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Justice Douglas | 1,974 | 10 | majority | FPC v. New England Power Co. | https://www.courtlistener.com/opinion/108978/fpc-v-new-england-power-co/ | recipient for a measurable unit or amount of Government service or property from which he derives a special benefit."[3]*350 (Emphasis added.) The circular also states that no charge should be made for services rendered, "when the identification of the ultimate beneficiary is obscure and the service can be primarily considered as benefitting broadly the general public."[4] *351 We believe that is the proper construction of the Act. Though it greatly narrows the Act from the dimensions urged by the Commission, it keeps it within the boundaries of the "fee" system and away from the domain of "taxes" toward which the Commission's "economic climate" argument would lead. Some of the assessments made by the Commission under its formula would be on companies which had no proceedings before the Commission during the year in question. The "identifiable recipient" of a unit of service from which "he derives a special benefit," to quote the Office of Management and Budget, does not describe members of an industry which have neither asked for nor received the Commission's services during the year in question. A blanket ruling by the Commission, say on accounting practices, may not be the result of an application. But each member of the industry which is required to adopt the new accounting system is an "identifiable recipient" of the service and could be charged a fee, if the new system was indeed beneficial to the members of the industry. There may well be other variations of a like nature which would warrant the fixing of a "fee" for services rendered. But what was done here is not within the scope of the Act. Hence the judgment of the Court of Appeals is Affirmed. MR. JUSTICE BLACKMUN and MR. JUSTICE POWELL took no part in the decision of this case. *352 MR. JUSTICE MARSHALL, with whom MR. JUSTICE BRENNAN joins, concurring in the result in No. 72-1162 and dissenting in No. 72-948, ante, p. 336. These cases present two distinct issues involving interpretation of the Independent Offices Appropriation Act, 1952: first, whether sufficient "work, service, benefit, or similar thing of value or utility" was conferred on the CATV operators or utility companies to warrant imposition of a fee under the statute; and, second, whether, if a fee was justifiably imposed, the amount of the fee was determined in accordance with a proper interpretation of the statutory standard that it 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." 31 U.S. C. 483a. The Court, however, |
Justice Douglas | 1,974 | 10 | majority | FPC v. New England Power Co. | https://www.courtlistener.com/opinion/108978/fpc-v-new-england-power-co/ | other pertinent facts." 31 U.S. C. 483a. The Court, however, fails to recognize that these issues require independent analysis. Instead, permeating the Court's opinions on both issues is an attempt to draw metaphysical distinctions between a "fee" and a "tax." I do not find this approach either helpful or appropriate; whatever the label, the questions presented in these cases involve simply whether the charges assessed by the Commissions were authorized by Congress. The Court's approach merely beclouds its analysis, producing results which seem to me inconsistent and affording guidance to the agencies in setting their fee policies which might be charitably described as uncertain. This approach is allegedly based on the need to construe the statute narrowly to avoid constitutional difficulties. I do not believe that any serious question of the constitutionality of the Act would be presented if Congress had in fact authorized these charges. The notion that the Constitution narrowly confines the power of Congress to delegate authority to administrative agencies, which was briefly in vogue in the 1930's, has *353 been virtually abandoned by the Court for all practical purposes,[1] at least in the absence of a delegation creating "the danger of overbroad, unauthorized, and arbitrary application of criminal sanctions in an area of [constitutionally] protected freedoms," United This doctrine is surely as moribund as the substantive due process approach of the same erafor which the Court is fond of writing an obituary, e. g., ; North Dakota Pharmacy if not more so. It is hardly surprising that, until today's decision, *354 the Court had not relied upon Schechter Poultry almost since the day it was decided.[2] I have no doubtand I suspect that a majority of the Court would agreethat Congress could constitutionally authorize the Commissions to impose annual charges of the sort involved here. Surely the congressionally prescribed standards, permitting imposition of fees for work done or service or benefit provided if they are "fair and equitable" taking into account "cost to the Government, value to the recipient, [and] public policy," are sufficiently definite to withstand any conceivable delegation objection. See, e. g., ; I therefore see no reason to construe the statute in an artificially narrow way to avoid nonexistent constitutional difficulties. Even on a neutral reading of the statute and its legislative history, however, I am convinced that Congress did not intend to authorize industrywide annual assessments like those at issue here. The movement in Congress to encourage Government agencies to establish fees to recover some of the costs of providing services to special beneficiaries began in 1950 with a study of 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/ | special beneficiaries began in 1950 with a study of the Senate Committee on Expenditures in the Executive Branch which culminated in a report to Congress on "Fees for Special Services." S. Rep. No. 2120, 81st Cong., 2d Sess. (1950). This report concluded that fees should be charged for agency services the benefits of which accrued wholly or primarily to special interests. In particular, the report pointed out that the FCC "renders a tremendous variety of services, a *355 substantial number of which would lend themselves to equitable fees." The report listed the type of services for which assessment of fees would be appropriate: radio station construction permits, radio station operating licenses and renewals, authorization of assignment or transfer of licenses, radio operator licenses, and certificates of public convenience and necessity.[3] On the other hand, the report was careful to point out the limited nature of its recommendations. It emphasized that it was not proposing that Government regulation in general be made self-sustaining by shifting the costs to those regulated: "There has been no quarrel with the philosophy governing the study that those who receive the benefit of services rendered by the Government especially for them should pay the costs thereof. In the several staff reports and press releases which have been issued, occasion has been taken to reiterate that philosophy and to give reassurance that there is no thought here to establish a system of fees for fundamental Government services, but only to explore the feasibility and fairness of shifting to special beneficiaries the expense now being borne for them by the taxpayers at large." These themes were reiterated during the 1951 hearings which led directly to enactment of the Independent Offices Appropriation Act, 1952. Hearings on Independent Offices Appropriations for 1952 before the Subcommittee on Independent Offices of the House Committee on Appropriations, 82d Cong., 1st Sess. (1951). The questions of the committee members reflected their *356 concern that the regulatory agencies were not recouping any part of the cost of services which benefited particular special interests. But it is apparent that the Committee had in mind imposition of fees for issuance of licenses, certificates of public convenience and necessity, and the like. And it was recognized that in the absence of this sort of special benefit, imposition of the cost of regulation on those regulated represented a different philosophical approach, as to which there had been in the past substantial resistance. The actual language of the Appropriation Act is quite general, and is certainly capable of varying interpretations. But the intended content of the statute's authorization of fees |
Justice Douglas | 1,974 | 10 | majority | FPC v. New England Power Co. | https://www.courtlistener.com/opinion/108978/fpc-v-new-england-power-co/ | But the intended content of the statute's authorization of fees to be charged for "any work, service publication, report, document, benefit, privilege, authority, use, franchise, license, permit, certificate, registration or similar thing of value or utility" can be gleaned from this legislative history. When the Committee Report expressed its concern that "the Government is not receiving full return from many of the services which it renders to special beneficiaries," H. R. Rep. No. 384, 82d Cong., 1st Sess., 2 (1951), and suggested that "fees could be charged for other services" "of the type here under consideration," I think that it contemplated imposition of application fees, registration fees, and fees for grants of licenses, permits, or other similar authorizations. This interpretation is consistent with the statutory language, with its long enumeration of specific, readily identifiable, and discrete Commission actions for which fees can be charged. This interpretation is consistent, also, with the explanation of the statute on the floor of the House offered by Representative Yates, in which he cited the award of franchises, licenses, certificates of public convenience and necessity, and construction permits as *357 examples of benefits for which fees could appropriately be charged by the FCC. 97 Cong. Rec. 4809 (1951). I see nothing in the legislative history which suggests any broader interpretation of the concept of "benefit" under the Act. On the contrary, since the broader view that the full cost of regulation should be assessed those subject to the agency's jurisdiction in the absence of a "special benefit" would have represented a controversial policy choice, I think that the very lack of debate over this provision of the Act and the ease with which it passed compel the more limited interpretation. The Committee Report itself noted that more "basic" changes in agency fee practice would have to await further study by congressional committees and additional legislation. H. R. Rep. No. 384, 82d Cong., 1st Sess., 2-3 (1951). I therefore do not believe that the creation of an "economic climate" which fosters the growth of a regulated industry is a sufficiently specific, discrete benefit within the meaning of the Appropriation Act to justify imposition of a fee. Nor do I think that this benefit is conferred upon a sufficiently identifiable recipient to be the basis for assessment of a fee. Accordingly, I agree with the Court's construction of the Act, ante, 49-350, and concur in the result in this case. I cannot agree, however, with the result in No. 72-948, National Cable Television Assn. v. United States, ante, p. 336. In view of the Court's conclusion in |
Justice Douglas | 1,974 | 10 | majority | FPC v. New England Power Co. | https://www.courtlistener.com/opinion/108978/fpc-v-new-england-power-co/ | ante, p. 336. In view of the Court's conclusion in No. 72-1162, I am mystified as to how the Court can reach its apparent, though completely unexplained, holding in No. 72-948 that operators of CATV systems may receive "special benefits" sufficient to sustain imposition of an annual fee under the Appropriation Act. Ante, 43. In 1970, when the fees at issue here were established, FCC regulation of CATV was quite limited. CATV operators did not receive licenses or any similar authorization from the Commission. *358 Rather, their franchises were generally awarded by state authorities, to whom the CATV operators pay franchise fees. Although FCC regulations prohibited carriage of distant signals into larger television markets unless Commission authorization was obtained, 47 CFR 74.1107 (1968),[4] carriage of local signals as well as distant signals into smaller markets was permitted, unless objections were raised, without the need for approval by the Commission. 47 CFR 74.1105 (c) (1968). Many of the CATV operators against whom these annual charges were assessed had no contact at all with the Commission during 1970, and some had never had any dealings with the Commission. The only other FCC regulations of CATV in 1970 pointed to by the Solicitor General are regulations which prohibit telephone companies and television broadcasters from entering the CATV field.[5] In my view, the mere existence of such regulation cannot justify the annual fees imposed in this case. While these regulations may have been of some benefit to the CATV industry in a very broad sense, I regard the FCC's argument on this point as identical to the FPC's *359 "economic climate" argument rejected by the Court in No. 72-1162. I can see no specific benefit provided or service rendered by the Commission on the order of the grant of a license or certificate, processing of an application, or even provision of a new and useful accounting system. Nor do I believe that the benefits of FCC regulation have been conferred on any identifiable recipient; I would think this a classic case where " `the identification of the ultimate beneficiary is obscure and the services can be primarily considered as benefitting broadly the general public.' " Ante, 50. I would therefore hold that the annual fees imposed in both these cases were not authorized by the statute. But since the Court apparently holds otherwise, and goes on to discuss the standards to be applied by the FCC in setting fees under the statute, I think it appropriate to express my views on this issue. I cannot agree with the Court that the only factor which |
Justice Douglas | 1,974 | 10 | majority | FPC v. New England Power Co. | https://www.courtlistener.com/opinion/108978/fpc-v-new-england-power-co/ | cannot agree with the Court that the only factor which the Commission may consider in determining the amount of the fees is the "value to the recipient." The statute provides that the fee must 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." This is a perfectly clear and intelligible standard, and I see no reason why, assuming a proper occasion for imposition of a fee, the Commission is not entitled to weigh each of the statutory considerations. It may well be true that the Commission here gave undue emphasis to one of the statutory factors, "cost to the Government." But the Court's response, to require that undue, seemingly exclusive reliance be placed on the standard of "value to the recipient" is, in my opinion, equally erroneous. It is also quite unrealistic and unworkable: How is the Commission to determine whether to set the fee at 1%, 5%, or 50% of the "value to the *360 recipient" unless it is also free to consider such other factors as "cost to the Government" and "public policy"? I would leave the Commission free to consider all the statutory standards in setting its fees. Certainly the Commission should be free to consider "cost to the Government,"[6] as well as the statutory mandate that the Commission "be self-sustaining to the full extent possible." It could not be clearer, from the language of the statute and from its genesis, that Congress intended these factors to be considered by the Commissions in setting their fee schedules. If the Court seriously believes that this somehow presents a substantial constitutional problem, then the constitutional issue should be squarely faced and resolved; it should not be permitted to justify the Court's rewriting of the statute contrary to congressional intent. I would affirm the judgment of the Court of Appeals in No. 72-1162 and reverse the judgment in No. 72-948. |
Justice White | 1,981 | 6 | dissenting | United States v. Swank | https://www.courtlistener.com/opinion/110480/united-states-v-swank/ | The Court today rejects the Internal Revenue Service's interpretation of 611 and 613 and the applicable regulation because it has not "suggested any rational basis for linking *586 the right to a depletion deduction to the period of time that the taxpayer operates a mine." Ante, at 585. The Court suggests that depletion tax policy should be the same "whether the entire operation is conducted by one taxpayer over a prolonged period or by a series of taxpayers operating for successive shorter periods." My disagreement with the Court's opinion is simple. It is not our function to speculate on who deserves an allowance; our duty is to determine if the Service's interpretation is a reasonable one. Since in my view the construction of the statutory provisions and the attendant regulation is clearly acceptable, I dissent. Congress has provided for a depletion allowance in recognition of the fact that mineral deposits are wasting assets, in order to compensate "the owner for the part used up in production." The theoretical justification for the allowance is that it will permit an owner to recoup his capital investment in the minerals as the resources are being exhausted. ; United The fact that the manner of calculating the depletion allowance has changed and is not that closely tied to the underlying justification of recouping a party's capital investment is immaterial since the method of calculating the deduction is a matter of convenience and "in no way alter[s] the fundamental theory of the allowance." Bankline In essence, therefore, any "right" to a depletion allowance under the statute is properly predicated on some indication of capital investment in the minerals in place. From the earliest cases dealing with the statutory predecessors of 611 and 613, this Court has recognized the "capital investment" theory underlying the depletion allowance. In the Court stated: "The language of the statute is broad enough to provide, *587 at least, for every case in which the taxpayer has acquired, by investment, any interest in the oil in place, and secures, by any form of legal relationship, income derived from the extraction of the oil, to which he must look for a return of his capital." (Emphasis supplied.) Other cases have expressed the capital investment theory in somewhat different terms by noting that there exists a critical distinction between possessing an economic interest in the minerals in place, which entitles a party to the depletion allowance, and possessing a mere economic advantage, which does not entitle one to the allowance. See Bankline ; Kirby Petroleum It is true, as recognized by the Court, that |
Justice White | 1,981 | 6 | dissenting | United States v. Swank | https://www.courtlistener.com/opinion/110480/united-states-v-swank/ | Petroleum It is true, as recognized by the Court, that the statute does not specifically refer to a minimum duration of a leasehold to qualify a lessee to an allowance. But it is also true that the Service has promulgated a regulation which has fully adopted the "economic advantage-interest" distinction noted in the Court's earlier opinions: " Economic interest. (1) Annual depletion deductions are allowed only to the owner of an economic interest in mineral deposits or standing timber. An economic interest is possessed in every case in which the taxpayer has acquired by investment any interest in mineral in place or standing timber and secures, by any form of legal relationship, income derived from the extraction of the mineral or severance of the timber, to which he must look for a return of his capital. A person who has no capital investment in the mineral deposit does not possess an economic interest merely because through a contractual relation he possesses a mere economic or pecuniary advantage derived from production. For example, *588 an agreement between the owner of an economic interest and another entitling the latter to purchase or process the product upon production or entitling the latter to compensation for extraction or cutting does not convey a depletable economic interest." Treas. Reg. 1.611-1 26 CFR 1.611-1 Under the Court's prior cases, the regulation's explicit acceptance of the economic-interest standard is proper and must be afforded substantial weight by a reviewing court. A regulation adopted pursuant to a statute must be given effect if there is a reasonable basis for the interpretation given by the Commissioner. See ; ; Here, imposing an economic-interest requirement for any entitlement to a depletion allowance is clearly reasonable given that our prior cases have indicated that the statute encompassed such a requirement. Indeed, earlier versions of the same regulation have been expressly accepted and applied by the Court. See, e. g., Paragon Coal Furthermore, although the term "economic interest" is not self-defining, the Service has the authority and the responsibility to interpret and apply the economic-interest standard contained in its own regulation. It has done so through various interpretative decisions and has concluded in the exercise of its expertise that the duration of the leasehold interest is a critical factor in determining a lessee's right to a depletion allowance under the statute.[1] A coal mining company's interest *589 in the coal lands may run from a straightforward fee simple ownership to a variety of lesser interests down to a nonexclusive right to extract coal as a tenant at will. The Service is of |
Justice White | 1,981 | 6 | dissenting | United States v. Swank | https://www.courtlistener.com/opinion/110480/united-states-v-swank/ | coal as a tenant at will. The Service is of the view that a taxpayer operating pursuant to a lease must be assured of a right to continue mining for a reasonably long period of time. Accordingly, the Service believes that a lease which is revocable on short notice does not create a sufficient economic interest to justify the taking of a depletion allowance. The Service's interpretation of its own regulation is entitled to deference. See Ford Motor Credit ; See also Fribourg Navigation (given that Congress gave to "the Secretary of the Treasury or his delegate, not to this Court, the primary responsibility of determining what constitutes a `reasonable' allowance for depreciation," courts should affirm the Commissioner's position *590 when he "adopts a rational position that is consistent with the purpose behind the depreciation deduction, congressional intent, and the language of the statute and interpretative Treasury Regulations"). Of course, Revenue Rulings and other interpretative documents do not have the same force as Treasury Regulations. But this fact does not mean that the consistent interpretation of the Service may be disregarded because the Court feels another interpretation is more reasonable, especially in cases like the present where the interpretation involves the application of terms expressly used in the regulation. Indeed, in National Muffler Dealers the Court afforded substantial deference to the Service's interpretation of a phrase in a regulation. Under the relevant regulation, certain tax advantages were made dependent on whether a particular activity was in a "line of business." Like the "economic interest" concept involved in this case, the meaning of "line of business" was open to different interpretations. The Commissioner, as expressed in a variety of Revenue Rulings, see had defined "line of business" in a narrow fashion. The Court upheld the administrative interpretation of the "line of business" concept, and stated: "In short, while the Commissioner's reading of (c) (6) perhaps is not the only possible one, it does bear a fair relationship to the language of the statute, it reflects the views of those who sought its enactment, and it matches the purpose they articulated. It evolved as the Commissioner administered the statute and attempted to give to a new phrase a content that would reflect congressional design. The regulation has stood for 50 years, and the Commissioner infrequently but consistently has interpreted it to exclude an organization like the Association that is not industrywide. The Commissioner's view therefore merits serious deference." *591 In my view, the posture of the present case is identical to that of National Muffler. Here, the acknowledged standard of an economic |
Justice White | 1,981 | 6 | dissenting | United States v. Swank | https://www.courtlistener.com/opinion/110480/united-states-v-swank/ | of National Muffler. Here, the acknowledged standard of an economic interest contained in the regulation has been interpreted by the Service to require a lessee to possess a lease which is not terminable at will on short notice. This consistent interpretation of the applicable regulation is entitled to deference, which the Court today chooses not to give it. It is also significant to note that this interpretation has also been accepted and applied by the majority of the lower courts that have considered the question.[2] *592 The Service's concern with the nature of the underlying lease in determining whether an economic interest exists is also reasonable in light of our prior cases. In this regard, and Paragon Coal provide two examples suggesting that the duration of a leasehold interest is an important factor in determining whether an economic interest exists. In the Court noted that the interest asserted by the mining contractors rested entirely on the contracts. The Court found that the mining contracts did not entitle them to a depletion allowance since the contracts "were completely terminable without cause on short notice." In Paragon a lessee made agreements with various companies to mine the coal. The agreements were silent regarding termination and were apparently for an indefinite period. The contractors were under no obligation to mine any specific amount of coal and were not given the right to mine any area to exhaustion. The Court held that the mining companies had no right to receive a depletion allowance. None of the reasons forwarded by the Court for rejecting the Service's view is persuasive. The fact that respondents did in fact mine to exhaustion is irrelevant to a determination of the legal rights underlying the leasehold. Indeed, the right to mine to exhaustion, without anything more, "does not constitute an economic interest under but is `a mere economic advantage derived from production, through a contractual relation to the owner, by one who has no capital investment in the mineral deposit.'" Paragon (quoting Bankline 303 U. S., ). Both Paragon and also make clear that the fact of coal mining itself, regardless how great the cost of *593 the equipment or structures required to mine the coal, is irrelevant to the determination whether a mining company is entitled to a depletion allowance. The costs of mining, like the costs of doing any business, are deductible as business expenses or are depreciable expenses under other parts of the Code, and do not themselves serve to create an economic interest in the minerals in place. Paragon ;[3] In essence, the Court argues that |
Justice White | 1,981 | 6 | dissenting | United States v. Swank | https://www.courtlistener.com/opinion/110480/united-states-v-swank/ | in place. Paragon ;[3] In essence, the Court argues that because respondents own the coal and sell it on the open market, they must have an interest in the mineral in place. Accordingly, so the argument goes, they are entitled to a depletion allowance because *594 they were "at risk" with respect to the market. To be sure, neither nor Paragon involved a situation where the mining concern sold in the open market. But obviously, if the relationship to the market was the sole factor of importance, then the opinions in those two cases could have been drastically simplified. The Court could have stated that the marketing system, in and of itself, was such as to preclude the taking of the depletion allowance. This the Court did not do, and I find it peculiar that the Court today chooses to rewrite those cases in light of what it determines to be the more important factor. Indeed, the Court's focus on the marketing scheme for determining whether a depletion allowance should be permitted is far less sensible than the Service's duration-of-the-lease requirement. Market conditions may change, and drastic changes could predictably result in the leases being cancelled. A company with an assured right to mine the coal for a term is not at the mercy of the lessor. Respondents had no such right and their reliance on the market for economic return on their investment is therefore illusory since it is dependent on the lessor's willingness to permit continued extraction of the coal. The fact that in these particular cases this did not happen is beside the point. What matters is that respondents had absolutely no legal right to mine coal beyond the 30-day period provided in the leases. In this light, the Service was well within bounds in concluding that they had not demonstrated an economic interest in the mineral in place. Of course, the question of what constitutes an economic interest is susceptible to differing interpretations. A 1-day lease would clearly not give the mining company any reasonable expectation of economic interest in the minerals in place. Perhaps equally clear is the fact that such an economic interest would be created by a long-term lease where the lessee has a guaranteed right to mine an area to exhaustion. In the grey area in between, reasonable minds could differ on the nature of the interests possessed. In my mind, the Service *595 has reasonably interpreted the acknowledged and accepted distinction between economic interest and economic advantage by focusing on the duration of the leasehold interest. In applying the economic-interest requirement, |
Justice White | 1,981 | 6 | dissenting | United States v. Swank | https://www.courtlistener.com/opinion/110480/united-states-v-swank/ | duration of the leasehold interest. In applying the economic-interest requirement, the Service has reasonably insisted upon some enforceable expectation of continuity in mining rights. It may well be that the Service could have concluded otherwise in the present cases. The point, however, is that the Service believes that a lease which is terminable on 30 days' notice without cause is not long enough to create an economic interest. Because I believe that the Service's long-held view, accepted by most lower courts, can hardly be considered to be irrational, I dissent from the Court's opinion which is nothing more than a substitution of what it deems meet and proper for the wholly reasonable views of the Internal Revenue Service as to the meaning of its own regulation and of the statutory provisions. It is also plain enough to see that with the owner recovering his investment tax-free, allowing depletion to these respondents with no more than an ephemeral interest in the coal is precisely the kind of an unjustified deduction, an undeserved windfall, that we should not require contrary to the informed views of the Service. |
Justice Blackmun | 1,978 | 11 | concurring | Crist v. Bretz | https://www.courtlistener.com/opinion/109893/crist-v-bretz/ | Although I join the Court's opinion, I write to emphasize the fact that I am not content to rest the result, as the Court seems to be, ante, at 36, solely on the defendant's "valued right to have his trial completed by a particular tribunal," a factor mentioned by Mr. Justice Black, speaking for the Court, in That approach would also support a conclusion that jeopardy attaches at the very beginning of the jury selection process. See Schulhofer, Jeopardy and Mistrials, Other interests are involved here as well: repetitive stress *39 and anxiety upon the defendant; continuing embarrassment for him; and the possibility of prosecutorial overreaching in the opening statement. It is perhaps true that each of these interests could be used, too, to support an argument that jeopardy attaches at some point before the jury is sworn. I would bring all these interests into focus, however, at the point where the jury is sworn because it is then and there that the defendant's interest in the jury reaches its highest plateau, because the opportunity for prosecutorial overreaching thereafter increases substantially, and because stress and possible embarrassment for the defendant from then on is sustained. MR. |
Justice Brennan | 1,971 | 13 | second_dissenting | Rogers v. Bellei | https://www.courtlistener.com/opinion/108307/rogers-v-bellei/ | Since the Court this Term has already downgraded citizens receiving public welfare, and citizens having the misfortune to be illegitimate, Labine v. Vincent, ante, p. 532, I suppose today's decision downgrading citizens born outside the United States should have been expected. Once again, as in James and Labine, the Court's opinion makes evident that its holding is contrary to earlier decisions. Concededly, petitioner was a citizen at birth, not by constitutional right, but only through operation of a federal statute. In the light of the complete lack of rational basis for distinguishing among citizens whose naturalization was carried out within the physical bounds of the United States, and those, like Bellei, who may be naturalized overseas, the conclusion is compelled that the reference in the Fourteenth Amendment to persons "born or naturalized in the United States" includes those naturalized through operation of an Act of Congress, wherever they may be at the time. Congress was therefore powerless to strip Bellei of his citizenship; he could lose it only if he voluntarily renounced or relinquished it. I dissent. |
Justice Burger | 1,981 | 12 | majority | Estelle v. Smith | https://www.courtlistener.com/opinion/110474/estelle-v-smith/ | We granted certiorari to consider whether the prosecution's use of psychiatric testimony at the sentencing phase of respondent's capital murder trial to establish his future dangerousness violated his constitutional rights. I A On December 2, 13, respondent Ernest Benjamin Smith was indicted for murder arising from his participation in the armed robbery of a grocery store during which a clerk was fatally shot, not by Smith, but by his accomplice. In accordance with Art. 1257 (b)(2) of the Tex. Penal Code Ann. (Vernon 14) concerning the punishment for murder with malice aforethought, the State of Texas announced its intention to seek the death penalty. Thereafter, a judge of the 195th Judicial District Court of Dallas County, Texas, informally ordered the State's attorney to arrange a psychiatric *457 examination of Smith by Dr. James P. Grigson to determine Smith's competency to stand trial.[1] See n. 5, infra. Dr. Grigson, who interviewed Smith in jail for approximately 90 minutes, concluded that he was competent to stand trial. In a letter to the trial judge, Dr. Grigson reported his findings: "[I]t is my opinion that Ernest Benjamin Smith, Jr., is aware of the difference between right and wrong and is able to aid an attorney in his defense." App. A-. This letter was filed with the court's papers in the case. Smith was then tried by a jury and convicted of murder. In Texas, capital cases require bifurcated proceedingsa guilt phase and a penalty phase.[2] If the defendant is found guilty, a separate proceeding before the same jury is held to fix the punishment. At the penalty phase, if the jury affirmatively answers three questions on which the State has the *45 burden of proof beyond a reasonable doubt, the judge must impose the death sentence. See Tex. Code Crim. Proc. Ann., Arts. 37.071 (c) and (e) One of the three critical issues to be resolved by the jury is "whether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society." Art. 37.071 (b)(2).[3] In other words, the jury must assess the defendant's future dangerousness. At the commencement of Smith's sentencing hearing, the State rested "[s]ubject to the right to reopen." App. A-11. Defense counsel called three lay witnesses: Smith's step-mother, his aunt, and the man who owned the gun Smith carried during the robbery. Smith's relatives testified as to his good reputation and character.[4] The owner of the pistol testified as to Smith's knowledge that it would not fire because of a mechanical defect. The State then called Dr. Grigson as |
Justice Burger | 1,981 | 12 | majority | Estelle v. Smith | https://www.courtlistener.com/opinion/110474/estelle-v-smith/ | a mechanical defect. The State then called Dr. Grigson as a witness. Defense counsel were aware from the trial court's file of the case that Dr. Grigson had submitted a psychiatric report in the form of a letter advising the court that Smith was competent to stand trial.[5] This report termed Smith "a severe *459 sociopath," but it contained no more specific reference to his future dangerousness. at A-. Before trial, defense counsel had obtained an order requiring the State to disclose the witnesses it planned to use both at the guilt stage and, if known, at the penalty stage. Subsequently, the trial court had granted a defense motion to bar the testimony during the State's case in chief of any witness whose name did not appear on that list. Dr. Grigson's name was not on the witness list, and defense counsel objected when he was called to the stand at the penalty phase. In a hearing outside the presence of the jury, Dr. Grigson stated: (a) that he had not obtained permission from Smith's attorneys to examine him; (b) that he had discussed his conclusions and diagnosis with the State's attorney; and (c) that the prosecutor had requested him to testify and had told him, approximately five days before the sentencing hearing began, that his testimony probably would be needed within the week. at A-14A-. The trial judge denied a defense motion to exclude Dr. Grigson's testimony on the ground that his name was not on the State's list of witnesses. Although no continuance was requested, the court then recessed for one hour following an acknowledgment by defense counsel that an hour was "all right." at A-17. After detailing his professional qualifications by way of foundation, Dr. Grigson testified before the jury on direct examination: (a) that Smith "is a very severe sociopath"; (b) that "he will continue his previous behavior"; (c) that his sociopathic condition will "only get worse"; (d) that he has no "regard for another human being's property or for their life, regardless of who it may be"; (e) that "[t]here is *40 no treatment, no medicine that in any way at all modifies or changes this behavior"; (f) that he "is going to go ahead and commit other similar or same criminal acts if given the opportunity to do so"; and (g) that he "has no remorse or sorrow for what he has done." at A-17A-2. Dr. Grigson, whose testimony was based on information derived from his 90-minute "mental status examination" of Smith (i. e., the examination ordered to determine Smith's competency to stand trial), |
Justice Burger | 1,981 | 12 | majority | Estelle v. Smith | https://www.courtlistener.com/opinion/110474/estelle-v-smith/ | the examination ordered to determine Smith's competency to stand trial), was the State's only witness at the sentencing hearing. The jury answered the three requisite questions in the affirmative, and, thus, under Texas law the death penalty for Smith was mandatory. The Texas Court of Criminal Appeals affirmed Smith's conviction and death sentence, and we denied certiorari, B After unsuccessfully seeking a writ of habeas corpus in the Texas state courts, Smith petitioned for such relief in the United States District Court for the Northern District of Texas pursuant to 2 U.S. C. 2254. The District Court vacated Smith's death sentence because it found constitutional error in the admission of Dr. Grigson's testimony at the penalty phase. The court based its holding on the failure to advise Smith of his right to remain silent at the pretrial psychiatric examination and the failure to notify defense counsel in advance of the penalty phase that Dr. Grigson would testify. The court concluded that the death penalty had been imposed on Smith in violation of his Fifth and Fourteenth Amendment rights to due process and freedom from compelled self-incrimination, his Sixth Amendment right to the effective assistance of counsel, and his Eighth Amendment right to present complete evidence of mitigating circumstances. *41 The United States Court of Appeals for the Fifth Circuit affirmed. The court held that Smith's death sentence could not stand because the State's "surprise" use of Dr. Grigson as a witness, the consequences of which the court described as "devastating," denied Smith due process in that his attorneys were prevented from effectively challenging the psychiatric testimony. The court went on to hold that, under the Fifth and Sixth Amendments, "Texas may not use evidence based on a psychiatric examination of the defendant unless the defendant was warned, before the examination, that he had a right to remain silent; was allowed to terminate the examination when he wished; and was assisted by counsel in deciding whether to submit to the examination." Because Smith was not accorded these rights, his death sentence was set aside. While "leav[ing] to state authorities any questions that arise about the appropriate way to proceed when the state cannot legally execute a defendant whom it has sentenced to death," the court indicated that "the same testimony from Dr. Grigson, based on the same examination of Smith" could not be used against Smith at any future resentencing proceeding. II A Of the several constitutional issues addressed by the District Court and the Court of Appeals, we turn first to whether the admission of Dr. Grigson's testimony at the |
Justice Burger | 1,981 | 12 | majority | Estelle v. Smith | https://www.courtlistener.com/opinion/110474/estelle-v-smith/ | to whether the admission of Dr. Grigson's testimony at the penalty phase violated respondent's Fifth Amendment privilege against compelled self-incrimination because respondent was not advised before the pretrial psychiatric examination that he had a right to remain silent and that any statement he made could be used against him at a sentencing proceeding. Our initial inquiry must be whether the Fifth Amendment privilege is applicable in the circumstances of this case. *42 (1) The State argues that respondent was not entitled to the protection of the Fifth Amendment because Dr. Grigson's testimony was used only to determine punishment after conviction, not to establish guilt. In the State's view, "incrimination is complete once guilt has been adjudicated," and, therefore, the Fifth Amendment privilege has no relevance to the penalty phase of a capital murder trial. Brief for Petitioner 33-34. We disagree. The Fifth Amendment, made applicable to the states through the Fourteenth Amendment, commands that "[n]o person shall be compelled in any criminal case to be a witness against himself." The essence of this basic constitutional principle is "the requirement that the State which proposes to convict and punish an individual produce the evidence against him by the independent labor of its officers, not by the simple, cruel expedient of forcing it from his own lips." (emphasis added). See also ; E. Griswold, The Fifth Amendment Today 7 (19). The Court has held that "the availability of the [Fifth Amendment] privilege does not turn upon the type of proceeding in which its protection is invoked, but upon the nature of the statement or admission and the exposure which it invites." In re Gault, In this case, the ultimate penalty of death was a potential consequence of what respondent told the examining psychiatrist. Just as the Fifth Amendment prevents a criminal defendant from being made "`the deluded instrument of his own conviction,'" quoting 2 Hawkins, Pleas of the Crown 595 (th ed. 124), it protects him as well from being made the "deluded instrument" of his own execution. We can discern no basis to distinguish between the guilt *43 and penalty phases of respondent's capital murder trial so far as the protection of the Fifth Amendment privilege is concerned.[] Given the gravity of the decision to be made at the penalty phase, the State is not relieved of the obligation to observe fundamental constitutional guarantees. See ; (1); 430 U.S. 3, Any effort by the State to compel respondent to testify against his will at the sentencing hearing clearly would contravene the Fifth Amendment.[7] Yet the State's attempt to establish respondent's future |
Justice Burger | 1,981 | 12 | majority | Estelle v. Smith | https://www.courtlistener.com/opinion/110474/estelle-v-smith/ | Fifth Amendment.[7] Yet the State's attempt to establish respondent's future dangerousness by relying on the unwarned statements he made to Dr. Grigson similarly infringes Fifth Amendment values. (2) The State also urges that the Fifth Amendment privilege is inapposite here because respondent's communications to Dr. Grigson were nontestimonial in nature. The State seeks support from our cases holding that the Fifth Amendment is not violated where the evidence given by a defendant is neither related to some communicative act nor used for the testimonial content of what was said. See, e. g., United (13) ; ; United ; *44 However, Dr. Grigson's diagnosis, as detailed in his testimony, was not based simply on his observation of respondent. Rather, Dr. Grigson drew his conclusions largely from respondent's account of the crime during their interview, and he placed particular emphasis on what he considered to be respondent's lack of remorse. See App. A-27A-29, A-33 A-34.[] Dr. Grigson's prognosis as to future dangerousness rested on statements respondent made, and remarks he omitted, in reciting the details of the crime.[9] The Fifth *45 Amendment privilege, therefore, is directly involved here because the State used as evidence against respondent the substance of his disclosures during the pretrial psychiatric examination. The fact that respondent's statements were uttered in the context of a psychiatric examination does not automatically remove them from the reach of the Fifth Amendment. See n. The state trial judge, sua sponte, ordered a psychiatric evaluation of respondent for the limited, neutral purpose of determining his competency to stand trial, but the results of that inquiry were used by the State for a much broader objective that was plainly adverse to respondent. Consequently, the interview with Dr. Grigson cannot be characterized as a routine competency examination restricted to ensuring that respondent understood the charges against him and was capable of assisting in his defense. Indeed, if the application of Dr. Grigson's findings had been confined to serving that function, no Fifth Amendment issue would have arisen. Nor was the interview analogous to a sanity examination occasioned by a defendant's plea of not guilty by reason of insanity at the time of his offense. When a defendant asserts the insanity defense and introduces supporting psychiatric testimony, his silence may deprive the State of the only effective means it has of controverting his proof on an issue that he interjected into the case. Accordingly, several Courts of Appeals have held that, under such circumstances, a defendant can be required to submit to a sanity examination conducted by the prosecution's psychiatrist. See, e. g., United (CA5), cert. |
Justice Burger | 1,981 | 12 | majority | Estelle v. Smith | https://www.courtlistener.com/opinion/110474/estelle-v-smith/ | by the prosecution's psychiatrist. See, e. g., United (CA5), cert. denied, 429 U.S. ; 52 F.2d 1144, (CA9 15); United -7 (CA7 11); United 93 (CA2 199), cert. denied, 402 U.S. 9 (11); United (CA4 19); Pope v. *4 United States, vacated and remanded on other grounds, 392 U.S. 51 (19).[] Respondent, however, introduced no psychiatric evidence, nor had he indicated that he might do so. Instead, the State offered information obtained from the court-ordered competency examination as affirmative evidence to persuade the jury to return a sentence of death. Respondent's future dangerousness was a critical issue at the sentencing hearing, and one on which the State had the burden of proof beyond a reasonable doubt. See Tex. Code Crim. Proc. Ann., Arts. 37.071 (b) and (c) To meet its burden, the State used respondent's own statements, unwittingly made without an awareness that he was assisting the State's efforts to obtain the death penalty. In these distinct circumstances, the Court of Appeals correctly concluded that the Fifth Amendment privilege was implicated. (3) In 34 U.S. 43, 47 the Court acknowledged that "the Fifth Amendment privilege is available outside of criminal court proceedings and serves to protect persons in all settings in which their freedom of action is curtailed in any significant way from being compelled to incriminate themselves." Miranda held that "the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination." Thus, absent other fully effective procedures, *47 a person in custody must receive certain warnings before any official interrogation, including that he has a "right to remain silent" and that "anything said can and will be used against the individual in court." at 47-49. The purpose of these admonitions is to combat what the Court saw as "inherently compelling pressures" at work on the person and to provide him with an awareness of the Fifth Amendment privilege and the consequences of forgoing it, which is the prerequisite for "an intelligent decision as to its exercise." The considerations calling for the accused to be warned prior to custodial interrogation apply with no less force to the pretrial psychiatric examination at issue here. Respondent was in custody at the Dallas County Jail when the examination was ordered and when it was conducted. That respondent was questioned by a psychiatrist designated by the trial court to conduct a neutral competency examination, rather than by a police officer, government informant, or prosecuting attorney, is immaterial. When Dr. Grigson went beyond simply |
Justice Burger | 1,981 | 12 | majority | Estelle v. Smith | https://www.courtlistener.com/opinion/110474/estelle-v-smith/ | prosecuting attorney, is immaterial. When Dr. Grigson went beyond simply reporting to the court on the issue of competence and testified for the prosecution at the penalty phase on the crucial issue of respondent's future dangerousness, his role changed and became essentially like that of an agent of the State recounting unwarned statements made in a postarrest custodial setting. During the psychiatric evaluation, respondent assuredly was "faced with a phase of the adversary system" and was "not in the presence of [a] perso[n] acting solely in his interest." at 49. Yet he was given no indication that the compulsory examination would be used to gather evidence necessary to decide whether, if convicted, he should be sentenced to death. He was not informed that, accordingly, he had a constitutional right not to answer the questions put to him. The Fifth Amendment privilege is "as broad as the mischief against which it seeks to guard," Counselman v. Hitchcock, *4 52 and the privilege is fulfilled only when a criminal defendant is guaranteed the right "to remain silent unless he chooses to speak in the unfettered exercise of his own will, and to suffer no penalty for such We agree with the Court of Appeals that respondent's Fifth Amendment rights were violated by the admission of Dr. Grigson's testimony at the penalty phase.[12] A criminal defendant, who neither initiates a psychiatric evaluation nor attempts to introduce any psychiatric evidence, may not be compelled to respond to a psychiatrist if his statements can be used against him at a capital sentencing proceeding. Because respondent did not voluntarily consent to the pretrial psychiatric examination after being informed of his right to remain silent and the possible use of his statements, the State could not rely on what he said to Dr. Grigson to establish his future dangerousness. If, upon being adequately warned, respondent had indicated that he would not answer Dr. Grigson's questions, the validly ordered competency examination nevertheless could have proceeded upon the condition that the results would be applied solely for that purpose. In such circumstances, the proper conduct and use of competency and sanity examinations are not frustrated, *49 but the State must make its case on future dangerousness in some other way. "Volunteered statements are not barred by the Fifth Amendment," but under we must conclude that, when faced while in custody with a court-ordered psychiatric inquiry, respondent's statements to Dr. Grigson were not "given freely and voluntarily without any compelling influences" and, as such, could be used as the State did at the penalty phase only if respondent had been |
Justice Burger | 1,981 | 12 | majority | Estelle v. Smith | https://www.courtlistener.com/opinion/110474/estelle-v-smith/ | did at the penalty phase only if respondent had been apprised of his rights and had knowingly decided to waive them. at 47. These safeguards of the Fifth Amendment privilege were not afforded respondent and, thus, his death sentence cannot stand.[13] B When respondent was examined by Dr. Grigson, he already had been indicted and an attorney had been appointed to represent him. The Court of Appeals concluded that he had a Sixth Amendment right to the assistance of counsel before submitting to the pretrial psychiatric 02 F.2d, at 70-709. We agree. The Sixth Amendment, made applicable to the states through the Fourteenth Amendment, provides that "[i]n all criminal prosecutions, the accused shall enjoy the right to have the assistance of counsel for his defence." The "vital" need for a lawyer's advice and aid during the pretrial phase was recognized by the Court nearly 50 years ago in 27 U.S. 45, Since then, we have held that the right to counsel granted by the Sixth Amendment means that a person is entitled to the help of a lawyer "at or after the time that adversary judicial proceedings have been initiated against him whether by way of formal *470 charge, preliminary hearing, indictment, information, or arraignment." 40 U.S. 2, -9 (12) ; 22-229 And in United 3 U. S., at 22-227, the Court explained: "It is central to [the Sixth Amendment] principle that in addition to counsel's presence at trial, the accused is guaranteed that he need not stand alone against the State at any stage of the prosecution, formal or informal, in court or out, where counsel's absence might derogate from the accused's right to a fair trial." (Footnote omitted.) See United 447 U.S. 24 ; See also (193); 3 U.S. 52 Here, respondent's Sixth Amendment right to counsel clearly had attached when Dr. Grigson examined him at the Dallas County Jail,[14] and their interview proved to be a "critical stage" of the aggregate proceedings against respondent. See () ; Defense *471 counsel, however, were not notified in advance that the psychiatric examination would encompass the issue of their client's future dangerousness,[15] and respondent was denied the assistance of his attorneys in making the significant decision of whether to submit to the examination and to what end the psychiatrist's findings could be employed. Because "[a] layman may not be aware of the precise scope, the nuances, and the boundaries of his Fifth Amendment privilege," the assertion of that right "often depends upon legal advice from someone who is trained and skilled in the subject matter." 419 U.S. 4, 4 (15). |
Justice Burger | 1,981 | 12 | majority | Estelle v. Smith | https://www.courtlistener.com/opinion/110474/estelle-v-smith/ | skilled in the subject matter." 419 U.S. 4, 4 (15). As the Court of Appeals observed, the decision to be made regarding the proposed psychiatric evaluation is "literally a life or death matter" and is "difficult even for an attorney" because it requires "a knowledge of what other evidence is available, of the particular psychiatrist's biases and predilections, [and] of possible alternative strategies at the sentencing hearing." 02 F.2d, at 70. It follows logically from our precedents that a defendant should not be forced to resolve such an important issue without "the guiding hand of counsel." at 9. Therefore, in addition to Fifth Amendment considerations, the death penalty was improperly imposed on respondent because the psychiatric examination on which Dr. Grigson testified at the penalty phase proceeded in violation of respondent's Sixth Amendment right to the assistance of counsel.[] *472 C Our holding based on the Fifth and Sixth Amendments will not prevent the State in capital cases from proving the defendant's future dangerousness as required by statute. A defendant may request or consent to a psychiatric examination concerning future dangerousness in the hope of escaping the death penalty. In addition, a different situation arises where a defendant intends to introduce psychiatric evidence at the penalty phase. See n. Moreover, under the Texas capital sentencing procedure, the inquiry necessary for the jury's resolution of the future dangerousness issue is in no sense confined to the province of psychiatric experts. Indeed, some in the psychiatric community are of the view that clinical predictions as to whether a person would or would not commit violent acts in the future are "fundamentally of very low reliability" and that psychiatrists possess no special qualifications for making such forecasts. See Report of the American Psychiatric Association Task Force on Clinical Aspects of the Violent Individual 23-30, 33 (14); A. Stone, Mental Health and Law: A system in Transition 27-3 (15); Brief for American Psychiatric Association as Amicus Curiae 11-17. In 42 U.S. 22 we held that the Texas capital sentencing statute is not unconstitutional on its face. As to the jury question on future dangerousness, the joint opinion announcing the judgment emphasized that a defendant is free to present whatever mitigating factors he may be able to show, e. g., the range and severity of his past criminal conduct, his age, and the circumstances surrounding the crime for which he is being sentenced. The State, of course, can use the same type of evidence in seeking *473 to establish a defendant's propensity to commit other violent acts. In responding to the argument that foretelling future |
Justice Burger | 1,981 | 12 | majority | Estelle v. Smith | https://www.courtlistener.com/opinion/110474/estelle-v-smith/ | violent acts. In responding to the argument that foretelling future behavior is impossible, the joint opinion stated: "[P]rediction of future criminal conduct is an essential element in many of the decisions rendered throughout our criminal justice system. The decision whether to admit a defendant to bail, for instance, must often turn on a judge's prediction of the defendant's future conduct. And any sentencing authority must predict a convicted person's probable future conduct when it engages in the process of determining what punishment to impose. For those sentenced to prison, these same predictions must be made by parole authorities. The task that a Texas jury must perform in answering the statutory question in issue is thus basically no different from the task performed countless times each day throughout the American system of criminal justice." at 275-27 While in no sense disapproving the use of psychiatric testimony bearing on the issue of future dangerousness, the holding in Jurek was guided by recognition that the inquiry mandated by Texas law does not require resort to medical experts. III Respondent's Fifth and Sixth Amendment rights were abridged by the State's introduction of Dr. Grigson's testimony at the penalty phase, and, as the Court of Appeals concluded, his death sentence must be vacated.[17] Because respondent's underlying conviction has not been challenged and remains undisturbed, the State is free to conduct further proceedings *474 not inconsistent with this opinion. Accordingly, the judgment of the Court of Appeals is Affirmed. JUSTICE BRENNAN. I join the Court's opinion. I also adhere to my position that the death penalty is in all circumstances unconstitutional. JUSTICE MARSHALL, concurring in part. I join in all but Part II-C of the opinion of the Court. I adhere to my consistent view that the death penalty is under all circumstances cruel and unusual punishment forbidden by the Eighth and Fourteenth Amendments. I therefore am unable to join the suggestion in Part II-C that the penalty may ever be constitutionally imposed. JUSTICE STEWART, with whom JUSTICE POWELL joins, concurring in the judgment. |
Justice Roberts | 2,007 | 0 | dissenting | Abdul-Kabir v. Quarterman | https://www.courtlistener.com/opinion/145742/abdul-kabir-v-quarterman/ | A jury imposed a sentence of death in each of these cases, despite hearing mitigating evidence from the defendants about their troubled backgrounds. The convictions and sentences were upheld on direct review. On state collateral review, each defendant claimed that the jury instructions did not allow sufficient consideration of the mitigating evidence. This Court had considered similar challenges to the same instructions no fewer than five times in the years before the state habeas courts considered the challenges at issue here. See ; ; ; ; Four of the cases rejected the defendant's challenge. Only onePenry upheld it. The guidance the Court gave in these five cases on whether the jury instructions at issue allowed sufficient consideration of mitigating evidence amounted toit depends. t depends on the particular characteristics of the evidence in a specific case. The state courts here rejected the claim as applied to the particular mitigating evidence in these cases, and the defendants sought federal habeas review. Under the Antiterrorism and Effective Death Penalty Act of (AEDPA), however, a state-court decision can be set aside on federal habeas review only if it is "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." 28 U.S.C. *1676 2254(d)(1). When this Court considers similar challenges to the same jury instructions five separate times, it usually is not because the applicable legal rules are "clearly established." The Court today nonetheless picks from the five precedents the one that ruled in favor of the defendant Penry and anoints that case as the one embodying "clearly established Federal law." n doing so the Court fails to give any meaningful weight to the two pertinent precedents subsequent to Penry and even though those cases adopted a more "limited view" of Penry than the Court embraces today. ndeed, the reading of Penry in and prompted every one of the remaining Justices who had been in the majority in Penry on the pertinent question to dissent in and on the ground that the Court was failing to adhere to Penry suppose the Court today is free to ignore the import of and on the question of what Penry means, but in 1999 or respectivelywhen petitioners were denied collateral relief the state courts did not have that luxury. They should not be faulted today for concludingexactly as the and dissenters didthat the Court had cut back significantly on Penry We give ourselves far too much credit in claiming that our sharply divided, ebbing and flowing decisions in this area gave rise to "clearly |
Justice Roberts | 2,007 | 0 | dissenting | Abdul-Kabir v. Quarterman | https://www.courtlistener.com/opinion/145742/abdul-kabir-v-quarterman/ | and flowing decisions in this area gave rise to "clearly established" federal law. f the law were indeed clearly established by our decisions "as of the time of the relevant state-court decision," it should not take the Court more than a dozen pages of close analysis of plurality, concurring, and even dissenting opinions to explain what that "clearly established" law was. Ante, at 1-1672. When the state courts considered these cases, our precedents did not provide them with "clearly established" law, but instead a dog's breakfast of divided, conflicting, and ever-changing analyses. That is how the Justices on this Court viewed the matter, as they shifted from being in the majority, plurality, concurrence, or dissent from case to case, repeatedly lamenting the failure of their colleagues to follow a consistent path. Whatever the law may be today, the Court's ruling that `twas always soand that state courts were "objectively unreasonable" not to know it, is utterly revisionist. n 1987, Jalil Abdul-Kabirreferred to by his given name, Ted Calvin Cole, throughout this opinion, ante, at 1659, n. 1was convicted of capital murder after he confessed to strangling 66-year-old Raymond Richardson with a dog leash to steal $20 from him. Among the 21 claims Cole raised on state collateral review was a challenge under Penry to the application of Texas's special issue jury instructions. n evaluating Cole's challenge, the state habeas trial court stated: "The issue is whether the sentencing jury had been unable to give effect to [Cole's mitigating evidence within the confines of the statutory `special issues.' While [Penry held that evidence of a defendant's mental retardation and abused childhood could not be given mitigating effect by a jury within the framework of the special issues, the cases that followed such as [, and held that the mitigating *1677 evidence of alcoholism, drug abuse, bad family background, bipolar disorder, low Q., substance abuse, head injury, paranoid personality disorder and child abuse were sufficiently considered under the special issues. The issue of whether the mitigating evidence can be sufficiently considered must be determined on a case by case basis, depending on the nature of the mitigating evidence offered and whether there exists other testimony in the record that would allow consideration to be given." App. in No. 05-11284, pp. 159-160. Applying that standard, the state court concluded that "[the evidence presented at the punishment stage of the trial, especially evidence from [Cole's expert witnesses, provide[d a basis for the jury to sufficiently consider the mitigating evidence." The Texas Court of Criminal Appeals adopted the trial court's findings without substantive comment, and |
Justice Roberts | 2,007 | 0 | dissenting | Abdul-Kabir v. Quarterman | https://www.courtlistener.com/opinion/145742/abdul-kabir-v-quarterman/ | Appeals adopted the trial court's findings without substantive comment, and denied Cole's application for habeas corpus relief on November 24, 1999. n finding that the state court's decision was objectively unreasonable, the Court begins by stating that the principle the state court violated was "firmly established," based on "[a careful review of our jurisprudence in this area." Ante, at 1. The only thing clear about our jurisprudence on the pertinent question in 1999, however, is that it was unsettled and confused. n Jurek, the Court upheld Texas's use of the special issues as facially constitutional, with the controlling opinion noting that "the constitutionality of the Texas procedures turns on whether the enumerated questions allow consideration of particularized mitigating factors." (joint opinion of Stewart, Powell, and STEVENS, JJ.). n so doing, Jurek left open the possibility that some mitigating evidence might not be within the reach of the jury under the special issues; other types of mitigating evidence, of course, would be. Cf. (suggesting that the future dangerousness special issue allowed the jury to consider prior criminal conduct, age, duress, and whether the defendant was under extreme mental pressure). The next occasion the Court had to consider mitigating evidence under the Texas special issues arose in Franklin, in which the Court concluded that the defendant's mitigating evidence of good behavior in prison was taken into account under the future dangerousness special 487 U.S., (plurality opinion); (O'Connor, J., concurring in judgment). A plurality of the Court also rejected the argument that a jury must be permitted to give "independent" effect to mitigating evidencebeyond the special issuesconcluding that "this submission is foreclosed by Jurek" and rejecting the dissent's argument to the contrary. and n. 10, ; see also (STEVENS, J., dissenting). The Court today places great weight on the opinion by Justice O'Connor concurring in the judgment in Franklin, an opinion joined only by Justice Blackmun. Ante, at 1667-1669. That separate opinion expressed "doubts" about the plurality's view that mitigating evidence need not be given effect beyond the special issues, noting that if the petitioner in Franklin had introduced evidence not covered by the special issues, "we would have to decide whether the jury's inability to give effect to that evidence amounted to an Eighth Amendment violation." 185, The separate opinion concluded, however, that "this is not such a case." 108 S.Ct. *1678 2320. According to the Court today, a discerning state judge should have seen that federal law was "clearly established" on the point by the concurring and dissenting opinions, not the plurality. Ante, at 1667-1669. Penry decided the following Term, concluded |
Justice Roberts | 2,007 | 0 | dissenting | Abdul-Kabir v. Quarterman | https://www.courtlistener.com/opinion/145742/abdul-kabir-v-quarterman/ | plurality. Ante, at 1667-1669. Penry decided the following Term, concluded that in that case the Texas instructions did not allow the jury to give mitigating effect to evidence of Penry's mental retardation and abusive 315, ("Penry does not dispute that some types of mitigating evidence can be fully considered by the sentencer in the absence of special jury instructions. nstead, Penry argues that, on the facts of this case, the jury was unable to fully consider and give effect to the mitigating evidence in answering the three special issues" (emphasis added; citations omitted)). n granting relief, the Court, the Franklin concurrence, noted that Penry's evidence "`had relevance to [his moral culpability beyond the scope of the special verdict questions,'" ( 487 U.S., (O'Connor, J., concurring in judgment); some alterations deleted), and that it was relevant to the special issues "only as an aggravating factor." (emphasis in original). According to the Court today, the views of the Franklin concurrence and dissent were thus elevated to the opinion of the Court in Penry again clearly establishing federal law. Ante, at 1668-1669, and n. 15. The four dissenters in Penry complained that the Court's holding "flatly contradic[ted" Jurek, and that in finding a constitutional violation, the Court was "throwing away Jurek in the process." 354, (SCALA, J., concurring in part and dissenting in part). A state court looking at our pertinent precedents on the Texas special issue instructions would next have to consider the significance of That caseissued less than nine months after Penry considered Oklahoma instructions, but extensively analyzed Penry in doing so. See -492, The Court concluded that the mitigating evidence in that case could be adequately considered by the jury under the instructions given. The four dissenters in Saffleincluding the author of today's opinioncomplained that the majority's discussion of Penry was "strangely reminiscent" of the position of the Penry (opinion of Brennan, J.). The Saffle dissenters asserted that the majority's failure to reject the position of the Penry dissenters "creates considerable ambiguity about which Lockett [v. Ohio, claims a federal court may hereafter consider on habeas corpus review." -505, n decided three years later, the Court sought to clarify the interplay between Jurek, Franklin, and Penry : "t seems to us, however, that reading Penry as petitioner urgesand thereby holding that a defendant is entitled to special instructions whenever he can offer mitigating evidence that has some arguable relevance beyond the special issueswould be to require in all cases that a fourth `special issue' be put to the jury: "`Does any mitigating evidence before you, whether or not relevant to |
Justice Roberts | 2,007 | 0 | dissenting | Abdul-Kabir v. Quarterman | https://www.courtlistener.com/opinion/145742/abdul-kabir-v-quarterman/ | any mitigating evidence before you, whether or not relevant to the above [three questions, lead you to believe that the death penalty should not be imposed?'" The Franklin plurality rejected precisely this contention, finding it irreconcilable with the Court's holding in Jurek, and we affirm that conclusion today." -477, *1679 (citation omitted; second emphasis added). Thus, in the Court rejected the reading of Franklin and Penry that the Court today endorses, reasoning that it would require a new sentencing in every case, and would be impossible to square with Jurek.[1 Although the Court today tells us it was clear that the applicable federal law was established by the Franklin concurrence and dissent, and that Penry had to be read in that light, ante, at 1668-1669, the Court majority in specifically relied instead upon the Franklin plurality in rejecting the same broad reading of Penry the Court resuscitates today, nunc pro tunc. The dissenters in including every remaining Member of the Penry majoritywere adamant that Penry should have been controlling in See, (opinion of SOUTER, J., joined by Blackmun, STEVENS, and O'Connor, JJ.) ("Our description of Penry's claim applies. almost precisely to 's claim"); ("['s position is identical to that of Penry"); ("Penry controls in this respect, and we should adhere to it"); ("[The case is controlled by Penry"). The issue is not whether the majority or the dissenters in were right about how to read Penry but whether it was reasonable for a state court in 1999 to read it the way the majority in plainly did. Later the same Term, in the Court reaffirmed the "limited view of Penry" it had adopted in 509 U.S., Once again the Court majority specifically relied on the Franklin pluralitynot the concurrence and See -371, And once again the dissentersincluding every remaining Member of the Penry majoritylamented the Court's asserted failure to adhere to Penry -386, (opinion of O'Connor, J., joined by Blackmun, STEVENS, and SOUTER, JJ.). The dissentby the Penry author made precisely the same point made by the Court today about how to read the Franklin concurrence and -386, The difference, of course, was that in the point was made in t cannot have been "objectively unreasonable" for a state court, in 1999, to have been guided by the majority on this question, rather than by the n short, a state court reading our opinions would see an ongoing debate over the meaning and significance of Penry That state court would see four dissenters in and including every remaining Member of the Penry majorityarguing that the Court was failing to |
Justice Roberts | 2,007 | 0 | dissenting | Abdul-Kabir v. Quarterman | https://www.courtlistener.com/opinion/145742/abdul-kabir-v-quarterman/ | of the Penry majorityarguing that the Court was failing to follow or sharply limiting Penry in those cases. On the flip side, the state court would see four dissenters in Penry every one later joining the majorities in and suggesting that the Penry majority departed from Jurek. t is in that context that the Court today *1680 tells us that the state courts should have regarded Penry as "clearly established Federal law, as determined by the Supreme Court of the United States." 2254(d)(1). The Court asserts that and did not "disturb the basic legal principle" at issue, ante, at 1671, and that we cite no post-Penry cases inconsistent with its reading of that case, ante, at 1668, n. 14. do not understand how the author of today's opinion can say that did not disturb the principle of Penry however, when he joined a dissent in stating that "['s position is identical to that of Penry" and that 's case "is controlled by Penry." 506 U.S., 520, (opinion of SOUTER, J.) (emphasis added). That would seem to suggest that was inconsistent with Penry do not understand how the author of today's opinion can say that had no effect on Penry when he joined a dissent in stating that the majority opinion "upset our settled Eighth Amendment jurisprudence." (opinion of O'Connor, J.). Now is dismissed as just an application of "basic legal principle[s," over which Justices can disagree, ante, at 1671; back then it "upset our settled Eighth Amendment jurisprudence." And what of Saffle? There the author of today's opinion joined a dissent claiming that the majority was adopting the rule rejected in Penry (opinion of Brennan, J.). Again, that would seem to suggest inconsistency with Penry [2 n fact, Penry is not even consistent with the reading the Court ascribes to it in that case the Court concluded that a jury could only view Penry's mitigating evidence as aggravating, and thus could not give the evidence any mitigating (Penry's evidence was "relevant only as an aggravating factor" (emphasis in original)); see also ("Although Penry's evidence of mental impairment and childhood abuse indeed had relevance to the `future dangerousness' inquiry, its relevance was aggravating only" (emphasis in original)). The Court concedes that Cole's evidence in the present case was not purely aggravating, see ante, at 1672 ("[The jury could give mitigating effect to some of the experts' testimony"), thus drawing into even starker contrast the rule that was established by a fair reading of Penry in 1999 versus the rule the Court today reads Penry to have "clearly established." As might |
Justice Roberts | 2,007 | 0 | dissenting | Abdul-Kabir v. Quarterman | https://www.courtlistener.com/opinion/145742/abdul-kabir-v-quarterman/ | Court today reads Penry to have "clearly established." As might be expected in light of the foregoing, judges called upon to apply these precedents were confused by the ambiguity of this Court's pronouncements. See, (Baird, J., concurring) ("The Supreme Court's holdings in Penry, and do not provide an analytical framework to determine when our capital sentencing scheme fails to allow the jury to consider and give effect to mitigating evidence"); see *1681 also (remarking, in applying and Penry that "[there is no easy way to locate [the defendant at either pole"). Commentators at the time likewise concluded that and "put a cap on Penry's principles." Denno, Testing Penry and ts Progeny, 22 Am. J.Crim. L. 1, 10 ("n the Court made clear that it did not interpret Penry `as effecting a sea change' in its evaluation of the constitutionality of the former Texas death penalty statute"). See also Twenty-Eighth Annual Review of Criminal Procedure, ("The possible reach of Penry has been circumscribed by [ and ["). t is a familiar adage that history is written by the victors, but it goes too far to claim that the meaning and scope of Penry was "clearly established" in 1999, especially in the wake of and n applying AEDPA, we have recognized that "[a federal court may not overrule a state court for simply holding a view different from its own, when the precedent from this Court is, at best, ambiguous." ; see also (declining to find federal law "clearly established" when "our precedents in [the area have not been a model of clarity"). When the state court rejected Cole's claim, it knew that mitigating evidence of mental retardation and severe childhood abuse could not be given effect under the special issues, Penry but that evidence of youth and a transient upbringing could be, ; The court concluded that Cole's mitigating evidence a troubled childhood and "impulse control" disorder was more like that considered in and than in Penry And because Cole's mitigating evidence was not as troubling as that at issue in Penry the state court did not act unreasonably in concluding that the collateral damage of his upbringing and impulse control disorder would, like youth in dissipate over time, so that Cole would be less of a danger in the future. t is irrelevant that the ill effects of Cole's upbringing and impulse control disorder might not wear off for some time there was no suggestion in that the petitioner in that case would become less dangerous any time soon. n other words, our precedents which confirmed |
Justice Roberts | 2,007 | 0 | dissenting | Abdul-Kabir v. Quarterman | https://www.courtlistener.com/opinion/145742/abdul-kabir-v-quarterman/ | time soon. n other words, our precedents which confirmed that the permanence of a mitigating feature was highly relevant, and that the correct answer was a case-specific matter turning on the particular facts did not provide a clear answer, because the particular evidence before the court fell somewhere between the guideposts established by those precedents. As we have recognized, "the range of reasonable judgment can depend in part on the nature of the relevant rule [Some rules are more general, and their meaning must emerge in application over the course of time." See also 125 S. Ct. 2, (reviewing state-court application of Supreme Court precedent "to similar but not identical facts" and concluding that "[even on the assumption that its conclusion was incorrect, it was not unreasonable, and is therefore just the type of decision that AEDPA shields on habeas review"). The state court's approach to the question was plainly correct; indeed, we engaged in a similar comparison in *1682 itself in determining that the evidence presented in that case was cognizable under the special issues: "Jurek is reasonably read as holding that the circumstance of youth is given constitutionally adequate consideration in deciding the special issues. We see no reason to regard the circumstances of 's family background and positive character traits in a different light. 's evidence of transient upbringing and otherwise nonviolent character more closely resembles Jurek's evidence of age, employment history, and familial ties than it does Penry's evidence of mental retardation and harsh physical abuse." The state court thought that Cole's evidence "more closely resemble[d" and than Penry That cannot be said to be "contrary to, or an unreasonable application of, clearly established Federal law." 2254(d)(1). See at 147, ; The Court further holds that the jury instructions did not permit Cole's evidence to have "mitigating force beyond the scope of the special issues," ante, at 1670, as it now reads Penry to require. At the time the state court ruled, however, and decided after Penry had expressly rejected the notion that a jury must "be able to give effect to mitigating evidence in every conceivable manner in which the evidence might be relevant," so long as the jury could consider "in some manner all of a defendant's relevant mitigating evidence." The state court found that Cole's mitigating evidence could be "sufficiently consider[ed" by the jury "within the confines of the statutory `special issues,'" App. in No. 05-11284, 159, a holding consistent with this Court's precedents as of 1999 and certainly not contrary to clearly established federal law. n reaching today's result, |
Justice Roberts | 2,007 | 0 | dissenting | Abdul-Kabir v. Quarterman | https://www.courtlistener.com/opinion/145742/abdul-kabir-v-quarterman/ | contrary to clearly established federal law. n reaching today's result, the Court also takes advantage of eight years of hindsight and relies on three cases that postdate the state court's ruling. Ante, at 1674 (Penry ), and ). What is pertinent under AEDPA, however, is whether federal law was clearly established by our decisions when the state court acted. at[3 AEDPA requires state courts to reasonably apply clearly established federal law. t does not require them to have a crystal ball. n 1991, petitioner Brent Ray Brewer was convicted of murder committed during the course of a robbery. Like Cole, Brewer claims that the Texas special issues prevented the jury from giving effect to mitigating evidence that he suffered from depression and had been abused as a teenager. The Texas courts rejected these claims on both direct and collateral review. *1683 n evaluating Brewer's claim, the Court focuses on the so-called "two-edged sword" nature of the evidence found to be beyond the jury's reach in Penry and concludes that Brewer's mitigating evidence is similarly double edged. The state court distinguished Penry however, stating that "a stay in a mental hospital does not evidence a long term mental illness which would affect appellant's ability to conform to the requirements of society," App. in No. 05-11287, p. 141 (internal quotation marks omitted), in contrast to Penry's "organic brain disorder which made it impossible for him to appreciate the wrongfulness of his conduct or to conform his conduct to the law," Penry The state court determined that the nature of Brewer's evidence allowed the jury to find that he would not be a future danger, whereas Penry's did not. The Court rejects this distinction, noting that while Brewer's mitigating evidence may have been less compelling than Penry's, "that difference does not provide an acceptable justification for refusing to apply the reasoning in Penry to this case." Ante, at 1661-1663, and n. 5. This misses the point. The state court's distinction goes not to the relative strength of the mitigating evidence, but rather its character an episodic rather than permanent mental disorder. As discussed in the context of Cole, see the distinction was not a "refus[al to apply the reasoning in Penry" ante, at 1661-1662, but rather an application of Penry that can hardly be said to be "objectively unreasonable" based on this Court's decisions as of ndeed, in considering future dangerousness, it is difficult to imagine a more pertinent distinction than whether a mental condition is or is not permanent. The Court concedes that "[the transient quality of [Brewer's mitigating evidence may |
Justice Roberts | 2,007 | 0 | dissenting | Abdul-Kabir v. Quarterman | https://www.courtlistener.com/opinion/145742/abdul-kabir-v-quarterman/ | concedes that "[the transient quality of [Brewer's mitigating evidence may make it more likely to fall in part within the ambit of the special issues," and yet still finds the state court's decision unreasonable because the evidence may have had relevance beyond the special issues. Ante, at 1662. As in Cole's case, this conclusion squarely conflicts with the Court's rejection in of the proposition that "a defendant is entitled to special instructions whenever he can offer mitigating evidence that has some arguable relevance beyond the special issues." (emphasis in original). That rejection was confirmed in see 509 U.S., (rejecting a rule that "would require that a jury be able to give effect to mitigating evidence in every conceivable manner in which the evidence might be relevant" in favor of the rule "that a jury be able to consider in some manner all of a defendant's relevant mitigating evidence"). Once again, the Court rejects the state court's reasonable reading of existing cases in favor of its own revisionist reading of this Court's doctrine, heavily informed by subsequent decisions that the state court had no means to predict. n AEDPA, Congress "work[ed substantial changes" to the power of federal courts to grant habeas corpus relief. n today's decisions, the Court trivializes AEDPA's requirements and overturns decades-old sentences on the ground that they were contrary to clearly established federal law at the time even though the same Justices who form the majority today were complaining at that time that this Court was changing that "clearly established" law. Still, perhaps there is no reason to be unduly glum. After all, today the author of a dissent issued in writes two *1684 majority opinions concluding that the views expressed in that dissent actually represented "clearly established" federal law at that time. So there is hope yet for the views expressed in this dissent, not simply down the road, but tunc pro nunc. Encouraged by the majority's determination that the future can change the past, respectfully |
Justice Stevens | 2,006 | 16 | dissenting | Rapanos v. United States | https://www.courtlistener.com/opinion/145642/rapanos-v-united-states/ | In 1972, Congress decided to "restore and maintain the chemical, physical, and biological integrity of the Nation's waters" by passing what we now call the Clean Water Act, as amended, U.S. C. 1251 et seq. The costs of achieving the Herculean goal of ending water pollution by 1985, see 1251(a), persuaded President Nixon to veto its enactment, but both Houses of Congress voted to override that veto by overwhelming margins. To achieve its goal, Congress prohibited "the discharge of any pollutant"defined to include "any addition of any pollutant to navigable waters from any point source"without a permit issued by the Army Corps of Engineers (Army Corps or Corps) or the Environmental Protection Agency (EPA). 111(a), 162(12)(A). Congress further defined "navigable waters" to mean "the waters of the United States." 162(7). The narrow question presented in No. 04-104 is whether wetlands adjacent to tributaries of traditionally navigable waters are "waters of the United States" subject to the jurisdiction of the Army Corps; the question in No. 04-184 is whether a manmade berm separating a wetland from the adjacent tributary makes a difference. The broader question is whether regulations that have protected the quality of our waters for decades, that were implicitly approved by Congress, and that have been repeatedly enforced in case after case, must now be revised in light of the creative criticisms *788 voiced by the plurality and Justice Kennedy today. Rejecting more than 0 years of practice by the Army Corps, the plurality disregards the nature of the congressional delegation to the agency and the technical and complex character of the issues at stake. Justice Kennedy similarly fails to defer sufficiently to the Corps, though his approach is far more faithful to our precedents and to principles of statutory interpretation than is the plurality's. In my view, the proper analysis is straightforward. The Army Corps has determined that wetlands adjacent to tributaries of traditionally navigable waters preserve the quality of our Nation's waters by, among other things, providing habitat for aquatic animals, keeping excessive sediment and toxic pollutants out of adjacent waters, and reducing downstream flooding by absorbing water at times of high flow. The Corps' resulting decision to treat these wetlands as encompassed within the term "waters of the United States" is a quintessential example of the Executive's reasonable interpretation of a statutory provision. See Chevron U. S. A. Our unanimous decision in United was faithful to our duty to respect the work product of the Legislative and Executive Branches of our Government. Today's judicial amendment of the Clean Water Act is not. I At each of |
Justice Stevens | 2,006 | 16 | dissenting | Rapanos v. United States | https://www.courtlistener.com/opinion/145642/rapanos-v-united-states/ | the Clean Water Act is not. I At each of the three sites at issue in No. 04-104, the petitioners filled large areas of wetlands without permits, despite being on full notice of the Corps' regulatory requirements. Because the plurality gives short shrift to the facts of this caseas well as to those of No. 04-184I shall discuss them at some length. The facts related to the 20-acre Salzburg site are illustrative. In 1988, John Rapanos asked the Michigan Department *789 of Natural Resources (MDNR) to inspect the site "in order to discuss with him the feasibility of building a shopping center there." App. to Pet. for Cert. in No. 04-104, p. B15. An MDNR inspector informed Rapanos that the land probably included wetlands that were "waters of the United States" and sent him an application for a permit under 404 of the Act.[1] Rapanos then hired a wetland consultant, Dr. Frederick Goff. After Dr. Goff concluded that the land did in fact contain many acres of wetlands, "Rapanos threatened to `destroy' Dr. Goff if he did not destroy the wetland report, and refused to pay Dr. Goff unless and until he complied." In the meantime, without applying for a permit, Rapanos hired construction companies to do $50,000 worth of work clearing the land, filling in low spots, and draining subsurface water. After Rapanos prevented MDNR inspectors from visiting the site, ignored an MDNR cease-and-desist letter, and refused to obey an administrative compliance order issued by the EPA, the matter was referred to the Department of Justice. In the civil case now before us, the District Court found that Rapanos unlawfully filled 22 acres of wetlands. Rapanos and his wife engaged in similar behavior at the Hines Road and Pine River sites. Without applying for 404 permits, they hired construction companies to perform extensive clearing and filling activities. They continued these activities even after receiving EPA administrative compliance orders directing them to cease the work immediately. They ultimately spent $158,000 at the 275-acre Hines Road site, filling 17 of its existing 64 acres of wetlands. At the 200-acre Pine River site, they spent $46,000 and filled 15 of its 49 acres of wetlands. Prior to their destruction, the wetlands at all three sites had surface connections to tributaries of traditionally navigable waters. The Salzburg wetlands connected to a drain *790 that flows into a creek that flows into the navigable Kawkawlin River. The Hines Road wetlands connected to a drain that flows into the navigable Tittabawassee River. And the Pine River wetlands connected with the Pine River, which flows into |
Justice Stevens | 2,006 | 16 | dissenting | Rapanos v. United States | https://www.courtlistener.com/opinion/145642/rapanos-v-united-states/ | River wetlands connected with the Pine River, which flows into Lake Huron. At trial, the Government put on a wetland expert, Dr. Daniel Willard, whom the trial court found "eminently qualified" and "highly credible." at B7. Dr. Willard testified that the wetlands at these three sites provided ecological functions in terms of "habitat, sediment trapping, nutrient recycling, and flood peak diminution." 4 Tr. 96 (Apr. 5, 1999).[2] He explained: "[G]enerally for all of the sites we have a situation in which the flood water attenuation in that water is held on the site in the wetland such that it does not add to flood peak. By the same token it would have some additional water flowing into the rivers during the drier periods, thus, increasing low water flow. "By the same token on all of the sites to the extent that they slow the flow of water of the site they will accumulate sediment and thus trap sediment and hold nutrients for use in those wetland systems later in the season as well." The District Court found that the wetlands at all three sites were covered by the Clean Water Act and that the Rapanoses had violated the Act by destroying them without permits. The Sixth Circuit unanimously affirmed. The facts of No. 04-184 are less dramatic. The petitioners in that case own a 20-acre tract of land, of which 16 acres are wetlands, located in Macomb County a mile from Lake *791 St. Clair. These wetlands border a ditch that flows into a drain that flows into a creek that flows into Lake St. Clair. A 4-foot-wide manmade berm separates the wetlands from the ditch; thus water rarely if ever passes from wetlands to ditch or vice versa. Petitioners applied for a permit to fill most of these wetlands with 57,500 cubic yards of material. They intended to build a 112-unit condominium development on the site. After inspecting the site and considering comments from, among others, the Water Quality Unit of the Macomb County Prosecutor's Office (which urged the Corps to deny the permit because "[t]he loss of this high quality wetland area would have an unacceptable adverse effect on wildlife, water quality, and conservation of wetlands resources," App. in No. 04-184, p. 79a), the Corps denied the permit. at 84a-126a. As summarized in a letter sent to petitioners, reasons for denial included: "Your parcel is primarily a forested wetland that provides valuable seasonal habitat for aquatic organisms and year round habitat for terrestrial organisms. Additionally, the site provides water storage functions that, if destroyed, could result in an |
Justice Stevens | 2,006 | 16 | dissenting | Rapanos v. United States | https://www.courtlistener.com/opinion/145642/rapanos-v-united-states/ | water storage functions that, if destroyed, could result in an increased risk of erosion and degradation of water quality in the Sutherland-Oemig Drain, Auvase Creek, and Lake St. Clair. The minimization of impacts to these wetlands is important for conservation and the overall ecology of the region. Because the project development area is a forested wetland, the proposed project would destroy the resources in such a manner that they would not soon recover from impacts of the discharges. The extent of impacts in the project area when considered both individually and cumulatively would be unacceptable and contrary to the public interest." at 127a-128a. As in No. 04-104, the unanimous judgment of the District and Circuit Judges was that the Corps has jurisdiction over *792 this wetland because it is adjacent to a tributary of traditionally navigable waters. The Solicitor General defends both judgments. II Our unanimous opinion in Riverside squarely controls these cases. There, we evaluated the validity of the very same regulations at issue today. These regulations interpret "waters of the United States" to cover all traditionally navigable waters; tributaries of these waters; and wetlands adjacent to traditionally navigable waters or their tributaries. CFR 28.(a)(1), (5), and (7) (2005); 2.2(a)(1), (5), and (7) Although the particular wetland at issue in Riverside abutted a navigable creek, we framed the question presented as whether the Clean Water Act "authorizes the Corps to require landowners to obtain permits from the Corps before discharging fill material into wetlands adjacent to navigable bodies of water and their tributaries."[] *79 We held that, pursuant to our decision in Chevron, "our review is limited to the question whether it is reasonable, in light of the language, policies, and legislative history of the Act for the Corps to exercise jurisdiction over wetlands adjacent to but not regularly flooded by rivers, streams, and other hydrographic features more conventionally identifiable as `waters.'" Applying this standard, we held that the Corps' decision to interpret "waters of the United States" as encompassing such wetlands was permissible. We recognized the practical difficulties in drawing clean lines between land and water, and deferred to the Corps' judgment that treating adjacent wetlands as "waters" would advance the "congressional concern for protection of water quality and aquatic ecosystems," Contrary to the plurality's revisionist reading today, ante, at 740-742, 746-747, Riverside nowhere implied that our approval of "adjacent" wetlands was contingent upon an understanding that "adjacent" means having a "continuous surface connection" between the wetland and its neighboring creek, ante, at 742. Instead, we acknowledged that the Corps defined "adjacent" as including wetlands "`that form the |
Justice Stevens | 2,006 | 16 | dissenting | Rapanos v. United States | https://www.courtlistener.com/opinion/145642/rapanos-v-united-states/ | the Corps defined "adjacent" as including wetlands "`that form the border of or are in reasonable proximity to other waters'" and found that the Corps reasonably concluded that adjacent wetlands are part of the waters of the United States. ( (1977)). Indeed, we explicitly acknowledged that the Corps' jurisdictional determination was reasonable even though "not every adjacent wetland is of great importance to the environment of adjoining bodies of water. If it is *794 reasonable for the Corps to conclude that in the majority of cases, adjacent wetlands have significant effects on water quality and the ecosystem, its definition can stand. That the definition may include some wetlands that are not significantly intertwined with the ecosystem of adjacent waterways is of little moment, for where it appears that a wetland covered by the Corps' definition is in fact lacking in importance to the aquatic environment the Corps may always allow development of the wetland for other uses simply by issuing a permit." n. 9. In closing, we emphasized that the scope of the Corps' asserted jurisdiction over wetlands had been specifically brought to Congress' attention in 1977, that Congress had rejected an amendment that would have narrowed that jurisdiction, and that even proponents of the amendment would not have removed wetlands altogether from the definition of "waters of the United States." Disregarding the importance of Riverside the plurality relies heavily on the Court's subsequent opinion in Solid Waste Agency of Northern Cook In stark contrast to Riverside however, had nothing to say about wetlands, let alone about wetlands adjacent to traditionally navigable waters or their tributaries. Instead, dealt with a question specifically reserved by Riverside see n. namely, the Corps' jurisdiction over isolated waters"`waters that are not part of a tributary system to interstate waters or to navigable waters of the United States, the degradation or destruction of which could affect interstate commerce.'" 51 U.S., at 168-169 ( CFR 2.2(a)(5) (1978); emphasis added); see 51 U.S., at 16 (citing CFR 28.2(a)() (1999), which is the later regulatory equivalent to 2.2(a)(5) (1978)). At issue in was "an abandoned sand and gravel pit which provide[d] habitat for migratory birds" *795 and contained a few pools of "nonnavigable, isolated, intrastate waters." 51 U.S., at 162, 166. The Corps had asserted jurisdiction over the gravel pit under its 1986 Migratory Bird Rule, which treated isolated waters as within its jurisdiction if migratory birds depended upon these waters. The Court rejected this jurisdictional basis since these isolated pools, unlike the wetlands at issue in Riverside had no "significant nexus" to traditionally navigable waters. 51 U.S., |
Justice Stevens | 2,006 | 16 | dissenting | Rapanos v. United States | https://www.courtlistener.com/opinion/145642/rapanos-v-united-states/ | had no "significant nexus" to traditionally navigable waters. 51 U.S., at 167. In the process, the Court distinguished Riverside 's reliance on Congress' decision to leave the Corps' regulations alone when it amended the Act in 1977, since "`[i]n both Chambers, debate on the proposals to narrow the definition of navigable waters centered largely on the issue of wetlands preservation'" rather than on the Corps' jurisdiction over truly isolated waters. 51 U.S., at 170 ( 474 U.S., at 16).[4] *796 Unlike and like Riverside the cases before us today concern wetlands that are adjacent to "navigable bodies of water [or] their tributaries," Specifically, these wetlands abut tributaries of traditionally navigable waters. As we recognized in Riverside the Corps has concluded that such wetlands play important roles in maintaining the quality of their adjacent waters, see at 14-15, and consequently in the waters downstream. Among other things, wetlands can offer "nesting, spawning, rearing and resting sites for aquatic or land species"; "serve as valuable storage areas for storm and flood waters"; and provide "significant water purification functions." CFR 20.4(b)(2) (2005); -15. These values are hardly "independent" ecological considerations as the plurality would have it, ante, at 741instead, they are integral to the "chemical, physical, and biological integrity of the Nation's waters," U.S. C. 1251(a). Given that wetlands serve these important water quality roles and given the ambiguity inherent in the phrase "waters of the United States," the Corps has reasonably interpreted its jurisdiction to cover nonisolated wetlands. See -15.[5] *797 This conclusion is further confirmed by Congress' deliberate acquiescence in the Corps' regulations in 1977. at 16. Both Chambers conducted extensive debates about the Corps' regulatory jurisdiction over wetlands, rejected efforts to limit this jurisdiction, and appropriated funds for a "`National Wetlands Inventory'" to help the States "`in the development and operation of programs under this Act.'" ( U.S. C. 1288(i)(2)). We found these facts significant in Riverside see -19, as we acknowledged in see 51 U.S., at 170-171 (noting that "[b]eyond Congress' desire to regulate wetlands adjacent to `navigable waters,' respondents point us to no persuasive evidence" of congressional acquiescence ). The Corps' exercise of jurisdiction is reasonable even though not every wetland adjacent to a traditionally navigable water or its tributary will perform all (or perhaps any) of the water quality functions generally associated with wetlands. Riverside made clear that jurisdiction does not depend on a wetland-by-wetland n. 9. Instead, it is enough that wetlands adjacent to tributaries generally have a significant nexus to the watershed's water quality. If a particular wetland is "not significantly intertwined with the ecosystem |
Justice Stevens | 2,006 | 16 | dissenting | Rapanos v. United States | https://www.courtlistener.com/opinion/145642/rapanos-v-united-states/ | a particular wetland is "not significantly intertwined with the ecosystem of adjacent waterways," then the Corps may allow its development "simply by issuing a permit." [6] Accordingly, for purposes of the Corps' jurisdiction it is of no significance that the wetlands in No. 04-104 serve flood control and sediment sink functions, *798 but may not do much to trap other pollutants, and n. 2, or that the wetland in No. 04-184 keeps excess water from Lake St. Clair but may not trap sediment, see -792. Seemingly alarmed by the costs involved, the plurality shies away from Riverside 's recognition that jurisdiction is not a case-by-case affair. I do not agree with the plurality's assumption that the costs of preserving wetlands are unduly high. It is true that the cost of 404 permits are high for those who must obtain them [7]but these costs amount to only a small fraction of 1% of the $760 billion spent each year on private and public construction and development activity. Sunding & Zilberman 80. More significant than the plurality's exaggerated concern about costs, however, is the fact that its omission of any discussion of the benefits that the regulations at issue have produced sheds a revelatory light on the quality (and indeed the impartiality) of its cost-benefit analysis.[8] The importance of wetlands *799 for water quality is hard to overstate. See, e. g., U. S. Congress, Office of Technology Assessment, Wetlands: Their Use and Regulation, OTAO206, pp. 4-61 http://govinfo.library.unt.edu/ota/OTA_4/DATA/1984/84.pdf (hereinafter OTA) (describing wetlands' role in floodpeak reduction, shoreline protection, ground water recharge, trapping of suspended sediment, filtering of toxic pollutants, and protection of fish and wildlife). See ante, at 777 (KENNEDY, J., concurring in judgment). Unsurprisingly, the Corps' approach has the overwhelming endorsement of numerous amici curiae, including States and the county in which the property in No. 04-184 is located. In final analysis, however, concerns about the appropriateness of the Corps' 0-year implementation of the Clean Water Act should be addressed to Congress or the Corps rather than to the Judiciary. Whether the benefits of particular conservation measures outweigh their costs is a classic question of public policy that should not be answered by appointed judges. The fact that large investments are required to finance large developments merely means that those who are most adversely affected by the Corps' permitting decisions are persons who have the ability to communicate effectively with their representatives. Unless and until they succeed in convincing Congress (or the Corps) that clean water is less important today than it was in the 1970's, we continue to owe deference to |
Justice Stevens | 2,006 | 16 | dissenting | Rapanos v. United States | https://www.courtlistener.com/opinion/145642/rapanos-v-united-states/ | was in the 1970's, we continue to owe deference to regulations satisfying the "evident breadth of congressional concern for protection of water quality and aquatic ecosystems" that all of the Justices on the Court in 1985 recognized in Riverside 474 U. S., *800 III Even setting aside the plurality's dramatic departure from our reasoning and holding in Riverside its creative opinion is utterly unpersuasive. The plurality imposes two novel conditions on the exercise of the Corps' jurisdiction that can only muddy the jurisdictional waters. As Justice Kennedy observes, "these limitations are without support in the language and purposes of the Act or in our cases interpreting it." Ante, at 768 (opinion concurring in judgment). The impropriety of crafting these new conditions is highlighted by the fact that no party or amicus has suggested either of them.[9] First, ignoring the importance of preserving jurisdiction over water beds that are periodically dry, the plurality imposes a requirement that only tributaries with the "relatively permanent" presence of water fall within the Corps' jurisdiction. Ante, at 72. Under the plurality's view, then, the Corps can regulate polluters who dump dredge into a stream that flows year round but may not be able to regulate polluters who dump into a neighboring stream that flows for only 290 days of the yeareven if the dredge in this second stream would have the same effect on downstream waters as the dredge in the year-round one. Ante, at 72-7, n. 5.[10] *801 To find this arbitrary distinction compelled by the statute, the plurality cites a dictionary for a proposition that it does not contain. The dictionary treats "streams" as "waters" but has nothing to say about whether streams must contain water year round to qualify as "streams." Ante, at 72-7, and n. 6 (citing Webster's New International Dictionary 249 (2d ed. 1954) (hereinafter Webster's Second), as defining stream as a "`current or course of water or other fluid, flowing on the earth'"). From this, the plurality somehow deduces that streams can never be intermittent or ephemeral (i. e., flowing for only part of the year). Ante, at 72-74, and nn. 5-6. But common sense and common usage demonstrate that intermittent streams, like perennial streams, are still streams.[11] See, e. g., U. S. Dept. of Interior, U. S. Geological Survey, Topographic Map Symbols (2005), http://erg.usgs.gov/isb/pubs/booklets/symbols/ (identifying symbols for "[p]erennial stream" and "[i]ntermittent stream," as well as for "[p]erennial river" and "[i]ntermittent river"). This was true well before the passage of the Act in 1972. E. g., Webster's Third New International Dictionary 1180 (1961) (hereinafter Webster's Third) (linking "intermittent" with |
Justice Stevens | 2,006 | 16 | dissenting | Rapanos v. United States | https://www.courtlistener.com/opinion/145642/rapanos-v-united-states/ | International Dictionary 1180 (1961) (hereinafter Webster's Third) (linking "intermittent" with "stream"). Indeed, we ourselves have used the term "intermittent stream" as far back as 192. 289 U.S. 4, 5 (19). Needless to say, Justice Brandeis' use of the term in a unanimous opinion should not be dismissed as merely a "useful oxymor[on]," ante, at 7, n. 6 (plurality opinion). *802 The plurality attempts to bolster its arbitrary jurisdictional line by citing two tangential statutory provisions and two inapplicable canons of construction. None comes close to showing that Congress directly spoke to whether "waters" requires the relatively permanent presence of water. The first provision relied on by the pluralitythe definition of "point source" in U.S. C. 162(14)has no conceivable bearing on whether permanent tributaries should be treated differently from intermittent ones, since "pipe[s], ditch[es], channel[s], tunnel[s], conduit[s], [and] well[s]" can all hold water permanently as well as intermittently.[12] The second provision is 1251(b), which announces a congressional policy to "recognize, preserve, and protect the primary responsibilities and rights of States" to prevent pollution, to plan development, and to consult with the EPA. Under statutory additions made in 1977 when Congress considered and declined to alter the Corps' interpretation of its broad *80 regulatory jurisdiction, the States may run their own 404 programs. 144(g)(h). As modified, 1251(b) specifically recognizes this role for the States as part of their primary responsibility for preventing water pollution. Even focusing only on the Act as it stood between 1972 and 1977, but see International Paper (interpreting 1251(b) in light of the 1977 additions), broad exercise of jurisdiction by the Corps still left the States with ample rights and responsibilities. See S. D. Warren Co. v. Maine Bd. of Environmental Protection, ante, at 86-87. States had the power to impose tougher water pollution standards than required by the Act, 170, and to prevent the Corps and the EPA from issuing permits, 141(a)(1)not to mention nearly exclusive responsibility for containing pollution from nonpoint sources. The two canons of construction relied on by the plurality similarly fail to overcome the deference owed to the Corps. First, the plurality claims that concerns about intruding on state power to regulate land use compel the conclusion that the phrase "waters of the United States" does not cover intermittent streams. As we have recognized, however, Congress found it "`essential that discharge of pollutants be controlled at the source,'" Riverside 474 U. S., ( S. Rep. No. 92-414, p. 77 (1972)), and the Corps can define "waters" broadly to accomplish this aim. Second, the plurality suggests that the canon of constitutional avoidance applies because |
Justice Stevens | 2,006 | 16 | dissenting | Rapanos v. United States | https://www.courtlistener.com/opinion/145642/rapanos-v-united-states/ | plurality suggests that the canon of constitutional avoidance applies because the Corps' approach might exceed the limits of our Commerce Clause authority. Setting aside whether such a concern was proper in 51 U. S., at 17; but see it is plainly not warranted here. The wetlands in these cases are not "isolated" but instead are adjacent to tributaries of traditionally navigable waters and play important roles in the watershed, such as keeping water out of the tributaries or absorbing water from the tributaries. "There is no constitutional reason why Congress cannot, under the commerce power, *804 treat the watersheds as a key to flood control on navigable streams and their tributaries." Oklahoma ex rel. 1 U.S. 508, Most importantly, the plurality disregards the fundamental significance of the Clean Water Act. As then-Justice Rehnquist explained when writing for the Court in 1981, the Act was "not merely another law" but rather was "viewed by Congress as a `total restructuring' and `complete rewriting' of the existing water pollution legislation." 451 U.S. 04, 17. "Congress' intent in enacting the [Act] was clearly to establish an all-encompassing program of water pollution regulation," and "[t]he most casual perusal of the legislative history demonstrates that views on the comprehensive nature of the legislation were practically universal." at 18, and n. 12; see 51 U.S., at 177-181 The Corps has concluded that it must regulate pollutants at the time they enter ditches or streams with ordinary high-water marks whether perennial, intermittent, or ephemeralin order to properly control water pollution. 65 Fed. Reg. 1282 (2000). Because there is ambiguity in the phrase "waters of the United States" and because interpreting it broadly to cover such ditches and streams advances the purpose of the Act, the Corps' approach should command our deference. Intermittent streams can carry pollutants just as perennial streams can, and their regulation may prove as important for flood control purposes. The inclusion of all identifiable tributaries that ultimately drain into large bodies of water within the mantle of federal protection is surely wise. The plurality's second statutory invention is as arbitrary as its first. Trivializing the significance of changing conditions in wetlands environments, the plurality imposes a separate requirement that "the wetland has a continuous surface connection" with its abutting waterway such that it is "difficult to determine where the `water' ends and the `wetland' begins." Ante, at 742. An "intermittent, physically remote *805 hydrologic connection" between the wetland and other waters is not enough. Under this view, wetlands that border traditionally navigable waters or their tributaries and perform the essential function of soaking up overflow |
Justice Stevens | 2,006 | 16 | dissenting | Rapanos v. United States | https://www.courtlistener.com/opinion/145642/rapanos-v-united-states/ | tributaries and perform the essential function of soaking up overflow waters during hurricane seasonthus reducing flooding downstreamcan be filled in by developers with impunity, as long as the wetlands lack a surface connection with the adjacent waterway the rest of the year. The plurality begins reasonably enough by recognizing that the Corps may appropriately regulate all wetlands "`adjacent to'" other waters. This recognition is wise, since the statutory text clearly accepts this standard. Title U.S. C. 144(g)(1), added in 1977, includes "adjacent wetlands" in its description of "waters" and thus "expressly stated that the term `waters' included adjacent wetlands." Riverside 474 U. S., at 18. While this may not "conclusively determine the construction to be placed on the use of the term `waters' elsewhere in the Act, in light of the fact that the various provisions of the Act should be read in pari materia, it does at least suggest strongly that the term `waters' as used in the Act does not necessarily exclude `wetlands.'" at 18, n. 11. The plurality goes on, however, to define "`adjacent to'" as meaning "with a continuous surface connection to" other water. Ante, at 742. It is unclear how the plurality reached this conclusion, though it plainly neglected to consult a dictionary. Even its preferred Webster's Second defines the term as "[l]ying near, close, or contiguous; neighboring; bordering on" and acknowledges that "[o]bjects are Adjacent when they lie close to each other, but not necessarily in actual contact." Webster's Second 2 ; see Webster's Third 26. In any event, the proper question is not how the plurality would define "adjacent," but whether the Corps' definition is reasonable. The Corps defines "adjacent" as "bordering, contiguous, or neighboring," and specifies that "[w]etlands separated from *806 other waters of the United States by man-made dikes or barriers, natural river berms, beach dunes and the like are `adjacent wetlands.'" CFR 28.(c) (2005). This definition is plainly reasonable, both on its face and in terms of the purposes of the Act. While wetlands that are physically separated from other waters may perform less valuable functions, this is a matter for the Corps to evaluate in its permitting decisions. We made this clear in Riverside 474 U. S., at 15, n. 9which did not impose the plurality's new requirement despite an absence of evidence that the wetland at issue had the sort of continuous surface connection required by the plurality today. See at 79; see ante, at 772-774 (Kennedy, J., concurring in judgment) (observing that the plurality's requirement is inconsistent with Riverside ). And as the facts of No. 04-184 |
Justice Stevens | 2,006 | 16 | dissenting | Rapanos v. United States | https://www.courtlistener.com/opinion/145642/rapanos-v-united-states/ | with Riverside ). And as the facts of No. 04-184 demonstrate, wetland separated by a berm from adjacent tributaries may still prove important to downstream water quality. Moreover, Congress was on notice of the Corps' definition of "adjacent" when it amended the Act in 1977 and added U.S. C. 144(g)(1). See 42 Fed. Reg. 7129 (1977). Finally, implicitly recognizing that its approach endangers the quality of waters which Congress sought to protect, the plurality suggests that the EPA can regulate pollutants before they actually enter the "waters of the United States." Ante, at 742-746. I express no view on the merits of the plurality's reasoning, which relies heavily on a respect for lower court judgments that is conspicuously lacking earlier in its opinion, ante, at 726-729. I do fail to understand, however, why the plurality would not similarly apply this logic to dredged and fill material. The EPA's authority over pollutants (other than dredged and fill materials) stems from the identical statutory language that gives rise to the Corps' 404 jurisdiction. The plurality claims that there is a practical difference, asserting that dredged and fill material "does not normally wash downstream." *807 Ante, at 744. While more of this material will probably stay put than is true of soluble pollutants, the very existence of words like "alluvium" and "silt" in our language, see Webster's Third 59, 2119, suggests that at least some fill makes its way downstream. See e. g., United 2 F.d 698, (CA4 200) Moreover, such fill can harm the biological integrity of downstream waters even if it largely stays put upstream. The Act's purpose of protecting fish, see U.S. C. 1251(a)(2); S. D. Warren Co., ante, at 85-86, could be seriously impaired by sediment in upstream waters where fish spawn, since excessive sediment can "smother bottom-dwelling invertebrates and impair fish spawning," OTA 48. See e. g., Erman & Hawthorne, The Quantitative Importance of an Intermittent Stream in the Spawning of Rainbow Trout, 105 Transactions of the American Fisheries Society 675-681 (1976); Brief for American Rivers et al. as Amici Curiae 14 (observing that anadromous salmon often spawn in small, intermittent streams). IV While I generally agree with Parts I and IIA of JUSTICE KENNEDY's opinion, I do not share his view that we should replace regulatory standards that have been in place for over 0 years with a judicially crafted rule distilled from the term "significant nexus" as used in To the extent that our passing use of this term has become a statutory requirement, it is categorically satisfied as to wetlands adjacent to navigable waters or |
Justice Stevens | 2,006 | 16 | dissenting | Rapanos v. United States | https://www.courtlistener.com/opinion/145642/rapanos-v-united-states/ | categorically satisfied as to wetlands adjacent to navigable waters or their tributaries. Riverside and together make this clear. 's only use of the term comes in the sentence: "It was the significant nexus between the wetlands and `navigable waters' that informed our reading of the [Clean Water Act] in Riverside" 51 U.S., at 167. Because Riverside *808 was written to encompass "wetlands adjacent to navigable waters and their tributaries," and reserved only the question of isolated waters, see at 11-12, n. 8; see n. its determination of the Corps' jurisdiction applies to the wetlands at issue in these cases. Even setting aside the apparent applicability of Riverside I think it clear that wetlands adjacent to tributaries of navigable waters generally have a "significant nexus" with the traditionally navigable waters downstream. Unlike the "nonnavigable, isolated, intrastate waters" in 51 U. S., at 171, these wetlands can obviously have a cumulative effect on downstream water flow by releasing waters at times of low flow or by keeping waters back at times of high flow. This logical connection alone gives the wetlands the "limited" connection to traditionally navigable waters that is all the statute requires, see ; 474 U.S., and disproves Justice Kennedy's claim that my approach gives no meaning to the word "`navigable,'" ante, at 779 (opinion concurring in judgment). Similarly, these wetlands can preserve downstream water quality by trapping sediment, filtering toxic pollutants, protecting fish-spawning grounds, and so forth. While there may exist categories of wetlands adjacent to tributaries of traditionally navigable waters that, taken cumulatively, have no plausibly discernible relationship to any aspect of downstream water quality, I am skeptical. And even given Justice Kennedy's "significant-nexus" test, in the absence of compelling evidence that many such categories do exist I see no reason to conclude that the Corps' longstanding regulations are overbroad. JUSTICE KENNEDY's "significant-nexus" test will probably not do much to diminish the number of wetlands covered by the Act in the long run. Justice Kennedy himself recognizes that the records in both cases contain evidence that "should permit the establishment of a significant nexus," *809 ante, at 78; see ante, at 784, and it seems likely that evidence would support similar findings as to most (if not all) wetlands adjacent to tributaries of navigable waters. But JUSTICE KENNEDY's approach will have the effect of creating additional work for all concerned parties. Developers wishing to fill wetlands adjacent to ephemeral or intermittent tributaries of traditionally navigable waters will have no certain way of knowing whether they need to get 404 permits or not. And the Corps will have to |
Justice Stevens | 2,006 | 16 | dissenting | Rapanos v. United States | https://www.courtlistener.com/opinion/145642/rapanos-v-united-states/ | 404 permits or not. And the Corps will have to make case-by-case (or category-by-category) jurisdictional determinations, which will inevitably increase the time and resources spent processing permit applications. These problems are precisely the ones that Riverside 's deferential approach avoided. See n. 9 Unlike Justice Kennedy, I see no reason to change Riverside 's approachand every reason to continue to defer to the Executive's sensible, bright-line rule. V As I explained in Congress passed the Clean Water Act in response to widespread recognitionbased on events like the 1969 burning of the Cuyahoga River in Clevelandthat our waters had become appallingly 51 U.S., at 174-175 The Act has largely succeeded in restoring the quality of our Nation's waters. Where the Cuyahoga River was once coated with industrial waste, "[t]oday, that location is lined with restaurants and pleasure boat slips." EPA, A Benefits Assessment of the Water Pollution Control Programs Since 1972, p. 1-2 (Jan. 2000), http://www.epa.gov/ost/economics/assessment.pdf. By curtailing the Corps' jurisdiction of more than 0 years, the plurality needlessly jeopardizes the quality of our waters. In doing so, the plurality disregards the deference it owes *810 the Executive, the congressional acquiescence in the Executive's position that we recognized in Riverside and its own obligation to interpret laws rather than to make them. While JUSTICE KENNEDY's approach has far fewer faults, nonetheless it fails to give proper deference to the agencies entrusted by Congress to implement the Clean Water Act. I would affirm the judgments in both cases, and respectfully dissent from the decision of five Members of this Court to vacate and remand. I close, however, by noting an unusual feature of the Court's judgments in these cases. It has been our practice in a case coming to us from a lower federal court to enter a judgment commanding that court to conduct any further proceedings pursuant to a specific mandate. That prior practice has, on occasion, made it necessary for Justices to join a judgment that did not conform to their own views.[1] In these cases, however, while both the plurality and JUSTICE KENNEDY agree that there must be a remand for further proceedings, their respective opinions define different tests to be applied on remand. Given that all four Justices who have joined this opinion would uphold the Corps' jurisdiction in both of these casesand in all other cases in which either the plurality's or Justice Kennedy's test is satisfiedon remand each of the judgments should be reinstated if either of those tests is met.[ |
Justice Stewart | 1,973 | 18 | dissenting | Butz v. Glover Livestock Commission Co. | https://www.courtlistener.com/opinion/108756/butz-v-glover-livestock-commission-co/ | The only remarkable thing about this case is its presence in this Court. For the case involves no more than the application of well-settled principles to a familiar situation, and has little significance except for the respondent. Why certiorari was granted is a mystery to meparticularly at a time when the Court is thought by many to be burdened by too heavy a caseload. See Rule 19, Rules of the Supreme Court of the United States. The Court of Appeals did nothing more than review a penalty imposed by the Secretary of Agriculture that was alleged by the respondent to be discriminatory and arbitrary. In approaching its task, the appellate court displayed an impeccable understanding of the permissible scope of review: "The scope of our review is limited to the correction of errors of law and to an examination of the sufficiency of the evidence supporting the factual conclusions. The findings and order of the Judicial Officer must be sustained if not contrary to law and if supported by substantial evidence. Also, this Court may not substitute its judgment for that of the Judicial Officer's as to which of the various inferences may be drawn from the evidence." *190 "Ordinarily it is not for the courts to modify ancillary features of agency orders which are supported by substantial evidence. The shaping of remedies is peculiarly within the special competence of the regulatory agency vested by Congress with authority to deal with these matters, and so long as the remedy selected does not exceed the agency's statutory power to impose and it bears a reasonable relation to the practice sought to be eliminated, a reviewing court may not interfere." Had the Court of Appeals used the talismanic language of the Administrative Procedure Act, and found the penalty to be either "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law," 5 U.S. C. 706 (2) (A), I have no doubt that certiorari would have been denied. But the Court of Appeals made the mistake of using the wrong words, saying that the penalty was "unconscionable," because it was "unwarranted and without justification in fact."[1] Today the Court holds that the penalty was not "unwarranted in law," because it was within permissible statutory limits. But this ignores the valid principle of law that motivated the Court of Appealsthe principle that like cases are to be treated alike. As Professor Jaffe has put the matter: "The scope of judicial review is ultimately conditioned and determined by the major proposition that the constitutional courts of this country are the acknowledged architects |
Justice Stewart | 1,973 | 18 | dissenting | Butz v. Glover Livestock Commission Co. | https://www.courtlistener.com/opinion/108756/butz-v-glover-livestock-commission-co/ | the constitutional courts of this country are the acknowledged architects and guarantors of the integrity of the legal system. An agency is not an island entire of itself. It is one of the many rooms in the magnificent mansion of the law. The *191 very subordination of the agency to judicial jurisdiction is intended to proclaim the premise that each agency is to be brought into harmony with the totality of the law; the law as it is found in the statute at hand, the statute book at large, the principles and conceptions of the `common law,' and the ultimate guarantees associated with the Constitution."[2] The reversal today of a wholly defensible Court of Appeals judgment accomplishes two unfortunate results. First, the Court moves administrative decisionmaking one step closer to unreviewability, an odd result at a time when serious concern is being expressed about the fairness of agency justice.[3] Second, the Court serves notice upon the federal judiciary to be wary indeed of venturing to correct administrative arbitrariness. Because I think the Court of Appeals followed the correct principles of judicial review of administrative conduct, I would affirm its judgment. |
per_curiam | 1,977 | 200 | per_curiam | Ashcroft v. Mattis | https://www.courtlistener.com/opinion/109657/ashcroft-v-mattis/ | Appellee's 18-year-old son was shot and killed by police while attempting to escape arrest. Appellee filed suit under 42 U.S. C. 1983 against the police officers in the United States District Court for the Eastern District of Missouri. He sought to recover damages, and also to obtain a declaratory judgment that the Missouri statutes authorizing the police action were unconstitutional.[1] The District Court held that a defense of good faith had been established, and denied both forms of relief. No appeal was taken from the denial of damages, but appellee did seek review of the denial of declaratory relief. The Eighth Circuit held that declaratory relief was available and remanded for consideration of *172 the merits of the constitutional issue. On remand, appellee filed an amended complaint, in which he made no claim for damages. The Missouri Attorney General was allowed to intervene in defense of the statutes, and the case was then submitted on stipulated facts. The District Court upheld the statutes, but was reversed by a divided Court of Appeals, sitting en banc, The Attorney General brought an appeal under 28 U.S. C. 1254 (2) from the holding that the state statutes were unconstitutional. Although we are urged to consider the merits of the Court of Appeals' holding, we are unable to do so, because this suit does not now present a live "case or controversy." This suit was brought to determine the police officers' liability for the death of appellee's son. That issue has been decided, and there is no longer any possible basis for a damages claim. Nor is there any possible basis for a declaratory judgment. For a declaratory judgment to issue, there must be a dispute which "calls, not for an advisory opinion upon a hypothetical basis, but for an adjudication of present right upon established facts." Aetna Life Ins. See also Maryland Casualty Here, the District Court was asked to answer the hypothetical question whether the defendants would have been liable apart from their defense of good faith. No "present right" of appellee was at stake. Indeed, appellee's primary claim of a present interest in the controversy is that he will obtain emotional satisfaction from a ruling that his son's death was wrongful.[2] Appellee's *173 Motion to Affirm 5-6, n. 1. Emotional involvement in a lawsuit is not enough to meet the case-or-controversy requirement; were the rule otherwise, few cases could ever become moot. The judgment of the Court of Appeals is vacated, and the case is remanded with instructions to direct the District Court to dismiss the second amended complaint. It is |
Justice Scalia | 1,989 | 9 | majority | Finley v. United States | https://www.courtlistener.com/opinion/112266/finley-v-united-states/ | On the night of November 11, 1983, a twin-engine plane carrying petitioner's husband and two of her children struck electric transmission lines during its approach to a San Diego, California, airfield. No one survived the resulting crash. Petitioner brought a tort action in state court, claiming that San Diego Gas and Electric Company had negligently positioned and inadequately illuminated the transmission lines, and that the city of San Diego's negligent maintenance of the airport's runway lights had rendered them inoperative the night of the crash. When she later discovered that the Federal Aviation Administration (FAA) was in fact the party responsible for the runway lights, petitioner filed the present action against the United in the United District Court for the Southern District of California. The complaint based jurisdiction upon the Federal Tort Claims Act (FTCA), 28 U.S. C. 1346(b), alleging negligence in the FAA's operation and maintenance of the runway lights and performance of air traffic control functions. Almost a year later, she moved to amend the federal complaint to include claims against the original state-court defendants, as to which no independent basis for federal jurisdiction existed. The District Court *547 granted petitioner's motion and asserted "pendent" jurisdiction under Mine finding it "clear" that "judicial economy and efficiency" favored trying the actions together, and concluding that they arose "from a common nucleus of operative facts." App. to Pet. for Cert. A-8 to A-9. The District Court certified an interlocutory appeal to the Court of Appeals for the Ninth Circuit under 28 U.S. C. 1292(b). That court summarily reversed on the basis of its earlier opinion in cert. dism'd, which had categorically rejected pendent-party jurisdiction under the FTCA. We granted certiorari, to resolve a split among the Circuits on whether the FTCA permits an assertion of pendent jurisdiction over additional parties. Compare, e. g., with and Stewart v. United cert. denied, The FTCA provides that "the district courts shall have exclusive jurisdiction of civil actions on claims against the United " for certain torts of federal employees acting within the scope of their employment. 28 U.S. C. 1346(b). Petitioner seeks to append her claims against the city and the utility to her FTCA action against the United even though this would require the District Court to extend its authority to additional parties for whom an independent jurisdictional base such as diversity of citizenship, 28 U.S. C. 1332(a)(1) is lacking. In 1807 Chief Justice Marshall wrote for the Court that "courts which are created by written law, and whose jurisdiction is defined by written law, cannot transcend that jurisdiction. It |
Justice Scalia | 1,989 | 9 | majority | Finley v. United States | https://www.courtlistener.com/opinion/112266/finley-v-united-states/ | is defined by written law, cannot transcend that jurisdiction. It is unnecessary to state the reasoning on which this opinion is founded, because it has been repeatedly given by this court; and with the decisions heretofore rendered on this point, no member of the bench has, even for an instant, been dissatisfied." Ex parte Bollman, It *548 remains rudimentary law that "[a]s regards all courts of the United inferior to this tribunal, two things are necessary to create jurisdiction, whether original or appellate. The Constitution must have given to the court the capacity to take it, and an act of Congress must have supplied it. To the extent that such action is not taken, the power lies dormant." The ; accord, ; Firestone Tire & Rubber ; ; Case of the Sewing Machine Companies, ; ; ; Despite this principle, in a line of cases by now no less well established we have held, without specific examination of jurisdictional statutes, that federal courts have "pendent" claim jurisdiction that is, jurisdiction over nonfederal claims between parties litigating other matters properly before the court to the full extent permitted by the Constitution. Mine (13);[1], which has come to stand for the principle in question, held that "[p]endent jurisdiction, in the sense of judicial power, exists whenever there is a claim `arising under [the] Constitution, the Laws of the United and Treaties made, or which shall be made, under their Authority.' U. S. Const., Art. III, 2, and the relationship *549 between that claim and the state claim permits the conclusion that the entire action before the court comprises but one constitutional `case.' " The requisite relationship exists, said, when the federal and nonfederal claims "derive from a common nucleus of operative fact" and are such that a plaintiff "would ordinarily be expected to try them in one judicial proceeding." Petitioner contends that the same criterion applies here, leading to the result that her state-law claims against San Diego Gas and Electric Company and the city of San Diego may be heard in conjunction with her FTCA action against the United Analytically, petitioner's case is fundamentally different from in that it brings into question what has become known as pendent-party jurisdiction, that is, jurisdiction over parties not named in any claim that is independently cognizable by the federal court.[2] We may assume, without deciding, that the constitutional criterion for pendent-party jurisdiction is analogous to the constitutional criterion for pendent-claim jurisdiction, and that petitioner's state-law claims pass that test. Our cases show, however, that with respect to the addition of parties, as |
Justice Scalia | 1,989 | 9 | majority | Finley v. United States | https://www.courtlistener.com/opinion/112266/finley-v-united-states/ | however, that with respect to the addition of parties, as opposed to the addition of only claims, we will not assume that the full constitutional power has been congressionally authorized, and will not read jurisdictional statutes broadly. In we refused to allow a plaintiff pursuing a diversity action worth less than the jurisdictional minimum of $10,000 to append his claim to the jurisdictionally adequate diversity claims of other members of a plaintiff class even though all of the claims would together *550 have amounted to a single "case" under see Owen Equipment & Erection We based this holding upon "the statutes defining the jurisdiction of the District Court," and did not so much as mention Two years later, the nontransferability of to pendent-party claims was made explicit. In the plaintiff brought federal claims under 42 U.S. C. 1983 against individual defendants, and sought to append to them a related state claim against Spokane County, Washington.)[3] We specifically disapproved application of the mode of analysis, finding a "significant legal difference." "[T]he addition of a completely new party," we said, "would run counter to the well-established principle that federal courts are courts of limited jurisdiction marked out by Congress." "Resolution of a claim of pendent-party jurisdiction calls for careful attention to the relevant statutory language." We held in Aldinger that the jurisdictional statute under which suit was brought, 28 U.S. C. 1343, which conferred district court jurisdiction over civil actions of certain types "authorized by law to be commenced," did not mean to include as "authorized by law" a state-law claim against a party that had been statutorily insulated from similar federal suit. The county had been "excluded from liability in 1983, and therefore by reference in the grant of jurisdiction under 1343(3)." We reaffirmed and further refined our approach to pendent-party jurisdiction in Owen Equipment & Erection at -375 a case, like Zahn, involving the diversity statute, 28 U.S. C. 1332(a)(1), but focusing on the requirement that the suit be "between citizens of different *551 states," rather than the requirement that it "excee[d] the sum or value of $10,000." We held that the jurisdiction which 1332(a)(1) confers over a "matter in controversy" between a plaintiff and defendant of diverse citizenship cannot be read to confer pendent jurisdiction over a different, non-diverse defendant, even if the claim involving that other defendant meets the test. "," we said, "does not end the inquiry into whether a federal court has power to hear the nonfederal claims along with the federal ones. Beyond this constitutional minimum, there must be an examination of the |
Justice Scalia | 1,989 | 9 | majority | Finley v. United States | https://www.courtlistener.com/opinion/112266/finley-v-united-states/ | this constitutional minimum, there must be an examination of the posture in which the nonfederal claim is asserted and of the specific statute that confers jurisdiction over the federal claim," The most significant element of "posture" or of "context," in the present case (as in Zahn, Aldinger, and ) is precisely that the added claims involve added parties over whom no independent basis of jurisdiction exists. While in a narrow class of cases a federal court may assert authority over such a claim "ancillary" to jurisdiction otherwise properly vested for example, when an additional party has a claim upon contested assets within the court's exclusive control, see, e. g., ; or when necessary to give effect to the court's judgment, see, e. g., Local Loan (14); 1 U.S. we have never reached such a result solely on the basis that the test has been met.[4] And little more basis than that can be relied *552 upon by petitioner here. As in the relationship between petitioner's added claims and the original complaint is one of "mere factual similarity," which is of no consequence since "neither the convenience of the litigants nor considerations of judicial economy can suffice to justify extension of the doctrine of ancillary jurisdiction," 437 U.S., -377. It is true that here, unlike in see the party seeking to bring the added claims had little choice but to be in federal rather than state court, since the FTCA permits the Federal Government to be sued only there. But that alone is not enough, since we have held that suits against the United under the Tucker Act, (which can of course be brought only in federal court, see 28 U.S. C. 1346(a)(2), 1491(a)(1)), cannot include private defendants. United v. Sherwood, The second factor invoked by the text of the jurisdictional statute at issue, likewise fails to establish petitioner's case. The FTCA, 1346(b), confers jurisdiction over "civil actions on claims against the United" It does not say "civil actions on claims that include requested relief against the United" nor "civil actions in which there is a claim against the United " formulations one might expect if the presence of a claim against the United constituted merely a minimum jurisdictional requirement, rather than a definition of the permissible scope of FTCA actions. Just as the statutory provision "between citizens of different " has been held to mean citizens of different and no one else, see so also here we conclude that "against the United " means against the United and no one else.[5] "Due regard for the rightful *553 |
Justice Scalia | 1,989 | 9 | majority | Finley v. United States | https://www.courtlistener.com/opinion/112266/finley-v-united-states/ | and no one else.[5] "Due regard for the rightful *553 independence of state governments requires that [federal courts] scrupulously confine their own jurisdiction to the precise limits which the statute has defined." (14); accord, Executive Jet Aviation, ; Shamrock Oil & Gas The statute here defines jurisdiction in a manner that does not reach defendants other than the United[6] Petitioner contends, however, that an affirmative grant of pendent-party jurisdiction is suggested by changes made to the jurisdictional grant of the FTCA as part of the comprehensive 1948 revision of the Judicial Code. See Pub. L. 773, *554 In its earlier form, the FTCA had conferred upon district courts "exclusive jurisdiction to hear, determine, and render judgment on any claim against the United " for specified torts. 28 U.S. C. 1 (1946 ed.) In the 1948 revision, this provision was changed to "exclusive jurisdiction of civil actions on claims against the United" 28 U.S. C. 1346(b) (1952 ed.) Petitioner argues that this broadened the scope of the statute, permitting the assertion of jurisdiction over any "civil action," so long as that action includes a claim against the United We disagree. Under established canons of statutory construction, "it will not be inferred that Congress, in revising and consolidating the laws, intended to change their effect unless such intention is clearly expressed." ; see United v. Ryder, Concerning the 1948 recodification of the Judicial Code in particular, we have stated that "no changes in law or policy are to be presumed from changes of language in the revision unless an intent to make such changes is clearly expressed." Fourco Glass ; see Tidewater Oil Co. v. United We have found no suggestion, much less a clear expression, that the minor rewording at issue here imported a substantive change. The change from "claim against the United " to "civil actions on claims against the United " would be a strange way to express the substantive revision asserted by petitioner but a perfectly understandable way to achieve another objective. The 1948 recodification came relatively soon after the adoption of the Federal Rules of Civil Procedure, which provide that "[t]here shall be one form of action to be known as `civil action.' " Fed. Rule Civ. Proc. 2. Consistent with this new terminology, the 1948 revision inserted the expression "civil action" throughout the provisions governing *555 district-court jurisdiction. See H. R. Rep. No. 308, 80th Cong., 1st Sess., App. A114-A125 (Reviser's Notes). Reliance upon the 1948 recodification also ignores the fact that the concept of pendent-party jurisdiction was not considered remotely viable until liberalized the |
Justice Scalia | 1,989 | 9 | majority | Finley v. United States | https://www.courtlistener.com/opinion/112266/finley-v-united-states/ | pendent-party jurisdiction was not considered remotely viable until liberalized the concept of pendent-claim jurisdiction nearly 20 years later. See 13B C. Wright, A. Miller, & E. Cooper, Federal Practice and Procedure 3567.2, pp. 146-148 ; Miller, Ancillary and Pendent Jurisdiction, 26 S. Tex. L. J. 1, 11 (1985). Indeed, in 1948 even a relatively limited substantive expansion of pendent-claim jurisdiction with respect to unfair competition actions provoked considerable discussion, see Wechsler, Federal Jurisdiction and the Revision of the Judicial Code, 13 Law & Contemp. Prob. 216, 232 (1948); Note, The Proposed Revision of the Federal Judicial Code, and was described by the chief reviser as one of a dozen "major changes of law" effected by his handiwork, W. Barron, The Judicial Code 1948 Revision, 8 F. R. D. 439, 441-445 (1949). That change, in the already accepted realm of pendent-claim jurisdiction, was accomplished by wording that could not be mistaken, referring to "any civil action asserting a claim of unfair competition when joined with a substantial and related claim under the copyright, patent, or trademark laws." 1338(b), 62 Stat. 1. It is inconceivable that the much more radical change of adopting pendent-party jurisdiction would have been effected by the minor and obscure change of wording at issue here especially when that revision is more naturally understood as stylistic. Because the FTCA permits the Government to be sued only in federal court, our holding that parties to related claims cannot necessarily be sued there means that the efficiency and convenience of a consolidated action will sometimes have to be forgone in favor of separate actions in state and federal courts. We acknowledged this potential consideration *556 in Aldinger, but now conclude that the present statute permits no other result. * * * As we noted at the outset, our cases do not display an entirely consistent approach with respect to the necessity that jurisdiction be explicitly conferred. The line of cases was a departure from prior practice, and a departure that we have no intent to limit or impair. But Aldinger indicated that the approach would not be extended to the pendent-party field, and we decide today to retain that line. Whatever we say regarding the scope of jurisdiction conferred by a particular statute can of course be changed by Congress. What is of paramount importance is that Congress be able to legislate against a background of clear interpretive rules, so that it may know the effect of the language it adopts. All our cases Zahn, Aldinger, and have held that a grant of jurisdiction over claims |
Justice Scalia | 1,999 | 9 | concurring | Martin v. Hadix | https://www.courtlistener.com/opinion/118308/martin-v-hadix/ | Our task in this case is to determine the temporal application of that provision of the Prison Litigation Reform Act of 1995 (PLRA), 42 U.S. C. 1997e(d)(3) (1994 ed., Supp. III), which prescribes that "[n]o award of attorney's fees in an action [brought by a prisoner in which attorney's fees are authorized under 42 U.S. C. 1988 (1994 ed., and Supp. III)] shall be based on an hourly rate greater than 150 percent of the hourly rate established under [18 U.S. C. 3006A (1994 ed., and Supp. III)] for payment of court-appointed counsel." I agree with the Court that the intended temporal application is not set forth in the text of the statute, and that the outcome must therefore be governed by our interpretive principle that, in absence of contrary indication, a statute will not be construed to have retroactive application, see But that leaves open the key question: retroactive in reference to what? The various options in the present case include (1) the alleged violation upon which the fee-imposing suit is based (applying the new fee rule to any case involving an alleged violation that occurred before the PLRA became effective would be giving it "retroactive application"); (2) the lawyer's undertaking to prosecute the suit for which attorney's fees were provided (applying the new fee rule to any case in which the lawyer was retained before the PLRA became effective would be giving it "retroactive application"); *363 (3) the filing of the suit in which the fees are imposed (applying the new fee rule to any suit brought before the PLRA became effective would be giving it "retroactive application"); (4) the doing of the legal work for which the fees are payable (applying the new fee rule to any work done before the PLRA became effective would be giving it "retroactive application"); and (5) the actual award of fees in a prisoner case (applying the new fee rule to an award rendered before the PLRA became effective would be giving it "retroactive application"). My disagreement with the Court's approach is that, in deciding which of the above five reference points for the retroactivity determination ought to be selected, it seems to me not much help to ask which of them would frustrate expectations. In varying degrees, they all would. As I explained in my concurrence in I think the decision of which reference point (which "retroactivity event") to select should turn upon which activity the statute was intended to regulate. If it was intended to affect primary conduct, No. 1 should govern; if it was intended to induce lawyers |
Justice Scalia | 1,999 | 9 | concurring | Martin v. Hadix | https://www.courtlistener.com/opinion/118308/martin-v-hadix/ | 1 should govern; if it was intended to induce lawyers to undertake representation, No. 2and so forth. In my view, the most precisely defined purpose of the provision at issue here was to reduce the previously established incentive for lawyers to work on prisoners' civil rights cases. If the PLRA is viewed in isolation, of course, its purpose could be regarded as being simply to prevent a judicial award of fees in excess of the referenced amountin which case the relevant retroactivity event would be the award. In reality, however, the PLRA simply revises the fees provided for by 1988, and it seems to me that the underlying purpose of that provision must govern its amendment as wellwhich purpose was to provide an appropriate incentive for lawyers to work on (among other civil rights cases) prisoner *364 suits.[1] That being so, the relevant retroactivity event is the doing of the work for which the incentive was offered.[2] All work rendered in reliance upon the fee assurance contained in the former 1988 will be reimbursed at those rates; all work rendered after the revised fee assurance of the PLRA became effective will be limited to the new rates. The District Court's announcement that it would permit future work to be billed at a higher rate operated in futuro; it sought to regulate future conduct rather than adjudicate past. It was therefore no less subject to revision by statute than is an injunction. For these reasons, I concur in the judgment of the Court and join all but Part IIB of its opinion. Justice Ginsburg, with whom Justice Stevens joins, concurring in part and dissenting in part. I agree with the Court's determination that 803(d) of the Prison Litigation Reform Act of 1995, (PLRA or Act), 42 U.S. C. 1997e(d) (1994 ed., Supp. III), does not "limit fees for postjudgment monitoring performed before the [Act's] effective date," ante, at 347, and with much of the reasoning set out in Parts I, IIA-1, and IIB-1 of the Court's opinion. I disagree, however, with the holding that 803(d) "limits attorney's fees with respect to postjudgment monitoring services performed after the effective date." *365 I do not find in the PLRA's text or history a satisfactory basis for concluding that Congress meant to order a midstream change, placing cases commenced before the PLRA became law under the new regime. I would therefore affirm in full the judgment of the Court of Appeals for the Sixth Circuit, which held 803(d) inapplicable to cases brought to court prior to the enactment of the PLRA. To explain my |
Justice Scalia | 1,999 | 9 | concurring | Martin v. Hadix | https://www.courtlistener.com/opinion/118308/martin-v-hadix/ | prior to the enactment of the PLRA. To explain my view of the case, I retread some of the factual and analytical ground treated in more detail in the Court's opinion. I On April 26, President Clinton signed the PLRA into law. Section 803(d) of the Act, governing attorney's fees, provides: "(1) In any action brought by a prisoner who is confined to any jail, prison, or other correctional facility, in which attorney's fees are authorized under section 1988 of this title, such fees shall not be awarded, except to the extent that "(A) the fee was directly and reasonably incurred in proving an actual violation of the plaintiff's rights protected by a statute pursuant to which a fee may be awarded under section 1988 of this title; and "(B)(i) the amount of the fee is proportionately related to the court ordered relief for the violation; or "(ii) the fee was directly and reasonably incurred in enforcing the relief ordered for the violation. "(2) Whenever a monetary judgment is awarded in an action described in paragraph (1), a portion of the judgment (not to exceed 25 percent) shall be applied to satisfy the amount of attorney's fees awarded against the defendant. If the award of attorney's fees is not greater than 150 percent of the judgment, the excess shall be paid by the defendant. "(3) No award of attorney's fees in an action described in paragraph (1) shall be based on an hourly rate greater *366 than 150 percent of the hourly rate established under section 3006A of title 18 for payment of court-appointed counsel." 42 U.S. C. 1997e(d) (1994 ed., Supp. III). At issue here is whether 803(d) governs post-April 26, fee awards in two lawsuits commenced before that date. In a class of female Michigan inmates filed an action under 42 U.S. C. 1983 (1994 ed., Supp. III) against various Michigan prison officials (State) in 1977; the Glover plaintiffs alleged principally that they were denied vocational and educational opportunities afforded their male counterparts, in violation of the Equal Protection Clause. Ruling in plaintiffs' favor, the District Court entered a remedial order and retained jurisdiction over the case pending defendants' substantial compliance with that order. See Under a 1985 ruling governing fee awards, plaintiffs' counsel applied for fees and costs twice yearly. See In a class of male Michigan inmates filed a 1983 action against the State in 1980, alleging that the conditions of their confinement violated the First, Eighth, Ninth, and Fourteenth Amendments. In 1985, the parties entered into a consent decree governing sanitation, health care, fire safety, |
Justice Scalia | 1,999 | 9 | concurring | Martin v. Hadix | https://www.courtlistener.com/opinion/118308/martin-v-hadix/ | into a consent decree governing sanitation, health care, fire safety, overcrowding, court access, and other aspects of prison life. The District Court retained jurisdiction over the case pending substantial compliance with the decree. Plaintiffs' attorneys remain responsible for monitoring compliance with the decree. In 1987, the District Court entered an order governing the award of fees and costs to plaintiffs' counsel for compliance monitoring. See Counsel for plaintiffs in both cases filed fee applications for compensation at the court-approved market-based level of $150 per hour for work performed between January 1, and June 30, See App. to Pet. for Cert. 27a, 33a. The *367 State objected, arguing that 803(d) limits all fees awarded after April 26, in these litigations to $112.50 per hour. at 34a. In separate but nearly identical opinions, the District Court refused to apply 803(d)'s fee limitation to work performed before the PLRA's effective date, see at 28a, n. 1; at 34a, n. 1, but applied the limitation to all work performed thereafter, see at 31a, 41a. Relying on its recent decision in the Sixth Circuit affirmed the District Court's refusal to apply 803(d) to work completed preenactment. See 143 F.3d, at The appeals court reversed the District Court's judgment, however, to the extent that it applied 803(d) to work performed postenactment. See Unpersuaded that Congress intended the PLRA attorney's fees provisions to apply retroactively, the panel held that 803(d) "is inapplicable to cases brought before the statute was enacted whether the underlying work was performed before or after the enactment date of the statute." II In we reaffirmed the Court's longstanding presumption against retroactive application of the law. "If [a] statute would operate retroactively," we held, "our traditional presumption teaches that it does not govern absent clear congressional intent favoring such a result." at Emphasizing that 803(d) applies to "any action brought by a prisoner who is confined," the State insists that the statute's plain terms reveal Congress' intent to limit fees in pending as well as future cases. See Brief for Petitioners 14-15 (emphases deleted; internal quotation marks omitted). As the Court recognizes, however, 803(d)'s "any action brought" language refers to the provision's substantive scope, not its temporal reach, see ante, at 353-354; "any" appears in the text only in proximity to provisions identifying the *368 law's substantive dimensions.[1] Had Congress intended that 803(d) apply retroactively, it might easily have specified, as the Court suggests, that all postenactment awards shall be subject to the limitation, see ante, at 354, or prescribed that the provision "shall apply in all proceedings pending on or commenced after the |
Justice Scalia | 1,999 | 9 | concurring | Martin v. Hadix | https://www.courtlistener.com/opinion/118308/martin-v-hadix/ | apply in all proceedings pending on or commenced after the date of enactment of this Act." Congress instead left unaddressed 803(d)'s temporal reach. Comparison of 803(d)'s text with that of a neighboring provision, 802(b)(1) of the PLRA, is instructive for the retroactivity question we face. Section 802(b)(1), which governs "appropriate remedies" in prison litigation, applies expressly to "all prospective relief whether such relief was originally granted or approved before, on, or after the date of the enactment of this title." -70, note following 18 U.S. C. 3626. "Congress [thus] saw fit to tell us which part of the Act was to be retroactively applied," i. e., 802. While I agree with the Court that the negative implication created by these two provisions is not dispositive, see ante, at 357, Congress' silence nevertheless suggests that 803(d) has no carryback thrust. Absent an express statutory command respecting retroactivity, teaches, the attorney's fees provision should not be applied to pending cases if doing so would "have retroactive effect." 511 U.S., at As the Court recognizes, see ante, at 360, application of 803(d) to work performed before the PLRA's effective date would be impermissibly retroactive. Instead of the court-approved *369 market-based fee that attorneys anticipated for work performed under the old regime, counsel would be limited to the new statutory rate. We long ago recognized the injustice of interpreting a statute to reduce the level of compensation for work already performed. See United III In my view, 803(d) is most soundly read to cover all, and only, representations undertaken after the PLRA's effective date. Application of 803(d) to representations commenced before the PLRA became law would "attac[h] new legal consequences to [an] even[t] completed before [the statute's] enactment"; hence the application would be retroactive under The critical event effected before the PLRA's effective date is the lawyer's undertaking to prosecute the client's civil rights claim. Applying 803(d) to pending matters significantly alters the consequences of the representation on which the lawyer has embarked.[2] Notably, attorneys engaged before passage of the PLRA have little leeway to alter their conduct in response to the new legal regime; an attorney who initiated a prisoner's rights suit before April 26, remains subject to a professional obligation to see the litigation through to final disposition. See ABA Model Rule of Professional Conduct 1.3, and Comment [3] (1999) ("[A] lawyer should carry *370 through to conclusion all matters undertaken for a client."). Counsel's actions before and after that date are thus "inextricab[ly] part of a course of conduct initiated prior to the law." Inmates of D. C. While the injustice |
Justice Scalia | 1,999 | 9 | concurring | Martin v. Hadix | https://www.courtlistener.com/opinion/118308/martin-v-hadix/ | to the law." Inmates of D. C. While the injustice in applying the fee limitations to pending actions may be more readily apparent regarding work performed before the PLRA's effective date, application of the statute to work performed thereafter in pending cases also frustrates reasonable reliance on prior law and courtapproved market rates. Consider, for example, two attorneys who filed similar prison reform lawsuits at the same time, pre-PLRA. Both attorneys initiated their lawsuits in the expectation that, if they prevailed, they would earn the market rate anticipated by pre-PLRA law. In one case, the lawsuit progressed swiftly, and labor-intensive pretrial discovery was completed before April 26, In the other, the suit lagged through no fault of plaintiff's counsel, pending the court's disposition of threshold motions, and the attorney was unable to pursue discovery until after April 26,[3] Both attorneys have prosecuted their claims with due diligence; both were obliged, having accepted the representations, to perform the work for which they seek compensation. There is scarcely greater injustice in denying pre-PLRA compensation for pretrial discovery in the one case than the other. Nor is there any reason to think that Congress intended these similarly situated attorneys to be treated differently. The Court avoids a conclusion of retroactivity by dismissing as an unsupported assumption the attorneys' assertion of an obligation to continue their representations through to *371 final disposition. See ante, at 361. It seems to me, however, that the assertion has secure support. Like the ABA's Model Rules, the Michigan Rules of Professional Conduct (1999), which apply to counsel in both Hadix and Glover, see Rule 83.20(j), provide that absent good cause for terminating a representation, "a lawyer should carry through to conclusion all matters undertaken for a client." Rule 1.3, Comment. It is true that withdrawal may be permitted where "the representation will result in an unreasonable financial burden on the lawyer," Rule 1.16(b)(5), but explanatory comments suggest that this exception is designed for situations in which "the client refuses to abide by the terms of an agreement relating to the representation, such as an agreement concerning fees," Rule 1.16, Comment. Consistent with the Michigan Rules, counsel for petitioners affirmed at oral argument their ethical obligation to continue these representations to a natural conclusion. See Tr. of Oral Arg. 43 ("[Continuing the representation] does involve ethical concerns certainly, especially in the[se] circumstance[s]."). There is no reason to think counsel ethically could have abandoned these representations in response to the PLRA fee limitation, nor any basis to believe the trial court would have permitted counsel to withdraw. See Rule 1.16(c) |
Justice Scalia | 1,999 | 9 | concurring | Martin v. Hadix | https://www.courtlistener.com/opinion/118308/martin-v-hadix/ | court would have permitted counsel to withdraw. See Rule 1.16(c) ("When ordered to do so by a tribunal, a lawyer shall continue representation."). As I see it, the attorneys' pre-PLRA pursuit of the civil rights claims thus created an obligation, enduring post-PLRA, to continue to provide effective representation. Accordingly, I conclude that the Sixth Circuit soundly resisted the "sophisticated construction," that would split apart, for fee award purposes, a constant course of representation. "[T]he triggering event for retroactivity purposes," I am persuaded, "is when the lawyer undertakes to litigate the civil rights action on behalf of the client." Inmates of D. C. 158 F. 3d, at *372 * * * `s lesson is that Congress must speak clearly when it wants new rules to govern pending cases. Because 803(d) contains no clear statement on its temporal reach, and because the provision would operate retroactively as applied to lawsuits pending on the Act's effective date, I would hold that the fee limitation applies only to cases commenced after April 26, |
Justice Brennan | 1,985 | 13 | dissenting | United States v. Montoya De Hernandez | https://www.courtlistener.com/opinion/111509/united-states-v-montoya-de-hernandez/ | We confront a "disgusting and saddening episode" at our Nation's border.[1] Shortly after midnight on March 5, 1983, the respondent Rosa Elvira Montoya de Hernandez was detained by customs officers because she fit the profile of an "alimentary canal smuggler."[2] This profile did not of course give the officers probable cause to believe that De Hernandez *546 was smuggling drugs into the country, but at most a "reasonable suspicion" that she might be engaged in such an attempt. After a thorough strip search failed to uncover any contraband, De Hernandez agreed to go to a local hospital for an abdominal x ray to resolve the matter. When the officers approached with handcuffs at the ready to lead her away, however, "she crossed her arms by her chest and began stepping backwards shaking her head negatively," protesting: "You are not going to put those on me. That is an insult to my character."[3] Stymied in their efforts, the officers decided on an alternative course: they would simply lock De Hernandez away in an adjacent manifest room "until her peristaltic functions produced a monitored bowel movement."[4] The officers explained to De Hernandez that she could not leave until she had excreted by squatting over a wastebasket pursuant to the watchful eyes of two attending matrons. De Hernandez responded: "I will not submit to your degradation and I'd rather die."[5] She was locked away with the matrons. De Hernandez remained locked up in the room for almost 24 hours. Three shifts of matrons came and went during this time. The room had no bed or couch on which she could lie, but only hard chairs and a table. The matrons told her that if she wished to sleep she could lie down on the hard, uncarpeted floor. De Hernandez instead "sat in her chair clutching her purse," "occasionally putting her head down on the table to nap."[6] Most of the time she simply wept and pleaded "to go home."[7] She repeatedly begged for permission "to call my husband and tell him what you are doing to *547 me."[8] Permission was denied. Sobbing, she insisted that she had to "make a phone call home so that she could talk to her children and to let them know that everything was all right."[9] Permission again was denied. In fact, the matrons considered it highly "unusual" that "each time someone entered the search room, she would take out two small pictures of her children and show them to the person."[10] De Hernandez also demanded that her attorney be contacted.[11] Once again, permission was denied. As far |
Justice Brennan | 1,985 | 13 | dissenting | United States v. Montoya De Hernandez | https://www.courtlistener.com/opinion/111509/united-states-v-montoya-de-hernandez/ | attorney be contacted.[11] Once again, permission was denied. As far as the outside world knew, Rosa de Hernandez had simply vanished. And although she already had been stripped and searched and probed, the customs officers decided about halfway through her ordeal to repeat that process "to ensure the safety of the surveilling officers. The result was again negative."[12] After almost 24 hours had passed, someone finally had the presence of mind to consult a Magistrate and to obtain a court order for an x ray and a body-cavity search.[] De *548 Hernandez, "very agitated," was handcuffed and led away to the hospital.[14] A rectal examination disclosed the presence of a cocaine-filled balloon. At approximately 3:15 on the morning of March 6, almost 27 hours after her initial detention, De Hernandez was formally placed under arrest and advised of her Miranda rights. Over the course of the next four days she excreted a total of 88 balloons. "[T]hat the [respondent] so degraded herself as to offend the sensibilities of any decent citizen is not questioned."[15] That is not the issue we face. For "[i]t is a fair summary of history to say that the safeguards of liberty have frequently been forged in controversies involving not very nice people." United The standards we fashion to govern the ferreting out of the guilty apply equally to the detention of the innocent, and "may be exercised by the most unfit and ruthless officers as well as by the fit and responsible."[16] Nor is the issue whether there is a "veritable *549 national crisis in law enforcement caused by smuggling of illicit narcotics." Ante, at 538. There is, and "[s]tern enforcement of the criminal law is the hallmark of a healthy and self-confident society." "But in our democracy such enforcement presupposes a moral atmosphere and a reliance upon intelligence whereby the effective administration of justice can be achieved with due regard for those civilized standards in the use of the criminal law which are formulated in our Bill of Rights." The issue, instead, is simply this: Does the Fourth Amendment permit an international traveler, citizen or alien, to be subjected to the sort of treatment that occurred in this case without the sanction of a judicial officer and based on nothing more than the "reasonable suspicion" of low-ranking investigative officers that something might be amiss? The today concludes that the Fourth Amendment grants such sweeping and unmonitored authority to customs officials. It reasons that "[t]he permissibility of a particular law enforcement practice is judged by `balancing its intrusion on the individual's Fourth Amendment interests |
Justice Brennan | 1,985 | 13 | dissenting | United States v. Montoya De Hernandez | https://www.courtlistener.com/opinion/111509/united-states-v-montoya-de-hernandez/ | by `balancing its intrusion on the individual's Fourth Amendment interests against its promotion of legitimate governmental interests.' " Ante, The goes on to assert that the "balance of reasonableness is qualitatively different at the international border," and that searches and seizures in these circumstances may therefore be conducted without probable cause or a warrant. Ante, at 538. Thus a traveler at the Nation's border may be detained for criminal investigation merely if the authorities "reasonably suspect that the traveler is smuggling contraband." Ante, at 541. There are no "hard-and-fast time limits" for *550 such investigative detentions, because " `common sense and ordinary human experience must govern over rigid criteria.' " Ante, at 543. Applying this "reasonableness" test to the instant case, the concludes that the "[r]espondent alone was responsible for much of the duration and discomfort of the seizure." JUSTICE STEVENS takes a somewhat different tack. Apparently convinced that the health effects of x-irradiation on human beings stand established as so minimal as to be little cause for concern, he believes that low-ranking customs officials on their own initiative may require nonpregnant international travelers to submit to warrantless x rays on nothing more than suspicion if such travelers wish to avoid indeterminate warrantless detentions. Because De Hernandez withdrew her consent to proceed in handcuffs to such an examination, "[t]he prolonged detention of respondent was. justified." Ante, at 545 (concurring in judgment). I dissent. Indefinite involuntary incommunicado detentions "for investigation" are the hallmark of a police state, not a free society. See, e. g., ; ; (19). In my opinion, Government officials may no more confine a person at the border under such circumstances for purposes of criminal investigation than they may within the interior of the country. The nature and duration of the detention here may well have been tolerable for spoiled meat or diseased animals, but not for human beings held on simple suspicion of criminal activity. I believe such indefinite detentions can be "reasonable" under the Fourth Amendment only with the approval of a magistrate. I also believe that such approval can be given only upon a showing of probable cause. Finally, I believe that the warrant and probable-cause safeguards equally govern JUSTICE STEVENS' proffered alternative of exposure to x-irradiation for criminal-investigative purposes. *551 I Travelers at the national border are routinely subjected to questioning, patdowns, and thorough searches of their belongings. These measures, which involve relatively limited invasions of privacy and which typically are conducted on all incoming travelers, do not violate the Fourth Amendment given the interests of "national self protection reasonably requiring one entering the |
Justice Brennan | 1,985 | 13 | dissenting | United States v. Montoya De Hernandez | https://www.courtlistener.com/opinion/111509/united-states-v-montoya-de-hernandez/ | interests of "national self protection reasonably requiring one entering the country to identify himself as entitled to come in, and his belongings as effects which may be lawfully brought in."[17] Individual travelers also may be singled out on "reasonable suspicion" and briefly held for further investigation. Cf.[18] At some point, however, further investigation involves such severe intrusions on the values the Fourth Amendment protects that more stringent safeguards are required. For example, the length and nature of a detention may, at least when conducted for criminal-investigative purposes, ripen into something approximating a full-scale custodial arrest indeed, the arrestee, unlike the detainee in cases such as this, is at least given such basic rights as a telephone call, Miranda warnings, a bed, a prompt hearing before the nearest federal magistrate, an appointed attorney, and consideration of bail. In addition, border detentions may involve the use of such highly intrusive investigative techniques as body-cavity searches, x-ray searches, and stomach pumping.[19] *552 I believe that detentions and searches falling into these more intrusive categories are presumptively "reasonable" within the meaning of the Fourth Amendment only if authorized by a judicial officer. "Though the Fourth Amendment speaks broadly of `unreasonable searches and seizures,' the definition of `reasonableness' turns, at least in part, on the more specific commands of the warrant clause." United "The point of the Fourth Amendment, which often is not grasped by zealous officers, is not that it denies law enforcement the support of the usual inferences which reasonable men draw from evidence. Its protection consists in requiring that those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime. When the right of privacy must reasonably yield to the right of search is, as a rule, to be decided by a judicial officer, not by a policeman or government enforcement agent." Accordingly, the repeatedly has emphasized that the Fourth Amendment's Warrant Clause is not mere "dead language" or a bothersome "inconvenience to be somehow `weighed' against the claims of police efficiency. It is, or should be, an important working part of our machinery of government, operating as a matter of course to check the `well-intentioned but mistakenly overzealous executive officers' who are a part of any system of law enforcement." United at ;[20] *553 We have, to be sure, held that executive officials need not obtain prior judicial authorization where exigent circumstances would make such authorization impractical and counterproductive. In so holding, however, we have reaffirmed the general rule that "the police must, whenever |
Justice Brennan | 1,985 | 13 | dissenting | United States v. Montoya De Hernandez | https://www.courtlistener.com/opinion/111509/united-states-v-montoya-de-hernandez/ | have reaffirmed the general rule that "the police must, whenever practicable, obtain advance judicial approval of searches and seizures through the warrant procedure." And even where a person has permissibly been taken into custody without a warrant, we have held that a prompt probable-cause determination by a detached magistrate is a constitutional "prerequisite to extended restraint of liberty following arrest."[21] Cf. ; ; 18 U.S. C. 3501(c); Fed. Rule Crim. Proc. 5. * There is no persuasive reason not to apply these principles to lengthy and intrusive criminal-investigative detentions occurring at the Nation's border. To be sure, the today invokes precedent stating that neither probable cause nor a warrant ever have been required for border searches. See ante, citing United If this is the law as a general matter, I believe it is time that we reexamine its foundations.[22] For while the power of Congress to authorize wide-ranging detentions and searches for purposes of immigration and customs control is unquestioned, the previously has emphasized that far different considerations apply when detentions and searches are carried out for purposes of investigating suspected criminal activity. See Wong ; see also And even if the is correct that such detentions for purposes of criminal investigation were viewed as acceptable a century or two ago, see ante, we repeatedly have stressed that "this has not simply frozen into constitutional law those law enforcement practices that existed at the time of the Fourth Amendment's passage." ; see also The Government contends, however, that because investigative detentions of the sort that occurred in this case need not be supported by probable cause, no warrant is required, given the phraseology of the Fourth Amendment's Warrant *555 Clause. See Brief for United 29, n. 26.[23] Even assuming that border detentions and searches that become lengthy and highly intrusive need not be supported by probable cause, but see Part II, infra, this reasoning runs squarely contrary to the 's administrative-warrant cases. We have repeatedly held that the Fourth Amendment's purpose of safeguarding "the privacy and security of individuals against arbitrary invasions by government officials" is so fundamental as to require, except in "certain carefully defined classes of cases," a magistrate's prior authorization even where "[p]robable cause in the criminal law sense is not required." Camara v. Municipal ; We have applied this requirement to fire, health, and housing-code inspections, Camara v. Municipal See v. Seattle, to occupational health and safety inspections of the workplace, Marshall v. Barlow's and to arson investigations, ; See also 4 U.S. 266, (prior judicial authorization is required for area-wide roving searches near the border); |
Justice Brennan | 1,985 | 13 | dissenting | United States v. Montoya De Hernandez | https://www.courtlistener.com/opinion/111509/united-states-v-montoya-de-hernandez/ | authorization is required for area-wide roving searches near the border); United -324 Something has gone fundamentally awry in our constitutional jurisprudence when a neutral and detached magistrate's authorization is required before the authorities may inspect "the plumbing, heating, ventilation, gas, and electrical *556 systems" in a person's home,[24] investigate the back rooms of his workplace, or poke through the charred remains of his gutted garage, but not before they may hold him in indefinite involuntary isolation at the Nation's border to investigate whether he might be engaged in criminal wrongdoing. No less than those who conduct administrative searches, those charged with investigative duties at the border "should not be the sole judges of when to utilize constitutionally sensitive means in pursuing their tasks," because "unreviewed executive discretion may yield too readily to pressures to obtain incriminating evidence and overlook potential invasions of privacy." And unlike administrative searches, which typically involve "relatively limited invasion[s]" of individual privacy interests, Camara v. Municipal many border searches carry grave potential for "arbitrary and oppressive interference by enforcement officials with the privacy and personal security of individuals," United ; see also United ; The conditions of De Hernandez' detention in this case indefinite confinement in a squalid back room cut off from the outside world, the absence of basic amenities that would have been provided to even the vilest of hardened criminals, repeated strip searches in many ways surpassed the conditions of a full custodial arrest. Although the previously has declined to require a warrant for border searches involving "minor interference with privacy resulting from the mere stop for questioning," United surely there is no parallel between such "minor" intrusions and the extreme invasion of personal privacy and dignity that occurs in detentions and searches such as that before us today. *557 Moreover, the available evidence suggests that the number of highly intrusive border searches of suspicious-looking but ultimately innocent travelers may be very high. One physician who at the request of customs officials conducted many "internal searches" rectal and vaginal examinations and stomach pumping estimated that he had found contraband in only 15 to 20 percent of the persons he had examined.[25] It has similarly been estimated that only 16 percent of women subjected to body-cavity searches at the border were in fact found to be carrying contraband.[26] It is precisely to minimize the risk of harassing so many innocent people that the Fourth Amendment requires the intervention of a judicial officer. See, e. g., And even if the warrant safeguard were somehow a mere inconvenient nuisance to be " |
Justice Brennan | 1,985 | 13 | dissenting | United States v. Montoya De Hernandez | https://www.courtlistener.com/opinion/111509/united-states-v-montoya-de-hernandez/ | safeguard were somehow a mere inconvenient nuisance to be " `weighed' against the claims of police efficiency," ibid., the Government points to no unusual efficiency concerns suggesting that this safeguard should be overridden in the run of such intrusive border-search cases. Certainly there were no "exigent circumstances" supporting the indefinite warrantless detention here, and the Government's interest in proceeding expeditiously could have been achieved by obtaining a telephonic *558 search warrant a procedure "ideally suited to the peculiar needs of the customs authorities" and one that ultimately was used in this case a full day after De Hernandez was first detained.[27] The supports its evasion of the warrant requirement, however, by analogizing to the Terry line of cases authorizing brief detentions based on reasonable suspicion. It argues that no "hard-and-fast time limits" can apply in this context because "alimentary canal smuggling cannot be detected in the amount of time in which other illegal activity may be investigated through brief Terry-type stops." Ante, at 543. I have previously set forth my views on the proper scope and duration of Terry stops,[28] and need not repeat those views in detail today. It is enough for present purposes to note that today's opinion is the most extraordinary example to date of the 's studied effort to employ the Terry decision as a means of converting the Fourth Amendment into a general "reasonableness" balancing process a process "in which the judicial thumb apparently will be planted firmly on the law enforcement side of the scales." United v. Sharpe, We previously have emphasized that Terry allows the authorities briefly to detain an individual for investigation and questioning, but that "any further detention or search must be based on consent or probable cause." United v. Brignoni-Ponce, Allowing such warrantless detentions under Terry suggests that the authorities might hold a person on suspicion for "however long it takes" to get him to cooperate, or to transport him to the station where the "legitimate" state interests more fully can be pursued, or simply to lock him away while deciding what the State's "legitimate" interests require. But the Fourth Amendment flatly prohibits such "wholesale intrusions upon the personal security" of individuals, and any application of Terry even by analogy to permit such indefinite detentions "would threaten to swallow" the basic probable-cause and warrant safeguards. 442 U. S., at 2; see[29] It is simply staggering that the suggests that Terry would even begin to sanction a 27-hour criminal-investigative detention, even one occurring at the border. The argues, however, that the length and "discomfort" of De Hernandez' detention "resulted |
Justice Brennan | 1,985 | 13 | dissenting | United States v. Montoya De Hernandez | https://www.courtlistener.com/opinion/111509/united-states-v-montoya-de-hernandez/ | that the length and "discomfort" of De Hernandez' detention "resulted solely from the method by which she chose to smuggle illicit drugs into this country," and it speculates that only her " `heroic' " efforts prevented the detention from being brief and to the point. Ante, at 544 Although we now know that De Hernandez was indeed guilty of smuggling drugs internally, such post hoc rationalizations have no place in our Fourth Amendment jurisprudence, which demands that we "prevent hindsight from coloring the evaluation of the reasonableness of a search or seizure." United 428 U. S., See also Beck v. At the time the authorities simply had, at most, a reasonable suspicion that De Hernandez *560 might be engaged in such smuggling. Neither the law of the land nor the law of nature supports the notion that petty government officials can require people to excrete on command; indeed, the relies elsewhere on "[t]he rudimentary knowledge of the human body" in sanctioning the "much longer than typical" duration of detentions such as this. Ante, at 543. And, with all respect to the it is not " `unrealistic second-guessing,' " ante, at 542, to predict that an innocent traveler, locked away in incommunicado detention in unfamiliar surroundings in a foreign land, might well be so frightened and exhausted as to be unable so to "cooperate" with the authorities.[30] The further appears to believe that such investigative practices are "reasonable," however, on the premise that a traveler's "expectation of privacy [is] less at the border than in the interior." Ante, at 539. This may well be so with respect to routine border inspections, but I do not imagine that decent and law-abiding international travelers have yet reached the point where they "expect" to be thrown into locked rooms and ordered to excrete into wastebaskets, held incommunicado until they cooperate, or led away in handcuffs to the nearest hospital for exposure to various medical procedures all on nothing more than the "reasonable" suspicions of low-ranking enforcement agents. In fact, many people from around the world travel to our borders precisely to escape such unchecked executive investigatory discretion. What a curious first lesson in American liberty awaits them *561 on their arrival. Cf. Olmstead v. United[31] Finally, I disagree with JUSTICE STEVENS that De Hernandez' alternative "choice" of submitting to abdominal x-irradiation at the discretion of customs officials made this detention "justified." Ante, at 545 (concurring in judgment). Medical x rays are of course a common diagnostic technique; that is exactly why there is such a sharp debate among the medical community concerning the |
Justice Brennan | 1,985 | 13 | dissenting | United States v. Montoya De Hernandez | https://www.courtlistener.com/opinion/111509/united-states-v-montoya-de-hernandez/ | such a sharp debate among the medical community concerning the cellular and chromosomal effects of routine reliance on x rays, both from the perspective of individual health (it having been estimated that a routine medical x ray takes about six days off a person's life expectancy[32]) and from the perspective of successive generations. The "additivity" factor the cumulative effect of x rays on an individual's biological and genetic well-being has been the subject of particularly disturbing debate.[33] *562 But these dangers are not the gravamen of my dispute with JUSTICE STEVENS; the has concluded that medical practices far more immediately intrusive than this may in carefully limited circumstances be employed as a tool of criminal investigation. Cf. Rather, the crux of my disagreement is this: We have learned in our lifetimes, time and again, the inherent dangers that result from coupling unchecked "law enforcement" discretion with the tools of medical technology. Accordingly, in this country at least, "[t]he importance of informed, detached and deliberate [judicial] determinations of the issue whether or not to invade another's body in search of evidence of guilt is indisputable and great." (16). Because "[s]earch warrants are ordinarily required for searches of dwellings,. absent an emergency, no less could be required where intrusions into the human body are concerned." This should be so whether the intrusion is by incision, by stomach pumping, or by exposure to x-irradiation. Because no exigent circumstances prevented the authorities from seeking a magistrate's authorization so to probe De Hernandez' abdominal cavity, the proffered alternative "choice" of a warrantless x ray was just as impermissible as the 27-hour detention that actually occurred. II I believe that De Hernandez' detention violated the Fourth Amendment for an additional reason: it was not supported by probable cause. In the domestic context, a detention of the sort that occurred here would be permissible only if there were probable cause at the outset. See, e. g., ; 442 U. S., 7-208, 212-216; 605; -727. This *563 same elementary safeguard should govern border searches when carried out for purposes of criminal investigation. To be sure, it is commonly asserted that as a result of the Fourth Amendment's "border exception" there is no requirement of probable cause for such investigations.[34] But the justifications for the border exception necessarily limit its breadth. The exception derives from the unquestioned and paramount interest in "national self protection reasonably requiring one entering the country to identify himself as entitled to come in, and his belongings as effects which may be lawfully brought in." 267 U. S., at See also 4 U. |
Justice Brennan | 1,985 | 13 | dissenting | United States v. Montoya De Hernandez | https://www.courtlistener.com/opinion/111509/united-states-v-montoya-de-hernandez/ | brought in." 267 U. S., at See also 4 U. S., at 272 ; United v. 12 200-Ft. Reels of Film, 4 U.S. 123, Subject only to the other applicable guarantees of the Bill of Rights, this interest in "national self-protection" is plenary. Thus, as the notes, a suspected tuberculosis carrier may be detained at the border for medical testing and treatment as a condition of entry. Ante, at 544. As a condition of entry, the traveler may be subjected to exhaustive processing and examinations, and his belongings may be scrutinized with exacting care.[35] I have no doubt as well that, as a condition of entry, travelers in appropriate circumstances may be required to excrete their bodily wastes for further scrutiny and to submit to diagnostic x rays. Contrary to the 's reasoning, however, the Government in carrying out such immigration and customs functions does not simply have the two stark alternatives of either forcing *564 a traveler to submit to such procedures or allowing him to "pass into the interior." Ante, at 544. There is a third alternative: to instruct the traveler who refuses to submit to burdensome but reasonable conditions of entry that he is free to turn around and leave the country. In fact, I believe that the "reasonableness" of any burdensome requirement for entry is necessarily conditioned on the potential entrant's freedom to leave the country if he objects to that requirement. Surely the Government's manifest interest in preventing potentially excludable individuals carrying potential contraband from crossing our borders is fully vindicated if those individuals voluntarily decided not to cross the borders. This does not, of course, mean that such individuals are not fully subject to the criminal laws while on American soil. If there is probable cause to believe they have violated the law, they may be arrested just like any other person within our borders. And if there is "reasonable suspicion" to believe they may be engaged in such violations, they may briefly be detained pursuant to Terry for further investigation, subject to the same limitations and conditions governing Terry stops anywhere else in the country.[36] But if such Terry suspicion does not promptly ripen into probable cause, such travelers must be given a meaningful choice: either agree to further detention as a condition of eventual entry, or leave the country. The Government disagrees. We were advised at oral argument that it "definitely" is the policy of customs authorities "not to allow such people, if they're reasonably suspected of drug smuggling, to return before that suspicion can be checked out" and that, whether citizen, |
Justice Brennan | 1,985 | 13 | dissenting | United States v. Montoya De Hernandez | https://www.courtlistener.com/opinion/111509/united-states-v-montoya-de-hernandez/ | that suspicion can be checked out" and that, whether citizen, resident alien, or alien, "[w]e would not simply let them go back." Tr. of Oral Arg. 5, 48. The result is to sanction an authoritarian twilight zone on the border. The suspicious-looking traveler may not enter the country. Nor may he leave. Instead, he *565 is trapped on the border. Because he is on American soil, he is fully subject "to the criminal enforcement powers of the Federal Government." Ante, at 539, citing 19 U.S. C. 482. But notwithstanding that he is on American soil, he is not fully protected by the guarantees of the Bill of Rights applicable everywhere else in the country. To be sure, a watered-down "reasonableness" requirement will technically govern such detentions, but it will accommodate itself to assaults on privacy and personal autonomy that would not for one moment pass constitutional muster anywhere else in the country and that would surely provide grounds for an open-and-shut damages action for violations of basic civil rights if conducted anywhere but on the border. Nothing in the underlying premises of the "border exception" supports such a ring of unbridled authoritarianism surrounding freedom's soil. If the traveler does not wish to consent to prolonged detentions or intrusive examinations, the Nation's customs and immigration interests are fully served by sending the traveler on his way elsewhere. If the authorities nevertheless propose to detain the traveler for purposes of subjecting him to criminal investigation and possible arrest and punishment, they may do so only pursuant to constitutional safeguards applicable to everyone else in the country. See Wong -238; 362 U. S., at[37] Chief among those safeguards is the requirement *566 that, except in limited circumstances not present here, custodial detentions occur only on probable cause. The probable-cause standard rests on "a practical, nontechnical conception affording the best compromise that has been found for accommodating" the "often opposing" interests of law enforcement and individual liberty. See also New 4 U.S. 325, That standard obviously is not met, and was not met here, simply by courier profiles, "common rumor or report, suspicion, or even `strong reason to suspect.' " Henry v. United Because the contraband in this case was the fruit of the authorities' indefinite detention of Rosa de Hernandez without probable cause or a warrant, I would affirm the judgment of the of Appeals for the Ninth Circuit reversing her conviction. III In my opinion, allowing the Government to hold someone in indefinite, involuntary, incommunicado isolation without *567 probable cause and a judicial warrant violates our constitutional charter whether the purpose is |
Justice Rehnquist | 1,985 | 19 | majority | Ponte v. Real | https://www.courtlistener.com/opinion/111430/ponte-v-real/ | The Supreme Judicial Court of Massachusetts held that a prison disciplinary hearing which forfeited "good time" credits of respondent John Real was conducted in violation of the Due Process Clause of the Fourteenth Amendment to the United States Constitution because there did not appear in the administrative record of that hearing a statement of reasons as to why the disciplinary board refused to allow respondent to call witnesses whom he had requested. We granted certiorari, to review this judgment because it seemed to us to go further than our pronouncement on this subject in While we agree with the Supreme Judicial Court of Massachusetts that the Due Process Clause of the Fourteenth Amendment requires that prison officials at some point state their reason for refusing to call witnesses requested by an inmate at a disciplinary hearing, we disagree with that court that such reasons or support for reasons must be placed in writing or otherwise exist as a part of the administrative record at the disciplinary hearing. We vacate the judgment of the Supreme Judicial Court, and remand the case to that court. In 181 respondent John Real was an inmate at the Massachusetts Correctional Institution at Walpole. In December *43 of that year he was working in the prison metal shop and heard a commotion in an adjacent office. He entered the office and observed another prisoner fighting with a corrections officer. A second corrections officer attempted to break up the fight, and ordered respondent and other inmates who were watching to disperse immediately. Respondent did not depart, and another corrections officer escorted him to his cell. One week later respondent was charged with three violations of prison regulations as a result of this imbroglio. He notified prison officials, on a form provided for that purpose, that he wished to call four witnesses at the hearing which would be held upon these charges: two fellow inmates, the charging officer, and the officer who was involved in the fight. A hearing was held on the charges in February 182. At this hearing the charging officer appeared and testified against respondent, but the board declined to call the other witnesses requested by respondent. Respondent was advised of no reason for the denial of his request to call the other witnesses, and apparently whatever record there may be of this disciplinary proceeding does not indicate the board's reason for declining to call the witnesses. The board found respondent guilty as charged, and after an administrative appeal in which penalties were reduced, respondent received the sanction of 25 days in isolation and the |
Justice Rehnquist | 1,985 | 19 | majority | Ponte v. Real | https://www.courtlistener.com/opinion/111430/ponte-v-real/ | received the sanction of 25 days in isolation and the loss of 150 days of good-time credits. Respondent challenged these sanctions by seeking a writ of habeas corpus in the Massachusetts trial court. That court sustained respondent's claim that petitioner Joseph Ponte, a Superintendent of the M. C. I. at Walpole, had deprived him of that due process guaranteed by the Fourteenth Amendment to the United States Constitution because no reasons whatsoever were advanced by petitioner in court as to why respondent was not allowed to call the requested witnesses at the hearing. *44 On appeal to the Supreme Judicial Court of Massachusetts, this judgment was affirmed but for different reasons. That court discussed our decision in and noted that it "[l]eft unresolved the question whether the Federal due process requirements impose a duty on the board to explain, in any fashion, at the hearing or later, why witnesses were not allowed to testify." The court concluded that there must be some support in the "administrative record" to justify a decision not to call witnesses, and that the administrative record in this case was barren of any such support. Because of its conclusion, the court declared that the Massachusetts regulations governing the presentation of proof in disciplinary hearings, Mass. Admin. Code, Tit. 103, 430.14 (178)[1] were unconstitutional as to this point, because those regulations did not require that the administrative record contain *45 facts or reasons supporting the board's denial of an inmate's witness citing Petitioner does not dispute that respondent possessed a "liberty" interest, by reason of the provisions of Massachusetts state law, affording him "good time" credits, an interest which could not be taken from him in a prison disciplinary hearing without the minimal safeguards afforded by the Due Process Clause of the Fourteenth Amendment. The touchstone of due process is freedom from arbitrary governmental action, but "[p]rison disciplinary proceedings are not part of a criminal prosecution, and the full panoply of rights due a defendant in such proceedings does not apply." Chief among the due process minima outlined in was the right of an inmate to call and present witnesses and documentary evidence in his defense before the disciplinary board. We noted in and repeated in that ordinarily the right to present evidence is basic to a fair hearing, but the inmate's right to present witnesses is necessarily circumscribed by the penological need to provide swift discipline in individual cases. This right is additionally circumscribed by the very real dangers in prison life which may result from violence or intimidation directed at either other inmates or staff. |
Justice Rehnquist | 1,985 | 19 | majority | Ponte v. Real | https://www.courtlistener.com/opinion/111430/ponte-v-real/ | violence or intimidation directed at either other inmates or staff. We described the right to call witnesses as subject to the "mutual accommodation between institutional needs and objectives and the provisions of the Constitution." citing Thus the prisoner's right to call witnesses and present evidence in disciplinary hearings could be denied if granting the request would be "unduly hazardous to institutional safety or correctional goals." ; See also As we stated in : *46 "Prison officials must have the necessary discretion to keep the hearing within reasonable limits and to refuse to call witnesses that may create a risk of reprisal or undermine authority, as well as to limit access to other inmates to collect statements or to compile other documentary evidence. Although we do not prescribe it, it would be useful for the [disciplinary board] to state its reasons for refusing to call a witness, whether it be for irrelevance, lack of necessity, or the hazards presented in individual cases." 418 U.S., See Notwithstanding our suggestion that the board give reasons for denying an inmate's witness request, nowhere in or did we require the disciplinary board to explain why it denied the prisoner's request, nor did we require that those reasons otherwise appear in the administrative record. Eleven years of experience since our decision in does not indicate to us any need to now "prescribe" as constitutional doctrine that the disciplinary board must state in writing at the time of the hearing its reasons for refusing to call a witness. Nor can we conclude that the Due Process Clause of the Fourteenth Amendment may only be satisfied if the administrative record contains support or reasons for the board's refusal. We therefore disagree with the reasoning of the Supreme Judicial Court of Massachusetts in this case. But we also disagree with petitioner's intimation, Brief for Petitioner 53, that courts may only inquire into the reasons for denying witnesses when an inmate points to "substantial evidence" in the record that shows prison officials had ignored our requirements set forth in We further disagree with petitioner's contention that an inmate may not successfully challenge the board unless he can show a pattern or practice of refusing all witness requests. Nor do we agree with petitioner that "across-the-board" policies denying witness requests are invariably proper. Brief for Petitioner 53-55, n. *47 The question is exactly that posed by the Supreme Judicial Court in its opinion: "whether the Federal due process requirements impose a duty on the board to explain, in any fashion, at the hearing or later, why witnesses were not allowed to |
Justice Rehnquist | 1,985 | 19 | majority | Ponte v. Real | https://www.courtlistener.com/opinion/111430/ponte-v-real/ | the hearing or later, why witnesses were not allowed to testify." We think the answer to that question is that prison officials may be required to explain, in a limited manner, the reason why witnesses were not allowed to testify, but that they may do so either by making the explanation a part of the "administrative record" in the disciplinary proceeding, or by presenting testimony in court if the deprivation of a "liberty" interest is challenged because of that claimed defect in the hearing. In other words, the prison officials may choose to explain their decision at the hearing, or they may choose to explain it "later." Explaining the decision at the hearing will of course not immunize prison officials from a subsequent court challenge to their decision, but so long as the reasons are logically related to preventing undue hazards to "institutional safety or correctional goals," the explanation should meet the due process requirements as outlined in We have noted in and in that prison disciplinary hearings take place in tightly controlled environments peopled by those who have been unable to conduct themselves properly in a free society. Many of these persons have scant regard for property, life, or rules of order, -562, and some might attempt to exploit the disciplinary process for their own ends. The requirement that contemporaneous reasons for denying witnesses and evidence be given admittedly has some appeal, and it may commend itself to prison officials as a matter of choice: recollections of the event will be fresher at the moment, and it seems a more lawyerlike way to do things.[2]*48 But the primary business of prisons is the supervision of inmates, and it may well be that those charged with this responsibility feel that the additional administrative burdens which would be occasioned by such a requirement detract from the ability to perform the principal mission of the institution. While some might see an advantage in building up a sort of "common law of the prison" on this subject, others might prefer to deal with later court challenges on a case-by-case basis. We hold that the Constitution permits either approach. But to hold that the Due Process Clause confers a circumscribed right on the inmate to call witnesses at a disciplinary hearing, and then conclude that no explanation need ever be vouched for the denial of that right, either in the disciplinary proceeding itself or if that proceeding be later challenged in court, would change an admittedly circumscribed right into a privilege conferred in the unreviewable discretion of the disciplinary board. We think our holding |
Justice Rehnquist | 1,985 | 19 | majority | Ponte v. Real | https://www.courtlistener.com/opinion/111430/ponte-v-real/ | unreviewable discretion of the disciplinary board. We think our holding in meant *4 something more than that. We recognized there that the right to call witnesses was a limited one, available to the inmate "when permitting him to do so will not be unduly hazardous to institutional safety or correctional goals." We further observed that "[p]rison officials must have the necessary discretion to keep the hearing within reasonable limits and to refuse to call witnesses that may create a risk of reprisal or undermine authority, as well as to limit access to other inmates to collect statements or to compile other documentary evidence." Given these significant limitations on an inmate's right to call witnesses, and given our further observation in that "[w]e should not be too ready to exercise oversight and put aside the judgment of prison administrators," ibid., it may be that a constitutional challenge to a disciplinary hearing such as respondent's in this case will rarely, if ever, be successful. But the fact that success may be rare in such actions does not warrant adoption of petitioner's position, which would in effect place the burden of proof on the inmate to show why the action of the prison officials in refusing to call witnesses was arbitrary or capricious. These reasons are almost by definition not available to the inmate; given the sort of prison conditions that may exist, there may be a sound basis for refusing to tell the inmate what the reasons for denying his witness request are. Indeed, if prison security or similar paramount interests appear to require it, a court should allow at least in the first instance a prison official's justification for refusal to call witnesses to be presented to the court in camera. But there is no reason for going further, and adding another weight to an already heavily weighted scale by requiring an inmate to produce evidence of which he will rarely be in possession, and of which the superintendent will almost always be in possession. See United (157); 6 (161); South (166). Respondent contends that he is entitled to an affirmance even though we reject the Massachusetts Supreme Judicial Court's holding that 340.14(6) is unconstitutional. Respondent argues that the Supreme Judicial Court affirmed the trial court on two independent grounds: (1) the trial court's simple finding that petitioner's failure to rebut the allegations in respondent's complaint entitled respondent to relief; and (2) the unconstitutionality of 340.14(6) because due process requires administrative record support for denial of witnesses. We think that the Supreme Judicial Court affirmed only on the second ground, and |
Justice Rehnquist | 1,985 | 19 | majority | Ponte v. Real | https://www.courtlistener.com/opinion/111430/ponte-v-real/ | Supreme Judicial Court affirmed only on the second ground, and that is the issue for which we granted certiorari. This Court's Rule 21.1(a); see also Rule 15.1(a). Respondent is of course entitled to urge affirmance of the judgment of the Supreme Judicial Court on a ground not adopted by that court, but whether the Supreme Judicial Court would have affirmed the judgment of the trial court on the reasoning we set forth today is, we think, too problematical for us to decide.[3] It is a question best left to that court. The judgment of the Supreme Judicial Court of Massachusetts is vacated, and the case is remanded to that court for further proceedings not inconsistent with this opinion. It is so ordered. JUSTICE POWELL took no part in the decision of this case. *501 JUSTICE STEVENS, with whom JUSTICE BLACKMUN joins as to Part II, concurring in part. On March 10, this case was submitted to the Supreme Judicial Court of Massachusetts along with four others.[1] In each case, prisoners in state correctional institutions challenged the procedural fairness of recurring practices in the prison disciplinary process. The five opinions were all assigned to the same justice, who eight months later delivered five unanimous opinions for the court interpreting the minimum procedural requirements of state regulations and the Federal Constitution in the prison context. The evident deliberation of the Massachusetts court in these cases suggests a careful effort to establish workable rules for prison disciplinary proceedings in that State. I The Court candidly states that it granted certiorari to review the judgment of the Supreme Judicial Court of Massachusetts because that judgment "seem[s] to us to go further than our pronouncement on this subject in" Ante, at 42. As JUSTICE MARSHALL points out, that is a manifestly insufficient reason for adding this case to our argument docket. See post, at 522-523, n. 21. The merits of an isolated case have only an oblique relevance to the question whether a grant of *502 certiorari is consistent with the sound administration of this Court's discretionary docket.[2] When the prison Superintendent petitioned for certiorari, he had a heavy burden of explaining why this Court should intervene in what amounts to a controversy between the Supreme Judicial Court of Massachusetts and that State's prison officials.[3] In determining what process is due in the prison context under the Federal Constitution, the Court emphasizes that we must be cautious to ensure that those requirements will be fair to all parties in the varying conditions found in each of the 50 States and the District of Columbia. Ante, |
Justice Rehnquist | 1,985 | 19 | majority | Ponte v. Real | https://www.courtlistener.com/opinion/111430/ponte-v-real/ | of the 50 States and the District of Columbia. Ante, at 47-48, n. 2. The Court's display of caution would have been more relevant in deciding whether to exercise discretionary jurisdiction in the first place. The denial of certiorari would have left the decision below in effect for the State of Massachusetts, but would have left other jurisdictions to explore the contours of in the light of local conditions. *503 The imprudence of the Court's decision to grant certiorari in this case is aggravated by the substantial probability that the Massachusetts court will, on remand, reinstate its original judgment on the basis of the State Constitution.[4] In that event, the Court's decision as applied to the State of Massachusetts will prove to be little more than a futile attempt to convince a State Supreme Court that a decision it has carefully made is somehow lacking in wisdom as applied to conditions in that State. "As long as the Court creates unnecessary work for itself in this manner, its expressions of concern about the overburdened federal judiciary will ring with a hollow echo." 451 U.S. 25, (181) II Having granted the petition for certiorari, however, each of us has a duty to address the merits. All of us agree that prison officials may not arbitrarily refuse to call witnesses requested by an inmate at a disciplinary hearing. It is *504 therefore obvious that even if the reason for the refusal is not recorded contemporaneously, it must exist at the time the decision is made. Moreover, as the Court expressly holds, ante, at 4, the burden of proving that there was a valid reason for the refusal is placed on prison officials rather than the inmate. In many cases, that burden will be difficult to discharge if corrections officers elect to rely solely upon testimonial recollection that is uncorroborated by any contemporaneous documentation. For that reason, the allocation of the burden of proof, together with the policy considerations summarized by JUSTICE MARSHALL, will surely motivate most, if not all, prison administrators to adopt "the prevailing practice in federal prisons and in state prisons throughout the country." Post, at 518 (MARSHALL, J., dissenting). Because I am not persuaded that the Federal Constitution prescribes a contemporaneous written explanation as the only permissible method of discharging the prison officials' burden of proving that they had a legitimate reason for refusing to call witnesses requested by an inmate, I join the Court's opinion.[ |
Justice Thomas | 2,010 | 1 | majority | Astrue v. Ratliff | https://www.courtlistener.com/opinion/148485/astrue-v-ratliff/ | Section 204(d) of the Equal Access to Justice Act (EAJA), codified in 28 U.S. C. provides in perti nent part that “a court shall award to a prevailing party fees and other expenses in any civil action brought by or against the United States unless the court finds that the position of the United States was substantially justified.” We consider whether an award of “fees and other expenses” to a “prevailing party” under is payable to the litigant or to his attorney. We hold that a fees award is payable to the litigant and is therefore subject to a Government offset to satisfy a pre-existing debt that the litigant owes the United States. I This case arises out of proceedings in which a Social Security claimant, Ruby Willows Kills Ree, prevailed on a claim for benefits against the United States. Respondent Catherine Ratliff was Ree’s attorney in those proceedings. The District Court granted Ree’s unopposed motion for a fees award in the amount of $2,112.60. Before the United States paid the fees award, however, it discov 2 ASTRUE v. RATLIFF Opinion of the Court ered that Ree owed the Government a debt that predated the District Court’s approval of the award. Accordingly, the United States sought an administrative offset against the fees award to satisfy part of that debt. The Government’s authority to use administrative offsets is statutory. See 31 U.S. C. 3716(a) (authorizing an agency whose debt collection attempts are unsuccessful to “collect the claim by administrative off set”).1 Congress has subjected to offset all “funds payable by the United States,” to an individual who owes certain delinquent federal debts, see unless, as relevant here, payment is exempted by statute, see No such exemption applies to attorney’s fees awards under 28 U.S. C. (1)(A) (hereinafter subsection (d)(1)(A)), which are otherwise subject to offset, see (e)(1) (2009), and which, as of January 2005, are covered by the Treasury Offset Program (TOP) operated by the Treasury Department’s Financial Man agement Service (FMS). See Brief for Petitioner 4 (ex plaining TOP’s extension to cover so-called “ ‘miscellane ous’ ” payments that include attorney’s fees payments the Treasury Department makes on behalf of federal agencies).2 —————— 1 Section 3701 defines an administrative offset as “withholding funds payable by the United States” to the debtor. An agency may effect such an offset by cooperating with another agency to with hold such funds, or by notifying the Treasury Department of the debt so Treasury may include it in Treasury’s centralized offset program. See (d)(2), 901.3(b)(1), (c). Alternatively, the Treasury Department may attempt an administrative offset |
Justice Thomas | 2,010 | 1 | majority | Astrue v. Ratliff | https://www.courtlistener.com/opinion/148485/astrue-v-ratliff/ | (c). Alternatively, the Treasury Department may attempt an administrative offset after receiving notice from a creditor agency that a legally enforceable nontax debt has become more than 180 days delinquent. See 31 U.S. C. 31 CFR 901.3(b)(1). 2 Respondent Ratliff argues for the first time in her merits brief be fore this Court that the 2005 amendments to the FMS regulations exempt the EAJA fees award in this case from administrative offset against Ree’s outstanding federal debt. See Brief for Respondent 8, 46 Cite as: 560 U. S. (2010) 3 Opinion of the Court In this case, the Government, relying on the TOP, noti fied Ree that the Government would apply her fees award to offset a portion of her outstanding federal debt. Ratliff intervened to challenge the offset on the grounds that fees belong to a litigant’s attorney and thus may not be used to offset or otherwise satisfy a litigant’s federal debts. The District Court held that because directs that fees be awarded to the pre vailing party, not to her attorney, Ratliff lacked standing to challenge the Government’s proposed offset. See No. CIV. 06–5070–RHB, The Court of Appeals for the Eighth Circuit reversed. It held that under Circuit precedent, “EAJA attorneys’ fees are awarded to prevailing parties’ attorneys.” The Court of Appeals recognized that its decision did not accord with a “literal interpreta tion of the EAJA,” ib and exacerbated a split among the Courts of Appeals, compare at 801–802, with, e.g., ; Manning v. Astrue, ; FDL Technologies, (CA Fed. 1992); Panola Land Buying Assn. v. Clark, 844 F.2d 1506, 1510–1511 (CA11 1988).3 We granted certio rari. 557 U. S. (2009). —————— (citing (e)(5)). We need not decide this question because Ratliff did not raise the regulations as a bar to offset in her brief in opposition to the Government’s petition for a writ of certiorari, see this Court’s Rule 15.2, or in the proceedings below. 3 The split exists in the Social Security context because the Social Security Act (SSA), as amended, 42 U.S. C. et seq., provides for payment of attorney’s fees awards directly to counsel, see and until 2006 the Government in many cases treated fees awards under EAJA the same way, see Reply Brief for Petitioner 13−14. 4 ASTRUE v. RATLIFF Opinion of the Court II Subsection (d)(1)(A) directs that courts “shall award to a prevailing party fees and other expenses incurred by that party.” (Emphasis added.) We have long held that the term “prevailing party” in fee statutes is a “term of art” that refers to the prevailing litigant. See, e.g., |
Justice Thomas | 2,010 | 1 | majority | Astrue v. Ratliff | https://www.courtlistener.com/opinion/148485/astrue-v-ratliff/ | of art” that refers to the prevailing litigant. See, e.g., Buck hannon Board & Care Home, This treatment reflects the fact that statutes that award attorney’s fees to a prevailing party are exceptions to the “ ‘American Rule’ ” that each litigant “bear [his] own attor ney’s fees.” at 602 ). Nothing in EAJA sup ports a different reading. Cf. Arthur Andersen LLP v. Carlisle, 556 U. S. n. 4 (2009) (slip op., at 6, n. 4) (where Congress employs “identical words and phrases within the same statute,” they are presumed to carry “the same meaning” (internal quotation marks omitted)). Indeed, other subsections within underscore that the term “prevailing party” in subsection (d)(1)(A) carries its usual and settled meaning—prevailing litigant. Those other subsections clearly distinguish the party who re ceives the fees award (the litigant) from the attorney who performed the work that generated the fees. See, e.g., (1)(B) (hereinafter subsection (d)(1)(B)) (the “pre vailing party” must apply for the fees award and “sho[w]” that he “is a prevailing party and is eligible to receive an award” by, among other things, submitting “an itemized statement from any attorney representing or appearing in behalf of the party” that details the attorney’s hourly rate and time spent on the case (emphasis added)); see also Part III, infra. Ratliff nonetheless asserts that subsection (d)(1)(A)’s use of the verb “award” renders fees payable directly to a prevailing party’s attorney and thus protects the fees from a Government offset against the prevailing Cite as: 560 U. S. (2010) 5 Opinion of the Court party’s federal debts. See Brief for Respondent 11−19 (arguing that subsection (d)(1)(A)’s use of the word “ ‘award’ ” “expressly incorporates a critical distinction” between the right to an “ ‘award’ ” of fees and the right to “ ‘receiv[e]’ ” the fees). We disagree. The transitive verb “ ‘award’ ” has a settled meaning in the litigation context: It means “[t]o give or assign by sentence or judicial determination.” Black’s Law Diction ary 125 (5th ed. 1979) (emphasis added); see also Web ster’s Third New International Dictionary 152 (1993) (“to give by judicial decree” (emphasis added)). The plain meaning of the word “award” in subsection (d)(1)(A) is thus that the court shall “give or assign by judicial determination” to the “prevailing party” (here, Ratliff’s client Ree) attorney’s fees in the amount sought and sub stantiated under, inter alia, subsection (d)(1)(B). Ratliff’s contrary argument does not withstand scrutiny. According to Ratliff, subsection (d)(1)(B), which uses “the noun ‘award’ ” to mean a “ ‘decision,’ ” requires us to con strue subsection (d)(1)(A) |
Justice Thomas | 2,010 | 1 | majority | Astrue v. Ratliff | https://www.courtlistener.com/opinion/148485/astrue-v-ratliff/ | “ ‘decision,’ ” requires us to con strue subsection (d)(1)(A) (which uses “award” as a verb) to mean that “[o]nly the prevailing party may receive the award (the decision granting fees), but only the attorney who earned the fee (the payment asked or given for profes sional services) is entitled to receive it.” Brief for Respon dent 16, 15 (emphasis in original; some internal quotation marks and footnote omitted). This argument ignores the settled definitions above, and even the definitions Ratliff proffers, because each makes clear that the verb “award” in subsection (d)(1)(A) means to “give by the decision of a law court” or to “grant by judicial decree,” not simply to “give a decision” itself. and n. 39 (emphasis added; internal quotation marks omitted). We thus agree with the Government that under the statutory language here, the “judicial decision is the means by which the court confers a right to payment upon the prevailing party; it is not itself the thing that the court gives (or orders the 6 ASTRUE v. RATLIFF Opinion of the Court defendant to give) to the party.” Reply Brief for Petitioner 4 (emphasis in original) (citing Hewitt v. Helms, 482 U.S. 755, 761 (1987) (explaining that “[i]n all civil litigation, the judicial decree is not the end but the means”)). This settled and natural construction of the operative statutory language is reflected in our cases. See, e.g., Scarborough v. Principi, (“EAJA authorizes the payment of fees to a prevailing party” (emphasis added)). Ratliff’s final textual argument—that subsection (d)(1)(A)’s reference to “attorney’s fees” itself establishes that the fees are payable to the prevailing party’s attor ney, see Brief for Respondent 19−22—proves far too much. The fact that the statute awards to the prevailing party fees in which her attorney may have a beneficial interest or a contractual right does not establish that the statute “awards” the fees directly to the attorney. For the reasons we have explained, the statute’s plain text does the oppo site—it “awards” the fees to the litigant, and thus subjects them to a federal administrative offset if the litigant has outstanding federal debts. III In an effort to avoid the Act’s plain meaning, Ratliff argues that other provisions of EAJA, combined with the SSA and the Government’s practice of paying some EAJA fees awards directly to attorneys in Social Security cases, render at least ambiguous on the question pre sented here, and that these other provisions resolve the ambiguity in her favor. Again we disagree. Even accept ing as ambiguous on the question presented, the provisions and practices Ratliff identifies do |
Justice Thomas | 2,010 | 1 | majority | Astrue v. Ratliff | https://www.courtlistener.com/opinion/148485/astrue-v-ratliff/ | the question presented, the provisions and practices Ratliff identifies do not alter our conclusion that EAJA fees are payable to litigants and are thus subject to offset where a litigant has outstanding federal debts. To begin with, (1)’s provisions differentiate Cite as: 560 U. S. (2010) 7 Opinion of the Court between attorneys and prevailing parties, and treat attor neys on par with other service providers, in a manner that forecloses the conclusion that attorneys have a right to direct payment of subsection (d)(1)(A) awards. As noted above, subsection (d)(1)(B) requires the prevailing party to submit a fee application showing that she is otherwise “eligible to receive an award” and, as a complement to that requirement, compels the prevailing party to submit “an itemized statement from any attorney representing or appearing in behalf of the party” that details the attorney’s hourly rate and time the attorney spent on the case. (Emphasis added.) This language would make little sense if, as Ratliff contends, ’s “prevailing party” lan guage effectively refers to the prevailing litigant’s attor ney. Subsection (d)(1)(B) similarly makes clear that the “prevailing party” (not her attorney) is the recipient of the fees award by requiring the prevailing party to demon strate that her net worth falls within the range the statute requires for fees awards. And EAJA’s cost provision fur ther underscores the point. That provision uses language identical to that in the attorney’s fees provision to allow prevailing parties to recover “the reasonable expenses of expert witnesses” and “any study, analysis, engineering report, test, or project” necessary to prepare “the party’s case,” (2)(A), yet Ratliff does not argue that it makes costs payable directly to the vendors who provide the relevant services. Nor do the SSA provisions on which Ratliff relies estab lish that subsection (d)(1)(A) fees awards are payable to prevailing parties’ attorneys. It is true that the SSA makes fees awards under that statute payable directly to a prevailing claimant’s attorney. See 42 U.S. C. (providing that where a claimant “who was represented before the court by an attorney” obtains a favorable judgment, “the court may determine and allow as part of its judgment a reasonable fee for such represen 8 ASTRUE v. RATLIFF Opinion of the Court tation, not in excess of 25 percent of” the benefits award and may certify the full amount of the statutory fees award “for payment to such attorney out of, and not in addition to, the amount of” the claimant’s benefits award (emphasis added)). But the SSA’s express authorization of such payments undermines Ratliff’s case insofar as it shows |
Justice Thomas | 2,010 | 1 | majority | Astrue v. Ratliff | https://www.courtlistener.com/opinion/148485/astrue-v-ratliff/ | of such payments undermines Ratliff’s case insofar as it shows that Congress knows how to make fees awards payable directly to attorneys where it desires to do so. Given the stark contrast between the SSA’s express au thorization of direct payments to attorneys and the ab sence of such language in subsection (d)(1)(A), we are reluctant to interpret the latter provision to contain a direct fee requirement absent clear textual evidence sup porting such an interpretation. Ratliff contends that Congress’ 1985 amendments to of EAJA supply just such evidence, at least in Social Security cases. See note follow ing 28 U.S. C. The 1985 amendments address the fact that Social Security claimants may be eligible to receive fees awards under both the SSA and EAJA, and clarify the procedure that attorneys and their clients must follow to prevent the windfall of an unauthorized double recovery of fees for the same work. Section 206(b) pro vides that no violation of law occurs “if, where the claim ant’s attorney receives fees for the same work under both [42 U.S. C. and 28 U.S. C. ], the claim ant’s attorney refunds to the claimant the amount of the smaller fee.” According to Ratliff, the fact that recognizes, or at least assumes, that an attorney will sometimes “receiv[e]” fees under 28 U.S. C. suggests that we should construe subsection (d)(1)(A) to incorporate the same direct payments to attorneys that the SSA expressly authorizes. This argument gives more weight to ’s reference to attorney “recei[pt]” of fees than the reference can bear. Section 206(b)’s ensuing reference to the attorney’s obliga Cite as: 560 U. S. (2010) 9 Opinion of the Court tion to “refun[d]” the amount of the smaller fee to the claimant, which reference suggests that the award belongs to the claimant in the first place, alone undercuts Ratliff’s reading of “receives” as implying an initial statutory pay ment to the attorney.4 And Ratliff’s reading is in any event irreconcilable with the textual differences between EAJA and the SSA we discuss above. Thus, even accept ing Ratliff’s argument that subsection (d)(1)(A) is ambigu ous, the statutory provisions she cites resolve any ambigu ity in favor of treating subsection (d)(1)(A) awards as payable to the prevailing litigant, and thus subject to offset where the litigant has relevant federal debts. The Government’s history of paying EAJA awards di rectly to attorneys in certain cases does not compel a different conclusion. The Government concedes that until —————— 4 Ratliffargues that fees awarded under 42 U.S. C. can never be “ ‘refund[ed]’ ” in this sense because SSA |
Justice Thomas | 2,010 | 1 | majority | Astrue v. Ratliff | https://www.courtlistener.com/opinion/148485/astrue-v-ratliff/ | never be “ ‘refund[ed]’ ” in this sense because SSA fees are “never paid initially to the client.” Brief for Respondent 14 (emphasis in original). That is not accurate. As we have explained, Social Security claimants and attorneys normally enter into contingent-fee agreements that are subject to judicial “review for reasonableness.” Where the court allows a fee, per mits the Commissioner to collect the approved fee out of the client’s benefit award and to certify the fee for “payment to such attorney out of” that award. In such cases, the attorney would “refun[d]” the fee to the client in the event that the attorney also receives a (larger) EAJA award, because the attorney “receive[d]” the SSA fee from the client’s funds. Similarly inaccurate is Ratliff’s sugges tion that our construction of EAJA ’s reference to “refun[d]” would preclude attorneys from collecting any fees from a prevailing party until both SSA and EAJA payments are awarded. Our construc tion does not alter or preclude what we have recognized as courts’ common practice of awarding EAJA fees at the time a court remands a case to the Social Security Administration (Administration) for benefits proceedings. Such awards often allow attorneys to collect EAJA fees months before any fees are awarded under 42 U. S.C because fees cannot be determined until the Administration enters a final benefits ruling. See 295−302 (1993). 10 ASTRUE v. RATLIFF Opinion of the Court 2006, it “frequently paid EAJA fees in Social Security cases directly to attorneys.” Reply Brief for Petitioner 13. But this fact does not alter our interpretation of subsec tion (d)(1)(A)’s “prevailing party” language or the Govern ment’s rights and obligations under the statute. As the Government explains, it most often paid EAJA fees di rectly to attorneys in cases in which the prevailing party had assigned its rights in the fees award to the attorney (which assignment would not be necessary if the statute rendered the fees award payable to the attorney in the first instance). The fact that some such cases involved a prevailing party with outstanding federal debts is unsur prising given that it was not until 2005 that the Treasury Department modified the TOP to require offsets against “miscellaneous” payments such as attorney’s fees awards. And as Ratliff admits, the Government has since contin ued the direct payment practice only in cases where “the plaintiff does not owe a debt to the government and as signs the right to receive the fees to the attorney.” Brief for Respondent 28 (boldface deleted). The Government’s decision to continue direct payments only in such cases |
Justice Thomas | 2,010 | 1 | majority | Astrue v. Ratliff | https://www.courtlistener.com/opinion/148485/astrue-v-ratliff/ | Government’s decision to continue direct payments only in such cases is easily explained by the 2005 amendments to the TOP, and nothing about the Government’s past payment practices altered the statutory text that governs this case or es topped the Government from conforming its payment practices to the Treasury Department’s revised regula tions. For all of these reasons, neither EAJA nor the SSA supports Ratliff’s reading of subsection (d)(1)(A). Our cases interpreting and applying 42 U.S. C. which contains language virtually identical to the EAJA provision we address here,5 buttress this conclusion. Our —————— 5 Section 1988(b) provides that in actions covered by the statute and subject to exceptions not relevant here, “the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney’s fee.” Cite as: 560 U. S. (2010) 11 Opinion of the Court most recent cases applying “prevailing party” language recognize the practical reality that attorneys are the beneficiaries and, almost always, the ultimate recipi ents of the fees that the statute awards to “prevailing part[ies].” See, e.g., (1990). But these cases emphasize the nonstatutory (con tractual and other assignment-based) rights that typically confer upon the attorney the entitlement to payment of the fees award the statute confers on the prevailing liti gant. As noted above, these kinds of arrangements would be unnecessary if, as Ratliff contends, statutory fees lan guage like that in and EAJA provides attorneys with a statutory right to direct payment of awards. Hence our conclusion that “the party, rather than the lawyer,” is “entitle[d] to receive the fees” under and that the statute “controls what the losing defendant must pay, not what the prevailing plaintiff must pay his lawyer,” ; see also (19) (explaining that the “language of bestow[s] on the ‘prevailing party’ (generally plaintiffs) a statutory eligibility for a discretionary award of attorney’s fees” and does not “be sto[w] fee awards upon attorneys” themselves (footnote omitted)). These conclusions apply with equal force to the functionally identical statutory language here. * * * We reverse the Court of Appeals’ judgment and remand the case for further proceedings consistent with this opinion. It is so ordered. Cite as: 560 U. S. (2010) 1 SOTOMAYOR, J., concurring SUPREME COURT OF THE UNITED STATES No. 08–1322 MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, PETITIONER v. CATHERINE G. |
per_curiam | 1,973 | 200 | per_curiam | Northcross v. Memphis Board of Education | https://www.courtlistener.com/opinion/108807/northcross-v-memphis-board-of-education/ | This case presents the question of the propriety, under 718 of the Emergency School Aid Act of 20 U.S. C. 1617, of a denial of attorneys' fees to the successful plaintiffs in this litigation aimed at desegregating the public schools of Memphis, Tennessee. Section 718, which became effective on July 1, provides that "[u]pon the entry of a final order by a court of the United States against a local educational agency, a State (or any agency thereof), or the United States (or any agency thereof)," in any action seeking to redress illegal or unconstitutional discrimination with respect to "elementary and secondary education, the court, in its discretion, upon a finding that the proceedings were necessary to bring about compliance, may allow the prevailing party, other than the United States, a reasonable attorney's fee as part of the costs." In this case, the United States Court of Appeals for the Sixth Circuit denied petitioners' motion for an award of attorneys' fees. The Court of Appeals did not, however, state reasons for the denial and it is therefore not possible for this *428 Court to determine whether the Court of Appeals applied the proper standard in reaching this result.[1] Section 718 tracks the wording of 204 (b) of the Civil Rights Act of 1964, 42 U.S. C. 2000a-3 (b), which provides that, in an action seeking to enforce Title II of that Act, "the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney's fee as part of the costs" In we held that, under 204 (b), "one who succeeds in obtaining an injunction under that Title should ordinarily recover an attorney's fee unless special circumstances would render such an award unjust." The similarity of language in 718 and 204 (b) is, of course, a strong indication that the two statutes should be interpreted pari passu. Moreover, "the two provisions share a common raison d'ętre. The plaintiffs in school cases are `private attorneys general' vindicating national policy in the same sense as are plaintiffs in Title II actions. The enactment of both provisions was for the same purposeâ `to encourage individuals injured by racial discrimination to seek judicial relief' " quoting We therefore conclude that, as with 204 (b), if other requirements of 718 are satisfied, the successful plaintiff "should ordinarily recover an attorney's fee unless special circumstances would render such an award unjust." 390 U.S., Since it is impossible for us *429 to determine whether the Court of Appeals applied this standard and, if so, whether it did so correctly, we grant the |
per_curiam | 1,982 | 200 | per_curiam | Michigan v. Thomas | https://www.courtlistener.com/opinion/110776/michigan-v-thomas/ | While respondent was the front-seat passenger in an automobile, the car was stopped for failing to signal a left turn. As two police officers approached the vehicle, they saw respondent bend forward so that his head was at or below the level of the dashboard. The officers then observed an open bottle of malt liquor standing upright on the floorboard between respondent's feet, and placed respondent under arrest for possession of open intoxicants in a motor vehicle. The 14-year-old driver was issued a citation for not having a driver's license. Respondent claimed ownership of the car. *260 Respondent and the driver were taken to the patrol car, and a truck was called to tow respondent's automobile. One of the officers searched the vehicle, pursuant to a departmental policy that impounded vehicles be searched prior to being towed. The officer found two bags of marihuana in the unlocked glove compartment. The second officer then searched the car more thoroughly, checking under the front seat, under the dashboard, and inside the locked trunk. Opening the air vents under the dashboard, the officer discovered a loaded,38-caliber revolver inside. Respondent was convicted of possession of a concealed weapon. He moved for a new trial, contending that the revolver was taken from his car pursuant to an illegal search and seizure; the trial court denied the motion. The Michigan Court of Appeals reversed, holding that the warrantless search of respondent's automobile violated the Fourth Amendment. The court acknowledged that in South this Court upheld the validity of warrantless inventory searches of impounded motor vehicles. Moreover, the court found that, since respondent had been placed under arrest and the other occupant of the car was too young to legally drive, it was proper for the officers to impound the vehicle and to conduct an inventory search prior to its being towed. However, in the view of the Court of Appeals, the search conducted in this case was "unreasonable in scope," because it extended to the air vents which, unlike the glove compartment or the trunk, were not a likely place for the storage of valuables or personal 308 N. W. 2d, at 172. The Court of Appeals also rejected the State's contention that the scope of the inventory search was properly expanded when the officers discovered contraband in the glove compartment. The court concluded that, because both the car and its occupants were already in police custody, there were *261 no "exigent circumstances" justifying a warrantless search for contraband.[1] We reverse. In we held that when police officers have probable cause to believe there is contraband |
per_curiam | 1,982 | 200 | per_curiam | Michigan v. Thomas | https://www.courtlistener.com/opinion/110776/michigan-v-thomas/ | police officers have probable cause to believe there is contraband inside an automobile that has been stopped on the road, the officers may conduct a warrantless search of the vehicle, even after it has been impounded and is in police custody. We firmly reiterated this holding in See also United It is thus clear that the justification to conduct such a warrantless search does not vanish once the car has been immobilized; nor does it depend upon a reviewing court's assessment of the likelihood in each particular case that the car would have been driven away, or that its contents would have been tampered with, during the period required for the police to obtain a warrant.[2] See Here, the Court of Appeals recognized that the officers were justified in conducting an inventory search of the car's *262 glove compartment, which led to the discovery of contraband. Without attempting to refute the State's contention that this discovery gave the officers probable cause to believe there was contraband elsewhere in the vehicle, the Court of Appeals held that the absence of "exigent circumstances" precluded a warrantless search. This holding is plainly inconsistent with our decisions in Chambers and The petition for certiorari and the motion of respondent to proceed in forma pauperis are granted, the judgment of the Michigan Court of Appeals is reversed, and the case is remanded to that court for further proceedings not inconsistent with this opinion. It is so ordered. JUSTICE BRENNAN and JUSTICE MARSHALL would grant the petition for a writ of certiorari and set the case for oral argument. |
Justice Stevens | 1,981 | 16 | dissenting | Diamond v. Diehr | https://www.courtlistener.com/opinion/110422/diamond-v-diehr/ | The starting point in the proper adjudication of patent litigation is an understanding of what the inventor claims *194 to have discovered. The Court's decision in this case rests on a misreading of the Diehr and Lutton patent applicatio Moreover, the Court has compounded its error by ignoring the critical distinction between the character of the subject matter that the inventor claims to be novelthe 101 issue and the question whether that subject matter is in fact novelthe 102 issue. I Before discussing the major flaws in the Court's opinion, a word of history may be helpful. As the Court recognized in the computer industry is relatively young. Although computer technology seems commonplace today, the first digital computer capable of utilizing stored programs was developed less than 30 years ago.[1] Patent law developments in response to this new technology are of even more recent vintage. The subject of legal protection for computer programs did not begin to receive serious consideration until over a decade after completion of the first programmable digital computer.[2] It was before *195 the federal courts squarely addressed the subject,[3] and 1972 before this Court announced its first decision in the area.[4] Prior to well-established principles of patent law probably would have prevented the issuance of a valid patent on almost any conceivable computer Under the "mental steps" doctrine, processes involving mental operations were considered unpatentable. See, e. g., In re Heritage, 32 Cow. C. P. A. (Pat.) 1170, 1173-1177, ; In re Shao Wen Yuan, 38 Cow. C. P. A. (Pat.) 967, 972-976, The mental-steps doctrine was based upon the familiar principle that a scientific concept or mere idea cannot be the subject of a valid patent. See In re Bolongaro, 20 Cow. C. P. A. (Pat.) 845, 846-847,[5] The doctrine was regularly invoked to deny patents to inventions consisting primarily of mathematical formulae or methods of computatio[6] It was also applied against patent claims in which a mental operation or mathematical computation was the sole novel element or inventive contribution; it was clear that patentability *196 could not be predicated upon a mental step.[7] Under the "function of a machine" doctrine, a process which amounted to nothing more than a description of the function of a machine was unpatentable. This doctrine had its origin in several 19th-century decisions of this Court,[8] and it had been consistently followed thereafter by the lower federal courts.[9]*197 Finally, the definition of "process" announced by this Court in seemed to indicate that a patentable process must cause a physical transformation in the materials to which the process is applied. See |
Justice Stevens | 1,981 | 16 | dissenting | Diamond v. Diehr | https://www.courtlistener.com/opinion/110422/diamond-v-diehr/ | in the materials to which the process is applied. See ante, at 182-184. Concern with the patent system's ability to deal with rapidly changing technology in the computer and other fields led to the formation in 1965 of the President's Commission on the Patent System. After studying the question of computer program patentability, the Commission recommended that computer programs be expressly excluded from the coverage of the patent laws; this recommendation was based primarily upon the Patent Office's inability to deal with the administrative burden of examining program applications.[10] At approximately the time that the Commission issued its report, the Patent Office published notice of its intention to prescribe guidelines for the examination of applications for patents on computer programs. See Under the proposed guidelines, a computer program, whether claimed as an apparatus or as a process, was unpatentable.[11] The Patent Office indicated, however, *198 that a programmed computer could be a component of a patentable process if combined with unobvious elements to produce a physical result. The Patent Office formally adopted the guidelines in See The new guidelines were to have a short life. Beginning with two decisions in a dramatic change in the law as understood by the Court of Customs and Patent Appeals took place. By repudiating the well-settled "function of a machine" and "mental steps" doctrines, that court reinterpreted 101 of the Patent Code to enlarge drastically the categories of patentable subject This reinterpretation would lead to the conclusion that computer programs were within the categories of inventions to which Congress intended to extend patent protectio In In re Tarczy-Hornoch, 55 Cow. C. P. A. (Pat.) 1441, a divided Court of Customs and Patent Appeals overruled the line of cases developing and applying the "function of a machine" doctrine. The majority acknowledged that the doctrine had originated with decisions of this Court and that the lower federal courts, including the Court of Customs and Patent Appeals, had consistently adhered to it during the preceding 70 years. Nonetheless, the court concluded that the doctrine rested on a misinterpretation of the precedents and that it was contrary to "the basic purposes of the patent system and productive of a range of undesirable results from the harshly inequitable to the silly."[12] Shortly thereafter, a similar *199 fate befell the "mental steps" doctrine. In In re Prater, 56 Cow. C. P. A. (Pat.) 1360, modified on rehearing, 56 Cow. C. A. P. (Pat.) 1381, the court found that the precedents on which that doctrine was based either were poorly reasoned or had been misinterpreted over the years. 56 Cow. C. |
Justice Stevens | 1,981 | 16 | dissenting | Diamond v. Diehr | https://www.courtlistener.com/opinion/110422/diamond-v-diehr/ | or had been misinterpreted over the years. 56 Cow. C. P. A. (Pat.), at -1387. The court concluded that the fact that a process may be performed mentally should not foreclose patentability if the claims reveal that the process also may be performed without mental operations.[13] This aspect of the original Prater opinion was substantially undisturbed by the opinion issued after rehearing. However, the second Prater opinion clearly indicated that patent claims broad enough to encompass the operation of a programmed computer would not be rejected for lack of patentable subject 56 Cow. C. P. A. (Pat.), at 1394, 29, 29.[14] *200 The Court of Customs and Patent Appeals soon replaced the overruled doctrines with more expansive principles formulated with computer technology in mind. In In re Bernhart, 57 Cow. C. P. A. (Pat.) 737, the court reaffirmed Prater, and indicated that all that remained of the mental-steps doctrine was a prohibition on the granting of a patent that would confer a monopoly on all uses of a scientific principle or mathematical equatio The court also announced that a computer programmed with a new and unobvious program was physically different from the same computer without that program; the programmed computer was a new machine or at least a new improvement over the unprogrammed computer. Therefore, patent protection could be obtained for new computer programs if the patent claims were drafted in apparatus form. The Court of Customs and Patent Appeals turned its attention to process claims encompassing computer programs in In re Musgrave, 57 Cow. C. P. A. (Pat.) 1352, In that case, the court emphasized the fact that Prater had done away with the mental-steps doctrine; in particular, the court rejected the Patent Office's continued reliance upon the "point of novelty" approach to claim analysis.[15] The court also announced a new standard for evaluating process claims under 101: any sequence of operational steps was a patentable process under 101 as long as it was within the "technological arts." This standard effectively disposed of any vestiges of the mental-steps doctrine remaining *201 after Prater and Bernhart.[16] The "technological arts" standard was refined in In re 58 Cow. C. P. A. (Pat.) 1134, in which the court held that computers, regardless of the uses to which they are put, are within the technological arts for purposes of 101. In re of course, was reversed by this Court in[17] Justice Douglas' opinion for a unanimous Court made no reference to the lower court's rejection of the mental-steps doctrine or to the new technological-arts standard.[18] Rather, the Court clearly held that new mathematical |
Justice Stevens | 1,981 | 16 | dissenting | Diamond v. Diehr | https://www.courtlistener.com/opinion/110422/diamond-v-diehr/ | technological-arts standard.[18] Rather, the Court clearly held that new mathematical procedures that can be conducted in old computers, like mental processes and abstract intellectual concepts, see are not patentable processes within the meaning of 101. *202 The Court of Customs and Patent Appeals had its first opportunity to interpret in In re Christensen, In Christensen, the claimed invention was a method in which the only novel element was a mathematical The court resurrected the point-of-novelty approach abandoned in Musgrave and held that a process claim in which the point of novelty was a mathematical equation to be solved as the final step of the process did not define patentable subject matter after Benso 478 F. 2d, at 1394. Accordingly, the court affirmed the Patent Office Board of Appeals' rejection of the claims under 101. The Court of Customs and Patent Appeals in subsequent cases began to narrow its interpretation of Benso In In re Johnston, the court held that a record-keeping machine system which comprised a programmed digital computer was patentable subject matter under 101. The majority dismissed with the observation that involved only process, not apparatus, 502 F.2d, Judge Rich dissented, arguing that to limit only to process claims would make patentability turn upon the form in which a program invention was -774.[19] The court again construed as limited only to process claims in In re Noll, cert. denied, ; apparatus claims were governed by the court's pre- conclusion that a programmed computer was structurally different from the same computer without that particular In dissent, Judge Lane, joined by Judge Rich, argued that should be read as a general proscription of the patenting of computer programs regardless of the form of the -152. Judge Lane's interpretation of was rejected by the majority *203 in In re Chatfield, cert. denied, decided on the same day as Noll. In that case, the court construed to preclude the patenting of program inventions claimed as processes only where the claims would pre-empt all uses of an algorithm or mathematical 158-159.[20] The dissenting judges argued, as they had in Noll, that held that programs for general-purpose digital computers are not patentable subject Following Noll and Chatfield, the Court of Customs and Patent Appeals consistently interpreted to preclude the patenting of a program-related process invention only when the claims, if allowed, would wholly pre-empt the algorithm One of the cases adopting this view was In re[21] which was reversed in Before this Court decided however, the lower court developed a two-step procedure for analyzing program-related inventions in light of Benso In In re Freeman, the |
Justice Stevens | 1,981 | 16 | dissenting | Diamond v. Diehr | https://www.courtlistener.com/opinion/110422/diamond-v-diehr/ | inventions in light of Benso In In re Freeman, the court held that such inventions must first be examined to determine whether a mathematical algorithm is directly or indirectly claimed; if an algorithm is recited, the court must then determine whether the claim would wholly pre-empt that algorithm. Only if a claim satisfied both inquiries was considered applicable. See also In re Toma, *204 In this Court clarified in three significant respects. First, held that the rule of unpatentable subject matter was not limited, as the lower court believed, to claims which wholly pre-empted an algorithm or amounted to a patent on the algorithm -590. Second, the Court made it clear that an improved method of calculation, even when employed as part of a physical process, is not patentable subject matter under 101. at 18. Finally, the Court explained the correct procedure for analyzing a patent claim employing a mathematical algorithm. Under this procedure, the algorithm is treated for 101 purposes as though it were a familiar part of the prior art; the claim is then examined to determine whether it discloses "some other inventive concept." at 591-.[22] Although the Court of Customs and Patent Appeals in several post- decisions held that program-related inventions were not patentable subject matter under 101, see, e. g., In re Sarkar, ; In re Gelnovatch, F.2d 32 in general was not enthusiastically received by that court. In In re Bergy, the majority engaged in an extensive critique of concluding that this Court had erroneously commingled "distinct statutory provisions which are conceptually unrelated."[23] In subsequent cases, the court construed *205 as resting on nothing more than the way in which the patent claims had been drafted, and it expressly declined to use the method of claim analysis spelled out in that decisio The Court of Customs and Patent Appeals has taken the position that, if an application is drafted in a way that discloses an entire process as novel, it defines patentable subject matter even if the only novel element that the inventor claims to have discovered is a new computer [24] The court interpreted in this manner in its opinion in this case. See In re Diehr, In my judgment, this reading of although entirely consistent with the lower court's expansive approach to 101 during the past 12 yearstrivializes the holding in the principle that underlies and the settled line of authority reviewed in those opinions. II As I stated at the outset, the starting point in the proper adjudication of patent litigation is an understanding of what the inventor claims to have discovered. |
Justice Stevens | 1,981 | 16 | dissenting | Diamond v. Diehr | https://www.courtlistener.com/opinion/110422/diamond-v-diehr/ | an understanding of what the inventor claims to have discovered. Indeed, the outcome of such litigation is often determined by the judge's understanding of the patent applicatio This is such a case. In the first sentence of its opinion, the Court states the question presented as "whether a process for curing synthetic rubber is patentable subject " Ante, at 177. Of course, that question was effectively answered many years ago when Charles Goodyear obtained his patent on the vulcanization process.[25] The patent application filed by Diehr *206 and Lutton, however, teaches nothing about the chemistry of the synthetic rubber-curing process, nothing about the raw materials to be used in curing synthetic rubber, nothing about the equipment to be used in the process, and nothing about the significance or effect of any process variable such as temperature, curing time, particular compositions of material, or mold configurations. In short, Diehr and Lutton do not claim to have discovered anything new about the process for curing synthetic rubber. As the Court reads the claims in the Diehr and Lutton patent application, the inventors' discovery is a method of constantly measuring the actual temperature inside a rubber molding press.[26] As I read the claims, their discovery is an *207 improved method of calculating the time that the mold should remain closed during the curing process.[27] If the Court's reading of the claims were correct, I would agree that they disclose patentable subject On the other hand, if the Court accepted my reading, I feel confident that the case would be decided differently. There are three reasons why I cannot accept the Court's conclusion that Diehr and Lutton claim to have discovered a new method of constantly measuring the temperature inside a mold. First, there is not a word in the patent application that suggests that there is anything unusual about the temperature-reading devices used in this processor indeed that any particular species of temperature-reading device should be used in it.[28] Second, since devices for constantly *208 measuring actual temperatureson a back porch, for example have been familiar articles for quite some time, I find it difficult to believe that a patent application filed in 1975 was premised on the notion that a "process of constantly measuring the actual temperature" had just been discovered. Finally, the Patent and Trademark Office Board of Appeals expressly found that "the only difference between the conventional methods of operating a molding press and that claimed in [the] application rests in those steps of the claims which relate to the calculation incident to the solution of the mathematical problem or |
Justice Stevens | 1,981 | 16 | dissenting | Diamond v. Diehr | https://www.courtlistener.com/opinion/110422/diamond-v-diehr/ | calculation incident to the solution of the mathematical problem or formula used to control the mold heater and the automatic opening of the press."[29] This finding was not disturbed by the Court of Customs and Patent Appeals and is clearly correct. A fair reading of the entire patent application, as well as the specific claims, makes it perfectly clear that what Diehr and Lutton claim to have discovered is a method of using a digital computer to determine the amount of time that a rubber molding press should remain closed during the synthetic rubber-curing process. There is no suggestion that there is anything novel in the instrumentation of the mold, in actuating a timer when the press is closed, or in automatically opening the press when the computed time expires.[30] Nor does the *209 application suggest that Diehr and Lutton have discovered anything about the temperatures in the mold or the amount of curing time that will produce the best cure. What they claim to have discovered, in essence, is a method of updating the original estimated curing time by repetitively recalculating that time pursuant to a well-known mathematical formula in response to variations in temperature within the mold. Their method of updating the curing time calculation is strikingly reminiscent of the method of updating alarm limits that Dale sought to patent. involved the use of a digital computer in connection with a catalytic conversion process. During the conversion process, variables such as temperature, pressure, and flow rates were constantly monitored and fed into the computer; in this case, temperature in the mold is the variable that is monitored and fed into the computer. In the digital computer repetitively recalculated the "alarm limit"a number that might signal the need to terminate or modify the catalytic conversion process; in this case, the digital computer repetitively recalculates the correct curing timea number that signals the time when the synthetic rubber molding press should ope The essence of the claimed discovery in both cases was an algorithm that could be programmed on a digital computer.[31]*210 In the algorithm made use of multiple process variables; in this case, it makes use of only one. In the algorithm was expressed in a newly developed mathematical formula; in this case, the algorithm makes use of a well-known mathematical Manifestly, neither of these differences can explain today's holding.[32] What I believe *211 does explain today's holding is a misunderstanding of the applicants' claimed invention and a failure to recognize the critical difference between the "discovery" requirement in 101 and the "novelty" requirement in 102.[33] III The Court |
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