uestions about the Clause continue to arise regularly both in the operation of the Executive Branch and in proposed legislation.” 31 Opinion of Office of Legal Counsel 73, 76 (2007) (Op. OLC). This confusion can undermine the reliability and finality of proceedings and result in wasted resources. See ante, at 12–13 (opinion of the Court) (ordering the Commission to grant petitioners a new administrative hearing). As the majority notes, see ante, at 5–6, this Court’s decisions currently set forth at least two prerequisites to officer status: (1) an individual must hold a “continuing” office established by law, United States v. Germaine, 99 U.S. 508, 511–512 (1879), and (2) an individual must wield “significant authority,” 126 (1976) (per curiam). The first requirement is relatively 2 LUCIA v. SEC SOTOMAYOR, J., dissenting easy to grasp; the second, less so. To be sure, to exercise “significant authority,” the person must wield considerable powers in comparison to the average person who works for the Federal Government. As this Court has noted, the vast majority of those who work for the Federal Govern- ment are not “Officers of the United States.” See Free Enterprise (indicating that well over 90% of those who render services to the Federal Government and are paid by it are not constitutional officers). But this Court’s decisions have yet to articulate the types of powers that will be deemed significant enough to constitute “significant authority.” To provide guidance to Congress and the Executive Branch, I would hold that one requisite component of “significant authority” is the ability to make final, binding decisions on behalf of the Government. Accordingly, a person who merely advises and provides recommendations to an officer would not herself qualify as an officer. There is some historical support for such a requirement. For example, in 1822, the Supreme Judicial Court of Maine opined in the “fullest early explication” of the meaning of an “ ‘office,’ ” that “ ‘the term “office” implies a delegation of a portion of the sovereign power to, and possession of it by the person filling the office,’ ” that “ ‘in its effects[,] will bind the rights of others.’ ” 31 |
Justice Sotomayor | 2,018 | 24 | dissenting | Lucia v. SEC | https://www.courtlistener.com/opinion/4509420/lucia-v-sec/ | its effects[,] will bind the rights of others.’ ” 31 Op. OLC 83 (quoting 3 Greenl. (Me.) 481, 482). In 1899, a Report of the Judiciary Committee of the House of Repre- sentatives noted that “the creation and conferring of an office involves a delegation to the individual of sover- eign functions,” i.e., “the power to legislate, execute law, or hear and determine judicially questions sub- mitted.” 1 A. Hinds, Precedents of the House of Repre- sentatives of the United States 607 (1907). Those who merely assist others in exercising sovereign functions but who do not have the authority to exercise sovereign pow- Cite as: 585 U. S. (2018) 3 SOTOMAYOR, J., dissenting ers themselves do not wield significant authority. at 607–608. Consequently, a person who possesses the “mere power to investigate some particular subject and report thereon” or to engage in negotiations “without [the] power to make binding” commitments on behalf of the Govern- ment is not an officer. Confirming that final decisionmaking authority is a prerequisite to officer status would go a long way to aiding Congress and the Executive Branch in sorting out who is an officer and who is a mere employee. At the threshold, Congress and the Executive Branch could rule out as an officer any person who investigates, advises, or recom- mends, but who has no power to issue binding policies, execute the laws, or finally resolve adjudicatory questions. Turning to the question presented here, it is true that the administrative law judges (ALJs) of the Securities and Exchange Commission wield “extensive powers.” Ante, at 2. They preside over adversarial proceedings that can lead to the imposition of significant penalties on private par- ties. See ante, at 2–3 (noting that the proceedings in the present case resulted in the imposition of $300,000 in civil penalties, as well as a lifetime bar from the investment industry). In the hearings over which they preside, Com- mission ALJs also exercise discretion with respect to important matters. See ante, at 2 (discussing Commission ALJs’ powers to supervise discovery, issue subpoenas, rule on the admissibility of evidence, hear and examine wit- nesses, and regulate the course of the proceedings). Nevertheless, I would hold that Commission ALJs are not officers because they lack final decisionmaking author- ity. As the Commission explained below, the Commission retains “ ‘plenary authority over the course of [its] admin- istrative proceedings and the rulings of [its] law judges.’ ” In re Raymond J. Lucia Companies, Inc. & Raymond J. Lucia, Sr., SEC Release No. 75837 (Sept. 3, 2015). Com- mission ALJs can issue only “initial” |
Justice Sotomayor | 2,018 | 24 | dissenting | Lucia v. SEC | https://www.courtlistener.com/opinion/4509420/lucia-v-sec/ | (Sept. 3, 2015). Com- mission ALJs can issue only “initial” decisions. 5 U.S. C. 4 LUCIA v. SEC SOTOMAYOR, J., dissenting The Commission can review any initial decision upon petition or on its own initiative. 15 U.S. C. 1(b). The Commission’s review of an ALJ’s initial decision is de novo. 5 U.S. C. It can “make any findings or conclusions that in its judgment are proper and on the basis of the record.” (a) (2017). The Commission is also in no way confined by the record ini- tially developed by an ALJ. The Commission can accept evidence itself or refer a matter to an ALJ to take addi- tional evidence that the Commission deems relevant or necessary. See ibid.; In recent years, the Com- mission has accepted review in every case in which it was sought. See R. Jackson, Fact and Fiction: The SEC’s Oversight of Administrative Law Judges (Mar. 9, 2018), http://clsbluesky.law.columbia.edu/2018/03/09/fact-and-fiction- the-secs-oversight-of-administrative-law-judges/ (as last visited June 19, 2018). Even where the Commission does not review an ALJ’s initial decision, as in cases in which no party petitions for review and the Commission does not act sua sponte, the initial decision still only becomes final when the Commission enters a finality order. 17 CFR. And by operation of law, every action taken by an ALJ “shall, for all purposes, be deemed the action of the Commission.” 15 U.S. C. 1(c) (empha- sis added). In other words, Commission ALJs do not exercise significant authority because they do not, and cannot, enter final, binding decisions against the Govern- ment or third parties. The majority concludes that this case is controlled by See ante, at 6. In Freytag, the Court suggested that the Tax Court’s special trial judges (STJs) acted as constitutional officers even in cases where they could not enter final, binding decisions. In such cases, the Court noted, the STJs pre- sided over adversarial proceedings in which they exercised “significant discretion” with respect to “important func- Cite as: 585 U. S. (2018) 5 SOTOMAYOR, J., dissenting tions,” such as ruling on the admissibility of evidence and hearing and examining –882. That part of the opinion, however, was unnecessary to the result. The Court went on to conclude that even if the STJs’ duties in such cases were “not as significant as [the Court] found them to be,” its conclusion “would be un- changed.” The Court noted that STJs could enter final decisions in certain types of cases, and that the Government had conceded that the STJs acted as officers with respect to those proceedings. Because STJs could not be “officers |
Justice Sotomayor | 2,018 | 24 | dissenting | Lucia v. SEC | https://www.courtlistener.com/opinion/4509420/lucia-v-sec/ | respect to those proceedings. Because STJs could not be “officers for purposes of some of their duties but mere employees with respect to other[s],” the Court held they were officers in all respects. Freytag is, therefore, consistent with a rule that a prerequisite to officer status is the authority, in at least some instances, to issue final decisions that bind the Government or third parties.* Because I would conclude that Commission ALJs are not officers for purposes of the Appointments Clause, it is not necessary to reach the constitutionality of their removal protections. See ante, at 1 (BREYER, J., concurring in judgment in part and dissenting in part). In any event, for at least the reasons stated in JUSTICE BREYER’s opinion, Free Enterprise Fund is readily distinguishable from the circumstances at play here. See ante, at 3–9. As a final matter, although I would conclude that Com- mission ALJs are not officers, I share JUSTICE BREYER’s concerns regarding the Court’s choice of remedy, and so I join Part III of his opinion. For the foregoing reasons, I respectfully dissent. —————— * Even the majority opinion is not inconsistent with such a rule, in that it appears to conclude, wrongly in my view, that Commission ALJs can at times render final decisions. See ante, at 10 |
Justice Kagan | 2,014 | 3 | majority | Rosemond v. United States | https://www.courtlistener.com/opinion/2655590/rosemond-v-united-states/ | * A federal criminal statute, of Title 18, prohibits “us[ing] or carr[ying]” a firearm “during and in relation to any crime of violence or drug trafficking crime.” In this case, we consider what the Government must show when it accuses a defendant of aiding or abetting that offense. We hold that the Government makes its case by proving that the defendant actively participated in the underlying drug trafficking or violent crime with advance knowledge that a confederate would use or carry a gun during the crime’s commission. We also conclude that the jury in- structions given below were erroneous because they failed to require that the defendant knew in advance that one of his cohorts would be armed. I This case arises from a drug deal gone bad. Vashti Perez arranged to sell a pound of marijuana to Ricardo Gonzales and Coby Painter. She drove to a local park to make the exchange, accompanied by two confederates, —————— * JUSTICE SCALIA joins all but footnotes 7 and 8 of this opinion. 2 ROSEMOND v. UNITED STATES Opinion of the Court Ronald Joseph and petitioner Justus Rosemond. One of those men apparently took the front passenger seat and the other sat in the back, but witnesses dispute who was where. At the designated meeting place, Gonzales climbed into the car’s backseat while Painter waited outside. The backseat passenger allowed Gonzales to inspect the mari- juana. But rather than handing over money, Gonzales punched that man in the face and fled with the drugs. As Gonzales and Painter ran away, one of the male passengers— but again, which one is contested—exited the car and fired several shots from a semiautomatic handgun. The shooter then re-entered the vehicle, and all three would- be drug dealers gave chase after the buyers-turned- robbers. But before the three could catch their quarry, a police officer, responding to a dispatcher’s alert, pulled their car over. This federal prosecution of Rosemond followed.1 The Government charged Rosemond with, inter alia, violating by using a gun in connection with a drug trafficking crime, or aiding and abetting that offense under of Title 18. Section 92(c) provides that “any person who, during and in relation to any crime of violence or drug trafficking crime[,] uses or carries a firearm,” shall receive a five-year mandatory-minimum sentence, with seven- and ten-year minimums applicable, respec- tively, if the firearm is also brandished or discharged. 18 U.S. C. (1)(A). Section 2, for its part, is the federal aiding and abetting statute: It provides that “[w]hoever commits an offense against the United States or aids, abets, |
Justice Kagan | 2,014 | 3 | majority | Rosemond v. United States | https://www.courtlistener.com/opinion/2655590/rosemond-v-united-states/ | commits an offense against the United States or aids, abets, counsels, commands, induces or procures its com- mission is punishable as a principal.” Consistent with the indictment, the Government prose- —————— 1 The Government agreed not to bring charges against the other four participants in the narcotics deal in exchange for their giving truthful testimony against Rosemond. See 2 Record 25, 272, 295–29, 318. Cite as: 572 U. S. (201) 3 Opinion of the Court cuted the charge on two alternative theories. The Government’s primary contention was that Rosemond himself used the firearm during the aborted drug transac- tion. But recognizing that the identity of the shooter was disputed, the Government also offered a back-up argu- ment: Even if it was Joseph who fired the gun as the drug deal fell apart, Rosemond aided and abetted the violation. The District Judge accordingly instructed the jury on aiding and abetting law. He first explained, in a way challenged by neither party, the rudiments of Under that statute, the judge stated, “[a] person who aids or abets another to commit an offense is just as guilty of that offense as if he committed it himself.” App. 195. And in order to aid or abet, the defendant must “willfully and knowingly associate[ ] himself in some way with the crime, and seek[ ] by some act to help make the crime suc- ceed.” The judge then turned to applying those general principles to —and there, he deviated from an instruction Rosemond had proposed. According to Rosemond, a defendant could be found guilty of aiding or abetting a violation only if he “intentionally took some action to facilitate or encourage the use of the fire- arm,” as opposed to the predicate drug offense. But the District Judge disagreed, instead telling the jury that it could convict if “(1) the defendant knew his cohort used a firearm in the drug trafficking crime, and (2) the defendant knowingly and actively participated in the drug trafficking crime.” In closing argument, the prosecutor contended that Rosemond easily satisfied that standard, so that even if he had not “fired the gun, he’s still guilty of the crime.” After all, the prose- cutor stated, Rosemond “certainly knew [of] and actively participated in” the drug transaction. “And with regards to the other element,” the prosecutor urged, “the fact is a person cannot be present and active at a drug deal ROSEMOND v. UNITED STATES Opinion of the Court when shots are fired and not know their cohort is using a gun. You simply can’t do it.” The jury convicted Rosemond of |
Justice Kagan | 2,014 | 3 | majority | Rosemond v. United States | https://www.courtlistener.com/opinion/2655590/rosemond-v-united-states/ | You simply can’t do it.” The jury convicted Rosemond of violating (as well as all other offenses charged). The verdict form was general: It did not reveal whether the jury found that Rosemond himself had used the gun or instead had aided and abetted a confederate’s use during the marijuana deal. As required by the trial court imposed a consec- utive sentence of 0 months of imprisonment for the statute’s violation. The Tenth Circuit affirmed, rejecting Rosemond’s argu- ment that the District Court’s aiding and abetting instruc- tions were erroneous.2 The Court of Appeals acknowledged that some other Circuits agreed with Rosemond that a defendant aids and abets a offense only if he intentionally takes “some action to facilitate or encourage his cohort’s use of the firearm.”3 But the Tenth Circuit had already adopted a different standard, which it thought consonant with the District Court’s instructions. See, e.g., United States v. Wiseman, (requiring that the defendant “actively participated in the” underlying crime and “knew [his confederate] was carrying [a] firearm”). And the Court of Appeals held that Rosemond had pre- sented no sufficient reason for departing from that prece- dent. See We granted certiorari, 59 U. S. to resolve —————— 2 The Court of Appeals stated that it had to address that argument even if the jury could have found that Rosemond himself fired the gun, because “a conviction based on a general verdict is subject to challenge if the jury was instructed on alternative theories of guilt and may have relied on an invalid one.” ). 3 See, e.g., United 7–759 ; United ; United Cite as: 572 U. S. (201) 5 Opinion of the Court the Circuit conflict over what it takes to aid and abet a offense. Although we disagree with Rosemond’s principal arguments, we find that the trial court erred in instructing the jury. We therefore vacate the judgment below. II The federal aiding and abetting statute, 18 U.S. C. states that a person who furthers—more specifically, who “aids, abets, counsels, commands, induces or procures”— the commission of a federal offense “is punishable as a principal.” That provision derives from (though simplifies) common-law standards for accomplice liability. See, e.g., ; United (L. Hand, J.) (“The substance of [’s] formula goes back a long way”). And in so doing, reflects a centuries-old view of culpability: that a person may be responsible for a crime he has not personally carried out if he helps another to complete its commission. See J. Hawley & M. McGregor, Criminal Law 81 (1899). We have previously held that under “those who pro- |
Justice Kagan | 2,014 | 3 | majority | Rosemond v. United States | https://www.courtlistener.com/opinion/2655590/rosemond-v-united-states/ | (1899). We have previously held that under “those who pro- vide knowing aid to persons committing federal crimes, with the intent to facilitate the crime, are themselves committing a crime.” Central Bank of Denver, N. A. v. First Interstate Bank of Denver, N. A., 511 U.S. 1, (199). Both parties here embrace that formulation, and agree as well that it has two components. See Brief for Petitioner 28; Brief for United States 1. As at common law, a person is liable under for aiding and abetting a crime if (and only if) he (1) takes an affirmative act in furtherance of that offense, (2) with the intent of facili- tating the offense’s commission. See 2 W. LaFave, Sub- stantive Criminal Law p. 337 (2003) (hereinafter LaFave) (an accomplice is liable as a principal when he gives “assistance or encouragement with the intent thereby ROSEMOND v. UNITED STATES Opinion of the Court to promote or facilitate commission of the crime”); Hicks v. United States, (an accomplice is liable when his acts of assistance are done “with the inten- tion of encouraging and abetting” the crime). The questions that the parties dispute, and we here address, concern how those two requirements—affirmative act and intent—apply in a prosecution for aiding and abetting a offense. Those questions arise from the compound nature of that provision. Recall that forbids “us[ing] or carr[ying] a firearm” when engaged in a “crime of violence or drug trafficking crime.” See at 2. The prosecutor must show the use or carriage of a gun; so too he must prove the commission of a predicate (violent or drug trafficking) offense. See For purposes of ascertaining aiding and abetting liability, we therefore must consider: When does a person act to further this double-barreled crime? And when does he intend to facilitate its commis- sion? We address each issue in turn. A Consider first Rosemond’s account of his conduct (di- vorced from any issues of intent). Rosemond actively par- ticipated in a drug transaction, accompanying two others to a site where money was to be exchanged for a pound of marijuana. But as he tells it, he took no action with respect to any firearm. He did not buy or borrow a gun to facilitate the narcotics deal; he did not carry a gun to the scene; he did not use a gun during the subsequent events constituting this criminal misadventure. His acts thus advanced one part (the drug part) of a two-part incident— or to speak a bit more technically, one element (the drug element) of a two-element crime. Is that enough |
Justice Kagan | 2,014 | 3 | majority | Rosemond v. United States | https://www.courtlistener.com/opinion/2655590/rosemond-v-united-states/ | (the drug element) of a two-element crime. Is that enough to satisfy the conduct requirement of this aiding and abetting charge, or must Rosemond, as he claims, have taken some act to assist the commission of the other (firearm) compo- Cite as: 572 U. S. (201) 7 Opinion of the Court nent of ? The common law imposed aiding and abetting liability on a person (possessing the requisite intent) who facili- tated any part—even though not every part—of a criminal venture. As a leading treatise, published around the time of ’s enactment, put the point: Accomplice liability at- tached upon proof of “[a]ny participation in a general felonious plan” carried out by confederates. 1 F. Wharton, Criminal Law 51, p. 322 (11th ed. 19) (hereinafter Wharton) (emphasis added). Or in the words of another standard reference: If a person was “present abetting while any act necessary to constitute the offense [was] being performed through another,” he could be charged as a principal—even “though [that act was] not the whole thing necessary.” 1 J. Bishop, Commentaries on the Crim- inal Law §9, p. 392 (7th ed. 1882) (emphasis added). And so “[w]here several acts constitute[d] together one crime, if each [was] separately performed by a different individual[,] all [were] principals as to the whole.” §50, at 392. Indeed, as yet a third treatise underscored, a person’s involvement in the crime could be not merely partial but minimal too: “The quantity [of assistance was] immaterial,” so long as the accomplice did “something” to aid the crime. R. Desty, A Compendium of American Criminal Law p. (1882) (emphasis added). After all, the common law maintained, every little bit helps— and a contribution to some part of a crime aids the whole. —————— The Wharton treatise gave the following example of how multiple confederates could perform different roles in carrying out a crime. Assume, Wharton hypothesized, that several persons “act in concert to steal a man’s goods.” Wharton 51, at 322. The victim is “induced by fraud to trust one of them[,] in the presence of [the] others[,] with the [goods’] possession.” Afterward, “another of the party entice[s] the owner away so that he who has the goods may carry them off.” at 322–323. Wharton concludes: “[A]ll are guilty as principals.” at 323. 8 ROSEMOND v. UNITED STATES Opinion of the Court That principle continues to govern aiding and abetting law under : As almost every court of appeals has held, “[a] defendant can be convicted as an aider and abettor without proof that he participated in each and every ele- ment of the |
Justice Kagan | 2,014 | 3 | majority | Rosemond v. United States | https://www.courtlistener.com/opinion/2655590/rosemond-v-united-states/ | he participated in each and every ele- ment of the offense.” United States v. Sigalow, 8 F.2d 783, 7855 In proscribing aiding and abetting, Congress used language that “comprehends all assistance rendered by words, acts, encouragement, support, or pres- ence,” — even if that aid relates to only one (or some) of a crime’s phases or elements. So, for example, in upholding convic- tions for abetting a tax evasion scheme, this Court found “irrelevant” the defendants’ “non-participation” in filing a false return; we thought they had amply facilitated the illegal scheme by helping a confederate conceal his assets. United “[A]ll who shared in [the overall crime’s] execution,” we explained, “have equal responsibility before the law, what- ever may have been [their] different roles.” And similarly, we approved a conviction for abetting mail fraud even though the defendant had played no part in mailing the fraudulent documents; it was enough to sat- isfy the law’s conduct requirement that he had in other ways aided the deception. See The division of labor between two (or more) confederates thus has no significance: A strategy of “you take that element, I’ll take this one” —————— 5 See also United (“[P]roving a defendant guilty of aiding and abetting does not ordinarily require the government to establish participation in each element of the underlying offense”); United States v. Arias-Izquierdo, F.3d 118, 117 (CA11 200) (“The government was not required to prove that [the defendant] participated in each element of the substantive offense in order to hold him liable as an aider and abettor”); United (“[T]he government need not prove assistance related to every element of the underlying offense”). And so forth and so on. Cite as: 572 U. S. (201) 9 Opinion of the Court would free neither party from liability. Under that established approach, Rosemond’s participa- tion in the drug deal here satisfies the affirmative-act requirement for aiding and abetting a violation. As we have previously described, the commission of a drug trafficking (or violent) crime is—no less than the use of a firearm—an “essential conduct element of the offense.” United States v. Rodriguez-Moreno, 52 U.S. 275, 280 ; see at In enacting the statute, “Congress proscribed both the use of the firearm and the commission of acts that constitute” a drug trafficking crime. Rodriguez-Moreno, 52 U. S, at 281. Rosemond therefore could assist in ’s violation by facilitating either the drug transaction or the firearm use (or of course both). In helping to bring about one part of the offense (whether trafficking drugs or using a gun), he necessarily helped to complete the whole. |
Justice Kagan | 2,014 | 3 | majority | Rosemond v. United States | https://www.courtlistener.com/opinion/2655590/rosemond-v-united-states/ | using a gun), he necessarily helped to complete the whole. And that ends the analysis as to his conduct. It is inconsequential, as courts applying both the common law and have held, that his acts did not advance each element of the offense; all that matters is that they facilitated one component. Rosemond argues, to the contrary, that the requisite act here “must be directed at the use of the firearm,” because that element is ’s most essential feature. Brief for Petitioner 33 (arguing that “it is the firearm crime” he was really charged with aiding and abetting, “not the drug trafficking crime”). But Rosemond can provide no author- —————— Consider a hypothetical similar to Johnson and Pereira (listing elements). But (if they had the requisite intent) all would be liable under ROSEMOND v. UNITED STATES Opinion of the Court ity for demanding that an affirmative act go toward an element considered peculiarly significant; rather, as just noted, courts have never thought relevant the importance of the aid rendered. See at 7–8. And in any event, we reject Rosemond’s premise that is somehow more about using guns than selling narcotics. It is true enough, as Rosemond says in support of that theory, that “establishes a separate, freestanding offense that is ‘distinct from the underlying [drug trafficking crime].’ ” Brief for Petitioner 32 ). But it is just as true that establishes a freestanding offense distinct from any that might apply just to using a gun—say, for discharging a firearm in a public park. That is because is, to coin a term, a combination crime. It punishes the tem- poral and relational conjunction of two separate acts, on the ground that together they pose an extreme risk of harm. See 52 U.S. 5, (noting that ’s “basic purpose” was “to com- bat the dangerous combination of drugs and guns”). And so, an act relating to drugs, just as much as an act relating to guns, facilitates a violation. Rosemond’s related argument that our approach would conflate two distinct offenses—allowing a conviction for abetting a violation whenever the prosecution shows that the defendant abetted the underlying drug trafficking crime—fares no better. See Brief for Petitioner 38. That is because, as we will describe, an aiding and abetting conviction requires not just an act facilitating one or another element, but also a state of mind extending to the entire crime. See infra, And under that rule, a defendant may be convicted of abetting a violation only if his intent reaches beyond a simple drug sale, to an armed one. Aiding and abetting law’s |
Justice Kagan | 2,014 | 3 | majority | Rosemond v. United States | https://www.courtlistener.com/opinion/2655590/rosemond-v-united-states/ | drug sale, to an armed one. Aiding and abetting law’s intent component— to which we now turn—thus preserves the distinction between assisting the predicate drug trafficking crime and Cite as: 572 U. S. (201) 11 Opinion of the Court assisting the broader offense. B Begin with (or return to) some basics about aiding and abetting law’s intent requirement, which no party here disputes. As previously explained, a person aids and abets a crime when (in addition to taking the requisite act) he intends to facilitate that offense’s commission. See at 5–. An intent to advance some different or lesser offense is not, or at least not usually, sufficient: Instead, the intent must go to the specific and entire crime charged—so here, to the full scope (predicate crime plus gun use) of See, e.g., 2 LaFave W. Clark & W. Marshall, Law of Crimes, pp. 251–253 (2d ed. 1905); ALI, Model Penal Code0 Comment, p. 30 (1985).7 And the canonical formulation of that needed state of mind—later appropriated by this Court and oft- quoted in both parties’ briefs—is Judge Learned Hand’s: To aid and abet a crime, a defendant must not just “in some sort associate himself with the venture,” but also “participate in it as in something that he wishes to bring about” and “seek by his action to make it succeed.” Nye & 33 U.S. 13, 19 (199) (quoting 0 F.2d, at ; see Brief for Petitioner 20, 28, 1; Brief for United States 1, 51. We have previously found that intent requirement satisfied when a person actively participates in a criminal venture with full knowledge of the circumstances consti- —————— 7 Some authorities suggest an exception to the general rule when another crime is the “natural and probable consequence” of the crime the defendant intended to abet. See, e.g., 2 LaFave at 35 (citing cases); but see (“Under the better view, one is not an accomplice to a crime merely because that crime was a natural and probable consequence of another offense as to which he is an accom- plice”). That question is not implicated here, because no one contends that a violation is a natural and probable consequence of simple drug trafficking. We therefore express no view on the issue. ROSEMOND v. UNITED STATES Opinion of the Court tuting the charged offense. In Pereira, the mail fraud case discussed above, we found the requisite intent for aiding and abetting because the defendant took part in a fraud “know[ing]” that his confederate would take care of the 37 U.S., at ; see Likewise, in 330 U.S. 15 (197), |
Justice Kagan | 2,014 | 3 | majority | Rosemond v. United States | https://www.courtlistener.com/opinion/2655590/rosemond-v-united-states/ | U.S., at ; see Likewise, in 330 U.S. 15 (197), we up- held a conviction for aiding and abetting the evasion of liquor taxes because the defendant helped operate a clan- destine distillery “know[ing]” the business was set up “to violate Government revenue laws.” And several Courts of Appeals have similarly held—addressing a fact pattern much like this one—that the unarmed driver of a getaway car had the requisite intent to aid and abet armed bank robbery if he “knew” that his confederates would use weapons in carrying out the crime. See, e.g., United States v. Akiti, ; United States v. Easter, F.3d 18, 2 So for purposes of aiding and abetting law, a person who actively partici- pates in a criminal scheme knowing its extent and charac- ter intends that scheme’s commission.8 The same principle holds here: An active participant in a drug transaction has the intent needed to aid and abet a violation when he knows that one of his confeder- ates will carry a gun. In such a case, the accomplice has decided to join in the criminal venture, and share in its benefits, with full awareness of its scope—that the plan calls not just for a drug sale, but for an armed one. In so doing, he has chosen (like the abettors in Pereira and Bozza or the driver in an armed robbery) to align himself —————— 8 We did not deal in these cases, nor do we here, with defendants who incidentally facilitate a criminal venture rather than actively partici- pate in it. A hypothetical case is the owner of a gun store who sells a firearm to a criminal, knowing but not caring how the gun will be used. We express no view about what sort of facts, if any, would suffice to show that such a third party has the intent necessary to be convicted of aiding and abetting. Cite as: 572 U. S. (201) 13 Opinion of the Court with the illegal scheme in its entirety—including its use of a firearm. And he has determined (again like those other abettors) to do what he can to “make [that scheme] suc- ceed.” Nye & 33 U.S., at 19. He thus becomes responsible, in the typical way of aiders and abettors, for the conduct of others. He may not have brought the gun to the drug deal himself, but because he took part in that deal knowing a confederate would do so, he intended the commission of a offense—i.e., an armed drug sale. For all that to be true, though, the defendant’s knowledge of |
Justice Kagan | 2,014 | 3 | majority | Rosemond v. United States | https://www.courtlistener.com/opinion/2655590/rosemond-v-united-states/ | all that to be true, though, the defendant’s knowledge of a firearm must be advance knowledge—or otherwise said, knowledge that enables him to make the relevant legal (and indeed, moral) choice. When an ac- complice knows beforehand of a confederate’s design to carry a gun, he can attempt to alter that plan or, if unsuc- cessful, withdraw from the enterprise; it is deciding in- stead to go ahead with his role in the venture that shows his intent to aid an armed offense. But when an accom- plice knows nothing of a gun until it appears at the scene, he may already have completed his acts of assistance; or even if not, he may at that late point have no realistic opportunity to quit the crime. And when that is so, the defendant has not shown the requisite intent to assist a crime involving a gun. As even the Government concedes, an unarmed accomplice cannot aid and abet a violation unless he has “foreknowledge that his confeder- ate will commit the offense with a firearm.” Brief for United States 38; see also infra, at 15–17. For the reasons just given, we think that means knowledge at a time the accomplice can do something with it—most notably, opt to walk away.9 —————— 9 Of course, if a defendant continues to participate in a crime after a gun was displayed or used by a confederate, the jury can permissibly infer from his failure to object or withdraw that he had such knowledge. In any criminal case, after all, the factfinder can draw inferences about a defendant’s intent based on all the facts and circumstances of a 1 ROSEMOND v. UNITED STATES Opinion of the Court Both parties here find something to dislike in our view of this issue. Rosemond argues that a participant in a drug deal intends to assist a violation only if he affirmatively desires one of his confederates to use a gun. See Reply Brief The jury, Rosemond concedes, could infer that state of mind from the defendant’s advance knowledge that the plan included a firearm. See Tr. of Oral Arg. 5. But according to Rosemond, the instructions must also permit the jury to draw the opposite conclusion— that although the defendant participated in a drug deal knowing a gun would be involved, he did not spe- cifically want its carriage or use. That higher standard, Rosemond claims, is necessary to avoid subjecting persons of different culpability to the same punishment. Rose- mond offers as an example an unarmed driver assisting in the heist of a store: If that |
Justice Kagan | 2,014 | 3 | majority | Rosemond v. United States | https://www.courtlistener.com/opinion/2655590/rosemond-v-united-states/ | driver assisting in the heist of a store: If that person spent the drive “trying to persuade [his confederate] to leave [the] gun behind,” then he should be convicted of abetting shoplifting, but not armed robbery. Reply Brief 9. We think not. What matters for purposes of gauging intent, and so what jury instructions should convey, is that the defendant has chosen, with full knowledge, to participate in the illegal scheme—not that, if all had been left to him, he would have planned the identical crime. Consider a variant of Rosemond’s example: The driver of a getaway car wants to help rob a convenience store (and argues passionately for that plan), but eventually accedes when his confederates decide instead to hold up a national bank. Whatever his original misgivings, he has the requi- site intent to aid and abet bank robbery; after all, he put aside those doubts and knowingly took part in that more dangerous crime. The same is true of an accomplice who knowingly joins in an armed drug transaction—regardless whether he was formerly indifferent or even resistant to —————— crime’s commission. Cite as: 572 U. S. (201) 15 Opinion of the Court using firearms. The law does not, nor should it, care whether he participates with a happy heart or a sense of foreboding. Either way, he has the same culpability, because either way he has knowingly elected to aid in the commission of a peculiarly risky form of offense. A final, metaphorical way of making the point: By virtue of using a firearm at a drug deal ups the ante. A would-be accomplice might decide to play at those perilous stakes. Or he might grasp that the better course is to fold his hand. What he should not expect is the capacity to hedge his bets, joining in a dangerous criminal scheme but evading its penalties by leaving use of the gun to someone else. Aiding and abetting law prevents that outcome, so long as the player knew the heightened stakes when he decided to stay in the game. The Government, for its part, thinks we take too strict a view of when a defendant charged with abetting a violation must acquire that knowledge. As noted above, the Government recognizes that the accused accomplice must have “foreknowledge” of a gun’s presence. Brief for United States 38; see But the Government views that standard as met whenever the accomplice, having learned of the firearm, continues any act of assist- ing the drug transaction. See Brief for United States 8. According to the Government, the jury should convict |
Justice Kagan | 2,014 | 3 | majority | Rosemond v. United States | https://www.courtlistener.com/opinion/2655590/rosemond-v-united-states/ | States 8. According to the Government, the jury should convict such a defendant even if he became aware of the gun only after he realistically could have opted out of the crime. But that approach, we think, would diminish too far the requirement that a defendant in a prosecution must intend to further an armed drug deal. Assume, for example, that an accomplice agrees to participate in a drug sale on the express condition that no one brings a gun to the place of exchange. But just as the parties are making the trade, the accomplice notices that one of his confederates has a (poorly) concealed firearm in his jacket. The Government would convict the accomplice of aiding 1 ROSEMOND v. UNITED STATES Opinion of the Court and abetting a offense if he assists in completing the deal without incident, rather than running away or otherwise aborting the sale. See Tr. of Oral Arg. 0. But behaving as the Government suggests might increase the risk of gun violence—to the accomplice himself, other participants, or bystanders; and conversely, finishing the sale might be the best or only way to avoid that danger. In such a circumstance, a jury is entitled to find that the defendant intended only a drug sale—that he never in- tended to facilitate, and so does not bear responsibility for, a drug deal carried out with a gun. A defendant manifests that greater intent, and incurs the greater liability of when he chooses to participate in a drug transac- tion knowing it will involve a firearm; but he makes no such choice when that knowledge comes too late for him to be reasonably able to act upon it. III Under these principles, the District Court erred in —————— Contrary to the dissent’s view, see post, at 3–, nothing in this holding changes the way the defenses of duress and necessity operate. Neither does our decision remotely deny that the “intent to undertake some act is perfectly consistent with the motive of avoiding adverse consequences which would otherwise occur.” Post, at 5. Our holding is grounded in the distinctive intent standard for aiding and abetting someone else’s act—in the words of Judge Hand, that a defendant must not just “in some sort associate himself with the venture” (as seems to be good enough for the dissent), but also “participate in it as in some- thing that he wishes to bring about” and “seek by his action to make it succeed.” Nye & 33 U.S. 13, 19 (199) (quoting 0 F.2d, at ). For the reasons just given, see 15–1, |
Justice Kagan | 2,014 | 3 | majority | Rosemond v. United States | https://www.courtlistener.com/opinion/2655590/rosemond-v-united-states/ | F.2d, at ). For the reasons just given, see 15–1, we think that intent standard cannot be satisfied if a defendant charged with aiding and abetting a offense learns of a gun only after he can realistically walk away—i.e., when he has no opportunity to decide whether “he wishes to bring about” (or make succeed) an armed drug transaction, rather than a simple drug crime. And because a defendant’s prior knowledge is part of the intent re- quired to aid and abet a offense, the burden to prove it resides with the Government. Cite as: 572 U. S. (201) 17 Opinion of the Court instructing the jury, because it did not explain that Rose- mond needed advance knowledge of a firearm’s presence. Recall that the court stated that Rosemond was guilty of aiding and abetting if “(1) [he] knew his cohort used a firearm in the drug trafficking crime, and (2) [he] know- ingly and actively participated in the drug trafficking crime.” App. 19. We agree with that instruction’s second half: As we have explained, active participation in a drug sale is sufficient for liability (even if the conduct does not extend to the firearm), so long as the defendant had prior knowledge of the gun’s involvement. See at 9, 11–13. The problem with the court’s instruction came in its description of that knowledge requirement. In telling the jury to consider merely whether Rosemond “knew his cohort used a firearm,” the court did not direct the jury to determine when Rosemond obtained the requi- site knowledge. So, for example, the jury could have convicted even if Rosemond first learned of the gun when it was fired and he took no further action to advance the crime. For that reason, the Government itself describes the instruction’s first half as “potentially misleading,” candidly explaining that “it would have been clearer to say” that Rosemond had to know that his confederate “ ‘ would use’ [a firearm] or something that makes absolutely clear that you [need] foreknowledge.” Tr. of Oral Arg. 8–9. We agree with that view, and then some: The court’s statement failed to convey that Rosemond had to have advance knowledge, of the kind we have described, that a confederate would be armed. See 15–1. The Government contends that this problematic instruc- tion looks more accurate when viewed in context. In particular, the Government points to the District Court’s prefatory “umbrella instruction” that to aid or abet a crime, a defendant must “willfully and knowingly seek[ ] by some act to help make the crime succeed.” App. 19; 18 ROSEMOND v. |
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