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Justice Brennan | 1,980 | 13 | dissenting | Harris v. McRae | https://www.courtlistener.com/opinion/110333/harris-v-mcrae/ | [*] I agree etirely with my Brother STEVENS that the State's iterest i protectig the potetial life of the fetus caot justify the exclusio of fiacially ad medically eedy wome from the beefits to which they would otherwise be etitled solely because the treatmet that a doctor has cocluded is medically ecessary ivolves a abortio. See post, at 351-352. I write separately to express my cotiuig disagreemet[1] with the Court's mischaracterizatio of the ature of the fudametal right recogized i ad its miscoceptio of the maer i which that right is ifriged by federal ad state legislatio withdrawig all fudig for medically ecessary abortios. held that the costitutioal right to persoal privacy ecompasses a woma's decisio whether or ot to *330 termiate her pregacy. Roe ad its progey[2] established that the pregat woma has a right to be free from state iterferece with her choice to have a abortioa right which, at least prior to the ed of the first trimester, absolutely prohibits ay govermetal regulatio of that highly persoal decisio.[3] The propositio for which these cases stad thus is ot that the State is uder a affirmative obligatio to esure access to abortios for all who may desire them; it is that the State must refrai from wieldig its eormous power ad ifluece i a maer that might burde the pregat woma's freedom to choose whether to have a abortio. The Hyde Amedmet's deial of public fuds for medically ecessary abortios plaily itrudes upo this costitutioally protected decisio, for both by desig ad i effect it serves to coerce idiget pregat wome to bear childre that they would otherwise elect ot to have.[4] *331 Whe viewed i the cotext of the Medicaid program to which it is appeded, it is obvious that the Hyde Amedmet is othig less tha a attempt by Cogress to circumvet the dictates of the Costitutio ad achieve idirectly what said it could ot do directly.[5] Uder Title XIX of the Social Security Act, the Federal Govermet reimburses participatig States for virtually all medically ecessary services it provides to the categorically eedy. The sole limitatio of ay sigificace is the Hyde Amedmet's prohibitio agaist the use of ay federal fuds to pay for the *332 costs of abortios (except where the life of the mother would be edagered if the fetus were carried to term). As my Brother STEVENS persuasively demostrates, exclusio of medically ecessary abortios from Medicaid coverage caot be justified as a cost-savig device. Rather, the Hyde Amedmet is a trasparet attempt by the Legislative Brach to impose the political majority's judgmet of |
Justice Brennan | 1,980 | 13 | dissenting | Harris v. McRae | https://www.courtlistener.com/opinion/110333/harris-v-mcrae/ | the Legislative Brach to impose the political majority's judgmet of the morally acceptable ad socially desirable preferece o a sesitive ad itimate decisio that the Costitutio etrusts to the idividual. Worse yet, the Hyde Amedmet does ot foist that majoritaria viewpoit with equal measure upo everyoe i our Natio, rich ad poor alike; rather, it imposes that viewpoit oly upo that segmet of our society which, because of its positio of political powerlessess, is least able to defed its privacy rights from the ecroachmets of state-madated morality. The istat legislatio thus calls for more exactig judicial review tha i most other cases. "Whe elected leaders cower before public pressure, this Court, more tha ever, must ot shirk its duty to eforce the Costitutio for the beefit of the poor ad powerless." Though it may ot be this Court's missio "to decide whether the balace of competig iterests reflected i the Hyde Amedmet is wise social policy," ate, at 326, it most assuredly is our resposibility to vidicate the pregat woma's costitutioal right to decide whether to bear childre free from govermetal itrusio. Moreover, it is clear that the Hyde Amedmet ot oly was desiged to ihibit, but does i fact ihibit the woma's freedom to choose abortio over childbirth. "Pregacy is uquestioably a coditio requirig medical services. Treatmet for the coditio may ivolve medical procedures for its termiatio, or medical procedures to brig the pregacy to term, resultig i a live birth. `[A]bortio ad childbirth, whe stripped of the sesitive moral argumets surroudig the abortio cotroversy, are simply two alterative *333 medical methods of dealig with pregacy.'" ). I every pregacy, oe of these two courses of treatmet is medically ecessary, ad the poverty-stricke woma depeds o the Medicaid Act to pay for the expeses associated with that procedure. But uder the Hyde Amedmet, the Govermet will fud oly those procedures icidetal to childbirth. By thus ijectig coercive fiacial icetives favorig childbirth ito a decisio that is costitutioally guarateed to be free from govermetal itrusio, the Hyde Amedmet deprives the idiget woma of her freedom to choose abortio over materity, thereby impigig o the due process liberty right recogized i The Court's cotrary coclusio is premised o its belief that "[t]he fiacial costraits that restrict a idiget woma's ability to ejoy the full rage of costitutioally protected freedom of choice are the product ot of govermetal restrictios o access to abortios, but rather of her idigecy." Ate, at 316. Accurate as this statemet may be, it reveals oly half the picture. For what the Court fails to appreciate is that |
Justice Brennan | 1,980 | 13 | dissenting | Harris v. McRae | https://www.courtlistener.com/opinion/110333/harris-v-mcrae/ | picture. For what the Court fails to appreciate is that it is ot simply the woma's idigecy that iterferes with her freedom of choice, but the combiatio of her ow poverty ad the Govermet's uequal subsidizatio of abortio ad childbirth. A poor woma i the early stages of pregacy cofrots two alteratives: she may elect either to carry the fetus to term or to have a abortio. I the abstract, of course, this choice is hers aloe, ad the Court rightly observes that the Hyde Amedmet "places o govermetal obstacle i the path of a woma who chooses to termiate her pregacy." Ate, at 315. But the reality of the situatio is that the Hyde Amedmet has effectively removed this choice from the idiget woma's hads. By fudig all of the expeses associated with childbirth ad oe of the expeses icurred i termiatig pregacy, the Govermet literally makes a *334 offer that the idiget woma caot afford to refuse. It matters ot that i this istace the Govermet has used the carrot rather tha the stick. What is critical is the realizatio that as a practical matter, may poverty-stricke woma will choose to carry their pregacy to term simply because the Govermet provides fuds for the associated medical services, eve though these same wome would have chose to have a abortio if the Govermet had also paid for that optio, or ideed if the Govermet had stayed out of the picture altogether ad had defrayed the costs of either procedure. The fudametal flaw i the Court's due process aalysis, the, is its failure to ackowledge that the discrimiatory distributio of the beefits of govermetal largesse ca discourage the exercise of fudametal liberties just as effectively as ca a outright deial of those rights through crimial ad regulatory sactios. Implicit i the Court's reasoig is the otio that as log as the Govermet is ot obligated to provide its citizes with certai beefits or privileges, it may coditio the grat of such beefits o the recipiet's reliquishmet of his costitutioal rights. It would belabor the obvious to expoud at ay great legth o the illegitimacy of a state policy that iterferes with the exercise of fudametal rights through the selective bestowal of govermetal favors. It suffices to ote that we have heretofore ever hesitated to ivalidate ay scheme of gratig or withholdig fiacial beefits that icidetally or itetioally burdes oe maer of exercisig a costitutioally protected choice. To take but oe example of may, ivolved a South Carolia uemploymet isurace statute that required recipiets to accept suitable employmet whe offered, eve |
Justice Brennan | 1,980 | 13 | dissenting | Harris v. McRae | https://www.courtlistener.com/opinion/110333/harris-v-mcrae/ | that required recipiets to accept suitable employmet whe offered, eve if the grouds for refusal stemmed from religious covictios. Eve though the recipiets possessed o etitlemet to compesatio, the Court held that the State could ot cacel the *335 beefits of a Seveth-Day Advetist who had refused a job requirig her to work o Saturdays. The Court's explaatio is particularly istructive for the preset case: "Here ot oly is it apparet that appellat's declared ieligibility for beefits derives solely from the practice of her religio, but the pressure upo her to forego that practice is umistakable. The rulig forces her to choose betwee followig the precepts of her religio ad forfeitig beefits, o the oe had, ad abadoig oe of the precepts of her religio i order to accept work, o the other had. Govermetal impositio of such a choice puts the same kid of burde upo the free exercise of religio as would a fie imposed agaist appellat for her Saturday worship. "Nor may the South Carolia court's costructio of the statute be saved from costitutioal ifirmity o the groud that uemploymet compesatio beefits are ot appellat's `right' but merely a `privilege.' It is too late i the day to doubt that the liberties of religio ad expressio may be ifriged by the deial of or placig of coditios upo a beefit or privilege. [T]o coditio the availability of beefits upo this appellat's willigess to violate a cardial priciple of her religious faith effectively pealizes the free exercise of her costitutioal liberties." See also Frost & Frost Truckig ; ; ; ; U. S. Dept. of ; Southeaster Promotios, Cf. ; Memorial The Medicaid program caot be distiguished from these other statutory schemes that ucostitutioally burdeed *336 fudametal rights.[6] Here, as i Sherbert, the govermet withholds fiacial beefits i a maer that discourages the exercise of a due process liberty: The idiget woma who chooses to assert her costitutioal right to have a abortio ca do so oly o pai of sacrificig health-care beefits to which she would otherwise be etitled. Over 50 years ago, Mr. Justice Sutherlad, writig for the Court i Frost & Frost Truckig made the followig observatio, which is as true ow as it was the: "It would be a palpable icogruity to strike dow a act of state legislatio which, by words of express divestmet, seeks to strip the citize of rights guarateed by the federal Costitutio, but to uphold a act by *337 which the same result is accomplished uder the guise of a surreder of a right i exchage for a valuable |
Justice Stewart | 1,977 | 18 | majority | Abood v. Detroit Bd. of Ed. | https://www.courtlistener.com/opinion/109661/abood-v-detroit-bd-of-ed/ | The State of Michigan has enacted legislation authorizing a system for union representation of local governmental employees. A union and a local government employer are specifically permitted to agree to an "agency shop" arrangement, whereby every employee represented by a union even though not a union membermust pay to the union, as a condition of employment, a service fee equal in amount to union dues. The issue before us is whether this arrangement violates the constitutional rights of government employees who object to public-sector unions as such or to various union activities financed by the compulsory service fees. I After a secret ballot election, the Detroit Federation of Teachers (Union) was certified in 1967 pursuant to Michigan *212 law as the exclusive representative of teachers employed by the Detroit Board of Education (Board).[1] The Union and the Board thereafter concluded a collective-bargaining agreement effective from July 1, 1969, to July 1, 1971. Among the agreement's provisions was an "agency shop" clause, requiring every teacher who had not become a Union member within 60 days of hire (or within 60 days of January 26, the effective date of the clause) to pay the Union a service charge equal to the regular dues required of Union members. A teacher who failed to meet this obligation was subject to discharge. Nothing in the agreement, however, required any teacher to join the Union, espouse the cause of unionism, or participate in any other way in Union affairs. On November 7, 1969more than two months before the agency-shop clause was to become effectiveChristine Warczak and a number of other named teachers a class action in a state court, naming as defendants the Board, the Union, and several Union officials. Their complaint, as amended, alleged that they were unwilling or had refused to pay dues[2] and that they opposed collective bargaining in *213 the public sector. The amended complaint further alleged that the Union "carries on various social activities for the benefit of its members which are not available to non-members as a matter of right," and that the Union is engaged "in a number and variety of activities and programs which are economic, political, professional, scientific and religious in nature of which Plaintiffs do not approve, and in which they will have no voice, and which are not and will not be collective bargaining activities, i. e., the negotiation and administration of contracts with Defendant Board, and that a substantial part of the sums required to be paid under said Agency Shop Clause are used and will continue to be used for the support of |
Justice Stewart | 1,977 | 18 | majority | Abood v. Detroit Bd. of Ed. | https://www.courtlistener.com/opinion/109661/abood-v-detroit-bd-of-ed/ | and will continue to be used for the support of such activities and programs, and not solely for the purpose of defraying the cost of Defendant Federation of its activities as bargaining agent for teachers employed by Defendant Board."[3] The complaint prayed that the agency-shop clause be declared invalid under state law and also under the United States Constitution as a deprivation of, inter alia, the plaintiffs' freedom of association protected by the First and Fourteenth Amendments, and for such further relief as might be deemed appropriate. Upon the defendants' motion for summary judgment, the trial court dismissed the action for failure to state a claim upon which relief could be granted.[4]Warczak v. Board of *2 Education, 73 LRRM 2237 (Cir. Ct. Wayne County). The plaintiffs appealed, and while their appeal was pending the Michigan Supreme Court ruled in that state law prohibited an agency shop in the public sector. Accordingly, the judgment in the Warczak case was vacated and remanded to the trial court for further proceedings consistent with the Smigel decision. Meanwhile, D. Louis Abood and other named teachers had a separate action in the same state trial court. The allegations in the complaint were virtually identical to those in Warczak,[5] and similar relief was requested.[6] This second action was held in abeyance pending disposition of the Warczak appeal, and when that case was remanded the two cases were consolidated in the trial court for consideration of the defendants' renewed motion for summary judgment. On November 5, 1973, that motion was granted. The trial court noted that following the Smigel decision, the Michigan Legislature had in 1973 amended its Public Employment Relations Act so as expressly to authorize an agency shop. 1973 Mich. Pub. Acts, No.25, codified as (1)[7] This amendment was applied retroactively *215 by the trial court to validate the agency-shop clause predating 1973 as a matter of state law, and the court ruled further that such a clause does not violate the Federal Constitution. The plaintiffs' appeals were consolidated by the Michigan Court of Appeals, which ruled that the trial court had erred in giving retroactive application to the 1973 legislative amendment. The appellate court proceeded, however, to consider the constitutionality of the agency-shop clause, and upheld its facial validity on the authority of this Court's decision in Railway Employees' which upheld the constitutionality under the First Amendment of a union-shop clause, authorized by the Railway Labor Act, requiring financial support of the exclusive bargaining representative by every member of the bargaining unit. Nothing, however, that Michigan law also permits union expenditures for legislative lobbying |
Justice Stewart | 1,977 | 18 | majority | Abood v. Detroit Bd. of Ed. | https://www.courtlistener.com/opinion/109661/abood-v-detroit-bd-of-ed/ | that Michigan law also permits union expenditures for legislative lobbying and in support of political candidates, the state appellate court identified an issue explicitly not considered in the constitutionality of using compulsory service charges to further "political purposes" unrelated to collective bargaining. Although recognizing that such expenditures "could violate plaintiffs' First and Fourteenth Amendment rights," the court read this Court's more recent decisions to require that an employee who seeks to vindicate such rights must "make known to the union those causes and candidates to which he objects." Since the complaints had failed to allege that any such notification had been given, the court held that the plaintiffs were not entitled to restitution of any portion of the service charges. The trial court's error on the retroactivity question, however, led the appellate court to reverse and remand *216 the [8] After the Supreme Court of Michigan denied review, the plaintiffs appealed to this Court, 28 U.S. C. 1257 (2), and we noted probable jurisdiction,[9] *217 II A Consideration of the question whether an agency-shop provision in a collective-bargaining agreement covering governmental employees is, as such, constitutionally valid must begin with two cases in this Court that on their face go far toward resolving the issue. The cases are Railway Employees' and In the case a group of railroad employees brought an action in a Nebraska court to enjoin enforcement of a union-shop agreement.[10] The challenged clause was authorized, * and indeed shielded from any attempt by a State to prohibit it, by the Railway Labor Act, 45 U.S. C. 152 Eleventh.[11] The trial court granted the relief requested. The Nebraska Supreme Court upheld the injunction on the ground that employees who disagreed with the objectives promoted by union expenditures were deprived of the freedom of association protected by the First Amendment. This Court agreed that "justiciable questions under the First and Fifth Amendments were presented,"[12]*219 but reversed the judgment of the Nebraska Supreme Court on the merits. Acknowledging that "[m]uch might be said pro and con" about the union shop as a policy matter, the Court noted that it is Congress that is charged with identifying "[t]he ingredients of industrial peace and stabilized labor-management relations" Congress determined that it would promote peaceful labor relations to permit a union and an employer to conclude an agreement requiring employees who obtain the benefit of union representation to share its cost, and that legislative judgment was surely an allowable one. The record in contained no evidence that union dues were used to force ideological conformity or otherwise to impair the free expression of |
Justice Stewart | 1,977 | 18 | majority | Abood v. Detroit Bd. of Ed. | https://www.courtlistener.com/opinion/109661/abood-v-detroit-bd-of-ed/ | ideological conformity or otherwise to impair the free expression of employees, and the Court noted that "[i]f `assessments' are in fact imposed for purposes not germane to collective bargaining, a different problem would be presented." But the Court squarely held that "the requirement for financial support of the collective-bargaining agency by all who receive the benefits of its work does not violate the First Amendmen[t]." The Court faced a similar question several years later in the case, which also involved a challenge to the constitutionality of a union shop authorized by the Railway Labor Act. In however, the record contained findings that the union treasury to which all employees were required to contribute had been used "to finance the campaigns of candidates for federal and state offices whom [the plaintiffs] opposed, and to promote the propagation of political and economic doctrines, concepts and ideologies with which [they] disagreed." The Court recognized, that these findings presented constitutional "questions of the utmost gravity" not *220 decided in and therefore considered whether the Act could fairly be construed to avoid these constitutional 367 U.S., -750.[13] The Court concluded that the Act could be so construed, since only expenditures related to the union's functions in negotiating and administering the collective-bargaining agreement and adjusting grievances and disputes fell within "the reasons accepted by Congress why authority to make union-shop agreements was justified," The Court ruled, therefore, that the use of compulsory union dues for political purposes violated the Act itself. Nonetheless, it found that an injunction against enforcement of the union-shop agreement as such was impermissible under and remanded the case to the Supreme Court of Georgia so that a more limited remedy could be devised. The holding in as elaborated in reflects familiar doctrines in the federal labor laws. The principle of exclusive union representation, which underlies the National Labor Relations Act[] as well as the Railway Labor Act, is a central element in the congressional structuring of industrial relations. E. g., Emporium Capwell ; ; Medo ; Virginian R. The designation of a single representative avoids the confusion that would result from attempting to enforce two or more agreements specifying different terms and conditions of employment. It prevents inter-union rivalries from creating *221 dissension within the work force and eliminating the advantages to the employee of collectivization. It also frees the employer from the possibility of facing conflicting demands from different unions, and permits the employer and a single union to reach agreements and settlements that are not subject to attack from rival labor organizations. See generally Emporium Capwell ; S. Rep. No. |
Justice Stewart | 1,977 | 18 | majority | Abood v. Detroit Bd. of Ed. | https://www.courtlistener.com/opinion/109661/abood-v-detroit-bd-of-ed/ | labor organizations. See generally Emporium Capwell ; S. Rep. No. 573, 74th Cong., 1st Sess., 13 (1935). The designation of a union as exclusive representative carries with it great responsibilities. The tasks of negotiating and administering a collective-bargaining agreement and representing the interests of employees in settling disputes and processing grievances are continuing and difficult ones. They often entail expenditure of much time and money. See The services of lawyers, expert negotiators, economists, and a research staff, as well as general administrative personnel, may be required. Moreover, in carrying out these duties, the union is obliged "fairly and equitably to represent all employees union and non-union," within the relevant unit.[15] A union-shop *222 arrangement has been thought to distribute fairly the cost of these activities among those who benefit, and it counteracts the incentive that employees might otherwise have to become "free riders"to refuse to contribute to the union while obtaining benefits of union representation that necessarily accrue to all employees. ; see Oil ; To compel employees financially to support their collective-bargaining representative has an impact upon their First Amendment interests. An employee may very well have ideological objections to a wide variety of activities undertaken by the union in its role as exclusive representative. His moral or religious views about the desirability of abortion may not square with the union's policy in negotiating a medical benefits plan. One individual might disagree with a union policy of negotiating limits on the right to strike, believing that to be the road to serfdom for the working class, while another might have economic or political objections to unionism itself. An employee might object to the union's wage policy because it violates guidelines designed to limit inflation, or might object to the union's seeking a clause in the collective-bargaining agreement proscribing racial discrimination. The examples could be multiplied. To be required to help finance the union as a collective-bargaining agent might well be thought, therefore, to interfere in some way with an employee's freedom to associate for the advancement of ideas, or to refrain from doing so, as he sees fit.[16] But the judgment clearly made in and is that such interference as exists is constitutionally justified by the legislative assessment of the important contribution of the union shop to the system of labor relations established by Congress. "The *223 furtherance of the common cause leaves some leeway for the leadership of the group. As long as they act to promote the cause which justified bringing the group together, the individual cannot withdraw his financial support merely because he disagrees with the |
Justice Stewart | 1,977 | 18 | majority | Abood v. Detroit Bd. of Ed. | https://www.courtlistener.com/opinion/109661/abood-v-detroit-bd-of-ed/ | withdraw his financial support merely because he disagrees with the group's strategy. If that were allowed, we would be reversing the case, sub silentio." B The National Labor Relations Act leaves regulation of the labor relations of state and local governments to the States. See 29 U.S. C. 152 (2). Michigan has chosen to establish for local government units a regulatory scheme which, although not identical in every respect to the NLRA or the Railway Labor Act,[17] is broadly modeled after federal law. E. g., appeal dismissed sub nom. Crestwood Ed. ; Detroit Police Officers ; Michigan Employment Relations 391 Mich. 2, and n. 11, and n. 11. Under Michigan law employees of local government units enjoy rights parallel to those protected under federal legislation: the rights to self-organization and to bargain collectively, Mich. Comp. Laws 423.209, 423.215 ; see 29 U.S. C. 157; 45 U.S. C. 152 Fourth; and the right to secret-ballot representation elections, Mich. Comp. Laws 423.212 ; see 29 U.S. C. 159 (e) (1); 45 U.S. C. 152 Ninth. Several aspects of Michigan law that mirror provisions of the Railway Labor Act are of particular importance here. A union that obtains the support of a majority of employees *224 in the appropriate bargaining unit is designated the exclusive representative of those employees. Mich. Comp. Laws 423.211[18] A union so designated is under a duty of fair representation to all employees in the unit, whether or not union members. E. g., 177-; Wayne County Community College Federation of Teachers Local 2000 v. Poe, 1976 Mich. Emp. Rel. Comm'n 347, 350-3; Local 836, AFSCME v. Solomon, 1976 Mich. Emp. Rel. Comm'n 84, 89. And in carrying out all of its various responsibilities, a recognized union may seek to have an agency-shop clause included in a collective-bargaining agreement. (1) Indeed, the 1973 amendment to the Michigan law[19] was specifically designed to authorize agency shops in order that "employees in the bargaining unit share fairly in the financial support of their exclusive bargaining representative." 423.210 (2). The governmental interests advanced by the agency-shop provision in the Michigan statute are much the same as those promoted by similar provisions in federal labor law. The confusion and conflict that could arise if rival teachers' unions, holding quite different views as to the proper class hours, class sizes, holidays, tenure provisions, and grievance procedures, each sought to obtain the employer's agreement, are no different in kind from the evils that the exclusivity rule in the Railway Labor Act was designed to avoid. See Madison School (BRENNAN. J., concurring in judgment). The desirability of |
Justice Stewart | 1,977 | 18 | majority | Abood v. Detroit Bd. of Ed. | https://www.courtlistener.com/opinion/109661/abood-v-detroit-bd-of-ed/ | Madison School (BRENNAN. J., concurring in judgment). The desirability of labor peace is no less important in the public sector, nor is the risk of "free riders" any smaller. Our province is not to judge the wisdom of Michigan's *225 decision to authorize the agency shop in public employment.[20] Rather, it is to adjudicate the constitutionality of that decision. The same important government interests recognized in the and cases presumptively support the impingement upon associational freedom created by the agency shop here at issue. Thus, insofar as the service charge is used to finance expenditures by the Union for the purposes of collective bargaining, contract administration, and grievance *226 adjustment, those two decisions of this Court appear to require validation of the agency-shop agreement before us. While recognizing the apparent precedential weight of the and cases, the appellants advance two reasons why those decisions should not control decision of the present First, the appellants note that it is government employment that is involved here, thus directly implicating constitutional guarantees, in contrast to the private employment that was the subject of the and decisions. Second, the appellants say that in the public sector collective bargaining itself is inherently "political," and that to require them to give financial support to it is to require the "ideological conformity" that the Court expressly found absent in the 351 U.S., We find neither argument persuasive. Because it is employment by the State that is here involved, the appellants suggest that this case is governed by a long line of decisions holding that public employment cannot be conditioned upon the surrender of First Amendment rights.[21] But, while the actions of public employers surely constitute "state action," the union shop, as authorized by the Railway Labor Act, also was found to result from governmental action in[22] The plaintiffs' claims in failed, not because there was no governmental action, but because there was no First Amendment violation.[23] The *227 appellants' reliance on the "unconstitutional conditions" doctrine is therefore misplaced. The appellants' second argument is that in any event collective bargaining in the public sector is inherently "political" and thus requires a different result under the First and Fourteenth Amendments. This contention rests upon the important and often-noted differences in the nature of collective bargaining in the public and private sectors.[24] A public employer, unlike his private counterpart, is not guided by the profit motive and constrained by the normal operation of the market. Municipal services are typically not priced, and *228 where they are they tend to be regarded as in some sense "essential" and therefore are often |
Justice Stewart | 1,977 | 18 | majority | Abood v. Detroit Bd. of Ed. | https://www.courtlistener.com/opinion/109661/abood-v-detroit-bd-of-ed/ | regarded as in some sense "essential" and therefore are often price-inelastic. Although a public employer, like a private one, will wish to keep costs down, he lacks an important discipline against agreeing to increases in labor costs that in a market system would require price increases. A public-sector union is correspondingly less concerned that high prices due to costly wage demands will decrease output and hence employment. The government officials making decisions as the public "employer" are less likely to act as a cohesive unit than are managers in private industry, in part because different levels of public authoritydepartment managers, budgetary officials, and legislative bodiesare involved, and in part because each official may respond to a distinctive political constituency. And the ease of negotiating a final agreement with the union may be severely limited by statutory restrictions, by the need for the approval of a higher executive authority or a legislative body, or by the commitment of budgetary decisions of critical importance to others. Finally, decisionmaking by a public employer is above all a political process. The officials who represent the public employer are ultimately responsible to the electorate, which for this purpose can be viewed as comprising three overlapping classes of voterstaxpayers, users of particular government services, and government employees. Through exercise of their political influence as part of the electorate, the employees have the opportunity to affect the decisions of government representatives who sit on the other side of the bargaining table. Whether these representatives accede to a union's demands will depend upon a blend of political ingredients, including community sentiment about unionism generally and the involved union in particular, the degree of taxpayer resistance, and the views of voters as to the importance of the service involved and the relation between the demands and the quality of service. It is surely arguable, *229 however, that permitting public employees to unionize and a union to bargain as their exclusive representative gives the employees more influence in the decisionmaking process than is possessed by employees similarly organized in the private sector. The distinctive nature of public-sector bargaining has led to widespread discussion about the extent to which the law governing labor relations in the private sector provides an appropriate model. To take but one example, there has been considerable debate about the desirability of prohibiting public employee unions from striking,[25] a step that the State of Michigan itself has taken, Mich. Comp. Laws 423.202 But although Michigan has not adopted the federal model of labor relations in every respect, it has determined that labor stability will be served by |
Justice Stewart | 1,977 | 18 | majority | Abood v. Detroit Bd. of Ed. | https://www.courtlistener.com/opinion/109661/abood-v-detroit-bd-of-ed/ | it has determined that labor stability will be served by a system of exclusive representation and the permissive use of an agency shop in public employment. As already stated, there can be no principled basis for according that decision less weight in the constitutional balance than was given in to the congressional judgment reflected in the Railway Labor Act.[26] The only remaining constitutional inquiry evoked by the appellants' argument, therefore, is whether a public employee has a weightier First Amendment interest than a private employee in not being compelled to contribute to the costs of exclusive union representation. We think he does not. Public employees are not basically different from private employees; on the whole, they have the same sort of skills, the *230 same needs, and seek the same advantages. "The uniqueness of public employment is not in the employees nor in the work performed; the uniqueness is in the special character of the employer." Summers, Public Sector Bargaining: Problems of Governmental Decisionmaking, The very real differences between exclusive-agent collective bargaining in the public and private sectors are not such as to work any greater infringement upon the First Amendment interests of public employees. A public employee who believes that a union representing him is urging a course that is unwise as a matter of public policy is not barred from expressing his viewpoint. Besides voting in accordance with his convictions, every public employee is largely free to express his views, in public or private, orally or in writing. With some exceptions not pertinent here,[27] public employees are free to participate in the full range of political activities open to other citizens. Indeed, just this Term we have held that the First and Fourteenth Amendments protect the right of a public school teacher to oppose, at a public school board meeting, a position advanced by the teachers' union. Madison School In so ruling we recognized that the principle of exclusivity cannot constitutionally be used to muzzle a public employee who, like any other citizen, might wish to express his view about governmental decisions concerning labor relations, *231 There can be no quarrel with the truism that because public employee unions attempt to influence governmental policy-making, their activitiesand the views of members who disagree with themmay be properly termed political. But that characterization does not raise the ideas and beliefs of public employees onto a higher plane than the ideas and beliefs of private employees. It is no doubt true that a central purpose of the First Amendment " `was to protect the free discussion of governmental affairs.' " Post, |
Justice Stewart | 1,977 | 18 | majority | Abood v. Detroit Bd. of Ed. | https://www.courtlistener.com/opinion/109661/abood-v-detroit-bd-of-ed/ | to protect the free discussion of governmental affairs.' " Post, at 259, quoting and 384 U.S. 2, But our cases have never suggested that expression about philosophical, social, artistic, economic, literary, or ethical mattersto take a nonexhaustive list of labelsis not entitled to full First Amendment protection.[28] Union members in both the public and private sectors may find that a variety of union activities conflict with their beliefs. Compare, e. g., *232 with post, at 256-257. Nothing in the First Amendment or our cases discussing its meaning makes the question whether the adjective "political" can properly be attached to those beliefs the critical constitutional inquiry. The differences between public-and private-sector collective bargaining simply do not translate into differences in First Amendment rights. Even those commentators most acutely aware of the distinctive nature of public-sector bargaining and most seriously concerned with its policy implications agree that "[t]he union security issue in the public sector is fundamentally the same issue as in the private sector. No special dimension results from the fact that a union represents public rather than private employees." H. Wellington & R. Winter, Jr., The Unions and the Cities 95-96 (1971). We conclude that the Michigan Court of Appeals was correct in viewing this Court's decisions in and as controlling in the present case insofar as the service charges are applied to collective-bargaining, contract administration, and grievance-adjustment purposes. C Because the Michigan Court of Appeals ruled that state law "sanctions the use of nonunion members' fees for purposes other than collective bargaining," 230 N. W. 2d, at 326, and because the complaints allege that such expenditures were made, this case presents constitutional issues not decided in or Indeed embraced an interpretation of the Railway Labor Act not without its difficulties, see -786 ; precisely to avoid facing the constitutional issues presented by the use of union-shop dues for political and ideological purposes unrelated to collective bargaining, -750. Since the state court's construction of the Michigan statute *233 is authoritative, however, we must confront those issues in this [29] Our decisions establish with unmistakable clarity that the freedom of an individual to associate for the purpose of advancing beliefs and ideas is protected by the First and Fourteenth Amendments. E. g., (plurality opinion); ; 4 U.S. 51, ; *234 Equally clear is the proposition that a government may not require an individual to relinquish rights guaranteed him by the First Amendment as a condition of public employment. E. g., and cases cited; ; The appellants argue that they fall within the protection of these cases because they have been prohibited, |
Justice Stewart | 1,977 | 18 | majority | Abood v. Detroit Bd. of Ed. | https://www.courtlistener.com/opinion/109661/abood-v-detroit-bd-of-ed/ | the protection of these cases because they have been prohibited, not from actively associating, but rather from refusing to associate. They specifically argue that they may constitutionally prevent the Union's spending a part of their required service fees to contribute to political candidates and to express political views unrelated to its duties as exclusive bargaining representative. We have concluded that this argument is a meritorious one. One of the principles underlying the Court's decision in was that contributing to an organization for the purpose of spreading a political message is protected by the First Amendment. Because "[m]aking a contribution enables like-minded persons to pool their resources in furtherance of common political goals," the Court reasoned that limitations upon the freedom to contribute "implicate fundamental First Amendment interests,"[30] The fact that the appellants are compelled to make, rather than prohibited from making, contributions for political purposes works no less an infringement of their constitutional rights.[31] For at the heart of the First Amendment is the *235 notion that an individual should be free to believe as he will, and that in a free society one's beliefs should be shaped by his mind and his conscience rather than coerced by the State. See ; ; And the freedom of belief is no incidental or secondary aspect of the First Amendment's protections: "If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein." West Virginia Bd. of These principles prohibit a State from compelling any individual to affirm his belief in God, or to associate with a political party, see -364, n. 17, as a condition of retaining public employment. They are no less applicable to the case at bar, and they thus prohibit the appellees from requiring any of the appellants to contribute to the support of an ideological cause he may oppose as a condition of holding a job as a public school teacher. We do not hold that a union cannot constitutionally spend funds for the expression of political views, on behalf of political candidates, or toward the advancement of other ideological causes not germane to its duties as collective-bargaining representative.[32] Rather, the Constitution requires only that *236 such expenditures be financed from charges, dues, or assessments paid by employees who do not object to advancing those ideas and who are not coerced into doing so against their will by the threat of loss of governmental |
Justice Stewart | 1,977 | 18 | majority | Abood v. Detroit Bd. of Ed. | https://www.courtlistener.com/opinion/109661/abood-v-detroit-bd-of-ed/ | against their will by the threat of loss of governmental employment. There will, of course, be difficult problems in drawing lines between collective-bargaining activities, for which contributions may be compelled, and ideological activities unrelated to collective bargaining, for which such compulsion is prohibited.[33] The Court held in as a matter of statutory construction, that a similar line must be drawn under the Railway Labor Act, but in the public sector the line may be somewhat hazier. The process of establishing a written collective-bargaining agreement prescribing the terms and conditions of public employment may require not merely concord at the bargaining table, but subsequent approval by other public authorities; related budgetary and appropriations decisions might be seen as an integral part of the bargaining process. We have no occasion in this case, however, to try to define such a dividing line. The case comes to us after a judgment on the pleadings, and there is no evidentiary record of any kind. The allegations in the complaints are general ones, see and the parties have neither briefed nor argued the question of what specific Union activities in the present context properly fall under the definition of collective bargaining. The lack of factual concreteness and adversary presentation to aid us in approaching the difficult line-drawing questions highlights the *237 importance of avoiding unnecessary decision of constitutional questions.[34] All that we decide is that the general allegations in the complaints, if proved, establish a cause of action under the First and Fourteenth Amendments. III In determining what remedy will be appropriate if the appellants prove their allegations, the objective must be to devise a way of preventing compulsory subsidization of ideological activity by employees who object thereto without restricting the Union's ability to require every employee to contribute to the cost of collective-bargaining activities.[35] This task is simplified by the guidance to be had from prior decisions. In the plaintiffs had proved at trial that expenditures were being made for political purposes of various kinds, and *238 the Court found those expenditures illegal under the Railway Labor Act. See Moreover, in that case each plaintiff had "made known to the union representing his craft or class his dissent from the use of his money for political causes which he opposes." ; see The Court found that "[i]n that circumstance, the respective unions were without power to use payments thereafter tendered by them for such political causes." Since, however, had established that the union-shop agreement was not unlawful as such, the Court held that to enjoin its enforcement would "[sweep] too broadly." 367 U.S., The |
Justice Stewart | 1,977 | 18 | majority | Abood v. Detroit Bd. of Ed. | https://www.courtlistener.com/opinion/109661/abood-v-detroit-bd-of-ed/ | enjoin its enforcement would "[sweep] too broadly." 367 U.S., The Court also found that an injunction prohibiting the union from expending dues for political purposes would be inappropriate, not only because of the basic policy reflected in the Norris-La Guardia Act[36] against enjoining labor unions, but also because those union members who do wish part of their dues to be used for political purposes have a right to associate to that end "without being silenced by the dissenters."[37] After noting that "dissent is not to be presumed" and that only employees who have affirmatively made known to the union their opposition to political uses of their funds are entitled to relief, the Court sketched two possible remedies: First, "an injunction against expenditure for political causes opposed by each complaining employee of a sum, from those moneys to be spent by the union for political purposes, which is so much of the moneys exacted from him as is the proportion of the union's total expenditures made for such political activities to the union's total budget"; and second, restitution of a fraction of union dues paid equal to the fraction of total union expenditures that were made for political purposes opposed by the employee.[38] *239 The Court again considered the remedial question in Railway In that case employees who had refused to pay union-shop dues obtained injunctive relief in state court against enforcement of the union-shop agreement. The employees had not notified the union prior to bringing the lawsuit of their opposition to political expenditures, and at trial, their testimony was principally that they opposed such expenditures, as a general matter. The Court held that the employees had adequately established their cause of action by manifesting "opposition to any political expenditures by the union," and that the requirement in that dissent be affirmatively indicated was satisfied by the allegations in the complaint that was 373 U.S., -119, and n. 6.[39] The Court indicated again the appropriateness of the two remedies sketched in ; reversed the judgment affirming issuance of the injunction; and remanded for determination of which expenditures were properly to be characterized as political and what percentage of total union expenditures they constituted.[40] *240 The Court in Allen described a "practical decree" that could properly be entered, providing for (1) the refund of a portion of the exacted funds in the proportion that union political expenditures bear to total union expenditures, and (2) the reduction of future exactions by the same proportion. Recognizing the difficulties posed by judicial administration of such a remedy, the Court also suggested that it would be |
Justice Stewart | 1,977 | 18 | majority | Abood v. Detroit Bd. of Ed. | https://www.courtlistener.com/opinion/109661/abood-v-detroit-bd-of-ed/ | a remedy, the Court also suggested that it would be highly desirable for unions to adopt a "voluntary plan by which dissenters would be afforded an internal union remedy." This last suggestion is particularly relevant to the case at bar, for the Union has adopted such a plan since the commencement of this litigation.[41] Although and Allen were concerned with statutory rather than constitutional violations, that difference surely could not justify any lesser relief in this Judged by the standards of those cases, the Michigan Court of Appeals' ruling that the appellants were entitled to no relief at this juncture was unduly restrictive. For all the reasons *241 outlined in the court was correct in denying the broad injunctive relief requested. But in holding that as a prerequisite to any relief each appellant must indicate to the Union the specific expenditures to which he objects, the Court of Appeals ignored the clear holding of Allen. As in Allen, the employees here indicated in their pleadings that they opposed ideological expenditures of any sort that are unrelated to collective bargaining. To require greater specificity would confront an individual employee with the dilemma of relinquishing either his right to withhold his support of ideological causes to which he objects or his freedom to maintain his own beliefs without public disclosure.[42] It would also place on each employee the considerable burden of monitoring all of the numerous and shifting expenditures made by the Union that are unrelated to its duties as exclusive bargaining representative. The Court of Appeals thus erred in holding that the plaintiffs are entitled to no relief if they can prove the *242 allegations contained in their complaints,[43] and in depriving them of an opportunity to establish their right to appropriate relief, such, for example, as the kind of remedies described in and Allen.[44] In view of the newly adopted Union internal remedy, it may be appropriate under Michigan law, even if not strictly required by any doctrine of exhaustion of remedies, to defer further judicial proceedings pending the voluntary utilization by the parties of that internal remedy as a possible means of settling the dispute.[45] The judgment is vacated, and the case is remanded for further proceedings not inconsistent with this opinion. It is so ordered. MR. |
Justice Rehnquist | 1,986 | 19 | second_dissenting | Sheet Metal Workers v. EEOC | https://www.courtlistener.com/opinion/111747/sheet-metal-workers-v-eeoc/ | Today, in Firefighters v. Cleveland, post, p. 501 (REHNQUIST, J., dissenting), I express my belief that 706(g) forbids a court to order racial preferences that effectively displace nonminorities except to minority individuals who have been the actual victims of a particular employer's racial discrimination. Although the pervasiveness of the racial discrimination practiced by a particular union or employer is likely to increase the number of victims who are entitled to a remedy under the Act, 706(g) does not allow us to go further than that and sanction the granting of relief to those who were not victims at the expense of innocent nonminority workers injured by racial preferences. I explain that both the language and the legislative history of 706(g) clearly support this reading of 706(g), and that this Court stated as much just two Terms ago in Because of this, I would not reach the equal protection question, see ante, at 479-481 (opinion of BRENNAN, J.), ante, at 484-489 (opinion of POWELL, J.), but would rely solely on 706(g) to reverse the Court of Appeals' judgment approving the order of class-based relief for petitioners' past discrimination. |
Justice O'Connor | 1,997 | 14 | dissenting | Old Chief v. United States | https://www.courtlistener.com/opinion/118074/old-chief-v-united-states/ | The Court today announces a rule that misapplies Federal Rule of Evidence 403 and upsets, without explanation, longstanding precedent regarding criminal prosecutions. I do not agree that the Government's introduction of evidence that reveals the name and basic nature of a defendant's prior felony conviction in a prosecution brought under 18 U.S. C. 922(g)(1) "unfairly" prejudices the defendant within the meaning of Rule 403. Nor do I agree with the Court's newly minted rule that a defendant charged with violating *193 922(g)(1) can force the Government to accept his concession to the prior conviction element of that offense, thereby precluding the Government from offering evidence on this point. I therefore dissent. I Rule 403 provides that a district court may exclude relevant evidence if, among other things, "its probative value is substantially outweighed by the danger of unfair prejudice." Certainly, Rule 403 does not permit the court to exclude the Government's evidence simply because it may hurt the defendant. As a threshold matter, evidence is excludable only if it is "unfairly" prejudicial, in that it has "an undue tendency to suggest decision on an improper basis." Advisory Committee's Note on Fed. Rule Evid. 403, U.S. C. App., p. 860; see, e. g., United (citations omitted), cert. denied sub nom. ; cert. denied, The evidence tendered by the Government in this casethe order reflecting petitioner's prior conviction and sentence for assault resulting in serious bodily injury, in violation of 18 U.S. C. 1153 and 18 U.S. C. 113(f) (1988 ed.)directly proved a necessary element of the 922(g)(1) offense, that is, that petitioner had committed a crime covered by 921(a)(20). Perhaps petitioner's case was damaged when the jury discovered that he previously had committed a felony and heard the name of his crime. But I cannot agree with the Court that it was unfairly prejudicial for the Government to establish an essential element *194 of its case against petitioner with direct proof of his prior conviction. The structure of 922(g)(1) itself shows that Congress envisioned jurors' learning the name and basic nature of the defendant's prior offense. Congress enacted 922(g)(1) to prohibit the possession of a firearm by any person convicted of "a crime punishable by imprisonment for a term exceeding one year." Section 922(g)(1) does not merely prohibit the possession of firearms by "felons," nor does it apply to all prior felony convictions. Rather, the statute excludes from 922(g)(1)'s coverage certain business crimes and state misdemeanors punishable by imprisonment of two years or less. 921(a)(20). Within the meaning of 922(g)(1), then, "a crime" is not an abstract or metaphysical concept. Rather, |
Justice O'Connor | 1,997 | 14 | dissenting | Old Chief v. United States | https://www.courtlistener.com/opinion/118074/old-chief-v-united-states/ | "a crime" is not an abstract or metaphysical concept. Rather, the Government must prove that the defendant committed a particular crime. In short, under 922(g)(1), a defendant's prior felony conviction connotes not only that he is a prior felon, but also that he has engaged in specific past criminal conduct. Even more fundamentally, in our system of justice, a person is not simply convicted of "a crime" or "a felony." Rather, he is found guilty of a specified offense, almost always because he violated a specific statutory prohibition. For example, in the words of the order that the Government offered to prove petitioner's prior conviction in this case, petitioner "did knowingly and unlawfully assault Rory Dean Fenner, said assault resulting in serious bodily injury, in violation of Title 18 U.S. C. 1153 and 113(f)." App. 18. That a variety of crimes would have satisfied the prior conviction element of the 922(g)(1) offense does not detract from the fact that petitioner committed a specific offense. The name and basic nature of petitioner's crime are inseparable from the fact of his earlier conviction and were therefore admissible to prove petitioner's guilt. The principle is illustrated by the evidence that was admitted at petitioner's trial to prove the other element of the *195 922(g)(1) offensepossession of a "firearm." The Government submitted evidence showing that petitioner possessed a 9-mm. semiautomatic pistol. Although petitioner's possession of any number of weapons would have satisfied the requirements of 922(g)(1), obviously the Government was entitled to prove with specific evidence that petitioner possessed the weapon he did. In the same vein, consider a murder case. Surely the Government can submit proof establishing the victim's identity, even though, strictly speaking, the jury has no "need" to know the victim's name, and even though the victim might be a particularly well loved public figure. The same logic should govern proof of the prior conviction element of the 922(g)(1) offense. That is, the Government ought to be able to prove, with specific evidence, that petitioner committed a crime that came within 922(g)(1)'s coverage. The Court never explains precisely why it constitutes "unfair" prejudice for the Government to directly prove an essential element of the 922(g)(1) offense with evidence that reveals the name or basic nature of the defendant's prior conviction. It simply notes that such evidence may lead a jury to conclude that the defendant has a propensity to commit crime, thereby raising the odds that the jury would find that he committed the crime with which he is currently charged. With a nod to the part of Rule 404(b) that |
Justice O'Connor | 1,997 | 14 | dissenting | Old Chief v. United States | https://www.courtlistener.com/opinion/118074/old-chief-v-united-states/ | With a nod to the part of Rule 404(b) that says "[e]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith," the Court writes: "There is, accordingly, no question that propensity would be an `improper basis' for conviction and that evidence of a prior conviction is subject to analysis under Rule 403 for relative probative value and for prejudicial risk of misuse as propensity evidence." Ante, at 182. A few pages later, it leaps to the conclusion that there can be "no question that evidence of the name or nature of the *196 prior offense generally carries a risk of unfair prejudice to the defendant." Ante, at 185. Yes, to be sure, Rule 404(b) provides that "[e]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith." But Rule 404(b) does not end there. It expressly contemplates the admission of evidence of prior crimes for other purposes, "such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." The list is plainly not exhaustive, and where, as here, a prior conviction is an element of the charged offense, neither Rule 404(b) nor Rule 403 can bar its admission. The reason is simple: In a prosecution brought under 922(g)(1), the Government does not submit evidence of a past crime to prove the defendant's bad character or to "show action in conformity therewith." It tenders the evidence as direct proof of a necessary element of the offense with which it has charged the defendant. To say, as the Court does, that it "unfairly" prejudices the defendant for the Government to establish its 922(g)(1) case with evidence showing that, in fact, the defendant did commit a prior offense misreads the Rules of Evidence and defies common sense. Any incremental harm resulting from proving the name or basic nature of the prior felony can be properly mitigated by limiting jury instructions. Federal Rule of Evidence 105 provides that when evidence is admissible for one purpose, but not another, "the court, upon request, shall restrict the evidence to its proper scope and instruct the jury accordingly." Indeed, on petitioner's own motion in this case, the District Court instructed the jury that it was not to "`consider a prior conviction as evidence of guilt of the crime for which the defendant is now on trial.' " Brief for United States 32. The jury is presumed to have followed this cautionary instruction, |
Justice O'Connor | 1,997 | 14 | dissenting | Old Chief v. United States | https://www.courtlistener.com/opinion/118074/old-chief-v-united-states/ | The jury is presumed to have followed this cautionary instruction, see and the instruction offset whatever prejudice *197 might have arisen from the introduction of petitioner's prior conviction. II The Court also holds that, if a defendant charged with violating 922(g)(1) concedes his prior felony conviction, a district court abuses its discretion if it admits evidence of the defendant's prior crime that raises the risk of a verdict "tainted by improper considerations." See ante, at 174. Left unexplained is what, exactly, it was about the order introduced by the Government at trial that might cause a jury to decide the case improperly. The order offered into evidence (which the Court nowhere in its opinion sets out) stated, in relevant part: "And the defendant having been convicted on his plea of guilty of the offense charged in Count II of the indictment in the above-entitled cause, to-wit: That on or about the 18th day of December 1988, at Browning, in the State and District of Montana, and on and within the exterior boundaries of the Blackfeet Indian Reservation, being Indian country, JOHNNY LYNN OLD CHIEF, an Indian person, did knowingly and unlawfully assault Rory Dean Fenner, said assault resulting in serious bodily injury, in violation of Title 18 U.S. C. 1153 and 113(f)." App. 18. The order went on to say that petitioner was sentenced for a term of 60 months' imprisonment, to be followed by two years of supervised release. Why, precisely, does the Court think that this item of evidence raises the risk of a verdict "tainted by improper considerations"? Is it because the jury might learn that petitioner assaulted someone and caused serious bodily injury? If this is what the Court means, would evidence that petitioner had committed some other felony be admissible, and if so, what sort of crime might that be? Or does the Court object to the order because it gave a few specifics about the *198 assault, such as the date, the location, and the victim's name? Or perhaps the Court finds that introducing the order risks a verdict "tainted by improper considerations" simply because the 922(g)(1) charge was joined with counts charging petitioner with using a firearm in relation to a crime of violence, in violation of 18 U.S. C. 924(c), and with committing an assault with a dangerous weapon, in violation of 18 U.S. C. 1153 and 18 U.S. C. 113(c) (1988 ed.)? Under the Court's nebulous standard for admission of prior felony evidence in a 922(g)(1) prosecution, these are open questions. More troubling still is the Court's retreat from the fundamental |
Justice O'Connor | 1,997 | 14 | dissenting | Old Chief v. United States | https://www.courtlistener.com/opinion/118074/old-chief-v-united-states/ | More troubling still is the Court's retreat from the fundamental principle that in a criminal prosecution the Government may prove its case as it sees fit. The Court reasons that, in general, a defendant may not stipulate away an element of a charged offense because, in the usual case, "the prosecution with its burden of persuasion needs evidentiary depth to tell a continuous story." Ante, at 190. The rule has, however, "virtually no application when the point at issue is a defendant's legal status, dependent on some judgment rendered wholly independently of the concrete events of later criminal behavior charged against him." Thus, concludes the Court, there is no real difference between the "evidentiary significance" of a defendant's concession and that of the Government's proof of the prior felony with the order of conviction. Ante, at 191. Since the Government's method of proof was more prejudicial than petitioner's admission, it follows that the District Court should not have admitted the order reflecting his conviction when petitioner had conceded that element of the offense. On its own terms, the argument does not hold together. A jury is as likely to be puzzled by the "missing chapter" resulting from a defendant's stipulation to his prior felony conviction as it would be by the defendant's conceding any other element of the crime. The jury may wonder why it has not been told the name of the crime, or it may question why the defendant's firearm possession was illegal, given the *199 tradition of lawful gun ownership in this country, see "`Doubt as to the criminality of [the defendant's] conduct may influence the jury when it considers the possession element.' " United modified, Second, the Court misapprehends why "it has never been seriously suggested that [a defendant] can compel the Government to try the case by stipulation." It may well be that the prosecution needs "evidentiary depth to tell a continuous story" in order to prove its case in a way a jury will accept. Ante, at 190. But that is by no means the only or the most important reason that a defendant may not oblige the Government to accept his concession to an element of the charged offense. The Constitution requires a criminal conviction to rest upon a jury determination that the defendant is guilty of every element of the crime of which he is charged beyond a reasonable doubt. United ); see also Court of Ulster "A simple plea of not guilty, Fed. Rule Crim. Proc. 11, puts the prosecution to its proof as to all elements of the crime charged" |
Justice O'Connor | 1,997 | 14 | dissenting | Old Chief v. United States | https://www.courtlistener.com/opinion/118074/old-chief-v-united-states/ | its proof as to all elements of the crime charged" Further, a defendant's tactical decision not to contest an essential element of the crime does not remove the prosecution's burden to prove that element. At trial, a defendant may thus choose to contest the Government's proof on every element; or he may concede some elements and contest others; *200 or he may do nothing at all. Whatever his choice, the Government still carries the burden of proof beyond a reasonable doubt on each element. It follows from these principles that a defendant's stipulation to an element of an offense does not remove that element from the jury's consideration. The usual instruction regarding stipulations in a criminal case reflects as much: "When the attorneys on both sides stipulate or agree as to the existence of a fact, you may accept the stipulation as evidence and regard that fact as proved. You are not required to do so, however, since you are the sole judge of the facts." 1 E. Devitt, C. Blackmar, M. Wolff, & K. O'Malley, Federal Jury Practice and Instructions 12.03, p. 333 (4th ed. 1992). Obviously, we are not dealing with a stipulation here. A stipulation is an agreement, and no agreement was reached between petitioner and the Government in this case. Does the Court think a different rule applies when the defendant attempts to stipulate, over the Government's objection, to an element of the charged offense? If so, that runs counter to the Constitution: The Government must prove every element of the offense charged beyond a reasonable doubt, In re Winship, 397 U.S. 8, and the defendant's strategic decision to "agree" that the Government need not prove an element cannot relieve the Government of its burden, see at -70. Because the Government bears the burden of proof on every element of a charged offense, it must be accorded substantial leeway to submit evidence of its choosing to prove its case. Also overlooked by the Court is the fact that, in "conceding" that he has a prior felony conviction, a defendant may be trying to take the issue from the jury altogether by effectively entering a partial plea of guilty, something we have never before endorsed. Federal Rule of Criminal Procedure 23(a) does not permit a defendant to waive a jury trial unless the Government consents, and we have upheld the provision as constitutional. "The Constitution *201 recognizes an adversary system as the proper method of determining guilt, and the Government, as a litigant, has a legitimate interest in seeing that cases in which it believes a conviction |
Justice O'Connor | 1,997 | 14 | dissenting | Old Chief v. United States | https://www.courtlistener.com/opinion/118074/old-chief-v-united-states/ | in seeing that cases in which it believes a conviction is warranted are tried before the tribunal which the Constitution regards as most likely to produce a fair result." A defendant who concedes the prior conviction element of the 922(g)(1) offense may be effectively trying to waive his right to a jury trial on that element. Unless the Government agrees to this waiver, it runs afoul of Rule 23(a) and III The Court manufactures a new rule that, in a 922(g)(1) case, a defendant can force the Government to accept his admission to the prior felony conviction element of the offense, thereby precluding the Government from offering evidence to directly prove a necessary element of its case. I cannot agree that it "unfairly" prejudices a defendant for the Government to prove his prior conviction with evidence that reveals the name or basic nature of his past crime. Like it or not, Congress chose to make a defendant's prior criminal conviction one of the two elements of the 922(g)(1) offense. Moreover, crimes have names; a defendant is not convicted of some indeterminate, unspecified "crime." Nor do I think that Federal Rule of Evidence 403 can be read to obviate the well accepted principle, grounded in both the Constitution and in our precedent, that the Government may not be forced to accept a defendant's concession to an element of a charged offense as proof of that element. I respectfully dissent. |
Justice Alito | 2,015 | 8 | majority | B&B Hardware, Inc. v. Hargis Industries, Inc. | https://www.courtlistener.com/opinion/2959751/bb-hardware-inc-v-hargis-industries-inc/ | Sometimes two different tribunals are asked to decide the same issue. When that happens, the deci of the first tribunal usually must be followed by the second, at least if the issue is really the same. Allowing the same issue to be decided more than once wastes litigants’ re- sources and adjudicators’ time, and it encourages parties who lose before one tribunal to shop around for another. The doctrine of collateral estoppel or issue preclu is designed to prevent this from occurring. This case concerns the application of issue preclu in the context of trademark law. Petitioner, B&B Hardware, Inc. (B&B), and respondent Hargis Industries, Inc. (Har- gis), both use similar trademarks; B&B owns SEALTIGHT while Hargis owns SEALTITE. Under the Lanham Act, as amended, 15 U.S. C. et seq., an applicant can seek to register a trademark through an administrative process within the United States Patent and Trademark Office (PTO). But if another party be- 2 B&B HARDWARE, INC. v. HARGIS INDUSTRIES, INC. Opinion of the Court lieves that the PTO should not register a mark because it is too similar to its own, that party can oppose registration before the Trademark Trial and Appeal Board (TTAB). Here, Hargis tried to register the mark SEALTITE, but B&B opposed SEALTITE’s registration. After a lengthy proceeding, the TTAB agreed with B&B that SEALTITE should not be registered. In addition to permitting a party to object to the regis- tration of a mark, the Lanham Act allows a mark owner to sue for trademark infringement. Both a registration proceeding and a suit for trademark infringement, more- over, can occur at the same time. In this case, while the TTAB was deciding whether SEALTITE should be regis- tered, B&B and Hargis were also litigating the SEALTIGHT versus SEALTITE dispute in federal court. In both registration proceedings and infringement litiga- tion, the tribunal asks whether a likelihood of confu exists between the mark sought to be protected (here, SEALTIGHT) and the other mark (SEALTITE). The question before this Court is whether the District Court in this case should have applied issue preclu to the TTAB’s deci that SEALTITE is confusingly similar to SEALTIGHT. Here, the Eighth Circuit rejected issue preclu for reasons that would make it difficult for the doctrine ever to apply in trademark disputes. We disagree with that narrow understanding of issue preclu. Instead, consistent with principles of law that apply in innumerable contexts, we hold that a court should give preclusive effect to TTAB decis if the ordinary ele- ments of issue preclu are met. We therefore reverse the judgment of |
Justice Alito | 2,015 | 8 | majority | B&B Hardware, Inc. v. Hargis Industries, Inc. | https://www.courtlistener.com/opinion/2959751/bb-hardware-inc-v-hargis-industries-inc/ | issue preclu are met. We therefore reverse the judgment of the Eighth Circuit and remand for further proceedings. I A Trademark law has a long history, going back at least to Cite as: 575 U. S. (2015) 3 Opinion of the Court Roman times. See Restatement (Third) of Unfair Compe- tition Comment b The principle underlying trademark protection is that distinctive marks—words, names, symbols, and the like—can help distinguish a particular artisan’s goods from those of others. One who first uses a distinct mark in commerce thus acquires rights to that mark. See 2 J. McCarthy, Trademarks and Unfair Competition (4th ed. 2014) (hereinafter McCarthy). Those rights include preventing others from using the mark. See 1 A. LaLonde, Gilson on Trademarks (2014) (hereinafter Gilson). Though federal law does not create trademarks, see, e.g., Trade-Mark Cases, Congress has long played a role in protecting them. In 6, Con- gress enacted the Lanham Act, the current federal trade- mark scheme. As relevant here, the Lanham Act creates at least two adjudicative mechanisms to help protect marks. First, a trademark owner can register its mark with the PTO. Second, a mark owner can bring a suit for infringement in federal court. Registration is significant. The Lanham Act confers “important legal rights and benefits” on trademark owners who register their marks. 3 McCarthy at 19–21 see also at 19–34 (listing seven of the “procedural and substantive legal advantages” of registration). Regis- tration, for instance, serves as “constructive notice of the registrant’s claim of ownership” of the mark. 15 U.S. C. It also is “prima facie evidence of the validity of the registered mark and of the registration of the mark, of the owner’s ownership of the mark, and of the owner’s exclusive right to use the registered mark in commerce on or in connection with the goods or services specified in the certificate.” And once a mark has been regis- tered for five years, it can become “incontestable.” 1115(b) To obtain the benefits of registration, a mark owner files 4 B&B HARDWARE, INC. v. HARGIS INDUSTRIES, INC. Opinion of the Court an application with the PTO. The application must include, among other things, “the date of the appli- cant’s first use of the mark, the date of the applicant’s first use of the mark in commerce, the goods in connection with which the mark is used, and a drawing of the mark.” (a)(2). The usages listed in the application—i.e., those goods on which the mark appears along with, if applicable, their channels of distribution—are critical. See, e.g., 3 McCarthy at 20–83 (“[T]he applicant’s right |
Justice Alito | 2,015 | 8 | majority | B&B Hardware, Inc. v. Hargis Industries, Inc. | https://www.courtlistener.com/opinion/2959751/bb-hardware-inc-v-hargis-industries-inc/ | critical. See, e.g., 3 McCarthy at 20–83 (“[T]he applicant’s right to register must be made on the basis of the goods described in the application”); at 20–85 (ex- plaining that if an “application does not delimit any spe- cific trade channels of distribution, no limitation will be” applied). The PTO generally cannot register a mark which “so resembles” another mark “as to be likely, when used on or in connection with the goods of the applicant, to cause confu, or to cause mistake, or to deceive.” 15 U.S. C. If a trademark examiner believes that registration is warranted, the mark is published in the Official Gazette of the PTO. At that point, “[a]ny person who believes that he would be damaged by the registration” may “file an opposition.” Opposition proceedings occur before the TTAB (or panels thereof). The TTAB consists of administrative trademark judges and high- ranking PTO officials, including the Director of the PTO and the Commiser of Trademarks. Opposition proceedings before the TTAB are in many ways “similar to a civil action in a federal district court.” TTAB Manual of Procedure (2014) (hereinafter TTAB Manual), online at http://www.uspto.gov (as visited Mar. 20, 2015, and available in Clerk of Court’s case file). These proceedings, for instance, are largely governed by the Federal Rules of Civil Procedure and Evidence. See 37 CFR 2.122(a) (2014). The TTAB also allows discovery and depositions. See 2.123(a). The Cite as: 575 U. S. (2015) 5 Opinion of the Court party opposing registration bears the burden of proof, see and if that burden cannot be met, the opposed mark must be registered, see 15 U.S. C. The primary way in which TTAB proceedings differ from ordinary civil litigation is that “proceedings before the Board are conducted in writing, and the Board’s actions in a particular case are based upon the written record therein.” TTAB Manual In other words, there is no live testimony. Even so, the TTAB allows parties to submit transcribed testimony, taken under oath and subject to cross-examination, and to request oral argument. See 37 CFR 2.129. When a party opposes registration because it believes the mark proposed to be registered is too similar to its own, the TTAB evaluates likelihood of confu by apply- ing some or all of the 13 factors set out in In re E. I. DuPont DeNemours & Co., After the TTAB decides whether to register the mark, a party can seek review in the U. S. Court of Appeals for the Federal Circuit, or it can file a new action in district court. See 15 U.S. C. |
Justice Alito | 2,015 | 8 | majority | B&B Hardware, Inc. v. Hargis Industries, Inc. | https://www.courtlistener.com/opinion/2959751/bb-hardware-inc-v-hargis-industries-inc/ | a new action in district court. See 15 U.S. C. In district court, the parties can conduct additional discovery and the judge resolves regis- tration de novo. see also 3 McCarthy (explaining differences between the forums); cf. Kappos v. Hyatt, 566 U. S. (2012) (de novo review for analogous scheme in patent law). The Lanham Act, of course, also creates a federal cause of action for trademark infringement. The owner of a mark, whether registered or not, can bring suit in federal court if another is using a mark that too closely resembles the plaintiff ’s. The court must decide whether the de- fendant’s use of a mark in commerce “is likely to cause confu, or to cause mistake, or to deceive” with regards to the plaintiff ’s mark. See 15 U.S. C. (regis- tered marks); (unregistered marks). In infringement litigation, the district court considers the full 6 B&B HARDWARE, INC. v. HARGIS INDUSTRIES, INC. Opinion of the Court range of a mark’s usages, not just those in the application. B Petitioner B&B and respondent Hargis both manufac- ture metal fasteners. B&B manufactures fasteners for the aerospace industry, while Hargis manufactures fasteners for use in the construction trade. Although there are obvious differences between space shuttles and A-frame buildings, both aerospace and construction engineers prefer fasteners that seal things tightly. Accordingly, both B&B and Hargis want their wares associated with tight seals. A feud of nearly two decades has sprung from this seemingly commonplace set of facts. In B&B registered SEALTIGHT for “threaded or unthreaded metal fasteners and other related hardwar[e]; namely, self-sealing nuts, bolts, screws, rivets and wash- ers, all having a captive o-ring, for use in the aerospace industry.” App. 223a (capitalization omitted). In 1996, Hargis sought to register SEALTITE for “self-piercing and self-drilling metal screws for use in the manufacture of metal and post-frame buildings.” App. 70a (capitalization omitted). B&B opposed Hargis’ registration because, although the two companies sell different products, it believes that SEALTITE is confusingly similar to SEALTIGHT. The twists and turns in the SEALTIGHT versus SEALTITE controversy are labyrinthine. The question whether either of these marks should be registered, and if so, which one, has bounced around within the PTO for about two decades; related infringement litigation has been before the Eighth Circuit three times; and two sepa- rate juries have been empaneled and returned verdicts. The full story could fill a long, unhappy book. For purposes here, we pick up the story in 2002, when the PTO published SEALTITE in the Official Gazette. This prompted opposition proceedings before the TTAB, Cite as: 575 |
Justice Alito | 2,015 | 8 | majority | B&B Hardware, Inc. v. Hargis Industries, Inc. | https://www.courtlistener.com/opinion/2959751/bb-hardware-inc-v-hargis-industries-inc/ | This prompted opposition proceedings before the TTAB, Cite as: 575 U. S. (2015) 7 Opinion of the Court complete with discovery, including depositions. B&B ar- gued that SEALTITE could not be registered because it is confusingly similar to SEALTIGHT. B&B explained, for instance, that both companies have an online presence, the largest distributor of fasteners sells both companies’ products, and consumers sometimes call the wrong com- pany to place orders. Hargis rejoined that the companies sell different products, for different uses, to different types of consumers, through different channels of trade. Invoking a number of the DuPont factors, the TTAB sided with B&B. The Board considered, for instance, whether SEALTIGHT is famous (it’s not, said the Board), how the two products are used (differently), how much the marks resemble each other (very much), and whether customers are actually confused (perhaps sometimes). See App. to Pet. for Cert. 55a–71a. Concluding that “the most critical factors in [its] likelihood of confu analysis are the similarities of the marks and the similarity of the goods,” at 70a, the TTAB determined that SEALTITE—when “used in connection with ‘self-piercing and self-drilling metal screws for use in the manufacture of metal and post-frame buildings’ ”—could not be regis- tered because it “so resembles” SEALTIGHT when “used in connection with fasteners that provide leakproof protec- tion from liquids and gases, fasteners that have a captive o-ring, and ‘threaded or unthreaded metal fastners and other related hardware for use in the aerospace indus- try’ as to be likely to cause confu,” at 71a. Despite a right to do so, Hargis did not seek judicial review in either the Federal Circuit or District Court. All the while, B&B had sued Hargis for infringement. Before the District Court ruled on likelihood of confu, however, the TTAB announced its deci. After a series of proceedings not relevant here, B&B argued to the Dis- trict Court that Hargis could not contest likelihood of confu because of the preclusive effect of the TTAB 8 B&B HARDWARE, INC. v. HARGIS INDUSTRIES, INC. Opinion of the Court deci. The District Court disagreed, reasoning that the TTAB is not an Article III court. The jury returned a verdict for Hargis, finding no likelihood of confu. B&B appealed to the Eighth Circuit. Though accepting for the sake of argument that agency decis can ground issue preclu, the panel majority affirmed for three reasons: first, because the TTAB uses different factors than the Eighth Circuit to evaluate likelihood of confu; second, because the TTAB placed too much emphasis on the appearance and sound of the two marks; and |
Justice Alito | 2,015 | 8 | majority | B&B Hardware, Inc. v. Hargis Industries, Inc. | https://www.courtlistener.com/opinion/2959751/bb-hardware-inc-v-hargis-industries-inc/ | on the appearance and sound of the two marks; and third, because Hargis bore the burden of persua before the TTAB, while B&B bore it before the District Court. 716 F.3d 1020 (2013). Judge Colloton dissented, concluding that issue preclu should apply. After calling for the views of the Solicitor General, we granted certiorari. 573 U. S. (2014). II The first question that we must address is whether an agency deci can ever ground issue preclu. The District Court rejected issue preclu because agencies are not Article III courts. The Eighth Circuit did not adopt that view, and, given this Court’s cases, it was right to take that course. This Court has long recognized that “the determination of a question directly involved in one action is conclusive as to that question in a second suit.” The idea is straightfor- ward: Once a court has decided an issue, it is “forever settled as between the parties,” thereby “protect[ing]” against “the expense and vexation attending multiple lawsuits, conserv[ing] judicial resources, and foster[ing] reliance on judicial action by minimizing the possibility of inconsistent verdicts,” In short, “a losing Cite as: 575 U. S. (2015) 9 Opinion of the Court litigant deserves no rematch after a defeat fairly suffered.” Fed. Sav. & Loan 107 (1991). Although the idea of issue preclu is straightforward, it can be challenging to implement. The Court, therefore, regularly turns to the Restatement (Second) of Judgments for a statement of the ordinary elements of issue preclu- See, e.g., ; New ; (1998). The Restatement explains that subject to certain well-known exceptions, the general rule is that “[w]hen an issue of fact or law is actually litigated and determined by a valid and final judgment, and the determination is essential to the judgment, the determination is conclusive in a subsequent action between the parties, whether on the same or a different claim.” Restatement (Second) of Judgments p. 250 (1980); see also at (listing exceptions such as whether appellate review was available or whether there were “differences in the quality or extensiveness of the procedures followed”). Both this Court’s cases and the Restatement make clear that issue preclu is not limited to those situations in which the same issue is before two courts. Rather, where a single issue is before a court and an administrative agency, preclu also often applies. Indeed, this Court has explained that because the principle of issue preclu- was so “well established” at common law, in those situations in which Congress has authorized agencies to resolve disputes, “courts may take it as given that Con- gress has legislated |
Justice Alito | 2,015 | 8 | majority | B&B Hardware, Inc. v. Hargis Industries, Inc. | https://www.courtlistener.com/opinion/2959751/bb-hardware-inc-v-hargis-industries-inc/ | may take it as given that Con- gress has legislated with the expectation that the principle [of issue preclu] will apply except when a statutory purpose to the contrary is evident.” This reflects the Court’s longstanding view that “ ‘[w]hen an administrative agency is acting in a judicial capacity and resolves disputed issues of fact properly before it 10 B&B HARDWARE, INC. v. HARGIS INDUSTRIES, INC. Opinion of the Court which the parties have had an adequate opportunity to litigate, the courts have not hesitated to apply res judicata to enforce repose.’ ” University of Tenn. v. 478 U.S. 788, 797–798 (1986) ); see also Hayfield Northern R. (noting Utah Construction); Kremer v. Chemical Constr. Corp., 456 U.S. 461, 484–485, n. 26 (1982) (characterizing Utah Construc- tion’s discus of administrative preclu as a hold- ing); Restatement (Second) of Judgments at 266 (explaining that, with some limits, “a valid and final adju- dicative determination by an administrative tribunal has the same effects under the rules of res judicata, subject to the same exceptions and qualifications, as a judgment of a court”). Although apparently accepting and Utah Con- struction,1 Hargis argues that we should not read the Lanham Act (or, presumably, many other federal statutes) as authorizing issue preclu. Otherwise, Hargis warns, the Court would have to confront “ ‘grave and doubtful questions’ as to the Lanham Act’s consistency with the Seventh Amendment and Article III of the Constitution.” Brief for Respondent 38 (quoting United States ex rel. Attorney General v. Delaware & Hudson Co., 213 U.S. 366, 408 (1909)). We are not persuaded. At the outset, we note that Hargis does not argue that giving issue preclusive effect to the TTAB’s deci would be unconstitutional. Instead, Hargis contends only that —————— 1 See Brief for Respondent 28 (acknowledging that administrative “[p]reclu’s status as part of the common-law backdrop means that courts may presume its application” absent contrary indication from Congress) (citing ); Brief for Respondent 34 (explaining that Utah Construction determined that “an administrative board’s factfinding could have preclusive effect in an Article III suit raising damages claims over which the board had no jurisdiction”). Cite as: 575 U. S. (2015) 11 Opinion of the Court we should read the Lanham Act narrowly because a broad reading might be unconstitutional. See, e.g., Brief for Respondent 37, 39, 40, 41–42. The likely reason that Hargis has not directly advanced a constitutional argu- ment is that, at least as to a jury trial right, Hargis did not even list the Seventh Amendment as an authority in its appellee brief to the Eighth Circuit. |
Justice Alito | 2,015 | 8 | majority | B&B Hardware, Inc. v. Hargis Industries, Inc. | https://www.courtlistener.com/opinion/2959751/bb-hardware-inc-v-hargis-industries-inc/ | an authority in its appellee brief to the Eighth Circuit. Moreover, although Hargis pressed an Article III argument below, in its oppo- sition to certiorari in this Court, Hargis seemingly con- ceded that TTAB decis can sometimes ground issue preclu, though it now protests otherwise. See Supplemental Brief in Opposition 2. To the extent, if any, that there could be a meritorious constitutional objection, it is not before us. See We reject Hargis’ statutory argument that we should jettison administrative preclu in whole or in part to avoid potential constitutional concerns. As to the Seventh Amendment, for instance, the Court has already held that the right to a jury trial does not negate the issue- preclusive effect of a judgment, even if that judgment was entered by a juryless tribunal. See Parklane Co. v. Shore, It would seem to follow naturally that although the Seventh Amendment creates a jury trial right in suits for trademark damages, see Dairy Queen, 479–480 (1962), TTAB decis still can have preclusive effect in such suits. Hargis disputes this reasoning even though it admits that in 1791 “ ‘a party was not entitled to have a jury determine issues that had been previously adjudi- cated by a chancellor in equity.’ ” Brief for Respondent 39 (quoting Parklane ). Instead, Hargis contends that issue preclu should not apply to TTAB registration decis because there were no agencies at common law. But our precedent holds that the Seventh Amendment does not strip competent tribunals of the 12 B&B HARDWARE, INC. v. HARGIS INDUSTRIES, INC. Opinion of the Court power to issue judgments with preclusive effect; that logic would not seem to turn on the nature of the competent tribunal. And at the same time, adopting Hargis’ view would dramatically undercut agency preclu, despite what the Court has already said to the contrary. Nothing in Hargis’ avoidance argument is weighty enough to over- come these weaknesses. The claim that we should read the Lanham Act narrowly to avoid Article III concerns is equally unavailing—and for similar reasons. Hargis argues that because it might violate Article III if an agency could make a deci with preclusive effect in a later proceeding before a federal court, we should conclude, as a statutory matter, that issue preclu is unavailable. Such a holding would not fit with our precedent. For instance, in the Court, relying on Utah Construction, explained that absent a contrary indication, Congress presumptively intends that an agency’s determination (there, a state agency) has preclusive –799; see also To be sure, the Court has never addressed whether such preclu- offends |
Justice Alito | 2,015 | 8 | majority | B&B Hardware, Inc. v. Hargis Industries, Inc. | https://www.courtlistener.com/opinion/2959751/bb-hardware-inc-v-hargis-industries-inc/ | sure, the Court has never addressed whether such preclu- offends Article III. But because this Court’s cases are so clear, there is no ambiguity for this Court to sidestep through constitutional avoidance.2 III The next question is whether there is an “evident” rea- son why Congress would not want TTAB decis to —————— 2 Our dissenting colleagues argue that Utah Construction’s conclu- that courts “have not hesitated” to apply administrative preclu- 384 U.S., at was mistaken and certainly should not be applied to statutes—such as the Lanham Act—enacted prior to 1966. We do not decide who reads the history better. The Court has repeat- edly endorsed Utah Construction and, importantly, neither party chal- lenges its historical accuracy. For the same reason, we do not decide whether such preclu is unconstitutional because the issue is not before us. Cite as: 575 U. S. (2015) 13 Opinion of the Court receive preclusive effect, even in those cases in which the ordinary elements of issue preclu are met. We conclude that nothing in the Lanham Act bars the application of issue preclu in such cases. The Lanham Act’s text certainly does not forbid issue preclu. Nor does the Act’s structure. Granted, one can seek judicial review of a TTAB registration deci in a de novo district court action, and some courts have con- cluded from this that Congress does not want unreviewed TTAB decis to ground issue preclu. See, e.g., American Heritage Life Ins. But that conclu does not follow. Ordinary preclu law teaches that if a party to a court proceeding does not challenge an adverse deci- that deci can have preclusive effect in other cases, even if it would have been reviewed de novo. See Restatement (Second) of Judgments Comment a and Illustration 1 (explaining that the failure to pursue an appeal does not undermine issue preclu and including an example of an apparently unappealed district court’s dismissal for failure to state a claim); cf. Federated De- partment Stores, (noting “the res judicata consequences of a final, unap- pealed judgment on the merits”). This case is also unlike where a plaintiff claim- ing discrimination first went to an agency and then sued in court about the same alleged conduct. See 501 U.S., at 111. The Court concluded, quite sensibly, that the struc- ture of that scheme indicated that the agency deci could not ground issue preclu. When exhausting an administrative process is a prerequisite to suit in court, giving preclusive effect to the agency’s determination in that very administrative process could render the judicial suit “strictly pro forma.” ; see also |
Justice Alito | 2,015 | 8 | majority | B&B Hardware, Inc. v. Hargis Industries, Inc. | https://www.courtlistener.com/opinion/2959751/bb-hardware-inc-v-hargis-industries-inc/ | render the judicial suit “strictly pro forma.” ; see also at 795–796 (similar analysis). Here, if a party urged a dis- trict court reviewing a TTAB registration deci to give 14 B&B HARDWARE, INC. v. HARGIS INDUSTRIES, INC. Opinion of the Court preclusive effect to the very TTAB deci under review, would apply. But that is not this case. What matters here is that registration is not a prerequi- site to an infringement action. Rather, it is a separate proceeding to decide separate rights. Neither is issue preclu a one-way street. When a district court, as part of its judgment, decides an issue that overlaps with part of the TTAB’s analysis, the TTAB gives preclusive effect to the court’s judgment. See App. to Pet. for Cert. 54a– 55a (giving preclusive effect to the District Court’s ear- lier deci regarding SEALTIGHT’s distinctiveness be- cause the issue “was actually litigated and necessarily determined”). Hargis also argues that allowing TTAB decis to have issue-preclusive effect will adversely affect the regis- tration process. Because of the TTAB’s “ ‘limited jurisdic- tion’ ” and “ ‘the narrowness of the issues’ ” before it, Hargis contends, the Court should infer that TTAB proceedings are supposed to be more streamlined than infringement litigation. See Brief for Respondent 30 (quoting TTAB Manual But, the argument goes, if TTAB deci- s can have issue-preclusive effect in infringement litigation, parties may spend more time and energy before the TTAB, thus bogging down the registration process. This concern does not change our conclu. Issue pre- clu is available unless it is “evident,” at 108, that Congress does not want it. Here, if a stream- lined process in all registration matters was particularly dear to Congress, it would not have authorized de novo challenges for those “dissatisfied” with TTAB decis. 15 U.S. C. Plenary review serves many func- tions, but ensuring a streamlined process is not one of them. Moreover, as explained below, for a great many registration decis issue preclu obviously will not apply because the ordinary elements will not be met. For those registrations, nothing we say today is relevant. Cite as: 575 U. S. (2015) 15 Opinion of the Court IV At last we turn to whether there is a categorical reason why registration decis can never meet the ordinary elements of issue preclu, e.g., those elements set out in of the Restatement (Second) of Judgments. Although many registrations will not satisfy those ordinary ele- ments, that does not mean that none will. We agree with Professor McCarthy that issue preclu applies where “the issues in the two cases |
Justice Alito | 2,015 | 8 | majority | B&B Hardware, Inc. v. Hargis Industries, Inc. | https://www.courtlistener.com/opinion/2959751/bb-hardware-inc-v-hargis-industries-inc/ | issue preclu applies where “the issues in the two cases are indeed identical and the other rules of collateral estoppel are carefully observed.” 6 McCarthy at 32–244; see also 3 Gilson p. 11–319 (“Ultimately, Board decis on likelihood of confu should be given preclusive effect on a case-by-case basis”). A The Eighth Circuit’s primary objection to issue preclu- was that the TTAB considers different factors than it does. Whereas the TTAB employs some or all of the DuPont factors to assess likelihood of confu, the Eighth Circuit looks to similar, but not identical, factors identified in 1091 (CA8 1980). The court’s instinct was sound: “[I]ssues are not identical if the second action involves application of a different legal standard, even though the factual setting of both suits may be the same.” 18 C. Wright, A. Miller, & E. Cooper, Federal Practice & Proce- dure p. 449 (2d ed. 2002) (hereinafter Wright & Miller). Here, however, the same likelihood-of-confu standard applies to both registration and infringement. To begin with, it does not matter that registration and infringement are governed by different statutory provi- s. Often a single standard is placed in different stat- utes; that does not foreclose issue preclu. See, e.g., Smith v. Bayer Corp., 564 U. S. (2011) (slip op., at 7). Neither does it matter that the TTAB and the Eighth 16 B&B HARDWARE, INC. v. HARGIS INDUSTRIES, INC. Opinion of the Court Circuit use different factors to assess likelihood of confu- For one thing, the factors are not fundamentally different, and “[m]inor variations in the application of what is in essence the same legal standard do not defeat preclu.” at n. 9 (slip op., at 12, n. 9). More important, if federal law provides a single standard, par- ties cannot escape preclu simply by litigating anew in tribunals that apply that one standard differently. A contrary rule would encourage the very evils that issue preclu helps to prevent. The real question, therefore, is whether likelihood of confu for purposes of registration is the same standard as likelihood of confu for purposes of infringement. We conclude it is, for at least three reasons. First, the operative language is essentially the same; the fact that the registration provi separates “likely” from “to cause confu, or to cause mistake, or to deceive” does not change that reality.3 See 2 Gilson –17 (explaining that “the same statutory test” applies). Sec- ond, the likelihood-of-confu language that Congress used in these Lanham Act provis has been central to trademark registration since at least 1881. See Act of Mar. 3, 1881, ch. 138, (using |
Justice Alito | 2,015 | 8 | majority | B&B Hardware, Inc. v. Hargis Industries, Inc. | https://www.courtlistener.com/opinion/2959751/bb-hardware-inc-v-hargis-industries-inc/ | 1881. See Act of Mar. 3, 1881, ch. 138, (using a “likely to cause confu” standard for registration). That could hardly have been by accident. And third, district courts can cancel registrations during infringement litigation, —————— 3 Compare 15 U.S. C. (“Any person who shall use in commerce any mark in connection with the sale, offering for sale, distribution, or advertising of any goods or services on or in connection with which such use is likely to cause confu, or to cause mistake, or to deceive shall be liable in a civil action by the registrant for the remedies hereinafter provided” (emphasis added)) with (“No trademark shall be refused registration unless it [c]onsists of or comprises a mark which so resembles a mark registered in the Patent and Trademark Office as to be likely, when used on or in connection with the goods of the applicant, to cause confu, or to cause mistake, or to deceive” (emphasis added)). Cite as: 575 U. S. (2015) 17 Opinion of the Court just as they can adjudicate infringement in suits seeking judicial review of registration decis. See 15 U.S. C. 3 McCarthy There is no reason to think that the same district judge in the same case should apply two separate standards of likelihood of confu. Hargis responds that the text is not actually the same because the registration provi asks whether the marks “resemble” each other, 15 U.S. C. while the infringement provi is directed towards the “use in commerce” of the marks, Indeed, according to Hargis, the distinction between “resembl[ance]” and “use” has been key to trademark law for over a century. There is some force to this argument. It is true that “a party opposing an application to register a mark before the Board often relies only on its federal registration, not on any common-law rights in usages not encompassed by its registration,” and “the Board typically analyzes the marks, goods, and channels of trade only as set forth in the appli- cation and in the opposer’s registration, regardless of whether the actual usage of the marks by either party differs.” Brief for United States as Amicus Curiae 23; see also (explaining that “the Board typically reviews only the usages encompassed by the registration”) (citing 3 Gilson 3 McCarthy at 20–45 (ex- plaining that for registration “it is the mark as shown in the application and as used on the goods described in the application which must be considered, not the mark as actually used”). This means that unlike in infringement litigation, “[t]he Board’s determination that a likelihood of confu |
Justice Alito | 2,015 | 8 | majority | B&B Hardware, Inc. v. Hargis Industries, Inc. | https://www.courtlistener.com/opinion/2959751/bb-hardware-inc-v-hargis-industries-inc/ | infringement litigation, “[t]he Board’s determination that a likelihood of confu does or does not exist will not resolve the confu- issue with respect to non-disclosed usages.” Brief for United States as Amicus Curiae 23. Hargis’ argument falls short, however, because it mis- takes a reason not to apply issue preclu in some or even many cases as a reason never to apply issue preclu- Just because the TTAB does not always consider the 18 B&B HARDWARE, INC. v. HARGIS INDUSTRIES, INC. Opinion of the Court same usages as a district court does, it does not follow that the Board applies a different standard to the usages it does consider.4 If a mark owner uses its mark in ways that are materially the same as the usages included in its registration application, then the TTAB is deciding the same likelihood-of-confu issue as a district court in infringement litigation. By contrast, if a mark owner uses its mark in ways that are materially unlike the usages in its application, then the TTAB is not deciding the same issue. Thus, if the TTAB does not consider the market- place usage of the parties’ marks, the TTAB’s deci should “have no later preclusive effect in a suit where actual usage in the marketplace is the paramount issue.” 6 McCarthy at 32–246. Materiality, of course, is essential—trivial variations between the usages set out in an application and the use of a mark in the marketplace do not create different “is- sues,” just as trivial variations do not create different “marks.” See generally 4 at 23–265 (explain- ing that “adding descriptive or non-distinctive” elements to another’s mark generally will not negate confu). Otherwise, a party could escape the preclusive effect of an adverse judgment simply by adding an immaterial feature to its mark. That is not the law. See, e.g., Restatement (Second) of Judgments Comment c, at 252–253 (ex- plaining that “issue” must be understood broadly enough “to prevent repetitious litigation of what is essentially the same dispute”); United (applying issue preclu where a party sought to “litigate twice an issue arising from virtually identical facts” because the “factual differ- —————— 4 The parties dispute whether and how often the TTAB considers usages beyond those listed in the application and registration. We do not resolve that dispute here. Suffice it to say that when the TTAB adjudicates a usage within its authority, that adjudication can ground issue preclu. See Restatement (Second) of Judgments (1980). Cite as: 575 U. S. (2015) 19 Opinion of the Court ences” were “of no legal significance”). A fortiori, if the TTAB |
Justice Alito | 2,015 | 8 | majority | B&B Hardware, Inc. v. Hargis Industries, Inc. | https://www.courtlistener.com/opinion/2959751/bb-hardware-inc-v-hargis-industries-inc/ | were “of no legal significance”). A fortiori, if the TTAB considers a different mark alto- gether, issue preclu would not apply. Needless to say, moreover, if the TTAB has not decided the same issue as that before the district court, there is no reason why any deference would be warranted. For a similar reason, the Eighth Circuit erred in holding that issue preclu could not apply here because the TTAB relied too heavily on “appearance and sound.” App. to Pet. for Cert. 10a. Undoubtedly there are cases in which the TTAB places more weight on certain factors than it should. When that happens, an aggrieved party should seek judicial review. The fact that the TTAB may have erred, however, does not prevent preclu. As Judge Colloton observed in dissent, “ ‘issue preclu prevent[s] relitigation of wrong decis just as much as right ones.’ ” ); see also Restatement (Second) of Judgments Comment j, at 284 (explaining that “refusal to give the first judgment preclusive effect should not be based simply on a conclu that [it] was patently erroneous”). B Hargis also argues that registration is categorically incompatible with issue preclu because the TTAB uses procedures that differ from those used by district courts. Granted, “[r]edetermination of issues is warranted if there is reason to doubt the quality, extensiveness, or fairness of procedures followed in prior litigation.” Montana, 440 U.S., at 164, n. 11; see also Parklane 439 U.S., at 331, and n. 15 (similar). But again, this only suggests that sometimes issue preclu might be inappropriate, not that it always is. No one disputes that the TTAB and district courts use different procedures. Most notably, district courts feature 20 B&B HARDWARE, INC. v. HARGIS INDUSTRIES, INC. Opinion of the Court live witnesses. Procedural differences, by themselves, however, do not defeat issue preclu. Equity courts used different procedures than did law courts, but that did not bar issue preclu. See Nor is there reason to think that the state agency in used proce- dures identical to those in federal court; nonetheless, the Court held that preclu could apply. See 478 U.S., at 796–799. Rather than focusing on whether procedural differences exist—they often will—the correct inquiry is whether the procedures used in the first proceeding were fundamentally poor, cursory, or unfair. See Montana, 440 U.S., at 164, n. 11. Here, there is no categorical “reason to doubt the quality, extensiveness, or fairness,” ib of the agency’s proce- dures. In large part they are exactly the same as in fed- eral court. See 37 CFR 2.122(a). For instance, although “[t]he scope of discovery |
Justice Alito | 2,015 | 8 | majority | B&B Hardware, Inc. v. Hargis Industries, Inc. | https://www.courtlistener.com/opinion/2959751/bb-hardware-inc-v-hargis-industries-inc/ | 37 CFR 2.122(a). For instance, although “[t]he scope of discovery in Board proceedings is generally narrower than in court proceedings”— reflecting the fact that there are often fewer usages at issue—the TTAB has adopted almost the whole of Federal Rule of Civil Procedure 26. TTAB Manual see also It is conceivable, of course, that the TTAB’s procedures may prove ill-suited for a particular issue in a particular case, e.g., a party may have tried to introduce material evidence but was prevented by the TTAB from doing so, or the TTAB’s bar on live testimony may materi- ally prejudice a party’s ability to present its case. The ordinary law of issue preclu, however, already ac- counts for those “rare” cases where a “compelling showing of unfairness” can be made. Restatement (Second) of Judgments Comments g and j, at 283–284. The Eighth Circuit likewise erred by concluding that Hargis bore the burden of persua before the TTAB. B&B, the party opposing registration, bore the burden, see (b); TTAB Manual just as it did in the infringement action. Hargis does not defend the Cite as: 575 U. S. (2015) 21 Opinion of the Court deci below on this ground. C Hargis also contends that the stakes for registration are so much lower than for infringement that issue preclu should never apply to TTAB decis. Issue preclu may be inapt if “the amount in controversy in the first action [was] so small in relation to the amount in contro- versy in the second that preclu would be plainly un- fair.” Restatement (Second) of Judgments Comment j, at 283–284. After all, “[f]ew litigants would spend $50,000 to defend a $5,000 claim.” Wright & Miller at 612. Hargis is wrong, however, that this exception to issue preclu applies to every registration. To the contrary: When registration is opposed, there is good reason to think that both sides will take the matter seriously. The benefits of registration are substantial. Registra- tion is “prima facie evidence of the validity of the regis- tered mark,” 15 U.S. C. and is a precondition for a mark to become “incontestable,” Incontestability is a powerful protection. See, e.g., Park ’N Fly, Inc. v. Dollar Park & Fly, Inc., (holding that an incontestable mark cannot be challenged as merely descriptive); see also (explaining that “Con- gress determined that ‘trademarks should receive nationally the greatest protection that can be given them’ ” and that “[a]mong the new protections created by the Lanham Act were the statutory provis that allow a federally registered mark to become incontestable” (quot- ing S. Rep. No. 1333, 79th Cong., |
Justice Alito | 2,015 | 8 | majority | B&B Hardware, Inc. v. Hargis Industries, Inc. | https://www.courtlistener.com/opinion/2959751/bb-hardware-inc-v-hargis-industries-inc/ | become incontestable” (quot- ing S. Rep. No. 1333, 79th Cong., 2d Sess., 6 (6))). The importance of registration is undoubtedly why Congress provided for de novo review of TTAB decis in district court. It is incredible to think that a district court’s adjudication of particular usages would not have preclusive effect in another district court. Why would 22 B&B HARDWARE, INC. v. HARGIS INDUSTRIES, INC. Opinion of the Court unchallenged TTAB decis be different? Congress’ creation of this elaborate registration scheme, with so many important rights attached and backed up by plenary review, confirms that registration decis can be weighty enough to ground issue preclu. V For these reasons, the Eighth Circuit erred in this case. On remand, the court should apply the following rule: So long as the other ordinary elements of issue preclu are met, when the usages adjudicated by the TTAB are mate- rially the same as those before the district court, issue preclu should apply. The judgment of the United States Court of Appeals for the Eighth Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. Cite as: 575 U. S. (2015) 1 GINSBURG, J., concurring SUPREME COURT OF THE UNITED STATES No. 13–352 B & B HARDWARE, INC., PETITIONER v. HARGIS INDUSTRIES, INC., DBA SEALTITE BUILDING FASTENERS, DBA EAST TEXAS FASTENERS ET AL. |
Justice Burger | 1,977 | 12 | dissenting | Nyquist v. Mauclet | https://www.courtlistener.com/opinion/109687/nyquist-v-mauclet/ | I join MR. JUSTICE REHNQUIST'S and MR. JUSTICE POWELL'S dissenting opinions, but I add this comment to point out yet other significant differences between this case and our prior cases involving alienage-based classifications. With one exception, the prior cases upon which the Court purports to rely involved statutes which prohibited aliens from engaging in certain occupations or professions, thereby impairing their ability to earn a livelihood. See, e. g., Examining ; In re Griffiths, ; ; ; ; Yick The only other case striking down a classification on the basis of alienage, involved the denial of welfare benefits essential to sustain life for aliens, while needy citizens were given such benefits. The Court has noted elsewhere the crucial role which such benefits play in providing the poor with "means to obtain essential food, clothing, housing, and medical care." In this case the State is not seeking to deprive aliens of the essential means of economic survival. Rather, pursuant to its broad power to regulate its education system, the State has chosen to provide some types of individualsthose it considers most likely to provide a long-range return to the local and national communitycertain added benefits to facilitate participation in its system of higher education. The State is certainly not preventing aliens from obtaining an education, and indeed it is clear that appellees may attend New York colleges and universities on an equal footing with citizens. However, beyond that, the State has provided certain economic incentives to its own citizens to induce them to pursue higher studies, which in the long run will be a benefit to the *14 State. The State has not deemed such incentives as necessary or proper as to those aliens who are unwilling to declare their commitment to the community in which they reside by declaring their intent to acquire citizenship. Such simple declaration is all that the statute requires. In my view, the Constitution of the United States allows States broad latitude in carrying out such programs. Where a fundamental personal interest is not at stakeand higher education is hardly thatthe State must be free to exercise its largesse in any reasonable manner. New York, like most other States, does not have unlimited funds to provide its residents with higher education services; it is equally clear that the State has every interest in assuring that those to whom it gives special help in obtaining an education have or declare some attachment indicating their intent to remain within the State to practice their special skills. It has no interest in providing these benefits to transients from another |
Justice Burger | 1,977 | 12 | dissenting | Nyquist v. Mauclet | https://www.courtlistener.com/opinion/109687/nyquist-v-mauclet/ | no interest in providing these benefits to transients from another country who are not willing to become citizens. The line drawn by the State is not a perfect oneand few lines can bebut it does provide a rational means to further the State's legitimate objectives. Resident individuals who are citizens, or who declare themselves committed to the idea of becoming American citizens, are more likely to remain in the State of New York after their graduation than are aliens whose ties to their country of origin are so strong that they decline to sever them in order to secure these valuable benefits. I therefore conclude that the State of New York has not acted impermissibly in refusing to dispense its limited tax revenues to give assistance to aliens who by clear implication reject the opportunity to become citizens of the United States. Beyond the specific case, I am concerned that we not obliterate all the distinctions between citizens and aliens, and thus depreciate the historic values of citizenship. If a State desiresand has the meansnothing in the United States Constitution prevents it from voluntarily giving *15 scholarships to aliens, even to those who reject United States citizenships. But nothing heretofore found in the Constitution compels a State to apply its finite resources to higher education of aliens who have demonstrated no permanent attachment to the United States and who refuse to apply for citizenship. MR. JUSTICE POWELL, with whom THE CHIEF JUSTICE and MR. |
Justice Marshall | 1,987 | 15 | dissenting | Colorado v. Spring | https://www.courtlistener.com/opinion/111798/colorado-v-spring/ | The Court asserts there is "no doubt" that respondent Spring's decision to waive his Fifth Amendment privilege *578 was voluntarily, knowingly, and intelligently made. Ante, at 573 and 574. I agree, however, with the Colorado Supreme Court that a significant doubt exists in the circumstances of this case and thus the State has failed to carry the "heavy burden" recognized in for establishing the constitutional validity of Spring's alleged waiver. Consistent with our prior decisions, the Court acknowledges that a suspect's waiver of fundamental constitutional rights, such as 's protections against self-incrimination during a custodial interrogation, must be examined in light of the " ` "totality of the circumstances." ' " Ante, at 573, quoting U.S. 412, in turn quoting ; see also at 724-; North ; Nonetheless, the Court proceeds to hold that the specific crimes and topics of investigation known to the interrogating officers before questioning begins are "not relevant" to, and in this case "could not affect," the validity of the suspect's decision to waive his Fifth Amendment privilege. Ante, at 577. It seems to me self-evident that a suspect's decision to waive this privilege will necessarily be influenced by his awareness of the scope and seriousness of the matters under investigation. To attempt to minimize the relevance of such information by saying that it "could affect only the wisdom of" the suspect's waiver, as opposed to the validity of that waiver, ventures an inapposite distinction. Wisdom and validity in this context are overlapping concepts, as circumstances relevant to assessing the validity of a waiver may also be highly relevant to its wisdom in any given context. Indeed, the admittedly "critical" piece of advice the Court recognizes today that the suspect be informed that whatever he says may be used as evidence against him is certainly relevant to the wisdom of any suspect's decision to submit to custodial interrogation without first consulting his lawyer. Ante, at *579 574. The Court offers no principled basis for concluding that this is a relevant factor for determining the validity of a waiver but that, under what it calls a totality of the circumstances analysis, a suspect's knowledge of the specific crimes and other topics previously identified for questioning can never be. The Court quotes as holding that "a valid waiver does not require that an individual be informed of all information `useful' in making his decision or all information that `might affec[t] his decision to confess.' " Ante, at 576 (emphasis added). Noticeably similar is the Court's holding today: "[A] suspect's awareness of all the possible subjects of |
Justice Marshall | 1,987 | 15 | dissenting | Colorado v. Spring | https://www.courtlistener.com/opinion/111798/colorado-v-spring/ | today: "[A] suspect's awareness of all the possible subjects of questioning in advance of interrogation is not relevant to determining" the validity of his waiver. Ante, at 577 (emphasis added). This careful phraseology avoids the important question whether the lack of any indication of the identified subjects for questioning is relevant to determining the validity of the suspect's waiver. I would include among the relevant factors for consideration whether before waiving his Fifth Amendment rights the suspect was aware, either through the circumstances surrounding his arrest or through a specific advisement from the arresting or interrogating officers, of the crime or crimes he was suspected of committing and about which they intended to ask questions. To hold that such knowledge is relevant would not undermine the " `virtue of informing police and prosecutors with specificity' as to how a pretrial questioning of a suspect must be conducted," ante, at 577, n. 9 (quoting ), nor would it interfere with the use of legitimate interrogation techniques. Indeed, requiring the officers to articulate at a minimum the crime or crimes for which the suspect has been arrested could contribute significantly toward ensuring that the arrest was in fact lawful and the suspect's statement not compelled because of an error at this stage alone, a problem we addressed in under the *580 Fourth Amendment on the assumption that the defendant's waiver of his Fifth Amendment rights in that case had been voluntary. See also The interrogation tactics utilized in this case demonstrate the relevance of the information Spring did not receive. The agents evidently hoped to obtain from Spring a valid confession to the federal firearms charge for which he was arrested and then parlay this admission into an additional confession of first-degree murder. Spring could not have expected questions about the latter, separate offense when he agreed to waive his rights, as it occurred in a different State and was a violation of state law outside the normal investigative focus of federal Alcohol, Tobacco, and Firearms agents. "Interrogators describe the point of the first admission as the `breakthrough' and the `beachhead,' R. Royal & S. Schutt, The Gentle Art of Interviewing and Interrogation: A Professional Manual and Guide 143 (1976), which once obtained will give them enormous `tactical advantages,' F. Inbau & J. Reid, Criminal Interrogation and Confessions 82 (2d ed. 1967)." The coercive aspects of the psychological ploy intended in this case, when combined with an element of surprise which may far too easily rise to a level of deception,[1] cannot be justified in light of 's strict *581 requirements that |
Justice Marshall | 1,987 | 15 | dissenting | Colorado v. Spring | https://www.courtlistener.com/opinion/111798/colorado-v-spring/ | be justified in light of 's strict *581 requirements that the suspect's waiver and confession be voluntary, knowing, and intelligent. -458, -476. If a suspect has signed a waiver form with the intention of making a statement regarding a specifically alleged crime, the Court today would hold this waiver valid with respect to questioning about any other crime, regardless of its relation to the charges the suspect believes he will be asked to address. Yet once this waiver is given and the intended statement made, the protections afforded by against the "inherently compelling pressures" of the custodial interrogation, have effectively dissipated. Additional questioning about entirely separate and more serious suspicions of criminal activity can take unfair advantage of the suspect's psychological state, as the unexpected questions cause the compulsive pressures suddenly to reappear. Given this technique of interrogation, a suspect's understanding of the topics planned for questioning is, therefore, at the very least "relevant" to assessing whether his decision to talk to the officers was voluntarily, knowingly, and intelligently made. Not only is the suspect's awareness of the suspected criminal conduct relevant, its absence may be determinative in a given case. The State's burden of proving that a suspect's waiver was voluntary, knowing, and intelligent is a "heavy" one. 384 U. S., at We are to " `indulge every reasonable presumption against waiver' of fundamental constitutional rights" and we shall " `not presume acquiescence in the loss of fundamental rights.' " Johnson, * 304 U. S., at ; see It is reasonable to conclude that, had Spring known of the federal agents' intent to ask questions about a murder unrelated to the offense for which he was arrested, he would not have consented to interrogation without first consulting his attorney. In this case, I would therefore accept the determination of the Colorado Supreme Court that Spring did not voluntarily, knowingly, and intelligently waive his Fifth Amendment rights.[2] I dissent. |
Justice Powell | 1,982 | 17 | dissenting | North Haven Bd. of Ed. v. Bell | https://www.courtlistener.com/opinion/110707/north-haven-bd-of-ed-v-bell/ | Title IX of the Education Amendments of 1972, as amended, 20 U.S. C. 1681 et seq., prohibits discrimination on the basis of sex in education programs and activities receiving federal funds. In 1975, the Department of Health, Education, and Welfare (HEW)[1] promulgated regulations prohibiting *541 discrimination on the basis of gender in employment by fund recipients. 34 CFR 106.51(a)(1). Today, the Court upholds the validity of these regulations, relying on the statutory language, its legislative history, and several postenactment events. Because I believe the Court's interpretation is neither consistent with the statutory language nor supported by its legislative history, I dissent.[2] I Although the Court begins with the language of the statute, it quotes the relevant language in its entirety only in the opening paragraphs of the opinion. In the section considering the statute's meaning, the Court quotes two words of the statute and paraphrases the rest, thereby suggesting an interpretation actually at odds with the language used in the statute. Thus, according to the Court, "[s]ection 901(a)'s broad directive that `no person' may be discriminated against on the basis of gender appears, on its face, to include employees as well as students." Ante, at 520. This is not what the statutory language provides. In relevant part, the statute states: "No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance" Education Amendments of 1972, 901(a), 20 U.S. C. 1681(a). A natural reading of these words would limit the statute's scope to discrimination against those who are enrolled in, or who are denied the benefits of, programs or activities receiving federal funding. It tortures the language chosen by Congress to conclude that not only teachers and administrators, but also secretaries and janitors, who are discriminated against on the basis of sex in employment, are thereby (i) denied *542 participation in a program or activity;[3] (ii) denied the benefits of a program or activity; or (iii) subject to discrimination under an education program or activity. Moreover, Congress made no reference whatever to employers or employees in Title IX, in sharp contrast to quite explict language in other statutes regulating employment practices.[4] It is noteworthy that not one of the other five Courts of Appeals to consider the question before us reached the conclusion that HEW's interpretation is supported by the statutory language. The issue was presented initially to the Court of Appeals for the First Circuit in Islesboro School and that decision has been followed |
Justice Powell | 1,982 | 17 | dissenting | North Haven Bd. of Ed. v. Bell | https://www.courtlistener.com/opinion/110707/north-haven-bd-of-ed-v-bell/ | Circuit in Islesboro School and that decision has been followed by most other Courts of Appeals to consider the question. There, the court concluded that "[t]he language of section 901, 20 U.S. C. 1681(a), on its face, is aimed at the beneficiaries of the federal monies, i. e., either students attending institutions receiving federal funds or teachers engaged in special research being funded by the United States government." The court went on to point out that this reading of "the plain language of the statute is buttressed by an examination of the specific exemptions mentioned in the statute," all of which relate to students, not employees.[5] *543 In the next appellate decision, Romeo Community the Court of Appeals for the Sixth Circuit also rejected the interpretation of the statute now relied on by this Court, noting: "[A]s actually written, the statute is not nearly so broad. The words `no person' are modified by later language which clearly limits their meaning." The court concluded that the statute "reaches only those types of disparate treatment" that involve discrimination against program beneficiaries.[6] *544 II A The Court acknowledges, as it must, that 901 of Title IX "does not expressly include employees." But it finds a strong negative inference in the fact that 901 does not "exclude employees from its scope." Ante, at 522. The Court then turns to the legislative history for evidence as to whether or not 901 was meant to prohibit employment discrimination. I agree with the several Courts of Appeals that have concluded unequivocally that the statutory language cannot fairly be read to proscribe employee discrimination. Only rarely may legislative history be relied upon to read into a statute operative language that Congress itself did not include. To justify such a reading of a statute, the legislative history must show clearly and unambiguously that Congress did intend what it failed to state.[7] The Court's elaborate exposition of the history of Title IX falls far short of this standard. Title IX originated in a floor amendment sponsored by Senator Bayh to Senate bill S. 659, 92d Cong., 2d Sess. (1972). The amendment was intended to close loopholes in earlier civil rights legislation; three problem areas had been identified in hearings by a special House Committee in 1970. See Discrimination Against Women: Hearings on Section 805 of H. R. 16098 before the Special Subcommittee on Education of the House Committee on Education and Labor, 91st *545 Cong., 2d Sess. (1970). Title VII of the Civil Rights Act of 1964, though generally barring employment discrimination on the basis of sex, race, religion, or |
Justice Powell | 1,982 | 17 | dissenting | North Haven Bd. of Ed. v. Bell | https://www.courtlistener.com/opinion/110707/north-haven-bd-of-ed-v-bell/ | employment discrimination on the basis of sex, race, religion, or national origin, did not apply to discrimination "with respect to the employment of individuals to perform work connected with the educational activities of [educational] institutions." Title VII, 702, And the Equal Pay Act of 1963 banned discrimination in wages on the basis of sex, 29 U.S. C. 206(d)(1), but it did not apply to administrative, executive, or professional workers, including teachers. See 29 U.S. C. 213(a)(1) (1970 ed.) (no longer in force). Finally, Title VI of the Civil Rights Act of 1964, 42 U.S. C. 2000d, barred discrimination on the basis of "race, color, or national origin," but not sex, in any federally funded programs and activities. The Bayh floor amendment, No. 874, introduced in 1972, 118 Cong. Rec. 5803 (1972) (print of amendment), closed these loopholes. Section 1005 amended Title VII to cover employment discrimination in educational institutions. Sections 1009-1010 amended the Equal Pay Act so that discrimination in pay on the basis of sex was barred, even for teachers and other professionals. And 1001-1003 created a new Title IX banning discrimination on the basis of sex in federally funded educational programs and activities, thus effectively extending Title VI's prohibition to sex discrimination in such programs. Since the amendments to Title VII and the Equal Pay Act explicitly covered discrimination in employment in educational institutions, there was no need to include 1001-1003 of the Bayh amendment to proscribe such discrimination. Instead, Title IX presumably was enacted, as its language clearly indicates, to bar discrimination against beneficiaries of federally funded educational programs and activities. This interpretation of Title IX is confirmed by the fact that it was modeled after Title VI, a statute limited in its scope to *546 discrimination against beneficiaries of federally funded programs, not general employment practices of fund recipients.[8] 42 U.S. C. 2000d-3.[9] And, as this Court noted in when Congress passed Title IX, it expected the new provision to be interpreted consistently with Title VI, which had been its model. B The Court discounts the importance of Title VI to the proper interpretation of Title IX for three reasons. First, it notes that "[i]t is Congress' intention in 1972, not in 1964, that is of significance in interpreting Title IX." Ante, at 529 (citing ). This point begs the question, however, since there is no evidence that in 1972, when it passed Title IX, Congress thought Title VI applied to employment discrimination. The second reason advanced by the Court for disregarding Title VI is that it, unlike Title IX, includes a section, i. e., 604, |
Justice Powell | 1,982 | 17 | dissenting | North Haven Bd. of Ed. v. Bell | https://www.courtlistener.com/opinion/110707/north-haven-bd-of-ed-v-bell/ | it, unlike Title IX, includes a section, i. e., 604, 42 U.S. C. 2000d-3, expressly stating that Title VI applies only to discrimination against fund beneficiaries, not to employment discrimination per se. But in an earlier version of the legislation that was to become Title IX, the amendment was drafted as a modification of Title VI, simply adding the word "sex." In the end, it is true, Title IX was enacted as a statute separate from Title VI, but the reason for this approach was strategic, not substantive. Supporters feared that if Title VI were opened for amendment, *547 Title VI itself might be "gutted" on the floor of the Congress. Sex Discrimination Regulations: Review of Regulations to Implement Title IX, Hearings Before the Subcommittee on Postsecondary Education and Labor of the House Committee on Education and Labor, 94th Cong., 1st Sess., 409 (1975) (1975 Hearings). Finally, to break the link between Titles VI and IX, the Court stresses that the House version of the Senate's Bayh amendment originally contained a provision, 1004, equivalent to 604 of Title VI, explicitly stating that no section of the 1972 legislation applied to discrimination in employment, but this provision was eliminated by the Conference. Ante, at 527-528. A strong argument, however, can be made that there was a nonsubstantive reason for eliminating 1004 from the House bill. In 1975 hearings before the House Subcommittee on Postsecondary Education and Labor, Representative O'Hara, Chairman of that Subcommittee, while explaining the background of Title IX to a witness, noted that this change was made at Conference simply to eliminate, as quietly as possible, a recently discovered drafting error. 1975 Hearings 409. Even without reference to Representative O'Hara's remarks, made in 1975, it is clear that, at the time of the Conference on the House bill and the Senate's Bayh amendment, 1004 of the House bill was a drafting mistake; it stated that no section of the House bill applied to employment, though sections of the House bill, as well as the Senate version, contained express changes to the employment discrimination provisions of Title VII and the Equal Pay Act. Since the analogous provision of Title VI, 604, had been regarded as a mere clarification,[10] the Court is on weak ground in arguing that the Conference Report's use of the ritualistic words "the House recedes" reveals a substantive *548 change rather than the quiet correction of an obvious drafting error at a very late stage in the legislative process. C In concluding that the legislative history indicates Title IX was intended to extend to employment discrimination, the |
Justice Powell | 1,982 | 17 | dissenting | North Haven Bd. of Ed. v. Bell | https://www.courtlistener.com/opinion/110707/north-haven-bd-of-ed-v-bell/ | Title IX was intended to extend to employment discrimination, the Court is forced to rely primarily on the statements of a single Senator.[11] The first statement, ante, at 524 (quoting 118 Cong. Rec. 5803 (1972)), is ambiguous. Senator Bayh did state that faculty employment would be covered by his amendment after mentioning the sections enacting Title IX but prior to any mention of those amending Title VII and the Equal Pay Act. Immediately thereafter, however, he stated that Title IX's enforcement powers paralleled those in Title VI. Yet Title VI has never provided for fund termination to redress discrimination in employment. Next, the Court quotes Bayh's statements that (i) he regarded "sections 1001-1005" as "[c]entral to [his] amendment" and (ii) "[t]his portion of the amendment covers discrimination in all areas," including employment. Ante, at 525 (quoting 118 Cong. Rec. 5807 (1972)). But 1005 of the Bayh amendment is the section amending Title VII and thus 1001-1005 cover employment discrimination regardless of whether Title IX does.[12] Moreover, the Court uses an ellipsis *549 rather than include the following words from the second Bayh statement: "Discrimination against the beneficiaries of federally assisted programs and activities is already prohibited by title VI of the 1964 Civil Rights Act, but unfortunately the prohibition does not apply to discrimination on the basis of sex. In order to close this loophole, my amendment sets forth prohibition and enforcement provisions which generally parallel the provisions of title VI." 118 Cong. Rec. 5807 (1972) (in ellipsis, ante, at 525). Thus, for a second time, Bayh indicated to the Senate that he regarded Title IX of his amendment as parallel to Title VI rather than as a substantial departure from Title VI. In the third Bayh statement, ante, at 526 (quoting 118 Cong. Rec. 5812 (1972)), the Senator was responding to a question from Senator Pell regarding Title IX, and the Court assumes that each sentence in that response refers to Title IX. But, as the Court of Appeals for the First Circuit noted in Islesboro: "A fair reading both of the colloquy as well as the discussion immediately preceding and following the above-quoted passage, indicates that Senator Bayh divided his analysis into three sections, two of which were *550 specifically aimed at students (admissions and services), the third at employees (employment). While Senator Bayh's response was more extended than it needed to be for a direct answer to Senator Pell's question, we think HEW's reading is strained. We think this particularly in light of the fact that the discussion was an oral one and thus not as precise |
Justice Powell | 1,982 | 17 | dissenting | North Haven Bd. of Ed. v. Bell | https://www.courtlistener.com/opinion/110707/north-haven-bd-of-ed-v-bell/ | discussion was an oral one and thus not as precise as a response in written form" Rather than supporting the Court's view, the legislative history accords with the natural reading of the statute. Title IX prohibits discrimination only against beneficiaries of federally funded programs and activities, not all employment discrimination by recipients of federal funds. Title IX is modeled after Title VI, which is explicitly so limited and to the extent statements of Senator Bayh can be read to the contrary, they are ambiguous.[13] As indicated above, when critical words, in this case "employment discrimination," are absent from a statute and its meaning is otherwise clear, reliance on legislative history to add omitted words is rarely appropriate. Only when legislative history gives clear and unequivocal guidance as to congressional intent should a court presume to add what Congress failed to include. And, however else one might describe the legislative history relied upon by the Court today, it is neither clear nor unequivocal. *551 III As the sole issue before us is the meaning of 901(a) of Title IX, I repeat the relevant language: "No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance" The Court acknowledges that, in view of the lack of support for its position in this language, it must look to the legislative history for evidence as to whether or not 901 was meant to prohibit employment discrimination. Ante, at 522. Although the Court examines at length the truncated legislative history, it ignores other factors highly relevant to congressional intent: (i) whether the ambiguity easily could have been avoided by the legislative draftsman; (ii) whether Congress had prior experience and a certain amount of expertise in legislating with respect to this particular subject; and (iii) whether existing legislation clearly and adequately proscribed, and provided remedies for, the conduct in question. When these factors are considered, there is no justification for reading sex employment discrimination language into 901. If there had been such an intent, no competent legislative draftsman would have written 901 as above set forth. The draftsman would have been guided, of course, by the employment-discrimination language in Title VII and the Equal Pay Act, language specifically addressing this problem. Moreover, although these other statutes had been enacted by an earlier Congress, at the time Title IX was being drafted and considered Title VII and the Equal Pay Act also were amended to proscribe explicitly employment discrimination in |
Justice Powell | 1,982 | 17 | dissenting | North Haven Bd. of Ed. v. Bell | https://www.courtlistener.com/opinion/110707/north-haven-bd-of-ed-v-bell/ | Act also were amended to proscribe explicitly employment discrimination in educational institutions on the basis of sex. Congress hardly would have enacted a third statute addressing this *552 problem, but, in contrast to the other two, use language ambiguous at best. In addition, a comparison of the provisions of Title VII and Title IX suggests that Congress would not have enacted the inconsistent provisions of the latter with respect to remedies and procedures. Title VII is a comprehensive antidiscrimination statute with carefully prescribed procedures for conciliation by the EEOC, federal-court remedies available within certain time limits, and certain specified forms of relief, designed to make whole the victims of illegal discrimination and available unless discriminatory conduct falls within one of several exceptions. See 42 U.S. C. 2000e et seq. (1976 ed. and Supp. IV). This thoughtfully structured approach is in sharp contrast to Title IX, which contains only one extreme remedy, fund termination, apparently now available at the request of any female employee who can prove discrimination in employment in a federally funded program or activity. This cutoff of funds, at the expense of innocent beneficiaries of the funded program, will not remedy the injustice to the employee. Indeed, Title IX does not authorize a single action, such as employment, reemployment, or promotion, to rectify employment discrimination. And Title IX, unlike Title VII, has no time limits for action, no conciliation provisions, and no guidance as to procedure.[14]*553 Compare 20 U.S. C. 1681 et seq. (Title IX) with 42 U.S. C. 2000e et seq. (1976 ed. and Supp. IV) (Title VII). The Solicitor General conceded at oral argument that appropriate relief for the two employees who initiated this suit was available under Title VII.[15] See Tr. of Oral Arg. 27. Finally, Congress delegated the administration of Title IX to the Department of HEW. In contrast, Title VII and the Equal Pay Act are administered by the Department of Labor and EEOC. It is most unlikely that Congress would intend not only duplicate substantive legislation but also enforcement of these provisions by different departments of government with different enforcement powers, areas of expertise, and enforcement methods.[16] The District Court in Romeo Community aff'd, (CA6), correctly observed: "These governmental agencies, particularly the EEOC, were established specifically for the purpose of regulating discrimination in employment practices. These agencies have the expertise and their enabling legislation *554 has provided them with the investigative and enforcement machinery necessary to compel compliance with regulations against sex discrimination in employment. HEW does not have similar enforcement authority." Even the Solicitor General, in the brief on behalf of |
Justice Powell | 1,982 | 17 | dissenting | North Haven Bd. of Ed. v. Bell | https://www.courtlistener.com/opinion/110707/north-haven-bd-of-ed-v-bell/ | Even the Solicitor General, in the brief on behalf of the federal respondents in this case, acknowledges what the Romeo court thought was self-evident: "The Department of Education has only limited expertise in employment matters. Its view is that employment cases are better resolved under Title VII of the Civil Rights Act of 1964, which provides more appropriate remedies for such cases." Brief for Federal Respondents 37, n. 26. In sum, the Court's decision today, finding an unarticulated intent on the part of Congress, is predicated on five perceptions of congressional action that I am unable to share: (i) that Congress neglectfully or forgetfully failed to include language in 901 with respect to discrimination that would have made clear its intent; (ii) that Congress enacted a third statute proscribing sex discrimination in employment in educational institutions in the absence of any showing of a need for such duplicative legislation; (iii) that Congress failed to include in the third statute appropriate procedural and remedial provisions relevant to employment discrimination; (iv) that it vested the authority to enforce the third statute in HEW, a department that even the Solicitor General concedes lacks the experience and the qualifications to oversee and enforce employment legislation; and finally (v) that in Title IX, it gave a new "remedy" for sex discrimination in employment, but did not make that remedy available to those discriminated against on the basis of race. In response to this dissent, see ante, at 536, n. 26, the Court states that the factors considered in this Part III, summarized above, "are not relevant" to "ascertaining legislative *555 intent." If this were a "plain language" case, this statement probably would be unobjectionable. But the Court recognizes that its position cannot be sustained solely by the plain language of the statute, and it therefore relies heavily on ambiguous and muddled oral statements made on the floor of the Senate. In these circumstances, it defies reason to say that a court should not consider what reasonable legislators surely would have considered. Where ambiguity exists it is not "irrelevant," to the process of ascertaining the intention of Congress, to consider specifically other statutes on the same subject. Nor must a court shun common sense in resolving ambiguities.[17] |
per_curiam | 1,977 | 200 | per_curiam | Pennsylvania v. Mimms | https://www.courtlistener.com/opinion/109751/pennsylvania-v-mimms/ | Petitioner Commonwealth seeks review of a judgment of the Supreme Court of Pennsylvania reversing respondent's conviction for carrying a concealed deadly weapon and a firearm without a license. That court reversed the conviction because it held that respondent's "revolver was seized in a *107 manner which violated the Fourth Amendment to the Constitution of the United States." Because we disagree with this conclusion, we grant the Commonwealth's petition for certiorari and reverse the judgment of the Supreme Court of Pennsylvania. The facts are not in dispute. While on routine patrol, two Philadelphia police officers observed respondent Harry Mimms driving an automobile with an expired license plate. The officers stopped the vehicle for the purpose of issuing a traffic summons. One of the officers approached and asked respondent to step out of the car and produce his owner's card and operator's license. Respondent alighted, whereupon the officer noticed a large bulge under respondent's sports jacket. Fearing that the bulge might be a weapon, the officer frisked respondent and discovered in his waistband a38-caliber revolver loaded with five rounds of ammunition. The other occupant of the car was carrying a32-caliber revolver. Respondent was immediately arrested and subsequently indicted for carrying a concealed deadly weapon and for unlawfully carrying a firearm without a license. His motion to suppress the revolver was denied; and, after a trial at which the revolver was introduced into evidence, respondent was convicted on both counts. As previously indicated, the Supreme Court of Pennsylvania reversed respondent's conviction, however, holding that the revolver should have been suppressed because it was seized contrary to the guarantees contained in the Fourth and Fourteenth Amendments to the United States Constitution.[1] The Pennsylvania court did not doubt that the officers acted reasonably in stopping the car. It was also willing to assume, arguendo, that the limited search for weapons was proper once the officer observed the bulge under respondent's coat. But the court nonetheless thought the search constitutionally infirm *108 because the officer's order to respondent to get out of the car was an impermissible "seizure." This was so because the officer could not point to "objective observable facts to support a suspicion that criminal activity was afoot or that the occupants of the vehicle posed a threat to police safety."[2] Since this unconstitutional intrusion led directly to observance of the bulge and to the subsequent "pat down," the revolver was the fruit of an unconstitutional search, and, in the view of the Supreme Court of Pennsylvania, should have been suppressed. We do not agree with this conclusion.[3] The touchstone of *109 our analysis |
per_curiam | 1,977 | 200 | per_curiam | Pennsylvania v. Mimms | https://www.courtlistener.com/opinion/109751/pennsylvania-v-mimms/ | agree with this conclusion.[3] The touchstone of *109 our analysis under the Fourth Amendment is always "the reasonableness in all the circumstances of the particular governmental invasion of a citizen's personal security." Reasonableness, of course, depends "on a balance between the public interest and the individual's right to personal security free from arbitrary interference by law officers." United (75). In this case, unlike there is no question about the propriety of the initial restrictions on respondent's freedom of movement. Respondent was driving an automobile with expired license tags in violation of the Pennsylvania Motor Vehicle Code.[4] Deferring for a moment the legality of the "frisk" once the bulge had been observed, we need presently deal only with the narrow question of whether the order to get out of the car, issued after the driver was lawfully detained, was reasonable and thus permissible under the Fourth Amendment. This inquiry must therefore focus not on the intrusion resulting from the request to stop the vehicle or from the later "pat down," but on the incremental intrusion resulting from the request to get out of the car once the vehicle was lawfully stopped. Placing the question in this narrowed frame, we look first to that side of the balance which bears the officer's interest in taking the action that he did. The State freely concedes the officer had no reason to suspect foul play from the particular driver at the time of the stop, there having been nothing unusual or suspicious about his behavior. It was apparently *110 his practice to order all drivers out of their vehicles as a matter of course whenever they had been stopped for a traffic violation. The State argues that this practice was adopted as a precautionary measure to afford a degree of protection to the officer and that it may be justified on that ground. Establishing a face-to-face confrontation diminishes the possibility, otherwise substantial, that the driver can make unobserved movements; this, in turn, reduces the likelihood that the officer will be the victim of an assault.[5] We think it too plain for argument that the State's proffered justificationthe safety of the officeris both legitimate and weighty. "Certainly it would be unreasonable to require that police officers take unnecessary risks in the performance of their duties." And we have specifically recognized the inordinate risk confronting an officer as he approaches a person seated in an automobile. "According to one study, approximately 30% of police shootings occurred when a police officer approached a suspect seated in an automobile. Bristow, Police Officer ShootingsA Tactical Evaluation, 54 J. Crim. |
per_curiam | 1,977 | 200 | per_curiam | Pennsylvania v. Mimms | https://www.courtlistener.com/opinion/109751/pennsylvania-v-mimms/ | automobile. Bristow, Police Officer ShootingsA Tactical Evaluation, 54 J. Crim. L. C. & P. S. 93 (63)." (72). We are aware that not all these assaults occur when issuing traffic summons, but we have before expressly declined to accept the argument that traffic violations necessarily involve less danger to officers than other types of confrontations. United (73). Indeed, it appears "that a significant percentage of murders of police officers occurs when the officers are making traffic stops." 4 n. 5. *111 The hazard of accidental injury from passing traffic to an officer standing on the driver's side of the vehicle may also be appreciable in some situations. Rather than conversing while standing exposed to moving traffic, the officer prudently may prefer to ask the driver of the vehicle to step out of the car and off onto the shoulder of the road where the inquiry may be pursued with greater safety to both. Against this important interest we are asked to weigh the intrusion into the driver's personal liberty occasioned not by the initial stop of the vehicle, which was admittedly justified, but by the order to get out of the car. We think this additional intrusion can only be described as de minimis. The driver is being asked to expose to view very little more of his person than is already exposed. The police have already lawfully decided that the driver shall be briefly detained; the only question is whether he shall spend that period sitting in the driver's seat of his car or standing alongside it. Not only is the insistence of the police on the latter choice not a "serious intrusion upon the sanctity of the person," but it hardly rises to the level of a "`petty indignity.'" What is at most a mere inconvenience cannot prevail when balanced against legitimate concerns for the officer's safety.[6] There remains the second question of the propriety of the search once the bulge in the jacket was observed. We have as little doubt on this point as on the first; the answer is controlled by In that case we thought the officer justified in conducting a limited search for weapons *112 once he had reasonably concluded that the person whom he had legitimately stopped might be armed and presently dangerous. Under the standard enunciated in that case whether "the facts available to the officer at the moment of the seizure or the search `warrant a man of reasonable caution in the belief' that the action taken was appropriate"[7]there is little question the officer was justified. The bulge in the jacket |
Justice Ginsburg | 2,009 | 5 | majority | Union Pacific R. Co. v. Locomotive Engineers and Trainmen Gen. Comm. of Adjustment, Central Region | https://www.courtlistener.com/opinion/1753/union-pacific-r-co-v-locomotive-engineers-and-trainmen-gen-comm-of/ | “It is most true that this Court will not take jurisdiction if it should not,” Chief Justice Marshall famously wrote, “but it is equally true, that it must take jurisdiction if it should. We have no more right to decline the exercise of jurisdiction which is given, than to usurp that which is not given.” ; see While Chief Justice Marshall’s statement bears “fine tuning,” there is surely a starting presumption that when jurisdiction is conferred, a court may not decline to exer cise it. See R. Fallon, J. Manning, D. Meltzer, & D. Shapiro, Hart & Wechsler’s The Federal Courts and the Federal System 1061–1062 (6th ed. 2009). The general rule applicable to courts also holds for administrative agencies directed by Congress to adjudicate particular controversies. Congress vested in the National Railroad Adjustment Board (hereinafter NRAB or Board) jurisdiction to adjudi 2 UNION PACIFIC R. CO. v. LOCOMOTIVE ENGINEERS AND TRAINMEN GEN. COMM. OF ADJUSTMENT Opinion of the Court cate grievances of railroad employees that remain unset tled after pursuit of internal procedures. 45 U.S. C. First (h), (i). We consider in this case five nearly identical decisions of a panel of the NRAB dismissing employee claims “for lack of jurisdiction.” NRAB First Div. Award No. 26089 etc. (Mar. 15, 2005), App. to Pet. for Cert. 65a–107a, 69a (hereinafter Panel Decision). In each case, the panel declared that a procedural rule raised by a panel member, unprompted by the parties, was “jurisdic tional” in character and therefore commanded threshold dismissal. The panel’s characterization, we hold, was misconceived. Congress authorized the Board to prescribe rules for the presentation and processing of claims, First (v), but Congress alone controls the Board’s jurisdiction. By pre suming authority to declare procedural rules “jurisdic tional,” the panel failed “to conform, or confine itself, to matters [Congress placed] within the scope of [NRAB] jurisdiction,” First (q). Because the panel was not “without authority to assume jurisdiction over the [em ployees’] claim[s],” Panel Decision 72a, its dismissals lacked tenable grounding. We therefore affirm the judg ment of the Seventh Circuit setting aside the panel’s orders. I A Concerned that labor disputes would lead to strikes bringing railroads to a halt, Congress enacted the Railway Labor Act (RLA or Act), as amended, 45 U.S. C. et seq., in 1926 to promote peaceful and efficient resolution of those disputes. See Union Pacific R. ; a. The Act instructs labor and industry “to exert every reasonable effort to make and maintain agreements concerning rates of pay, rules, and working conditions, and to settle all Cite as: 558 U. S. |
Justice Ginsburg | 2,009 | 5 | majority | Union Pacific R. Co. v. Locomotive Engineers and Trainmen Gen. Comm. of Adjustment, Central Region | https://www.courtlistener.com/opinion/1753/union-pacific-r-co-v-locomotive-engineers-and-trainmen-gen-comm-of/ | conditions, and to settle all Cite as: 558 U. S. (2009) 3 Opinion of the Court disputes, whether arising out of the application of such agreements or otherwise, in order to avoid any interrup tion to commerce or to the operation of any carrier” First; see (describing obligation to pursue agreement as the “heart of the [RLA]”). As part of its endeavor, Congress provided a framework for the settlement and voluntary arbitration of “minor disputes.” See 360 U. S., at –610. (In the railroad industry, the term “minor disputes” means, primarily, “grievances arising from the application of collective bargaining agreements to particular situations.” at)1 Many railroads, however, resisted voluntary arbitration. See Congress therefore amended the Act in 1934 (1934 Amendment) to mandate arbitration of minor disputes; under the altered scheme, arbitration occurs before panels composed of two representatives of labor and two of industry, with a neutral referee serving as tie breaker. See –613. To supply the representa tive arbitrators, Congress established the NRAB, a board of 34 private persons representing labor and industry in equal numbers. First (a); see2 Neutral referees, the RLA provides, shall be appointed by the representa tive arbitrators or, failing their agreement, by the Na tional Mediation Board. First (l). The 1934 Amend ment authorized the NRAB to adopt, at a one-time session in 1934, “such rules as it deems necessary to control pro —————— 1 In contrast to minor disputes, which assume “the existence of a collective agreement,” major disputes are those “over the formation of collective agreements or efforts to secure them. They look to the acquisition of rights for the future, not to assertion of rights claimed to have vested in the past.” Elgin, J. & E. R. 723 (1945). 2 The RLA divides the NRAB into four Divisions, each covering speci fied classes of railroad employees. First (h). 4 UNION PACIFIC R. CO. v. LOCOMOTIVE ENGINEERS AND TRAINMEN GEN. COMM. OF ADJUSTMENT Opinion of the Court ceedings,” First (v); the product of that rulemaking, codified 9 CFR pt. 301 (2009), is known as Circular One. In keeping with Congress’ aim to promote peaceful settlement of minor disputes, the RLA requires employees and carriers, before resorting to arbitration, to exhaust the grievance procedures specified in the collective-bargaining agreement (hereinafter CBA). See 45 U.S. C. First (i). This stage of the dispute-resolution process is known as “on-property” proceedings. As a final prearbitration step, the Act directs parties to attempt settlement “in conference” between designated representatives of the carrier and the grievant-employee. Second, Sixth.3 The RLA contains instructions concerning the place and time of |
Justice Ginsburg | 2,009 | 5 | majority | Union Pacific R. Co. v. Locomotive Engineers and Trainmen Gen. Comm. of Adjustment, Central Region | https://www.courtlistener.com/opinion/1753/union-pacific-r-co-v-locomotive-engineers-and-trainmen-gen-comm-of/ | The RLA contains instructions concerning the place and time of conferences, but specifies that the statute does not —————— 3 Central to the instant controversy, Second, Sixth read, in full: “Second. Consideration of disputes by representatives. All disputes between a carrier or carriers and its or their employees shall be considered, and, if possible, decided, with all expedition, in conference between representatives designated and authorized so to confer, respectively, by the carrier or carriers and by the employees thereof interested in the dispute.” “Sixth. Conference of representatives; time; place; private agree ments. In case of a dispute between a carrier or carriers and its or their employees, arising out of grievances or out of the interpretation or application of agreements concerning rates of pay, rules, or working conditions, it shall be the duty of the designated representative or representatives of such carrier or carriers and of such employees, within ten days after the receipt of notice of a desire on the part of either party to confer in respect to such dispute, to specify a time and place at which such conference shall be held: Provided, (1) That the place so specified shall be situated upon the line of the carrier involved or as otherwise mutually agreed upon; and (2) that the time so specified shall allow the designated conferees reasonable opportunity to reach such place of conference, but shall not exceed twenty days from the receipt of such notice: And provided further, That nothing in this chapter shall be construed to supersede the provisions of any agree ment (as to conferences) then in effect between the parties.” Cite as: 558 U. S. (2009) 5 Opinion of the Court “supersede the provisions of any agreement (as to confer ences) in effect between the parties,” Sixth; it is undisputed that in common practice the conference may be as informal as a telephone conversation. If the parties fail to achieve resolution “in the usual manner up to and including the chief operating officer of the carrier designated to handle [minor] disputes,” either party may refer the matter to the NRAB. First (i). Submissions to the Board must include “a full statement of the facts and all supporting data bearing upon the disputes.” ; see (d), (e) (submissions “must clearly and briefly set forth all relevant, argumen tative facts, including all documentary evidence”). Arbi tration is launched when the party referring the dispute files a notice of intent with the NRAB; after Board ac knowledgment of the notice, the parties have 75 days to file simultaneous submissions. NRAB, Uniform Rules of Procedure (rev. |
Justice Ginsburg | 2,009 | 5 | majority | Union Pacific R. Co. v. Locomotive Engineers and Trainmen Gen. Comm. of Adjustment, Central Region | https://www.courtlistener.com/opinion/1753/union-pacific-r-co-v-locomotive-engineers-and-trainmen-gen-comm-of/ | to file simultaneous submissions. NRAB, Uniform Rules of Procedure (rev. June 23, 2003). In creating the scheme of mandatory arbitration super intended by the NRAB, the 1934 Amendment largely “foreclose[d] litigation” over minor disputes. 360 U. S., 16; see Railway Conductors v. Pitney, 326 U.S. 561, 566 (1946) (“Not only has Congress designated an agency peculiarly competent to handle [minor disputes], but it also intended to leave a minimum responsibility to the courts.”). Congress did provide that an employee who obtained a monetary award against a carrier could sue to enforce it, and the court could either enforce the award or set it aside. ; 45 U.S. C. First (p) (1934 ed.). In addition to that limited role, some Courts of Appeals, we noted in reviewed awards “claimed to result from a denial of due process of law.” ; ). In 1966, Congress again amended the scheme, this time 6 UNION PACIFIC R. CO. v. LOCOMOTIVE ENGINEERS AND TRAINMEN GEN. COMM. OF ADJUSTMENT Opinion of the Court to state grounds on which both employees and railroads could seek judicial review of NRAB orders. The governing provision, still in force, allows parties aggrieved by an NRAB panel order to petition for court review. 45 U.S. C. First (q) (2006 ed.). The provision instructs that “[o]n such review, the findings and order of the divi sion shall be conclusive on the parties, except that the order may be set aside, in whole or in part, or re manded for failure of the division to comply with the requirements of [the RLA], for failure of the order to conform, or confine itself, to matters within the scope of the division’s jurisdiction, or for fraud or corruption by a member of the division making the order.” Courts of Appeals have divided on whether this provision precludes judicial review of NRAB proceedings for due process violations. Compare, e.g., and (CA9 1989) (same), with Kinross v. Utah R. 362 F.3d 658, 662 (review precluded).4 —————— 4 The disagreement stems from this Court’s per curiam opinion in Union Pacific R. That case in volved an NRAB decision turning on a time limitation contained in the governing CBA. Based on that limitation, the Board dismissed an employee’s claim. The Tenth Circuit remanded the case to the NRAB on the ground that the Board had failed to consider the employee’s equitable tolling argument and thereby violated due process. We summarily reversed, observing that the Board had in fact considered the plea for equitable tolling and explicitly rejected it. We added that if the Court of Appeals “intended to reverse |
Justice Ginsburg | 2,009 | 5 | majority | Union Pacific R. Co. v. Locomotive Engineers and Trainmen Gen. Comm. of Adjustment, Central Region | https://www.courtlistener.com/opinion/1753/union-pacific-r-co-v-locomotive-engineers-and-trainmen-gen-comm-of/ | added that if the Court of Appeals “intended to reverse the [NRAB’s] rejection of [the employee’s] equitable tolling argument,” then the court had exceeded the bounds First (q) placed on its review authority. In determining whether the CBA’s time limitation was tolled, we said, the Board “certainly was acting within its jurisdiction and in conformity with the Act.” Cite as: 558 U. S. (2009) 7 Opinion of the Court B The instant matter arose when petitioner Union Pacific Railroad (hereinafter Carrier) charged five of its em ployees with disciplinary violations. Their union, the Brotherhood of Locomotive Engineers and Trainmen (hereinafter Union), initiated grievance proceedings pur suant to the CBA. The Union asserts that, following exhaustion of grievance proceedings, the parties confer enced all the disputes; counsel for the Carrier conceded at argument that at least two of the disputes were confer enced, Tr. of Oral Arg. 7. Dissatisfied with the outcome of the on-property proceedings, the Union sought arbitration before the First Division of the NRAB. The Union and the Carrier, from early 2002 through 2003, filed simultaneous submissions in the five cases. In each submission, the Union included the notice of discipline (or discharge), the hearing transcript, and all exhibits and evidence relating to the underlying adverse actions used in the grievance proceeding. Neither party mentioned conferencing as a disputed matter. Yet, in each case, both parties necessar ily knew whether the Union and the Carrier had con ferred, and the Board’s governing rule instructs carriers and employees to “set forth all relevant, argumentative facts,” (d), (e). On March 18, 2004, just prior to the hearing on the employees’ claims, one of the industry representatives on the arbitration panel raised an objection. Petition to Review and Vacate Awards and Orders of First Div. NRAB in No. 05–civ–1 (ND Ill.), ¶20 (hereinafter Pet. to Review). On his own initiative, unprompted by the Carrier, and in executive session, the industry representa tive asserted that the on-property record included no proof of conferencing. See The Carrier thereafter em braced the panel member’s objection. The neutral referee informed the Union of the issue and adjourned the hear ing, allowing the Union “to submit evidence that confer 8 UNION PACIFIC R. CO. v. LOCOMOTIVE ENGINEERS AND TRAINMEN GEN. COMM. OF ADJUSTMENT Opinion of the Court encing had in fact occurred.” See ¶¶21–23. The Union did so, offering phone logs, handwritten notes, and corre spondence between the parties as evidence of conferencing in each of the five cases. E.g., Panel Decision 67a–68a. From its first notice of the objection, however, the Union maintained that the |
Justice Ginsburg | 2,009 | 5 | majority | Union Pacific R. Co. v. Locomotive Engineers and Trainmen Gen. Comm. of Adjustment, Central Region | https://www.courtlistener.com/opinion/1753/union-pacific-r-co-v-locomotive-engineers-and-trainmen-gen-comm-of/ | notice of the objection, however, the Union maintained that the proof-of-conferencing issue was un timely raised, indeed forfeited, as the Carrier itself had not objected prior to the date set for argument of the cases. E.g., 7a; Pet. to Review ¶¶22, 29, 30, 54. On March 15, 2005, nearly one year after the question of conferencing first arose, the panel, in five identical deci sions, dismissed the petitions for want of “authority to assume jurisdiction over the claim[s].” Panel Decision 72a. Citing Circular One, see –4, and “the weight of arbitral precedent,” the panel stated that “the evidentiary record” must be deemed “closed once a Notice of Intent has been filed with the NRAB” Panel Deci sion 71a.5 In explaining why the record could not be sup plemented to meet the no-proof-of-conferencing objection, the panel emphasized that it was “an appellate tribunal, as opposed to one which is empowered to consider and rule on de novo evidence and arguments.” 9a. The two labor representatives dissented. The Carrier’s submissions, they reasoned, took no exception based on failure to conference or to prove conferencing; therefore, they concluded, under a “well settled principle governing the Board’s deliberations,” the Carrier had forfeited the issue. at 105a–106a. The dissenters urged that the Union had furnished evidence showing “the cases had all been conferenced, even though the relevant Collective Bargaining Agreement [did] not require [conferencing].” at 105a. Dismissal of the claims, the dissenters —————— 5 The panel observed, however, that the records and notes offered by the Union, “on their face, may be regarded as supportive of its position that the conference[s] occurred.” Panel Decision 69a. Cite as: 558 U. S. (2009) 9 Opinion of the Court charged, demonstrated “the kind of gamesmanship that breeds contempt for the minor dispute process.” at 107a. The Union filed a petition for review in the United States District Court for the Northern District of Illinois, asking the court to set aside the Board’s orders on the ground that the panel had “unlawfully held [it lacked] authority to assume jurisdiction over [the] cases [absent] evidence of a ‘conference’ between the parties in the ‘on-property’ record.” Pet. to Review ¶1. Nothing in the Act or the NRAB’s procedural rules, the Union main tained, mandated dismissal for failure to allege and prove conferencing in the Union’s original submission. 4. By imposing, without warrant, “a technical pleading or evidentiary requirement” and elevating it to jurisdictional status, the Union charged, the panel had “egregiously violate[d] the Act,” or “fail[ed] to conform its juris diction to that required by law,” Alternatively, the Union asserted that |
Justice Ginsburg | 2,009 | 5 | majority | Union Pacific R. Co. v. Locomotive Engineers and Trainmen Gen. Comm. of Adjustment, Central Region | https://www.courtlistener.com/opinion/1753/union-pacific-r-co-v-locomotive-engineers-and-trainmen-gen-comm-of/ | to that required by law,” Alternatively, the Union asserted that the panel violated procedural due process by entertaining the Carrier’s untimely objection, even though “the Carrier had failed to raise any objection as to lack of conferencing” in its submissions. The District Court affirmed the Board’s orders. Ad dressing the Union’s argument that the no-proof-of conferencing issue was untimely raised, the court accepted the panel’s description of the issue as “jurisdictional,” and noted the familiar proposition that jurisdictional chal lenges may be raised at any stage of the proceedings. 432 F. Supp. 2d 768, 777, and n. 7 On appeal, the Seventh Circuit recognized that the Union had presented its case “through both a statutory and constitutional framework.” The court observed, however, that “the essence of the conflict boils down to a single question: is written docu mentation of the conference in the on-property record a necessary prerequisite to arbitration before the NRAB?” 10 UNION PACIFIC R. CO. v. LOCOMOTIVE ENGINEERS AND TRAINMEN GEN. COMM. OF ADJUSTMENT Opinion of the Court It then determined that there was no such prerequi site: “[N]o statute, regulation, or CBA,” the court con cluded, “required the evidence [of conferencing] to be presented in the on-property record.” 57–758. But instead of resting its decision on the Union’s primary, statute-based argument—that the panel erred in ruling that it lacked jurisdiction over the cases—the Court of Appeals reversed on the ground that the NRAB’s proceed ings were incompatible with due process. See at II We granted the Carrier’s petition for certiorari, 555 U. S. (2009), which asked us to determine whether a reviewing court may set aside NRAB orders for failure to comply with due process notwithstanding the limited grounds for review specified in First (q).6 As earlier recounted, Courts of Appeals have divided on this issue. See and n. 4. Appearing as respondent in this Court, however, the Union urged affirmance of the Sev enth Circuit’s judgment on an alternative ground. Reas serting the lead argument it had advanced in its petition for court review, see the Union maintained that the Board did not “conform, or confine itself, to mat ters within the scope of [its] jurisdiction,” First (q). Brief for Respondent 52–53. In response, the Carrier stated that the Union’s alternative ground “presents a pure question of law that th[e] Court can and should resolve without need for remand.” Reply Brief 24, n. 9. We agree. So long as a respondent does not “seek to modify the judgment below,” true here, “[i]t is well accepted” that the —————— 6 those grounds are “failure of the |
Justice Ginsburg | 2,009 | 5 | majority | Union Pacific R. Co. v. Locomotive Engineers and Trainmen Gen. Comm. of Adjustment, Central Region | https://www.courtlistener.com/opinion/1753/union-pacific-r-co-v-locomotive-engineers-and-trainmen-gen-comm-of/ | that the —————— 6 those grounds are “failure of the division to comply with [RLA] requirements,” “failure of the order to conform, or confine itself, to matters within the scope of the division’s jurisdiction,” and “fraud or corruption by a member of the division making the order.” Cite as: 558 U. S. (2009) 11 Opinion of the Court respondent may, “without filing a cross-appeal or cross petition, rely upon any matter appearing in the record in support of the judgment.” Blum v. Bacon, 457 U.S. 137, n. 5 (1982). The Seventh Circuit, as just ob served, see –10, understood that the Union had pressed “statutory and constitutional” arguments, but also comprehended that both arguments homed in on “a single question: is written documentation of the conference in the on-property record a necessary prerequisite to arbitration before the NRAB?” 522 F. 3d, at Answering this “single question” in the negative, the Court of Appeals effectively resolved the Union’s core complaint. But, for reasons far from apparent, the court declared that “once we answer the key question adjudication of the due process claim is unavoidable.” The Seventh Circuit, we agree, asked the right question, but inappropriately placed its answer under a constitu tional, rather than a statutory, headline. As the Court of Appeals determined, and as we discuss infra, at 12–17, nothing in the Act elevates to jurisdictional status the obligation to conference minor disputes or to prove confer encing. That being so, the “unavoidable” conclusion, following from the Seventh Circuit’s “answer [to] the key question,” 522 F. 3d, at is that the panel, in First (q)’s words, failed “to conform, or confine itself, to matters within the scope of [its] jurisdiction.” The Carrier, although it sought a different outcome, was quite right to “urg[e] [the Court of Appeals] to consider the statutory claim before the constitutional one.” 522 F. 3d, at In short, a negative answer to the “single question” identified by the Court of Appeals leaves no doubt about the Union’s entitlement, in accord with First (q), to vacation of the Board’s orders. Given this statutory ground for relief, there is no due process issue alive in this case, and no warrant to answer a question that may be consequential in another case: Absent grounds specified in 12 UNION PACIFIC R. CO. v. LOCOMOTIVE ENGINEERS AND TRAINMEN GEN. COMM. OF ADJUSTMENT Opinion of the Court First (q) for vacating a Board order, may a reviewing court set aside an NRAB adjudication for incompatibility with due process? An answer to that question must await a case in which the issue is |
Justice Ginsburg | 2,009 | 5 | majority | Union Pacific R. Co. v. Locomotive Engineers and Trainmen Gen. Comm. of Adjustment, Central Region | https://www.courtlistener.com/opinion/1753/union-pacific-r-co-v-locomotive-engineers-and-trainmen-gen-comm-of/ | question must await a case in which the issue is genuinely in controversy.7 In this case, however, our grant of certiorari enables us to address a matter of some importance: We can reduce confusion, clouding court as well as Board decisions, over matters properly typed “jurisdictional.” III A Recognizing that the word “jurisdiction” has been used by courts, including this Court, to convey “many, too many, meanings,” Steel (internal quotation marks omitted), we have cautioned, in recent decisions, against profligate use of the term. Not all mandatory “prescrip tions, however emphatic, are properly typed jurisdic tional,” we explained in Arbaugh v. Y & H Corp., 546 U.S. 500, 510 (internal quotation marks omitted). Sub ject-matter jurisdiction properly comprehended, we em phasized, refers to a tribunal’s “power to hear a case,” a matter that “can never be forfeited or waived.” (quoting United (2002)). In contrast, a “claim-processing rule, even if unalterable on a party’s application,” does not reduce the adjudicatory domain of a tribunal and is ordinarily “for feited if the party asserting the rule waits too long to raise the point.” —————— 7 A case of that order would be uncommon. As the Carrier acknowl edges, “many of the cases reviewing ostensibly extra-statutory due process objections could have been accommodated within the statutory framework.” Brief for Petitioner 36. See also (“The statutory review provisions are plainly generous enough to permit litigants to raise all of the simple, common, easily adjudicated, and likely to be meritorious claims that sail under the flag of due process of law”). Cite as: 558 U. S. (2009) 13 Opinion of the Court For example, we have held nonjurisdictional and forfeit able the provision in Title VII of the Civil Rights Act of 19, 42 U.S. C. et seq., requiring complainants to file a timely charge of discrimination with the Equal Em ployment Opportunity Commission (EEOC) before pro ceeding to court. v. Trans World Airlines, Inc., 455 U.S. 385, 393 (1982). We have also held nonjurisdictional and forfeitable the Title VII provision exempting employ ers who engage fewer than 15 employees. Arbaugh, 546 U. S., at 503, 515–516. And we have determined that a Chapter 7 trustee’s (or creditor’s) limited time to object to the debtor’s discharge, see Fed. Rule Bkrtcy. Proc. 4004, is a claim-processing, not a jurisdictional, matter. Kontrick, –447, 460. In contrast, relying on a long line of this Court’s decisions left undisturbed by Congress, we have reaffirmed the jurisdictional character of the time limitation for filing a notice of appeal stated in 28 U.S. C. 209–211 (2007). See also John R. Sand |
Justice Ginsburg | 2,009 | 5 | majority | Union Pacific R. Co. v. Locomotive Engineers and Trainmen Gen. Comm. of Adjustment, Central Region | https://www.courtlistener.com/opinion/1753/union-pacific-r-co-v-locomotive-engineers-and-trainmen-gen-comm-of/ | 28 U.S. C. 209–211 (2007). See also John R. Sand & Gravel (court must consider sua sponte timeliness of lawsuit filed against the United States in the Court of Federal Claims). With these decisions in mind, we turn back to the re quirement that parties to minor disputes, as a last chance prearbitration, attempt settlement “in conference,” 45 U.S. C. Second, Sixth. See at 4–5, and n. 3. This obligation is imposed on carriers and grievants alike but, we hold, its satisfaction does not condition the adjudi catory authority of the Board. The Board’s jurisdiction extends to “all disputes between carriers and their employees ‘growing out of grievances or out of the interpretation or application of agreements concerning rates of pay, rules, or working conditions’ ” (1950) (quoting First (i)). True, the RLA instructs that, before any reference to arbitration, the dispute “shall 14 UNION PACIFIC R. CO. v. LOCOMOTIVE ENGINEERS AND TRAINMEN GEN. COMM. OF ADJUSTMENT Opinion of the Court be handled in the usual manner up to and including the [designated] chief operating officer.” First (i). And when the CBA’s grievance procedure has not been fol lowed, resort to the Board would ordinarily be objection able as premature. The additional requirement of a conference, we note, is independent of the CBA process. Rather, the conference requirement is stated in the “[g]eneral duties” section of the RLA, a section that is not moored to the “[e]stablishment[,] powers[,] and duties” of the NRAB set out next in First. Rooted in and often in formal in practice, see at 4–5, conferencing is surely no more “jurisdictional” than is the presuit resort to the EEOC held forfeitable in8 And if the requirement to conference is not “jurisdictional,” then failure initially to submit proof of conferencing cannot be of that genre. See Part III–B, infra. In defense of the Board’s characterization of conferenc ing and proof thereof as jurisdictional, the Carrier points to the NRAB’s Circular One procedural regulations, see –4, which provide: “No petition shall be consid ered by any division of the Board unless the subject mat ter has been handled in accordance with the provisions of the [RLA].” (b). But that provision, as other prescriptions in Circular One, is a claims-processing rule. Congress gave the Board no authority to adopt rules of jurisdictional dimension. See 45 U.S. C. First (v) (authorizing the NRAB to “adopt such rules as it deems necessary to control proceedings before the respective —————— 8 The RLA states, in First, a general duty “to settle all disputes,” and, in Second, a more specific duty to “conference.” |
Justice Ginsburg | 2,009 | 5 | majority | Union Pacific R. Co. v. Locomotive Engineers and Trainmen Gen. Comm. of Adjustment, Central Region | https://www.courtlistener.com/opinion/1753/union-pacific-r-co-v-locomotive-engineers-and-trainmen-gen-comm-of/ | disputes,” and, in Second, a more specific duty to “conference.” These provi sions apply to all disputes in the railroad industry, major as well as minor. They also apply to disputes in the airline industry, over which the NRAB has no jurisdiction. Neither provision “speak[s] in jurisdictional terms or refer[s] in any way to the jurisdiction of the” NRAB. Cite as: 558 U. S. (2009) 15 Opinion of the Court divisions and not in conflict with the provisions of this section”). And when the fact of conferencing is genuinely contested, we see no reason why the panel could not ad journ the proceeding pending cure of any lapse. Circular One does not exclude such a sensible solution. The Carrier cites NRAB decisions that allegedly support characterization of conferencing as jurisdictional. If the NRAB lacks authority to define the jurisdiction of its panels, however, surely the panels themselves lack that authority. Furthermore, NRAB panels have variously addressed the matter. For example, in NRAB Third Div. Award No. 15880 (Oct. 26, 1967), the panel, although characterizing the conferencing requirement as “jurisdic tional,” said that “[i]f one of the parties refuses or fails to avail itself of a conference where there is an opportunity to do so, it cannot then assert the defense of a lack of juris diction.” See also NRAB Fourth Div. Award No. 5074 (June 21, 2001) (same); NRAB Third Div. Award No. 28147 (Oct. 16, 1989) (same). Cf. Arbaugh, 546 U. S., at 511 (“unrefined” uses of the word “jurisdiction” are enti tled to “no precedential effect” (internal quotation marks omitted)). And in NRAB First Div. Award No. 23867, p. 5 (Apr. 7, 1988), the panel observed that the ordinary rem edy for lack of conferencing is to “dismiss th[e] claim with out prejudice to allow Claimant to cure the jurisdictional defect.” That panel reached the merits nevertheless. Cf. Steel 523 U. S., 4 ).). We note, in addition, the acknowledgment of the Carrier’s counsel that, if con ferencing has not occurred, NRAB panels have stayed arbitration to allow the parties to confer. Tr. of Oral Arg. 16 UNION PACIFIC R. CO. v. LOCOMOTIVE ENGINEERS AND TRAINMEN GEN. COMM. OF ADJUSTMENT Opinion of the Court 10, 22.9 B The RLA provides that, when on-property proceedings do not yield settlement, both parties or either party may refer the case to the Board “with a full statement of the facts and all supporting data bearing upon the disputes.” First (i). Circular One correspondingly instructs employees seeking Board adjudication “[to] set forth all relevant, argumentative facts” and “affirmatively show the same to |
Justice Ginsburg | 2,009 | 5 | majority | Union Pacific R. Co. v. Locomotive Engineers and Trainmen Gen. Comm. of Adjustment, Central Region | https://www.courtlistener.com/opinion/1753/union-pacific-r-co-v-locomotive-engineers-and-trainmen-gen-comm-of/ | all relevant, argumentative facts” and “affirmatively show the same to have been presented to the carrier and made a part of the particular question in dispute.” 29 CFR see (similar instruction addressed to carriers). Conferencing, the Carrier urged, is a “relevant, argumentative fac[t],” so proof thereof must accompany party submissions. As earlier explained, see instructions on party submissions—essentially pleading instructions—are claim-processing, not jurisdictional, rules. Moreover, the Board itself has recognized that conferencing may not be a “question in dispute.” It has counseled parties submitting joint exhibits “to omit documents that are unimportant and/or irrelevant to the disposition of the [case]; for exam ple letters requesting a conference (assuming that is not an issue in the dispute).” NRAB Instructions Sheet, Joint Exh. Program, p. 5 (July 1, 2003), online at http://www.nmb.gov/arbitration/nrab-instruc.pdf (as vis ited Dec. 3, 2009, and available in Clerk of Court’s case —————— 9 While holding that the panel did not lack jurisdiction over the em ployees’ claims, we recognize the Board’s authority to adopt claim processing rules backed by effective sanctions. See ; cf. Fed. Rule Civ. Proc. 37(b)(2) (specifying sanctions, including dismissal, for failure to comply with discovery orders); Rule 41(b) (authorizing invol untary dismissal for failure to prosecute or to comply with rules of procedure or court orders). We also recognize that NRAB panels, in managing individual arbitrations, may prescribe and enforce reason able procedural requirements. Cite as: 558 U. S. (2009) 17 Opinion of the Court file). It bears repetition here that neither the Union nor the Carrier, in its submissions to the Board, identified conferencing as a “question in dispute.” See It makes sense to exclude at the arbitration stage newly presented “data in support of [the] employee[’s] [griev ance],” (d)—evidence the carrier had no opportunity to consider prearbitration. A contrary rule would sandbag the carrier. But conferencing is not a fact bearing on the merits of a grievance. Indeed, there may be no disagreement at all about the occurrence of conferenc ing, as the Union believed to be the case here. Moreover, the RLA respects the right of the parties to order for themselves the conference procedures they will follow. See 45 U.S. C. Sixth (“[N]othing in this chapter shall be construed to supersede the provisions of any agreement (as to conferences) in effect between the parties.”). In sum, neither the RLA nor Circular One could plausibly be read to require, as a prerequisite to the NRAB’s exercise of jurisdiction, submission of proof of conferencing. * * * By refusing to adjudicate cases on the false premise that it lacked power to hear |
Justice Rehnquist | 1,995 | 19 | concurring | United States v. Gaudin | https://www.courtlistener.com/opinion/117958/united-states-v-gaudin/ | I join the Court's opinion. "A person when first charged with a crime is entitled to a presumption of innocence, and may insist that his guilt be established beyond a reasonable doubt. In re Winship," As a result, "[t]he prosecution bears the burden of proving all elements of the offense charged and must persuade the factfinder `beyond a reasonable doubt' of the facts necessary to establish each of those elements." ; see also The Government has conceded that 18 U.S. C. 1001 requires that the false statements made by respondent be "material" to the Government inquiry, and that "materiality" is an element of the offense that the Government must prove in order to sustain a conviction. Ante, at 509; Brief for United States 11. The Government also has not challenged the Court of Appeals' determination that the error it identified was structural and plain. See ; see also In light of these concessions, I agree that "[t]he trial judge's refusal to allow the jury to pass on the `materiality' of Gaudin's false statements infringed" his "right to have a jury determine, beyond a reasonable doubt, his guilt of every element of the crime with which he [was] charged." Ante, at 522 and this page. I write separately to point out that there are issues in this area of the law which, though similar to those decided in *524 the Court's opinion, are not disposed of by the Court today. There is a certain syllogistic neatness about what we do decide: Every element of an offense charged must be proved to the satisfaction of the jury beyond a reasonable doubt; "materiality" is an element of the offense charged under 1001; therefore, the jury, not the court, must decide the issue of materiality. But the Government's concessions have made this case a much easier one than it might otherwise have been. Whether "materiality" is indeed an element of every offense under 18 U.S. C. 1001 is not at all obvious from its text. Section 1001 of Title 18 provides: "Whoever, in any matter within the jurisdiction of any department or agency of the United States knowingly and willfully falsifies, conceals or covers up by any trick, scheme, or device a material fact, or makes any false, fictitious or fraudulent statements or representations, or makes or uses any false writing or document knowing the same to contain any false, fictitious or fraudulent statement or entry, shall be fined not more than $10,000 or imprisoned not more than five years, or both." Currently, there is a conflict among the Courts of Appeals over whether |
Justice Rehnquist | 1,995 | 19 | concurring | United States v. Gaudin | https://www.courtlistener.com/opinion/117958/united-states-v-gaudin/ | is a conflict among the Courts of Appeals over whether materiality is an element of the offense created by the second clause of 1001. Compare, e. g., United ("`While materiality is not an explicit requirement of the second, false statements, clause of 1001, courts have inferred a judge-made limitation of materiality in order to exclude trifles from its coverage' "), with United ("It is settled in this Circuit that materiality is not an element of the offense of making a false statement in violation of 1001"). The Court does not resolve that conflict; rather, it merely assumes that materiality is, in fact, an element of the false statement clause of 1001. Ante, at 511; cf. n. (assuming that reasonable-doubt jury *525 instruction was erroneous in light of the "question presented and the State's failure to raise this issue below"). As with many aspects of statutory construction, determination of what elements constitute a crime often is subject to dispute. See, e. g., National Organization for Women, ; United "[I]n determining what facts must be proved beyond a reasonable doubt the [legislature's] definition of the elements of the offense is usually dispositive." Nothing in the Court's decision stands as a barrier to legislatures that wish to defineor that have definedthe elements of their criminal laws in such a way as to remove issues such as materiality from the jury's consideration. We have noted that "`[t]he definition of the elements of a criminal offense is entrusted to the legislature, particularly in the case of federal crimes, which are solely creatures of statute.' " (quoting (19)); see also at Within broad constitutional bounds, legislatures have flexibility in defining the elements of a criminal offense. See Federal and state legislatures may reallocate burdens of proof by labeling elements as affirmative defenses, or they may convert elements into "sentencing factor[s]" for consideration by the sentencing court, at -86. The Court today does not resolve what role materiality plays under 1001. The Court properly acknowledges that other mixed questions of law and fact remain the proper domain of the trial court. Ante, at 520-521. Preliminary questions in a trial regarding the admissibility of evidence, Fed. Rule Evid. 104(a), the competency of witnesses, ib the voluntariness *526 of confessions, the legality of searches and seizures, Fed. Rule Crim. Proc. 12(b)(3), and the propriety of venue, see Fed. Rule Crim. Proc. 18, may be decided by the trial court. Finally, the Government has not argued here that the error in this case was either harmless or not plain. Brief for United States 8,n. 5. As to the former, there |
Justice Rehnquist | 1,995 | 19 | concurring | United States v. Gaudin | https://www.courtlistener.com/opinion/117958/united-states-v-gaudin/ | for United States 8,n. 5. As to the former, there is a "strong presumption" that a constitutional violation will be subject to harmless-error analysis. See Accordingly, "the Court has applied harmlesserror analysis to a wide range of errors and has recognized that most constitutional errors can be harmless." 6 ; cf. at 9-310 In particular, the Court has subjected jury instructions plagued by constitutional error to harmless-error analysis. See, e. g., ; (jury instruction containing an erroneous mandatory presumption subject to harmless-error analysis); ; ; but see 282 (erroneous burden of proof instruction not subject to harmless-error analysis). The Court today has no occasion to review the Court of Appeals' conclusion that the constitutional error here "cannot be harmless." As to the latter, in United the Court noted the limitations on "plain error" review by the courts of appeals under Rule 52(b). "The first limitation on appellate authority under Rule 52(b) is that there indeed be an `error.' " Second, "the error [must] be `plain.' " Thus, "[a]t a minimum, a *527 court of appeals cannot correct an error pursuant to Rule 52(b) unless the error is clear under current law." Third, the plain error must "`affec[t] substantial rights,' " ib i. e., "in most cases it means that the error must have been prejudicial," Finally, if these three prerequisites are met, the decision to correct forfeited error remains within the sound discretion of the court of appeals. A court of appeals, however, should not exercise that discretion unless the error "` "seriously affect[s] the fairness, integrity or public reputation of judicial proceedings."` " at In affirming the Court of Appeals, the Court concludes that "it is fair to say that we cannot hold for respondent today while still adhering to the reasoning and the holding of ]." Ante, at 519-520. Before today, every Court of Appeals that has considered the issue, except for the Ninth Circuit, has held that the question of materiality is one of law. See (collecting cases). Thus, it is certainly subject to dispute whether the error in this case was "clear under current law." The Court, however, does not review the Court of Appeals' determination that the failure to submit the issue of materiality to the jury constituted "plain error." |
Justice Ginsburg | 2,014 | 5 | majority | Lawson v. FMR LLC | https://www.courtlistener.com/opinion/2655498/lawson-v-fmr-llc/ | To safeguard investors in public companies and restore trust in the financial markets following the collapse of Enron Corporation, Congress enacted the Sarbanes-Oxley Act of 2002, See S. Rep. No. 107–146, pp. 2–11 A provision of the Act, 18 U.S. C. protects whistleblowers. Section 1514A, at the time here relevant, instructed: “No [public] company or any officer, employee, contractor, subcontractor, or agent of such company, may discharge, demote, suspend, threaten, harass, or in any other manner discriminate against an em- ployee in the terms and conditions of employment be- cause of [whistleblowing or other protected activity].” (2006 ed.). This case concerns the definition of the protected class: Does shield only those employed by the public company itself, or does it shield as well employees of pri- vately held contractors and subcontractors—for example, investment advisers, law firms, accounting enterprises— who perform work for the public company? 2 LAWSON v. FMR LLC Opinion of the Court We hold, based on the text of the mischief to which Congress was responding, and earlier legislation Congress drew upon, that the provision shelters employees of private contractors and subcontractors, just as it shel- ters employees of the public company served by the con- tractors and subcontr We first summarize our principal reasons, then describe this controversy and explain our decision more comprehensively. Plaintiffs below, petitioners here, are former employees of private companies that contract to advise or manage mutual funds. The mutual funds themselves are public companies that have no Hence, if the whistle is to be blown on fraud detrimental to mutual fund inves- tors, the whistleblowing employee must be on another company’s payroll, most likely, the payroll of the mutual fund’s investment adviser or manager. Taking the allegations of the complaint as true, both plaintiffs blew the whistle on putative fraud relating to the mutual funds and, as a consequence, suffered adverse action by their employers. Plaintiffs read to con- vey that “[n]o contractor may discriminate against [its own] employee [for whistleblowing].” We find that reading consistent with the text of the statute and with common sense. Contractors are in control of their own employees, but are not ordinarily positioned to control someone else’s workers. Moreover, we resist attributing to Congress a purpose to stop a contractor from retaliating against whistleblowers employed by the public company the contractor serves, while leaving the contractor free to retaliate against its own employees when they reveal corporate fraud. In the Enron scandal that prompted the Sarbanes-Oxley Act, contractors and subcontractors, including the ac- counting firm Arthur Andersen, participated in Enron’s fraud and its coverup. When employees |
Justice Ginsburg | 2,014 | 5 | majority | Lawson v. FMR LLC | https://www.courtlistener.com/opinion/2655498/lawson-v-fmr-llc/ | Andersen, participated in Enron’s fraud and its coverup. When employees of those contrac- tors attempted to bring misconduct to light, they encoun- Cite as: 571 U. S. (2014) 3 Opinion of the Court tered retaliation by their employers. The Sarbanes-Oxley Act contains numerous provisions aimed at controlling the conduct of accountants, auditors, and lawyers who work with public companies. See, e.g., –765, 773– 774, 784, 203–206, 307. Given Congress’ concern about contractor conduct of the kind that contrib- uted to Enron’s collapse, we regard with suspicion con- struction of to protect whistleblowers only when they are employed by a public company, and not when they work for the public company’s contractor. Congress borrowed ’s prohibition against retalia- tion from the wording of the 2000 Wendell H. Ford Avia- tion Investment and Reform Act for the 21st Century (AIR 21), 49 U.S. C. That Act provides: “No air carrier or contractor or subcontractor of an air carrier may dis- charge an employee or otherwise discriminate against an employee with respect to compensation, terms, conditions, or privileges of employment” when the employee provides information regarding violations “relating to air carrier safety” to his or her employer or federal authorities. AIR 21 has been read to cover, in addition to employees of air carriers, employees of contractors and subcontractors of the carriers. Given the parallel statu- tory texts and whistleblower protective aims, we read the words “an employee” in AIR 21 and in to have similar import. I A The Sarbanes-Oxley Act of 2002 (Sarbanes-Oxley or Act) aims to “prevent and punish corporate and criminal fraud, protect the victims of such fraud, preserve evidence of such fraud, and hold wrongdoers accountable for their actions.” S. Rep. No. 107–146, p. 2 (hereinafter 4 LAWSON v. FMR LLC Opinion of the Court S. Rep.).1 Of particular concern to Congress was abundant evidence that Enron had succeeded in perpetuating its massive shareholder fraud in large part due to a “corpo- rate code of silence”; that code, Congress found, “discour- age[d] employees from reporting fraudulent behavior not only to the proper authorities, such as the FBI and the SEC, but even internally.” –5 (internal quotation marks omitted). When employees of Enron and its ac- counting firm, Arthur Andersen, attempted to report corporate misconduct, Congress learned, they faced retali- ation, including discharge. As outside counsel advised company officials at the time, Enron’s efforts to “quiet” whistleblowers generally were not proscribed under then- existing law. Congress identified the lack of whistleblower protection as “a significant deficiency” in the law, for in complex securities fraud investigations, employees “are [often] the |
Justice Ginsburg | 2,014 | 5 | majority | Lawson v. FMR LLC | https://www.courtlistener.com/opinion/2655498/lawson-v-fmr-llc/ | for in complex securities fraud investigations, employees “are [often] the only firsthand witnesses to the fraud.” Section 806 of Sarbanes-Oxley addresses this concern. Titled “Protection for Employees of Publicly Traded Com- panies Who Provide Evidence of Fraud,” added a new provision to Title 18 of the United States Code, 18 U.S. C. which reads in relevant part: “Civil action to protect against retaliation in fraud cases “(a) WHISTLEBLOWER PROTECTION FOR EMPLOYEES —————— 1 Title VIII of the Act, which contains the whistleblower protection provision at issue in this case, was authored by Senators Leahy and Grassley and originally constituted a discrete bill, S. We thus look to the Senate Report for S. S. Rep. No. 107–146, as the Senate Report relevant here. See 148 Cong. Rec. S7418 (statement of Sen. Leahy) (“unanimous consent” to “includ[e] in the CONGRESSIONAL RECORD as part of the official legislative history” of Sarbanes-Oxley that Title VIII’s “terms track almost exactly the provisions of S. introduced by Senator Leahy and reported unanimously from the Committee on the Judiciary”). Cite as: 571 U. S. (2014) 5 Opinion of the Court OF PUBLICLY TRADED COMPANIES.—No company with a class of securities registered under section 12 of the Securities Exchange Act of 1934 (15 U.S. C. or that is required to file reports under section 15(d) of the Securities Exchange Act of 1934 (15 U.S. C. or any officer, employee, contractor, subcon- tractor, or agent of such company, may discharge, de- mote, suspend, threaten, harass, or in any other manner discriminate against an employee in the terms and conditions of employment because of any lawful act done by the employee— “(1) to provide information, cause information to be provided, or otherwise assist in an investigation re- garding any conduct which the employee reasonably believes constitutes a violation of section 1341 [mail fraud], 1343 [wire fraud], 1344 [bank fraud], or 1348 [securities or commodities fraud], any rule or regula- tion of the Securities and Exchange Commission, or any provision of Federal law relating to fraud against shareholders, when the information or assistance is provided to or the investigation is conducted by [a fed- eral agency, Congress, or supervisor]” 116 Stat. 802.2 Congress has assigned whistleblower protection largely to the Department of Labor (DOL), which administers some 20 United States Code incorporated whistleblower protection provisions. See The Secretary has delegated investigatory and initial adju- dicatory responsibility over claims under a number of these —————— 2 As discussed infra, at 24–26, Congress amended in to extend whistleblower coverage to employees of public companies’ subsidiaries and nationally recognized statistical ratings organizations. Plaintiffs do |
Justice Ginsburg | 2,014 | 5 | majority | Lawson v. FMR LLC | https://www.courtlistener.com/opinion/2655498/lawson-v-fmr-llc/ | companies’ subsidiaries and nationally recognized statistical ratings organizations. Plaintiffs do not fall in either category and, in any event, their claims are governed by the prior version of Unless otherwise noted, all citations to are to the original text in the 2006 edition of the United States Code. 6 LAWSON v. FMR LLC Opinion of the Court provisions, including to DOL’s Occupational Safety and Health Administration (OSHA). OSHA’s order may be appealed to an administrative law judge, and then to DOL’s Administrative Review Board (ARB). to 1980.110 (2011). In common with other whistleblower protection provi- sions enforced by DOL, see the ARB’s determination on a claim constitutes the agency’s final decision and is reviewable in federal court under the standards stated in the Administrative Proce- dure Act, 5 U.S. C. If, however, the ARB does not issue a final decision within 180 days of the filing of the complaint, and the delay is not due to bad faith on the claimant’s part, the claimant may proceed to federal dis- trict court for de novo review. 18 U.S. C. (b). An employee prevailing in a proceeding under is entitled to “all relief necessary to make the employee whole,” including “reinstatement with the same seniority status that the employee would have had, but for the discrimination,” backpay with interest, and compensation for litigation costs. (c). Congress modeled on the anti-retaliation provi- sion of the Wendell H. Ford Aviation Investment and Reform Act for the 21st Century (AIR 21), 49 U.S. C. a measure enacted two years earlier. See S. Rep., at 30 (corporate whistleblower protections “track [AIR 21’s] protections as closely as possible”). Section 1514A incorporates by cross-reference AIR 21’s administrative enforcement procedures. 18 U.S. C. (b)(2). B Petitioners Jackie Hosang Lawson and Jonathan M. Zang (plaintiffs) separately initiated proceedings under against their former employers, privately held companies that provide advisory and management ser- vices to the Fidelity family of mutual funds. The Fidelity Cite as: 571 U. S. (2014) 7 Opinion of the Court funds are not parties to either case; as is common in the mutual fund industry, the Fidelity funds themselves have no Instead, they contract with investment advisers like respondents to handle their day-to-day oper- ations, which include making investment decisions, pre- paring reports for shareholders, and filing reports with the Securities and Exchange Commission (SEC). Lawson was employed by Fidelity Brokerage Services, LLC, a subsidi- ary of FMR Corp., which was succeeded by FMR LLC. Zang was employed by a different FMR LLC subsidiary, Fidelity Management & Research Co., and later by one of that company’s subsidiaries, |
Justice Ginsburg | 2,014 | 5 | majority | Lawson v. FMR LLC | https://www.courtlistener.com/opinion/2655498/lawson-v-fmr-llc/ | Research Co., and later by one of that company’s subsidiaries, FMR Co., Inc. For conven- ience, we refer to respondents collectively as FMR. Lawson worked for FMR for 14 years, eventually serv- ing as a Senior Director of Finance. She alleges that, after she raised concerns about certain cost accounting method- ologies, believing that they overstated expenses associated with operating the mutual funds, she suffered a series of adverse actions, ultimately amounting to constructive discharge. Zang was employed by FMR for eight years, most recently as a portfolio manager for several of the funds. He alleges that he was fired in retaliation for raising concerns about inaccuracies in a draft SEC reg- istration statement concerning certain Fidelity funds. Lawson and Zang separately filed administrative com- plaints alleging retaliation proscribed by After expiration of the 180-day period specified in (b)(1), Lawson and Zang each filed suit in the U. S. District Court for the District of Massachusetts. FMR moved to dismiss the suits, arguing, as relevant, that neither plaintiff has a claim for relief under FMR is privately held, and maintained that pro- tects only employees of public companies—i.e., companies that either have “a class of securities registered under section 12 of the Securities Exchange Act of 1934,” or that are “required to file reports under section 15(d)” of that 8 LAWSON v. FMR LLC Opinion of the Court Act.3 In a joint order, the District Court re- jected FMR’s interpretation of and denied the dismissal motions in both suits. On interlocutory appeal, a divided panel of the First Circuit reversed. The Court of Ap- peals majority acknowledged that FMR is a “contractor”4 within the meaning of and thus among the actors prohibited from retaliating against “an employee” who engages in protected activity. The majority agreed with FMR, however, that “an employee” refers only to employees of public companies and does not cover a con- tractor’s own 8–80. Judge Thompson dissented. In her view, the majority had “impose[d] an unwarranted restriction on the intentionally broad lan- guage of the Sarbanes-Oxley Act” and “bar[red] a signifi- cant class of potential securities-fraud whistleblowers from any legal protection.” Several months later, the ARB issued a decision in an unrelated case, Spinner v. David Landau & Assoc., LLC, No. 10–111 etc., ALJ No. –SOX–0295 disagreeing with the Court of Appeals’ interpretation of In a comprehensive opinion, the ARB its position that affords whistleblower protection to employees of privately held contractors that render services to public companies. 6 —————— 3 Here,as just noted, the public company has no See su- pra, at 2. 4 As treats |
Justice Ginsburg | 2,014 | 5 | majority | Lawson v. FMR LLC | https://www.courtlistener.com/opinion/2655498/lawson-v-fmr-llc/ | has no See su- pra, at 2. 4 As treats contractors and subcontractors identically, we generally refer simply to “contractors” without distinguishing between the two. 5 The whistleblower in Spinner was an employee of an accounting firm that provided auditing, consulting, and Sarbanes-Oxley compli- ance services to a public company. 6 The dissent maintains that the ARB’s interpretation of is not entitled to deference because, “if any agency has the authority to resolve ambiguities in with the force of law, it is the SEC, not Cite as: 571 U. S. (2014) 9 Opinion of the Court We granted certiorari, 569 U. S. to resolve the division of opinion on whether extends whis- tleblower protection to employees of privately held con- tractors who perform work for public companies. II A In determining the meaning of a statutory provision, “we look first to its language, giving the words used their ordinary meaning.” Moskal v. United States, 498 U.S. 103, 108 (1990) (citation and internal quotation marks omitted). As Judge Thompson observed in her dissent from the Court of Appeals’ judgment, “boiling [] down to its relevant syntactic elements, it provides that ‘no contractor may discharge an employee.’ ” (quoting ). The ordinary mean- ing of “an employee” in this proscription is the contractor’s own employee. FMR’s interpretation of the text requires insertion of “of a public company” after “an employee.” But where Con- gress meant “an employee of a public company,” it said so: With respect to the actors governed by the provi- —————— the Department of Labor.” Post, at 18. Because we agree with the ARB’s conclusion that affords protection to a contractor’s employees, we need not decide what weight that conclusion should carry. We note, however, that the SEC apparently does not share the dissent’s view that it, rather than DOL, has interpretive authority over To the contrary, the SEC is a signatory to the Government’s brief in this case, which takes the position that Congress has charged the Secretary of Labor with interpreting Brief for United States as Amicus Curiae 9–11, 31–34. That view is hardly surprising given the lead role played by DOL in administering whistleblower statutes. See The dissent observes that the SEC “has not issued a regulation applying whistleblower protection to employees of public company contractors,” post, at 18, but omits to inform that the SEC has not promulgated any regulations interpreting consistent with its view that Congress delegated that respon- sibility to DOL. 10 LAWSON v. FMR LLC Opinion of the Court sion’s interdictions run to the officers, employees, contrac- tors, subcontractors, and agents “of |
Justice Ginsburg | 2,014 | 5 | majority | Lawson v. FMR LLC | https://www.courtlistener.com/opinion/2655498/lawson-v-fmr-llc/ | to the officers, employees, contrac- tors, subcontractors, and agents “of such company,” i.e., a public company. Another anti-retaliation pro- vision in Sarbanes-Oxley provides: “[A] broker or dealer and persons employed by a broker or dealer who are involved with investment banking activities may not, directly or indirectly, retaliate against or threaten to retaliate against any securities analyst employed by that broker or dealer or its affiliates” 15 U.S. C. 6(a)(1)(C) (emphasis added). In contrast, nothing in ’s language confines the class of employees protected to those of a designated employer. Absent any textual qualification, we presume the operative language means what it appears to mean: A contractor may not retaliate against its own employee for engaging in protected whistle- blowing activity.7 Section 1514A’s application to contractor employees is confirmed when we enlarge our view from the term “an employee” to the provision as a whole. The prohib- ited retaliatory measures enumerated in — discharge, demotion, suspension, threats, harassment, or dis- crimination in the terms and conditions of employment— are commonly actions an employer takes against its own Contractors are not ordinarily posi- tioned to take adverse actions against employees of the public company with whom they contract. FMR’s inter- pretation of therefore, would shrink to insignifi- cance the provision’s ban on retaliation by contr The dissent embraces FMR’s “narrower” construction. See post, at 2, 3, 4, 7. FMR urges that Congress included contractors in ’s list of governed actors simply to prevent public —————— 7 We need not decide in this case whether also prohibits a contractor from retaliating against an employee of one of the other actors governed by the provision. Cite as: 571 U. S. (2014) 11 Opinion of the Court companies from avoiding liability by employing contrac- tors to effectuate retaliatory discharges. FMR describes such a contractor as an “ax-wielding specialist,” illustrated by George Clooney’s character in the movie Up in the Air.8 Brief for Respondents 24–25 (internal quotation marks omitted). As portrayed by Clooney, an ax-wielding special- ist is a contractor engaged only as the bearer of the bad news that the employee has been fired; he plays no role in deciding who to terminate. If the company employing the ax-wielder chose the recipients of the bad tidings for retal- iatory reasons, the claim would properly be di- rected at the company. Hiring the ax-wielder would not insulate the company from liability. Moreover, we see no indication that retaliatory ax-wielding specialists are the real-world problem that prompted Congress to add con- tractors to9 Moving further through to the protected activity described in subsection (a)(1), we find |
Justice Ginsburg | 2,014 | 5 | majority | Lawson v. FMR LLC | https://www.courtlistener.com/opinion/2655498/lawson-v-fmr-llc/ | to the protected activity described in subsection (a)(1), we find further reason to —————— 8 This hypothetical originates in a Seventh Circuit opinion, Fleszar v. United States Dept. of Labor, and is men- tioned in a footnote in the First Circuit’s opinion in this case, 670 F.3d 61, 69, n. 11 9 When asked during oral argument for an example of actual circum- stances in which a contractor would have employment decisionmak- ing authority over public company employees, FMR’s counsel cited Kalkunte v. DVI Financial Servs., Inc., No. 05–139 etc., ALJ No. 2004– SOX–056 (Feb. 27, 2009). Tr. of Oral Arg. 33. That case involved a bankrupt public company that hired a private company to handle its dissolution. The ARB found the private company liable under because it acted as a “contractor, subcontractor, or agent” of the public company in discharging the claimant. ALJ No. 2004–SOX–056, (emphasis added). Neither FMR nor its amici have pointed us to any actual situation in which a public company employee would be vulner- able to retaliatory conduct by a contractor not already covered as an “agent” under Notably, even in Tides v. The Boeing Co., 644 F.3d 809 (CA9 2011), the case cited by the dissent for the proposition that contractors may possess “managerial authority” over public company employees, post, the alleged retaliation was by the public company itself. 12 LAWSON v. FMR LLC Opinion of the Court believe that Congress presumed an employer-employee relationship between the retaliator and the whistleblower. Employees gain protection for furnishing information to a federal agency, Congress, or “a person with supervisory authority over the employee (or such other person working for the employer who has the authority to investigate, discover, or terminate misconduct).” (1) (em- phasis added). And under (2), employees are protected from retaliation for assisting “in a proceeding filed or about to be filed (with any knowledge of the em- ployer) relating to an alleged violation” of any of the enu- merated fraud provisions, securities regulations, or other federal law relating to shareholder fraud. (2) (emphasis added). The reference to employer knowledge is an additional indicator of Congress’ expectation that the retaliator typically will be the employee’s employer, not another entity less likely to know of whistleblower com- plaints filed or about to be filed. Section 1514A’s enforcement procedures and remedies similarly contemplate that the whistleblower is an em- ployee of the retaliator. As earlier noted, see (b)(2)(A) provides that a claim under “shall be governed under the rules and procedures set forth in section 42121(b) of title 49,” i.e., AIR 21’s anti-retaliation provision. Throughout the |
Justice Ginsburg | 2,014 | 5 | majority | Lawson v. FMR LLC | https://www.courtlistener.com/opinion/2655498/lawson-v-fmr-llc/ | of title 49,” i.e., AIR 21’s anti-retaliation provision. Throughout the respondent is re- ferred to as “the employer.” See 49 U.S. C. (B)(ii) (The Secretary shall not conduct an investigation into a retaliation claim “if the employer demonstrates, by clear and convincing evidence, that the employer would have taken the same unfavorable personnel action in the absence of that behavior.”); (B)(iv) (“Relief may not be ordered if the employer demon- strates by clear and convincing evidence that the employer would have taken the same unfavorable personnel action in the absence of that behavior.”). Regarding remedies, (c)(2) states that a success- Cite as: 571 U. S. (2014) 13 Opinion of the Court ful claimant shall be entitled to “reinstatement with the same seniority status that the employee would have had, but for the discrimination,” as well as “the amount of back pay, with interest.” As the Solicitor General, for the United States as amicus curiae, observed, “It is difficult, if not impossible, to see how a contractor or subcontractor could provide those remedies to an employee of a public company.” Brief for United States as Amicus Curiae 15. The most sensible reading of ’s numerous references to an employer-employee relationship between the respondent and the claimant is that the provision’s protections run between contractors and their own Remarkably, the dissent attributes to Congress a strange design. Under the dissent’s “narrower” construc- tion, post, at 2, 3, 4, 7, a public company’s contractor may not retaliate against a public company’s employees, aca- demic here because the public company has no According to the dissent, this coverage is necessary to prevent “a gaping hole” that would allow public companies to “evade simply by hiring a contractor to engage in the very retaliatory acts that an officer or employee could not.” Post, This cannot be right—even if Congress had omitted any reference to contractors, sub- contractors, or agents in the remaining language surely would prohibit a public company from directing someone else to engage in retaliatory conduct against the public company’s employees; hiring an ax-wielder to an- nounce an employee’s demotion does not change the fact that the public company is the entity commanding the demotion. Under the dissent’s reading of the inclusion of contractors as covered employers does no more than make the contractor secondarily liable for complying with such marching orders—hardly a hole at all.10 —————— 10 The dissent suggests that we “fai[l] to recognize” that its construc- tion also makes contractors primarily liable for retaliating of their own 14 LAWSON v. FMR LLC Opinion of the Court There would be a |
Justice Ginsburg | 2,014 | 5 | majority | Lawson v. FMR LLC | https://www.courtlistener.com/opinion/2655498/lawson-v-fmr-llc/ | FMR LLC Opinion of the Court There would be a huge hole, on the other hand, were the dissent’s view of ’s reach to prevail: Contractors’ employees would be disarmed; they would be vulnerable to retaliation by their employers for blowing the whistle on a scheme to defraud the public company’s investors, even a scheme engineered entirely by the contractor. Not only would mutual fund advisers and managers escape ’s control. Legions of accountants and lawyers would be denied ’s protections. See infra, at 19–22. Instead of indulging in fanciful visions of whistleblowing babysitters and the like, post, at 1–2, 6, 12–13, 20, the dissent might pause to consider whether a Congress, prompted by the Enron debacle, would exclude from whis- tleblower protection countless professionals equipped to bring fraud on investors to a halt. B We turn next to two textual arguments made by FMR. First, FMR urges that “an employee” must be read to refer exclusively to public company employees to avoid the absurd result of extending protection to the personal employees of company officers and employees, e.g., their housekeepers or gardeners. See Brief for Respondents 19– 20; post, at 1–2, 6, 12–13, 20. Plaintiffs and the Solicitor General do not defend ’s application to personal They argue, instead, that the prohibition against an “officer” or “employee” retaliating against “an employee” may be read as imposing personal liability only on officers and employees who retaliate against other public company Brief for Petitioners 12; Brief —————— volition against employees of public companies. Post, n. 6. As –12, n. 9, however, FMR and its supporters have identified not even one real-world instance of a public company employee asserting a claim alleging retaliatory conduct by a contractor. Again, no “gaping hole,” practically no hole at all. Cite as: 571 U. S. (2014) 15 Opinion of the Court for United States as Amicus Curiae 16.11 FMR calls this reading “bizarre,” for it would ascribe to the words “an employee” in “one meaning if the respondent is an ‘officer’ and a different meaning if the respondent is a ‘contractor.’ ” Brief for Respondents 20–21. We agree with FMR that plaintiffs and the Solicitor General offer an interpretation at odds with the text Con- gress enacted. If, as we hold, “an employee” includes employees of contractors, then grammatically, the term also includes employees of public company officers and Nothing suggests Congress’ attention was drawn to the curiosity its drafting produced. The issue, however, is likely more theoretical than real. Few house- keepers or gardeners, we suspect, are likely to come upon and comprehend evidence of |
Justice Ginsburg | 2,014 | 5 | majority | Lawson v. FMR LLC | https://www.courtlistener.com/opinion/2655498/lawson-v-fmr-llc/ | suspect, are likely to come upon and comprehend evidence of their employer’s complicity in fraud. In any event, FMR’s point is outweighed by the compelling arguments opposing FMR’s contention that “an employee” refers simply and only to public company em- ployees. See at 9–14. See also infra, –24 (limiting principles may serve as check against overbroad applications). Second, FMR argues that the statutory headings support the exclusion of contractor employees from ’s protections. Although ’s own heading is broad (“Civil action to protect against retaliation in fraud cases”), subsection (a) is captioned “Whistleblower Protec- tion for Employees of Publicly Traded Companies.” Simi- larly, the relevant public law section, of Sarbanes- Oxley, is captioned “Protection for Employees of Publicly Traded Companies Who Provide Evidence of Fraud.” 116 —————— 11 The ARB endorsed this view in Spinner v. David Landau & Assoc., LLC, No. 10–111 etc., ALJ No. –SOX–029, p. 8 We have no occasion to determine whether the ARB would be entitled to deference in this regard, for, as in text, we find that the statutory text unambiguously affords protection to personal employees of public company officers and 16 LAWSON v. FMR LLC Opinion of the Court Stat. 802. The Court of Appeals described the latter two headings as “explicit guides” limiting protection under to employees of public companies. 670 F.3d, at 69. This Court has placed less weight on captions. In (1947), we that where, as here, “the [statutory] text is complicated and prolific, headings and titles can do no more than indicate the provisions in a most general manner.” 28. The under-inclusiveness of the two headings relied on by the Court of Appeals is apparent. The provision indisputably extends protection to employ- ees of companies that file reports with the SEC pursuant to of the 1934 Act, even when such companies are not “publicly traded.” And the activity protected under is not limited to “provid[ing] evidence of fraud”; it also includes reporting violations of SEC rules or regula- tions. (1). As in Trainmen, the headings here are “but a short-hand reference to the general subject matter” of the provision, “not meant to take the place of the detailed provisions of the text.” 331 U.S., 28. Section 1514A is attended by numerous indicators that the statute’s prohibitions govern the relationship between a contractor and its own employees; we do not read the headings to “undo or limit” those signals. 29.12 III A Our textual analysis of fits the provision’s pur- pose. It is common ground that Congress installed whis- tleblower protection in the Sarbanes-Oxley Act as one —————— 12 AIR |
Justice Ginsburg | 2,014 | 5 | majority | Lawson v. FMR LLC | https://www.courtlistener.com/opinion/2655498/lawson-v-fmr-llc/ | protection in the Sarbanes-Oxley Act as one —————— 12 AIR 21’s anti-retaliation provision, on which is based, in- cludes a similarly composed heading, “Discrimination against airline ” 49 U.S. C. Nevertheless, that provision has been read to cover employees of companies rendering contract services to airlines. See infra, at 27–29. Cite as: 571 U. S. (2014) 17 Opinion of the Court means to ward off another Enron debacle. S. Rep., at 2– 11. And, as the ARB observed in Spinner, “Congress plainly recognized that outside professionals—ac- countants, law firms, contractors, agents, and the like— were complicit in, if not integral to, the shareholder fraud and subsequent cover-up [Enron] officers perpetrated.” ALJ No. –SOX–029, pp. 12–13. Indeed, the Senate Report demonstrates that Congress was as focused on the role of Enron’s outside contractors in facilitating the fraud as it was on the actions of Enron’s own officers. See, e.g., S. Rep., at 3 (fraud “occurred with extensive participation and structuring advice from Arthur Andersen which was simultaneously serving as both consultant and inde- pendent auditor for Enron” (internal quotation marks and brackets omitted)); (“professionals from account- ing firms, law firms and business consulting firms, who were paid millions to advise Enron on these practices, assured others that Enron was a solid investment”); at 4–5 (team of Andersen employees were tasked with de- stroying “physical evidence and documents” relating to Enron’s fraud); (“Enron and Andersen were taking advantage of a system that allowed them to behave in an apparently fraudulent manner”); (Enron’s fraud partly attributable to “the well-paid professionals who helped create, carry out, and cover up the complicated corporate ruse when they should have been raising con- cerns”); –21 (“Enron’s accountants and lawyers brought all their skills and knowledge to bear in assisting the fraud to succeed and then in covering it up.”). Also clear from the legislative record is Congress’ under- standing that outside professionals bear significant re- sponsibility for reporting fraud by the public companies with whom they contract, and that fear of retaliation was the primary deterrent to such reporting by the employ- ees of Enron’s contr Congressional investigators discovered ample evidence of contractors demoting or dis- 18 LAWSON v. FMR LLC Opinion of the Court charging employees they have engaged who jeopardized the contractor’s business relationship with Enron by ob- jecting to Enron’s financial practices. See, e.g., Oppel, Merrill Replaced Research Analyst Who Upset Enron, N. Y. Times, July 30, 2002, p. A1 (“In the summer of 1998, when it was eager to win more investment banking busi- ness from Enron, Merrill Lynch replaced a research ana- |
Justice Ginsburg | 2,014 | 5 | majority | Lawson v. FMR LLC | https://www.courtlistener.com/opinion/2655498/lawson-v-fmr-llc/ | busi- ness from Enron, Merrill Lynch replaced a research ana- lyst who had angered Enron executives by rating the company’s stock ‘neutral’ with an analyst who soon up- graded the rating, according to Congressional investi- gators.”); Yost, Andersen Whistleblower Was Removed, Associated Press (Congressional investiga- tion reveals that Andersen removed one of its partners from its Enron team after Enron officials expressed un- happiness with the partner’s questioning of certain ac- counting practices); Oppel, The Man Who Paid the Price for Sizing up Enron, N. Y. Times, Mar. 27, 2002, p. C1 (“Enron executives pressed UBS PaineWebber to take action against a broker who advised some Enron employ- ees to sell their shares in August and was fired by the brokerage firm within hours of the complaint, according to e-mail messages released today by Congressional investigators.”). In the same vein, two of the four examples of whistle- blower retaliation recounted in the Senate Report involved outside professionals retaliated against by their own employers. S. Rep., (on Andersen and UBS Paine- Webber employees); see also –5 (Andersen employ- ees who “attempted to report or ‘blow the whistle’ on [Enron’s] fraud were discouraged at nearly every turn”). Emphasizing the importance of outside profes- sionals as “gatekeepers who detect and deter fraud,” the Senate Report concludes: “Congress must reconsider the incentive system that has been set up that encourages accountants and lawyers who come across fraud in their work to remain silent.” –21. From this legisla- Cite as: 571 U. S. (2014) 19 Opinion of the Court tive history, one can safely conclude that Congress enacted aiming to encourage whistleblowing by contractor employees who suspect fraud involving the public compa- nies with whom they work.13 FMR argues that Congress addressed its concerns about the role of outside accountants and lawyers in facilitating Enron’s wrongdoing, not in but exclusively in other provisions of Sarbanes-Oxley “directly regulat[ing] accountants and lawyers.” Brief for Respondents 40. In particular, FMR points to sections of the Act requiring accountants and lawyers for public companies to investi- gate and report misconduct, or risk being banned from further practice before the SEC. 1 (citing 15 U.S. C. 7245). These requirements, however, indicate why Congress would have wanted to extend ’s coverage to the many lawyers and accountants who perform outside work for public companies. Although lawyers and accountants are subject to extensive regula- tions and sanctions throughout Sarbanes-Oxley, no provi- sion of the Act other than affords them protection from retaliation by their employers for complying with the Act’s reporting requirements.14 In short, we cannot coun- —————— 13 FMR urges that |
Justice Ginsburg | 2,014 | 5 | majority | Lawson v. FMR LLC | https://www.courtlistener.com/opinion/2655498/lawson-v-fmr-llc/ | In short, we cannot coun- —————— 13 FMR urges that the Senate Report’s references to “employees of publicly traded companies” demonstrate that Congress wanted to limit whistleblower protection to such Brief for Respondents 30– 31. This argument fails for the same reason that FMR’s reliance on the statutory section headings fails: “employees of publicly traded compa- nies” must be understood as shorthand not designed to capture every employee covered by See at 15–16. Senator Sarbanes’ statement, cited in the concurring opinion, post, at 2, is similarly imprecise. The Act indisputably covers private accounting firms and law firms that provide services to public companies. See, e.g., 15 U.S. C. 7245. Indeed, Senator Sarbanes acknowledged this point in his very next sentence. See 148 Cong. Rec. 14440 (remarks of Sen. Sarbanes) (“This legislation prohibits accounting firms from providing certain specified consulting services if they are also the auditors of the company.”). 14 The dissent suggests that the Public Company Accounting Oversight 20 LAWSON v. FMR LLC Opinion of the Court tenance the position advanced by FMR and the dissent, see post, –16, that Congress intended to leave these professionals vulnerable to discharge or other retaliatory action for complying with the law. B Our reading of avoids insulating the entire mutual fund industry from as FMR’s and the dissent’s “narrower construction” would do. As companies “required to file reports under section 15(d) of the Securi- ties Exchange Act of 1934,” 18 U.S. C. mutual funds unquestionably are governed by Because mutual funds figure prominently among such report-filing companies, Congress presumably had them in mind when it added to “publicly traded companies” the discrete cate- gory of companies “required to file reports under section 15(d).” Virtually all mutual funds are structured so that they have no employees of their own; they are managed, in- stead, by independent investment advisers. See S. Rep. No. 91–184, p. 5 (1969) (accompanying the 1970 amend- ments to the Investment Company Act of 1940). The United States investment advising industry manages $14.7 trillion on behalf of nearly 94 million investors. See Investment Company Fact Book 7 (53d ed.), availa- ble at http://www.icifactbook.org/pdf/_factbook.pdf (as visited Feb. 20, 2014, and available in Clerk of Court’s case file). These investment advisers, under our reading —————— Board’s and the SEC’s authority to sanction unprofessional conduct by accountants and lawyers, respectively, “could well provide” a disincen- tive to retaliate against other accountants and lawyers. See post, at 15. The possibility of such sanctions, however, is cold comfort to the ac- countant or lawyer who loses her job in retaliation for her efforts to comply |
Justice Ginsburg | 2,014 | 5 | majority | Lawson v. FMR LLC | https://www.courtlistener.com/opinion/2655498/lawson-v-fmr-llc/ | loses her job in retaliation for her efforts to comply with the Act’s requirements if, as the dissent would have it, does not enable her to seek reinstatement or backpay. Cite as: 571 U. S. (2014) 21 Opinion of the Court of are contractors prohibited from retaliating against their own employees for engaging in whistleblow- ing activity. This construction protects the “insiders [who] are the only firsthand witnesses to the [shareholder] fraud.” S. Rep., Under FMR’s and the dissent’s reading, in contrast, has no application to mutual funds, for all of the potential whistleblowers are employed by the privately held investment management companies, not by the mutual funds themselves. See Brief for Re- spondents 45 (describing this glaring gap as “merely a consequence of the corporate structure” of mutual funds). The Court of Appeals found exclusion of the mutual fund industry from tenable because mutual funds and their investment advisers are separately regulated under the Investment Company Act of 1940, 15 U.S. C. et seq., the Investment Advisers Act of 1940, 15 U.S. C. et seq., and elsewhere in Sarbanes-Oxley. –73. See also post, at 16–17, n. 10. But this separate regulation does not remove the problem, for nowhere else in these legislative measures are investment management employees afforded whistleblower protection. Section 1514A alone shields them from retaliation for bringing fraud to light. Indeed, affording whistleblower protection to mutual fund investment advisers is crucial to Sarbanes-Oxley’s endeavor to “protect investors by improving the accuracy and reliability of corporate disclosures made pursuant to the securities laws.” As plaintiffs observe, these disclosures are written, not by anyone at the mutual funds themselves, but by employees of the investment advisers. “Under FMR’s [and the dissent’s] proposed in- terpretation of section 1514A, FMR could dismiss any FMR employee who disclosed to the directors of or lawyers for the Fidelity funds that there were material falsehoods in the documents being filed by FMR with the SEC in the name of those funds.” Reply Brief 13. It is implausible 22 LAWSON v. FMR LLC Opinion of the Court that Congress intended to leave such an employee remedi- less. See C Unable credibly to contest the glaring under- inclusiveness of the “narrower reading” FMR urges, the dissent emphasizes instead FMR’s claim that the reading of we adopt is all too inclusive. See post, at 1–2, 6, 12–13, 20–21. FMR’s amici also press this point, observ- ing that the activity protected under (1) encom- passes reporting not only securities fraud (18 U.S. C. but also mail, wire, and bank fraud 1343, 1344). Including contractor employees in the protected |
Justice Ginsburg | 2,014 | 5 | majority | Lawson v. FMR LLC | https://www.courtlistener.com/opinion/2655498/lawson-v-fmr-llc/ | bank fraud 1343, 1344). Including contractor employees in the protected class, they therefore assert, could “cas[t] a wide net over employees who have no exposure to investor-related activ- ities and thus could not possibly assist in detecting inves- tor fraud.” Brief for Chamber of Commerce of the United States of America as Amicus Curiae 3. See also Brief for Securities Industry and Financial Markets Association as Amicus Curiae 7–16. There is scant evidence, however, that these floodgate- opening concerns are more than hypothetical. DOL’s regulations have interpreted as protecting con- tractor employees for almost a decade.15 See 69 Fed. Reg. 52105–52106 (2004). Yet no “narrower construction” advocate has identified even a single case in which the employee of a private contractor has asserted a claim based on allegations unrelated to shareholder fraud. FMR’s parade of horribles rests solely on Lockheed Martin a case involv- ing mail and wire fraud claims asserted by an employee of —————— 15 Although the dissent suggests that the ARB had not provided “de- finitive clarification” on the issue prior to Spinner, post the ARB “repeatedly interpreted [] as affording whistleblower protection to employees of [private] contractors” before Spinner. See Spinner, No. 10–111 etc., ALJ No. –SOX–029, p. 5 (citing prior decisions). Cite as: 571 U. S. (2014) 23 Opinion of the Court a public company—i.e., claims in no way affected by to- day’s decision. The dissent’s fears that household employ- ees and others, on learning of today’s decision, will be prompted to pursue retaliation claims, post, at 13, and that OSHA will find them meritorious under seem to us unwarranted. If we are wrong, however, Con- gress can easily fix the problem by amending explicitly to remove personal employees of public company officers and employees from the provision’s reach. But it would thwart Congress’ dominant aim if contractors were taken off the hook for retaliating against their whistle- blowing employees, just to avoid the unlikely prospect that babysitters, nannies, gardeners, and the like will flood OSHA with complaints. Plaintiffs and the Solicitor General observe that over- breadth problems may be resolved by various limit- ing principles. They point specifically to the word “contractor.” Plaintiffs note that in “common parlance,” “contractor” does not extend to every fleeting business relationship. Instead, the word “refers to a party whose performance of a contract will take place over a significant period of time.” Reply Brief 16. See also (“Nothing in implies that, if [a privately held business] buys a box of rubber bands from Wal-Mart, a company with traded securities, the [business] becomes covered by”). The Solicitor General further |
Justice Ginsburg | 2,014 | 5 | majority | Lawson v. FMR LLC | https://www.courtlistener.com/opinion/2655498/lawson-v-fmr-llc/ | securities, the [business] becomes covered by”). The Solicitor General further maintains that protects contractor employees only to the extent that their whistleblowing relates to “the contractor fulfilling its role as a contractor for the public company, not the con- tractor in some other capacity.” Tr. of Oral Arg. 18–19 See also (“[I]t has to be a person who is in a position to detect and report the types of fraud and securities violations that are included in the statute. [W]e think that ‘the contractor of such com- 24 LAWSON v. FMR LLC Opinion of the Court pany’ refers to the contractor in that role, working for the public company.’ ”). Finally, the Solicitor General suggests that we need not determine the bounds of today, because plaintiffs seek only a “mainstream application” of the provision’s protections. We agree. Plaintiffs’ allegations fall squarely within Congress’ aim in enacting Lawson alleges that she was construc- tively discharged for reporting accounting practices that overstated expenses associated with managing certain Fidelity mutual funds. This alleged fraud directly impli- cates the funds’ shareholders: “By inflating its expenses, and thus understating its profits, [FMR] could potentially increase the fees it would earn from the mutual funds, fees ultimately paid by the shareholders of those funds.” Brief for Petitioners 3. Zang alleges that he was fired for ex- pressing concerns about inaccuracies in a draft registra- tion statement FMR prepared for the SEC on behalf of certain Fidelity funds. The potential impact on share- holders of false or misleading registration statements needs no elaboration. If Lawson and Zang’s allegations prove true, these plaintiffs would indeed be “firsthand witnesses to [the shareholder] fraud” Congress anticipated would protect. S. Rep., D FMR urges that legislative events subsequent to Sarbanes-Oxley’s enactment show that Congress did not intend to extend ’s protections to contractor em- ployees.16 In particular, FMR calls our attention to the —————— 16 We can easily dismiss FMR’s invocation of a failed bill from 2004, the Mutual Fund Reform Act, S. 2059, 108th Cong., 2d Sess., which would have amended explicitly to cover employees of investment advisers and affiliates. Brief for Respondents 34–35. “[F]ailed legislative proposals are a particularly dangerous ground on which to rest an interpretation of a prior statute.” United States v. Cite as: 571 U. S. (2014) 25 Opinion of the Court Dodd-Frank Wall Street Reform and Consumer Protection Act, Dodd-Frank amended to read: “No company with a class of securities registered un- der section 12 of the Securities Exchange Act of 1934 (15 U.S. C. 78l), or that is required to file reports un- der |
Justice Ginsburg | 2,014 | 5 | majority | Lawson v. FMR LLC | https://www.courtlistener.com/opinion/2655498/lawson-v-fmr-llc/ | 78l), or that is required to file reports un- der [section 12] of the [1934 Act] (15 U.S. C. 78o(d)) including any subsidiary or affiliate whose financial information is included in the consolidated financial statements of such company, or nationally recognized statistical rating organization (as defined in section 3(a) of the [1934 Act] (15 U.S. C. 78c), or any officer, employee, contractor, subcontractor, or agent of such company or nationally recognized statistical rating or- ganization, may discharge, demote, suspend, threaten, harass, or in any other manner discriminate against an employee in the terms and conditions of employment because of any [protected activity].” 18 U.S. C. ( ed.) (emphasis added; foot- note omitted.) The amended provision extends ’s protection to employees of public company subsidiaries and nationally recognized statistical rating organizations (NRSROs). FMR asserts that Congress’ decision to add NRSROs to shows that the provision did not previously cover contractor employees: “If [] already covered every private company contracting with a public company, there would have been no need for Congress to extend [] to certain private companies.” Brief for Respondents 35– 36. This argument fails at the starting gate, for FMR —————— Craft, Where, as here, the proposed amendment amounted to six lines in a 51- page bill that died without any committee action, its failure is scarcely relevant to Congress’ intentions regarding a different bill enacted two years earlier. 26 LAWSON v. FMR LLC Opinion of the Court concedes that not all NRSROs are privately held, and not all NRSROs contract with public companies. We see nothing useful to our inquiry in Congress’ deci- sion to amend to include public company sub- sidiaries and NRSROs. More telling, at the time of the Dodd-Frank amendments, DOL regulations provided that protects contractor See 29 CFR (2009). Congress included in its alterations no language gainsaying that protection. As Judge Thomp- son’s dissent from the First Circuit’s judgment observes, “Congress had a miles-wide opening to nip [DOL’s] regula- tion in the bud if it had wished to do so. It did not.” 670 F.3d, at 88. Dodd-Frank also establishes a corporate whistleblowing reward program, accompanied by a new provision pro- hibiting any employer from retaliating against “a whistle- blower” for providing information to the SEC, participating in an SEC proceeding, or making disclosures required or protected under Sarbanes-Oxley and certain other securities laws. 15 U.S. C. (b)(1), (h). FMR urges that, as this provision covers employees of all com- panies, public or private, “[t]here is no justification” for reading to cover employees of contractors: “Any ‘gap’ that might, arguendo, have existed for employees |
Justice Ginsburg | 2,014 | 5 | majority | Lawson v. FMR LLC | https://www.courtlistener.com/opinion/2655498/lawson-v-fmr-llc/ | contractors: “Any ‘gap’ that might, arguendo, have existed for employees of private entities between 2002 and has now been closed.” Brief for Respondents 44.17 FMR, we note, somewhat overstates Dodd-Frank’s cov- erage. Section 1514A’s protections include employees who provide information to any “person with supervisory authority over the employee.” (1)(C). Dodd- Frank’s whistleblower provision, however, focuses primarily on reporting to federal authorities. See Brief for United States as Amicus Curiae 30 (“[I]f employees of contrac- —————— 17 FMR acknowledges that plaintiffs’ claims could have proceeded un- der Dodd-Frank, but for the date of enactment. Brief for Respondents 43. Cite as: 571 U. S. (2014) 27 Opinion of the Court tors of public companies are not protected under Section 1514A, they are not protected for making internal com- plaints under the Dodd-Frank Act.”). In any event, our task is not to determine whether including contractor employees in the class protected by remains necessary in 2014. It is, instead, to de- termine whether Congress afforded protection to contractor employees when it enacted in 2002. If anything relevant to our inquiry can be gleaned from Dodd-Frank, it is that Congress apparently does not share FMR’s concerns about extending protection comprehensively to corporate whistleblowers.18 IV We end by returning to AIR 21’s whistleblower protec- tion provision, 49 U.S. C. enacted two years before Sarbanes-Oxley. Congress designed to “track as closely as possible” the protections afforded by S. Rep., at 30. To this end, incorpo- rates by cross-reference administrative enforce- ment regime, see 18 U.S. C. (b)(2), and contains parallel statutory text. Compare (“No [public] company or any officer, employee, contractor, subcon- tractor, or agent of such company, may discharge, demote, suspend, threaten, harass, or in any other manner dis- criminate against an employee in the terms and conditions of employment” for engaging in protected activity) with 49 U.S. C. (“No air carrier or contractor or subcon- tractor of an air carrier may discharge an employee or otherwise discriminate against an employee with respect —————— 18 Section 1107 of the Act is of similar breadth, declaring it a criminal offense to “tak[e] any action harmful to any person, including interfer- ence with the lawful employment or livelihood of any person, for provid- ing to a law enforcement officer any truthful information relating to the commission or possible commission of any Federal offense.” 18 U.S. C. 28 LAWSON v. FMR LLC Opinion of the Court to compensation, terms, conditions, or privileges of em- ployment” for engaging in protected activity).19 Section 42121 has been read to protect employees of contractors covered by the provision. The ARB has |
Justice Ginsburg | 2,014 | 5 | majority | Lawson v. FMR LLC | https://www.courtlistener.com/opinion/2655498/lawson-v-fmr-llc/ | employees of contractors covered by the provision. The ARB has con- sistently construed AIR 21 to cover contractor E.g., Evans v. Miami Valley Hospital, ARB No. 07–118 etc., ALJ No. 2006–AIR–022, pp. 9–11 (June 30, 2009); Peck v. Safe Air Int’l, Inc., ARB No. 02–028, ALJ No. 2001–AIR–3, p. 13 (Jan. 30, 2004).20 And DOL’s regula- tions adopting this interpretation of date back to April 1, 2002, before was enacted. 67 Fed. Reg. 15454, 15457–15458 The Senate Report for AIR 21 supports this reading, explaining that the Act “provide[s] employees of airlines, and employees of airline contractors and subcontractors, with statutory whistleblower protec- tion.” S. Rep. No. 105–278, p. 22 (1998).21 The Court of Appeals recognized that Congress modeled on and that has been understood to protect contractor –74. It nonetheless declined to interpret the same way, because, in its view, “important differences” separate the two provisions. First, unlike contains a —————— 19 For other provisions borrowing from AIR 21, see 49 U.S. C. §9, governing rail carriers, which incorporates AIR 21’s enforcement procedures, and governing motor carriers, which incorporates AIR 21’s proof burdens. 20 The ARB has also interpreted similarly worded whistleblower pro- tection provisions in the Pipeline Safety Improvement Act of 2002, 49 U.S. C. and the Energy Reorganization Act of 1974, 42 U.S. C. as protecting employees of contr See Rocha v. AHR Utility Corp., ARB No. 07–112, ALJ No. 2006–PSI–001 etc., p. 2 (June 25, 2009); Robinson v. Triconex Corp., ARB No. 10–013, ALJ No. 2006–ERA–031, pp. 8–9 21 FMR protests that there is no court of appeals precedent on point, Brief for Respondents 24, n. 6, but the courts of appeals are not, of course, the only lodestar for determining whether a proposition of law is plainly established. Cite as: 571 U. S. (2014) 29 Opinion of the Court definition of “contractor”: “a company that performs safety- sensitive functions by contract for an air carrier.” 49 U.S. C. (e). Second, unlike does not include “officers” or “employees” among governed These distinctions, the Court of Appeals reasoned, render less amenable to an inclusive construction of the protected class. 22 We do not find these textual differences overwhelming. True, Congress strayed from pattern in failing to define “contractor” for purposes of and in adding “officers” and “employees” to ’s list of governed And we agree that covers a far wider range than does. But in our view, neither differ- ence warrants the determination that omits em- ployees of contractors while includes them. The provisions’ parallel text and purposes counsel in favor of interpreting the two provisions consistently. |
Justice Ginsburg | 2,014 | 5 | majority | Lawson v. FMR LLC | https://www.courtlistener.com/opinion/2655498/lawson-v-fmr-llc/ | purposes counsel in favor of interpreting the two provisions consistently. And we have already canvassed the many reasons why is most sensibly read to protect employees of contr See at 9–22. * * * For the reasons stated, we hold that 18 U.S. C. whistleblower protection extends to employees of contrac- tors and subcontr The judgment of the U. S. Court of Appeals for the First Circuit is therefore reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. —————— 22 The dissent suggests the provisions’ headings are also distinguish- able because title—“Protection of employees providing air safety information”—“comfortably encompasses the employees of contr” Post, at 8. The dissent omits, however, the subsection heading directly following the title: “Discrimination against airline ” Cite as: 571 U. S. (2014) 1 Opinion of SCALIA, J. SUPREME COURT OF THE UNITED STATES No. 12–3 JACKIE HOSANG LAWSON AND JONATHAN M. ZANG, PETITIONERS v. FMR LLC ET AL. ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT [March 4, 2014] JUSTICE SCALIA, with whom JUSTICE THOMAS joins, concurring in principal part and concurring in the judgment. I agree with the Court’s conclusion that 18 U.S. C. protects employees of private contractors from retaliation when they report covered forms of fraud. As the Court carefully demonstrates, that conclusion logically flows from ’s text and broader context. I therefore join the Court’s opinion in principal part. I do not endorse, however, the Court’s occasional excur- sions beyond the interpretative terra firma of text and context, into the swamps of legislative history. Reliance on legislative history rests upon several frail premises. First, and most important: That the statute means what Congress intended. It does not. Because we are a govern- ment of laws, not of men, and are governed by what Congress enacted rather than by what it intended, the sole object of the interpretative enterprise is to determine what a law says. Second: That there was a congressional “in- tent” apart from that reflected in the enacted text. On most issues of detail that come before this Court, I am confident that the majority of Senators and Representa- tives had no views whatever on how the issues should be resolved—indeed, were unaware of the issues entirely. Third: That the views expressed in a committee report or a 2 LAWSON v. FMR LLC Opinion of SCALIA, J. floor statement represent those of all the Members of that House. Many of them almost certainly did not read the report or hear the statement, much less |
Justice Ginsburg | 2,014 | 5 | majority | Lawson v. FMR LLC | https://www.courtlistener.com/opinion/2655498/lawson-v-fmr-llc/ | not read the report or hear the statement, much less agree with it—not to mention the Members of the other House and the Presi- dent who signed the bill. Since congressional “intent” apart from enacted text is fiction to begin with, courts understandably allow them- selves a good deal of poetic license in defining it. Today’s opinion is no exception. It cites parts of the legislative record that are consistent with its holding that covers employees of private contractors and subcontrac- tors, but it ignores other parts that unequivocally cut in the opposite direction. For example, the following remark by the Sarbanes-Oxley Act’s lead sponsor in the Senate: “[L]et me make very clear that [the Act] applies exclusively to public companies—that is, to companies registered with the Securities and Exchange Commission. It is not applicable to pr[i]v[at]e companies,[*] who make up the vast majority of companies across the country.” 148 Cong. Rec. 14440 (remarks of Sen. Sarbanes). Two other minor points in the Court’s opinion I do not agree with. First, I do not rely on the fact that a separate anti-retaliation provision, 49 U.S. C. “has been read” by an administrative tribunal to cover contractor Ante, at 29. Section 1514A(b)(2), entitled “Procedure,” contains cross-references to the procedural rules set forth in but the substantive provisions of are worded quite differently from the sub- stantive prohibition of which is contained in sub- section (a)—thus making interpretation of the latter an unreliable guide to ’s meaning. Second, I do not agree with the Court’s acceptance of the possible validity —————— * The Congressional Record reads “provide companies,” but context as well as grammar makes clear that this is a scrivener’s error for “private companies.” Cite as: 571 U. S. (2014) 3 Opinion of SCALIA, J. of the Government’s suggestion that “ protects contractor employees only to the extent that their whistle- blowing relates to ‘the contractor fulfilling its role as a contractor for the public company.’ ” Ante, (quoting Tr. of Oral Arg. 18–19). Although that “limiting prin- cipl[e],” ib may be appealing from a policy standpoint, it has no basis whatsoever in the statute’s text. So long as an employee works for one of the actors enumerated in and reports a covered form of fraud in a manner identified in the employee is protected from retaliation. For all the other reasons given by the Court, the stat- ute’s text is clear, and I would reverse the judgment of the Court of Appeals and remand the case. Cite as: 571 U. S. (2014) 1 SOTOMAYOR, J., dissenting SUPREME COURT OF THE |
Justice Burger | 1,972 | 12 | dissenting | Gooding v. Wilson | https://www.courtlistener.com/opinion/108492/gooding-v-wilson/ | I fully join in MR. JUSTICE BLACKMUN'S dissent against the bizarre result reached by the Court. It is not merely odd, it is nothing less than remarkable that a court can *529 find a state statute void on its face, not because of its languagewhich is the traditional testbut because of the way courts of that State have applied the statute in a few isolated cases, decided as long ago as 1905 and generally long before this Court's decision in Even if all of those cases had been decided yesterday, they do nothing to demonstrate that the narrow language of the Georgia statute has any significant potential for sweeping application to suppress or deter important protected speech. In part the Court's decision appears to stem from its assumption that a statute should be regarded in the same light as its most vague clause, without regard to any of its other language. Thus, since the statute contains the words "tending to cause a breach of the peace" the Court finds its result "compelled" by such decisions as and The statute at bar, however, does not prohibit language "tending to cause a breach of the peace." Nor does it prohibit the use of "opprobrious words or abusive language" without more. Rather, it prohibits use "to or of another, and in his presence [of] opprobrious words or abusive language, tending to cause a breach of the peace." If words are to bear their common meaning, and are to be considered in context, rather than dissected with surgical precision using a semantic scalpel, this statute has little potential for application outside the realm of "fighting words" that this Court held beyond the protection of the First Amendment in Chaplinsky. Indeed, the language used by the Chaplinsky Court to describe words properly subject to regulation bears a striking resemblance to that of the Georgia statute, which was enacted many, many years before Chaplinsky was decided. See And if the early Georgia cases cited by the majority establish any proposition, it is that the statute, as its language so clearly indicates, is aimed at *530 preventing precisely that type of personal, face-to-face, abusive and insulting language likely to provoke a violent retaliationself-help, as we euphemistically call it that the Chaplinsky case recognized could be validly prohibited. The facts of the case now before the Court demonstrate that the Georgia statute is serving that valid and entirely proper purpose. There is no persuasive reason to wipe the statute from the books, unless we want to encourage victims of such verbal assaults to seek their own private redress. |
Justice Burger | 1,972 | 12 | dissenting | Gooding v. Wilson | https://www.courtlistener.com/opinion/108492/gooding-v-wilson/ | of such verbal assaults to seek their own private redress. The Court apparently acknowledges that the conduct of the defendant in this case is not protected by the First Amendment, and does not contend that the Georgia statute is so ambiguous that he did not have fair notice that his conduct was prohibited. Nor does the Court deny that under normal principles of constitutional adjudication, appellee would not be permitted to attack his own conviction on the ground that the statute in question might in some hypothetical situation be unconstitutionally applied to the conduct of some party not before the Court. United Instead, the Court relies on certain sweeping language contained in a few opinions for the proposition that, without regard to the nature of appellee's conduct, the statute in question must be invalidated on its face unless "it is not susceptible of application to speech, that is protected by the First and Fourteenth Amendments." Such an expansive statement of the technique of invalidating state statutes on their face because of their substantial overbreadth finds little in policy or the actual circumstances of the Court's past decisions to commend it. As the Court itself recognizes, if the First Amendment overbreadth doctrine serves any legitimate purpose, it is to allow the Court to invalidate statutes because their language demonstrates their potential for *531 sweeping improper applications posing a significant likelihood of deterring important First Amendment speech not because of some insubstantial or imagined potential for occasional and isolated applications that go beyond constitutional bounds. Writing in a related context, Mr. Justice Black, only last Term, evidenced proper regard for normal principles of adjudication when he observed: "Procedures for testing the constitutionality of a statute `on its face'. and for then enjoining all action to enforce the statute until the State can obtain court approval for a modified version, are fundamentally at odds with the function of the federal courts in our constitutional plan. The power and duty of the judiciary to declare laws unconstitutional is in the final analysis derived from its responsibility for resolving concrete disputes brought before the courts for decision; a statute apparently governing a dispute cannot be applied by judges when such an application of the statute would conflict with the Constitution. But this vital responsibility, broad as it is, does not amount to an unlimited power to survey the statute books and pass judgment on laws before the courts are called upon to enforce them. [T]he task of analyzing a proposed statute, pinpointing its deficiencies, and requiring correction of these deficiencies before the statute is put |
Justice Burger | 1,972 | 12 | dissenting | Gooding v. Wilson | https://www.courtlistener.com/opinion/108492/gooding-v-wilson/ | requiring correction of these deficiencies before the statute is put into effect, is rarely if ever an appropriate task for the judiciary." These observations were directed specifically to the practice of issuing federal court injunctions against state prosecutions, but the problem presented by this case is much the same. *532 Consistent with this properly restrained approach, the overbreadth decisions of this Court, including most of those relied on by the majority, have up to now invalidated state statutes on their face only when their potential for sweeping and improper application in important areas of First Amendment concern was far more apparent both from the language of the statute and the subject matter of its coveragethan in this case. Indeed, in many of the Court's leading cases, the statute's improper sweep and deterrent potential were amply documented by the very facts of the case before the Court. heavily relied on by the majority, for example, involved a "breach of the peace" conviction of a leader of black students on the basis of his participation in a peaceful demonstration protesting racial discrimination and a speech urging a "sit in" at segregated lunch counters. Although the Court held, in the alternative, that a statutory prohibition against congregating with others on a public side-walk "with intent to provoke a breach of the peace, or under circumstances such that a breach of the peace may be occasioned thereby" was unconstitutionally vague and overbroad, it is clear that its primary holding was that the statute had been unconstitutionally applied to appellant's conduct as revealed by the record before the Court. See -551. In contrast to today's opinion, which mentions the facts of the instant case only by way of passing in a footnote, the Cox opinion contained a careful recital and examination of the facts involved, and took care to observe that there was not in the record "any evidence of `fighting words.' See" It was clear, therefore, that in Cox not only the language of the statute, but the facts of the very case before the Court, involving as it did protected political speech concerning a burning issue of great social concern, were cogent and persuasive evidence of the *533 statute's potential for sweeping and improper applications. By way of contrast, there is nothing in the language of the Georgia statute, or even in the isolated and ancient Georgia decisions relied on by the Court today that indicates that the statute involved in this case has ever been applied to suppress speech even remotely comparable to that involved in Cox. There is no need to |
Justice Douglas | 1,974 | 10 | majority | FPC v. New England Power Co. | https://www.courtlistener.com/opinion/108978/fpc-v-new-england-power-co/ | This case, companion to National Cable Television Assn. v. United States, ante, p. 336, raises another important problem of construction of the provisions of the Independent Offices Appropriation Act, 1952, Tit. 5, 31 U.S. C. 483a. The Federal Power Commission established filing fees under the Natural Gas Act and under the Federal Power Act. These filing fees have not been challenged. What was challenged were annual assessments under both Acts, levied in an effort of the agency to recoup some of the remaining costs under the two Acts. With respect to electric utilities, the Commission determines each year the costs of administering the Federal Power Act. The costs associated with the Commission's efforts to promote the co-ordination and *347 reliability of nonjurisdictional electric systems are not included. The Commission also deducts from administration costs the costs associated with services rendered to electric systems not subject to the Commission's jurisdiction and the amount received during the year from filing fees. The remaining balance is assessed against jurisdictional utilities[1] in proportion to their wholesale sales and interchange of electricity. In 1971 these companies had gross revenues of some $21 billion and net income of nearly $4 billion. The annual assessment challenged here involved 1973 and for all such electric companies was $5 million or 0.024% of gross revenue and 0.14% of net income. As respects natural gas companies, the Commission determines each year the costs of administering the natural gas pipeline programs under the Natural Gas Act, 15 U.S. C. 717 et seq. These costs, after deducting amounts received from filing fees, are assessed against all natural gas companies with annual operating revenues of $1,000,000 or more in proportion to their deliveries of natural gas in interstate commerce. In addition, all natural gas companies required to file an annual report on their total gas supply (18 CFR 260.7) are assessed one-tenth of a mill for each thousand cubic feet of new reserves of natural gas certificated each year to support the cost of the producer certificate program. *348 The Commission in its report, 45 F. P. C. 440 and 964, said as respects both electric utilities and natural gas companies that regulations have provided "the foundation for the sound financial condition which public utilities and natural gas companies have achieved." It mentioned the "industry-wide recognition of the benefits accruing from only one facet of the Commission's activitiesthe adoption of a uniform accounting system." n. 5. The Commission, while noting that its regulatory activities were beneficial to consumers, added that its actions "have redounded to the benefit of both industries by creating the |
Justice Douglas | 1,974 | 10 | majority | FPC v. New England Power Co. | https://www.courtlistener.com/opinion/108978/fpc-v-new-england-power-co/ | redounded to the benefit of both industries by creating the economic climate for greater usage of the services of the regulated companies which in turn have further strengthened their financial stability and their ability to sell debt and equity securities required for capital additions to meet ever-increasing demands." As respects electric utilities it noted that its regime was "system wide and beneficial" to the companies. As respects natural gas pipelines it listed its activities that were beneficial to them: "the issuance of temporary certificates to expedite deliveries, the elimination of indefinite price escalation provisions, and the control over the quality of natural gas to be delivered and the length of the period in which supplies may be delivered where advance payments are made by the pipelines." On petitions for review the Court of Appeals set aside that portion of the Commission's order establishing annual charges, 151 U. S. App. D. C. 371, The case is here on a petition for certiorari, *349 The Act in question, 31 U.S. C. 483a, authorizes the head of each federal agency to prescribe a "fee, charge, or price" for any "benefit, privilege, license, permit, certificate, registration or similar thing of value provided. by [the] Federal agency for any person (including groups, corporations)" which he determines "to be fair and equitable taking into consideration direct and indirect cost to the Government, value to the recipient, public policy or interest served, and other pertinent facts" The Court of Appeals held that whole industries are not in the category of those who may be assessed, the thrust of the Act reaching only specific charges for specific services to specific individuals or companies. We agree with the Court of Appeals. The report on the Act, H. R. Rep. No. 384, 82d Cong., 1st Sess., 2, states that "[t]he Committee is concerned that the Government is not receiving full return from many of the services which it renders to special beneficiaries" (emphasis added). It is true that the Act includes services rendered "to or for any person (including groups)." But if we are to construe the Act to cover only "fees" and not "taxes"as we held should be done in the National Cable Television case, ante, p. 336 the "fee" presupposes an application whether by a single company or by a group of companies. The Office of Management and Budget (then known as the Bureau of the Budget) issued a circular in 1959[2] construing the Act. That circular stated that a reasonable charge "should be made to each identifiable recipient for a measurable unit or amount of Government service |
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