author_name
stringclasses 26
values | year
int64 1.97k
2.02k
| label
int64 0
200
| category
stringclasses 5
values | case_name
stringlengths 9
127
| url
stringlengths 55
120
| text
stringlengths 1k
3.91k
|
|---|---|---|---|---|---|---|
Justice Breyer | 2,011 | 2 | second_dissenting | Brown v. Entertainment Merchants Assn. | https://www.courtlistener.com/opinion/219734/brown-v-entertainment-merchants-assn/ | California imposes a civil fine of up to $1,000 upon any person who distributes a violent video game in California out labeling it “18,” or who sells or rents a labeled violent video game to a person under the age of 18. Rep- resentatives of the video game and software industries, claiming that the statute violates the First Amendment on its face, seek an injunction against its enforcement. Ap plying traditional First Amendment analysis, I would uphold the statute as constitutional on its face and would consequently reject the industries’ facial challenge. I A California’s statute defines a violent video game as: A game in which a player “kill[s], maim[s], dismember[s], or sexually assault[s] an image of a human being,” and “[a] reasonable person, considering the game as a whole, would find [the game] appeals to a deviant or morbid interest of minors,” and “[the game] is patently offensive to prevailing standards in the community as to what is suitable for minors,” 2 BROWN v. ENTERTAINMENT MERCHANTS ASSN. BREYER, J., dissenting and “the game, as a whole, lack[s] serious literary, ar tistic, political, or scientific value for minors.” Cal. Civ. Code Ann. (West 2009). The statute in effect forbids the sale of such a game to minors unless they are accompanied by a parent; it re quires the makers of the game to affix a label identifying it as a game suitable only for those aged 18 and over; it exempts retailers from liability unless such a label is properly affixed to the game; and it imposes a civil fine of up to $1,000 upon a violator. See B A facial challenge to this statute based on the First Amendment can succeed only if “a substantial number of its applications are unconstitutional, judged in relation to the statute’s plainly legitimate sweep.” United States v. Stevens, 559 U. S. (2010) (slip op., at 10) (internal quotation marks omitted). Moreover, it is more difficult to mount a facial First Amendment attack on a statute that seeks to regulate activity that involves action as well as speech. See 614– 615 Hence, I shall focus here upon an area in which I believe the State can legitimately apply its stat ute, namely sales to minors under the age of 17 (the age cutoff used by the industry’s own ratings system), of highly realistic violent video games, which a reasonable game maker would know meet the Act’s criteria. That area lies at the heart of the statute. I shall assume that the number of instances in which the State will enforce the statute in that |
Justice Breyer | 2,011 | 2 | second_dissenting | Brown v. Entertainment Merchants Assn. | https://www.courtlistener.com/opinion/219734/brown-v-entertainment-merchants-assn/ | in which the State will enforce the statute in that area is comparatively large, and that the number outside that area (for example, sales to 17-year-olds) is comparatively small. And the activity the statute regulates combines speech action (a virtual form of target practice). Cite as: 564 U. S. (2011) 3 BREYER, J., dissenting C In determining whether the statute is unconstitutional, I would apply both this Court’s “vagueness” precedents and a strict form of First Amendment scrutiny. In doing so, the special First Amendment category I find relevant is not (as the Court claims) the category of “depictions of violence,” ante, at 8, but rather the category of “protection of children.” This Court has held that the “power of the state to control the conduct of children reaches beyond the scope of its authority over adults.” And the “ ‘regulatio[n] of communication addressed to [children] need not conform to the requirements of the [F]irst [A]mendment in the same way as those applicable to adults.’ ” (quoting Emerson, Toward a General Theory of the First Amendment, 72 Yale L. J. 877, 939 (1963)). The majority’s claim that the California statute, if up held, would create a “new categor[y] of unprotected speech,” ante, at 3, 6, is overstated. No one here argues that depictions of violence, even extreme violence, auto matically fall outside the First Amendment’s protective scope as, for example, do obscenity and depictions of child pornography. We properly speak of categories of expres sion that lack protection when, like “child pornography,” the category is broad, when it applies automatically, and when the State can prohibit everyone, including adults, from obtaining access to the material in it. But where, as here, careful analysis must precede a narrower judicial conclusion (say, denying protection to a shout of “fire” in a crowded theater, or to an effort to teach a terror ist group how to peacefully petition the United Nations), we do not normally describe the result as creating a “new category of unprotected speech.” See ; Holder v. Humanitarian Law Project, 561 U. S. (2010). 4 BROWN v. ENTERTAINMENT MERCHANTS ASSN. BREYER, J., dissenting Thus, in Stevens, after rejecting the claim that all de pictions of animal cruelty (a category) fall outside the First Amendment’s protective scope, we went on to decide whether the particular statute at issue violates the First Amendment under traditional standards; and we held that, because the statute was overly broad, it was invalid. Similarly, here the issue is whether, applying traditional First Amendment standards, this statute does, or does not, pass muster. II In my view, |
Justice Breyer | 2,011 | 2 | second_dissenting | Brown v. Entertainment Merchants Assn. | https://www.courtlistener.com/opinion/219734/brown-v-entertainment-merchants-assn/ | does, or does not, pass muster. II In my view, California’s statute provides “fair notice of what is prohibited,” and consequently it is not impermis sibly vague. United (2008). explains why that is so. The Court there considered a New York law that forbade the sale to minors of a “picture, photograph, drawing, sculpture, motion pic ture film, or similar visual representation or image of a person or portion of the human body which depicts nudity” that “predominately appeals to the prurient, shameful or morbid interest of minors,” and “is patently offensive to prevailing standards in the adult community as a whole respect to what is suitable material for minors,” and “is utterly out redeeming social importance for minors.” –647. This Court upheld the New York statute in (which is sometimes unfortunately confused a very Cite as: 564 U. S. (2011) 5 BREYER, J., dissenting different, earlier case, Ginzburg v. United States, 383 U.S. 463 (1966)). The five-Justice majority, in an opinion writ ten by Justice Brennan, wrote that the statute was suf- ficiently –645. No Member of the Court voiced any vagueness objection. See at 648–650 (Stewart, J., concurring in result); at 650–671 (Doug las, J., joined by Black, J., dissenting); at 671–675 (Fortas, J., dissenting). Comparing the language of California’s statute (set at 1–2) the language of New York’s statute (set immediately above), it is difficult to find any vagueness-related difference. Why are the words “kill,” “maim,” and “dismember” any more difficult to understand than the word “nudity?” JUSTICE ALITO ob jects that these words do “not perform the narrowing function” that this Court has required in adult obscenity cases, where statutes can only cover “ ‘hard core’ ” depic tions. Ante, at 6 (opinion concurring in judgment). But the relevant comparison is not to adult obscenity cases but to which dealt “nudity,” a category no more “narrow” than killing and maiming. And in any event, narrowness and vagueness do not necessarily have any thing to do one another. All that is required for vagueness purposes is that the terms “kill,” “maim,” and “dismember” give fair notice as to what they cover, which they do. The remainder of California’s definition copies, almost word for word, the language this Court used in Miller v. California, in permitting a total ban on material that satisfied its definition (one enforced criminal penalties). The California law’s reliance on “community standards” adheres to Miller, and in Fort Wayne Books, this Court specifically upheld the use of Miller’s language against charges of vagueness. California only departed from the Miller formulation in two significant respects: |
Justice Breyer | 2,011 | 2 | second_dissenting | Brown v. Entertainment Merchants Assn. | https://www.courtlistener.com/opinion/219734/brown-v-entertainment-merchants-assn/ | only departed from the Miller formulation in two significant respects: It 6 BROWN v. ENTERTAINMENT MERCHANTS ASSN. BREYER, J., dissenting substituted the word “deviant” for the words “prurient” and “shameful,” and it three times added the words “for minors.” The word “deviant” differs from “prurient” and “shameful,” but it would seem no less suited to defining and narrowing the reach of the statute. And the addition of “for minors” to a version of the Miller standard was approved in even though the New York law “dr[ew] no distinction between young chil dren and adolescents who are nearing the age of majority,” ante, at 8 (opinion of ALITO, J.). Both the Miller standard and the law upheld in Gins berg lack perfect clarity. But that fact reflects the dif ficulty of the Court’s long search for words capable of protecting expression out depriving the State of a legitimate constitutional power to regulate. As is well known, at one point Justice Stewart thought he could do no better in defining obscenity than, “I know it when I see it.” (concur ring opinion). And Justice Douglas dissented from Miller’s standard, which he thought was still too vague. 413 U.S., at 39–40. Ultimately, however, this Court accepted the “community standards” tests used in Miller and They reflect the fact that sometimes, even when a precise standard proves elusive, it is easy enough to identify instances that fall in a legitimate regulation. And they seek to draw a line, which, while favoring free ex pression, will nonetheless permit a legislature to find the words necessary to accomplish a legitimate constitutional objective. Cf. at (the Constitution does not always require “ ‘perfect clarity and precise guid ance,’ ” even when “ ‘expressive activity’ ” is involved). What, then, is the difference between and Miller on the one hand and the California law on the other? It will often be easy to pick out cases at which California’s statute directly aims, involving, say, a charac ter who shoots out a police officer’s knee, douses him Cite as: 564 U. S. (2011) 7 BREYER, J., dissenting gasoline, lights him on fire, urinates on his burning body, and finally kills him a gunshot to the head. (Foot- age of one such game sequence has been submitted in the record.) See also ante, at 14–15 (ALITO, J., concurring in judgment). As in Miller and the California law clearly protects even the most violent games that possess serious literary, artistic, political, or scientific value. (A)(iii). And it is easier here than in Miller or to separate the sheep from the goats |
Justice Breyer | 2,011 | 2 | second_dissenting | Brown v. Entertainment Merchants Assn. | https://www.courtlistener.com/opinion/219734/brown-v-entertainment-merchants-assn/ | in Miller or to separate the sheep from the goats at the statute’s border. That is because here the industry it- self has promulgated standards and created a review process, in which adults who “typically have experience children” assess what games are inappropriate for minors. See Entertainment Software Rating Board, Rating Process, online at http://www.esrb.org/ratings/&ratings_ process.jsp (all Internet materials as visited June 24, 2011, and available in Clerk of Court’s case file). There is, of course, one obvious difference: The statute concerned depictions of “nudity,” while California’s statute concerns extremely violent video games. But for purposes of vagueness, why should that matter? JUSTICE ALITO argues that the Miller standard sufficed because there are “certain generally accepted norms concerning expression related to sex,” whereas there are no similarly “accepted standards regarding the suitability of violent entertainment.” Ante, at 7–8. But there is no evidence that is so. The Court relied on “community standards” in Miller precisely because of the difficulty of articulating “accepted norms” about depictions of sex. I can find no difference—historical or otherwise—that is relevant to the vagueness question. Indeed, the majority’s examples of literary descriptions of violence, on which JUSTICE ALITO relies, do not show anything relevant at all. After all, one can find in literature as many (if not more) descriptions of physical love as descriptions of violence. Indeed, sex “has been a theme in art and literature 8 BROWN v. ENTERTAINMENT MERCHANTS ASSN. BREYER, J., dissenting throughout the ages.” For every Homer, there is a Titian. For every Dante, there is an Ovid. And for all the teenagers who have read the original versions of Grimm’s Fairy Tales, I suspect there are those who know the story of Lady Godiva. Thus, I can find no meaningful vagueness-related dif ferences between California’s law and the New York law upheld in And if there remain any vagueness problems, the state courts can cure them through inter pretation. See 216 (5) (“[S]tate statute should not be deemed facially invalid unless it is not readily subject to a narrowing construction by the state courts”). Cf. at 644 (relying on the fact that New York Court of Appeals would read a knowledge requirement into the statute); 1088– 1089, (reading a knowl edge requirement into a statute). Consequently, for pur poses of this facial challenge, I would not find the statute unconstitutionally vague. III Video games combine physical action expression. Were physical activity to predominate in a game, govern ment could appropriately intervene, say by requiring parents to accompany children when playing a game in volving actual target practice, or restricting the |
Justice Breyer | 2,011 | 2 | second_dissenting | Brown v. Entertainment Merchants Assn. | https://www.courtlistener.com/opinion/219734/brown-v-entertainment-merchants-assn/ | a game in volving actual target practice, or restricting the sale of toys presenting physical dangers to children. See gener ally Consumer Product Safety Improvement Act of 2008, But because video games also embody important expressive and artistic elements, I agree the Court that the First Amendment significantly limits the State’s power to regu late. And I would determine whether the State has ex ceeded those limits by applying a strict standard of review. Cite as: 564 U. S. (2011) 9 BREYER, J., dissenting Like the majority, I believe that the California law must be “narrowly tailored” to further a “compelling interest,” out there being a “less restrictive” alternative that would be “at least as effective.” 1 U.S. 844, I would not apply this strict standard “mechanically.” United States v. Playboy Entertainment Group, Inc., 9 U.S. 803, 841 (BREYER, J., joined by Rehnquist, C. J., and O’Connor and SCALIA, JJ., dissenting). Rather, in applying it, I would evaluate the degree to which the statute injures speech-related interests, the nature of the potentially-justifying “compelling interests,” the degree to which the statute furthers that interest, the nature and effectiveness of possible alternatives, and, in light of this evaluation, whether, overall, “the statute works speech related harm out of proportion to the benefits that the statute seeks to provide.” See also (apply ing strict scrutiny and finding relevant the lack of a “significant impingement” on speech). First Amendment standards applied in this way are difficult but not impossible to satisfy. Applying “strict scrutiny” the Court has upheld restrictions on speech that, for example, ban the teaching of peaceful dispute resolu tion to a group on the State Department’s list of terrorist organizations, Holder, 561 U. S., at (slip op., at 22–34); but cf. at (slip op., at 1 ) (BREYER, J., dissenting), and limit speech near polling places, at –211 And applying less clearly defined but still rigorous standards, the Court has allowed States to require disclosure of petition signers, Doe v. Reed, 561 U. S. (2010), and to impose campaign con tribution limits that were “ ‘closely drawn’ to match a ‘sufficiently important interest,’ ” 8 U.S. 377, Moreover, although the Court did not specify the “level 10 BROWN v. ENTERTAINMENT MERCHANTS ASSN. BREYER, J., dissenting of scrutiny” it applied in we have subsequently described that case as finding a “compelling interest” in protecting children from harm sufficient to justify limita tions on speech. See Sable of Cal., Inc. v. FCC, Since the Court in Gins berg specified that the statute’s prohibition applied to material that was not I cannot dismiss on |
Justice Breyer | 2,011 | 2 | second_dissenting | Brown v. Entertainment Merchants Assn. | https://www.courtlistener.com/opinion/219734/brown-v-entertainment-merchants-assn/ | applied to material that was not I cannot dismiss on the ground that it concerned obscen ity. But cf. ante, at 6 (majority opinion). Nor need I de pend upon the fact that the Court in insisted only that the legislature have a “rational” basis for finding the depictions there at issue harmful to children. 390 U.S., at 639. For in this case, California has substan tiated its claim of harm considerably stronger evidence. A California’s law imposes no more than a modest restric tion on expression. The statute prevents no one from playing a video game, it prevents no adult from buying a video game, and it prevents no child or adolescent from obtaining a game provided a parent is willing to help. All it prevents is a child or adolescent from buying, out a parent’s assistance, a gruesomely vio lent video game of a kind that the industry itself tells us it wants to keep out of the hands of those under the age of 17. See Brief for Respondents 8. Nor is the statute, if upheld, likely to create a prece- dent that would adversely affect other media, say films, or videos, or books. A typical video game involves a signifi cant amount of physical activity. See ante, at 13–14 (ALITO, J., concurring in judgment) (citing examples of the increasing interactivity of video game controllers). And pushing buttons that achieve an interactive, virtual form of target practice (using images of human beings as tar gets), while containing an expressive component, is not Cite as: 564 U. S. (2011) 11 BREYER, J., dissenting just like watching a typical movie. See infra, at 14. B The interest that California advances in support of the statute is compelling. As this Court has previously de scribed that interest, it consists of both (1) the “basic” parental claim “to authority in their own household to direct the rearing of their children,” which makes it proper to enact “laws designed to aid discharge of [parental] responsibility,” and (2) the State’s “independent interest in the well-being of its youth.” – 640. Cf. (“ ‘[O]ne can well distinguish laws which do not impose a morality on children, but which support the right of parents to deal the morals of their children as they see fit’ ” (quoting Henkin, Morals and the Constitution: The Sin of Obscenity, 63 Colum. L. Rev. 391, 413, n. 68 (1963))). And where these interests work in tandem, it is not fatally “underinclusive” for a State to advance its interests in protecting children against the special harms present in an interactive |
Justice Breyer | 2,011 | 2 | second_dissenting | Brown v. Entertainment Merchants Assn. | https://www.courtlistener.com/opinion/219734/brown-v-entertainment-merchants-assn/ | protecting children against the special harms present in an interactive video game medium through a default rule that still allows parents to provide their children what their parents wish. Both interests are present here. As to the need to help parents guide their children, the Court noted in 1968 that “ ‘parental control or guidance cannot always be provided.’ ” Today, 5.3 million grade school-age children of working parents are routinely home alone. See Dept. of Commerce, Census Bureau, Who’s Minding the Kids? Child Care Arrangements: Spring 2005/Summer 2006, p. 12 (2010), online at http:// www.census.gov/prod/2010pubs/p70-121.pdf. Thus, it has, if anything, become more important to supplement par ents’ authority to guide their children’s development. As to the State’s independent interest, we have pointed out that juveniles are more likely to show a “ ‘lack of ma 12 BROWN v. ENTERTAINMENT MERCHANTS ASSN. BREYER, J., dissenting turity’ ” and are “more vulnerable or susceptible to nega tive influences and outside pressures,” and that their “character is not as well formed as that of an adult.” And we have therefore recognized “a compelling interest in pro tecting the physical and psychological well-being of mi nors.” Sable at At the same time, there is considerable evidence that California’s statute significantly furthers this compelling interest. That is, in part, because video games are excel lent teaching tools. Learning a practical task often means developing habits, becoming accustomed to performing the task, and receiving positive reinforcement when perform ing that task well. Video games can help develop habits, accustom the player to performance of the task, and reward the player for performing that task well. Why else would the Armed Forces incorporate video games into its training? See CNN, War Games: Military Train ing Goes High-Tech (Nov. 22, 2001), online at http://articles.cnn.com/2001–11–2 / tech / war.games_1_ict- 2 bill-swartout-real-world-training?_s=PM:TECH. When the military uses video games to help soldiers train for missions, it is using this medium for a beneficial purpose. But California argues that when the teaching features of video games are put to less desirable ends, harm can ensue. In particular, extremely violent games can harm children by rewarding them for being violently aggressive in play, and thereby often teaching them to be violently aggressive in life. And video games can cause more harm in this respect than can typically passive media, such as books or films or television programs. There are many scientific studies that support Califor nia’s views. Social scientists, for example, have found causal evidence that playing these games results in harm. Longitudinal studies, which measure changes over time, have found that |
Justice Breyer | 2,011 | 2 | second_dissenting | Brown v. Entertainment Merchants Assn. | https://www.courtlistener.com/opinion/219734/brown-v-entertainment-merchants-assn/ | Longitudinal studies, which measure changes over time, have found that increased exposure to violent video games Cite as: 564 U. S. (2011) 13 BREYER, J., dissenting causes an increase in aggression over the same period. See Möller & Krahé, Exposure to Violent Video Games and Aggression in German Adolescents: A Longitudinal Analysis, 35 Aggressive Behavior 75 (2009); Gentile & Gentile, Violent Video Games as Exemplary Teachers: A Conceptual Analysis, 37 J. Youth & Adolescence 127 (2008); Anderson et al., Longitudinal Effects of Violent Video Games on Aggression in Japan and the United States, 122 Pediatrics e1067 (2008); Wallenius & Puna mäki, Digital Game Violence and Direct Aggression in Adolescence: A Longitudinal Study of the Roles of Sex, Age, and Parent-Child Communication, 29 J. Applied Developmental Psychology 286 (2008). Experimental studies in laboratories have found that subjects randomly assigned to play a violent video game subsequently displayed more characteristics of aggression than those who played nonviolent games. See, e.g., Ander son et al., Violent Video Games: Specific Effects of Violent Content on Aggressive Thoughts and Behavior, 36 Ad vances in Experimental Soc. Psychology 199 (2004). Surveys of 8th and 9th grade students have found a correlation between playing violent video games and aggression. See, e.g., Gentile, Lynch, Linder, & Walsh, The Effects of Violent Video Game Habits On Adolescent Hostility, Aggressive Behaviors, and School Performance, 27 J. Adolescence 5 (2004). Cutting-edge neuroscience has shown that “virtual violence in video game playing results in those neural patterns that are considered characteristic for aggressive cognition and behavior.” Weber, Ritterfeld, & Mathiak, Does Playing Violent Video Games Induce Aggression? Empirical Evidence of a Functional Magnetic Resonance Imaging Study, 8 Media Psychology 39, 51 (2006). And “meta-analyses,” i.e., studies of all the studies, have concluded that exposure to violent video games “was posi tively associated aggressive behavior, aggressive 14 BROWN v. ENTERTAINMENT MERCHANTS ASSN. BREYER, J., dissenting cognition, and aggressive affect,” and that “playing violent video games is a causal risk factor for long-term harmful outcomes.” Anderson et al., Violent Video Game Effects on Aggression, Empathy, and Prosocial Behavior in Eastern and Western Countries: A Meta-Analytic Review, 136 Psychological Bulletin 151, 167, 169 (2010) (emphasis added). Some of these studies take care to explain in a common- sense way why video games are potentially more harmful than, say, films or books or television. In essence, they say that the closer a child’s behavior comes, not to watch ing, but to acting out horrific violence, the greater the potential psychological harm. See Bushman & Hues mann, Aggression, in 2 Handbook of Social Pscyhology 833, 851 (S. |
Justice Breyer | 2,011 | 2 | second_dissenting | Brown v. Entertainment Merchants Assn. | https://www.courtlistener.com/opinion/219734/brown-v-entertainment-merchants-assn/ | Aggression, in 2 Handbook of Social Pscyhology 833, 851 (S. Fiske, D. Gilbert, & G. Lindzey eds., 5th ed. 2010) (video games stimulate more aggression because “[p]eople learn better when they are actively involved,” players are “more likely to identify violent charac ters,” and “violent games directly reward violent behav ior”); Polman, de Castro, & van Aken, Experimental Study of the Differential Effects of Playing Versus Watching Violent Video Games on Children’s Aggressive Behavior, 34 Aggressive Behavior 256 (2008) (finding greater ag gression resulting from playing, as opposed to watching, a violent game); C. Anderson, D. Gentile, & K. Buckley, Violent Video Game Effects on Children and Adolescents 136–137 (2007) (three studies finding greater effects from games as opposed to television). See also infra, at 15–16 (statements of expert public health associations agreeing that interactive games can be more harmful than “passive” media like television); ante, at 12–17 (ALITO, J., concur ring in judgment). Experts debate the conclusions of all these studies. Like many, perhaps most, studies of human behavior, each study has its critics, and some of those critics have pro duced studies of their own in which they reach different Cite as: 564 U. S. (2011) 15 BREYER, J., dissenting conclusions. (I list both sets of research in the appen dixes.) I, like most judges, lack the social science expertise to say definitively who is right. But associations of public health professionals who do possess that expertise have reviewed many of these studies and found a significant risk that violent video games, when compared more passive media, are particularly likely to cause children harm. Eleven years ago, for example, the American Academy of Pediatrics, the American Academy of Child & Adoles cent Psychiatry, the American Psychological Association, the American Medical Association, the American Academy of Family Physicians, and the American Psychiatric Asso ciation released a joint statement, which said: “[O]ver 1000 studies point overwhelmingly to a causal connection between media violence and aggres sive behavior in some children [and, though less research had been done at that time, preliminary studies indicated that] the impact of violent interac tive entertainment (video games and other interactive media) on young people may be significantly more severe than that wrought by television, movies, or mu sic.” Joint Statement on the Impact of Entertainment Violence on Children (emphasis added), online at http://www.aap.org/advocacy/releases/jstmtevc.htm. Five years later, after more research had been done, the American Psychological Association adopted a resolution that said: “[C]omprehensive analysis of violent interactive video game research suggests such exposure increases aggressive behavior, increases aggres sive thoughts, increases angry feelings, de creases |
Justice Breyer | 2,011 | 2 | second_dissenting | Brown v. Entertainment Merchants Assn. | https://www.courtlistener.com/opinion/219734/brown-v-entertainment-merchants-assn/ | behavior, increases aggres sive thoughts, increases angry feelings, de creases helpful behavior, and increases physio- logical arousal.” Resolution on Violence in Video Games and Interactive Media online at 16 BROWN v. ENTERTAINMENT MERCHANTS ASSN. BREYER, J., dissenting http:// www.apa.org / about / governance / council / policy/ interactive-media.pdf. The Association added: “[T]he practice, repetition, and rewards for acts of vio lence may be more conducive to increasing aggressive behavior among children and youth than passively watching violence on TV and in films.” (empha sis added). Four years after that, in 2009, the American Academy of Pediatrics issued a statement in significant part about interactive media. It said: “Studies of these rapidly growing and ever-more sophisticated types of media have indicated that the effects of child-initiated virtual violence may be even more profound than those of passive media such as television. In many games the child or teenager is ‘embedded’ in the game and uses a ‘joystick’ (handheld controller) that enhances both the experience and the aggressive feelings.” Policy Statement—Media Vio lence, 124 Pediatrics 1495, 1498 (2009) (emphasis added). It added: “Correlational and experimental studies have re vealed that violent video games lead to increases in aggressive behavior and aggressive thinking and de creases in prosocial behavior. Recent longitudinal studies have revealed that in as little as 3 months, high exposure to violent video games increased physi cal aggression. Other recent longitudinal studies have revealed similar effects across 2 years.” (footnotes omitted). Unlike the majority, I would find sufficient grounds in these studies and expert opinions for this Court to defer to Cite as: 564 U. S. (2011) 17 BREYER, J., dissenting an elected legislature’s conclusion that the video games in question are particularly likely to harm children. This Court has always thought it owed an elected legislature some degree of deference in respect to legislative facts of this kind, particularly when they involve technical mat ters that are beyond our competence, and even in First Amendment cases. See Holder, 561 U. S., at (slip op., at 28–29) (deferring, while applying strict scrutiny, to the Government’s national security judgments); Turner Broadcasting System, 0 U.S. 180, 195–196 (deferring, while applying intermediate scrutiny, to the Government’s technological judgments). The majority, in reaching its own, opposite conclusion about the validity of the relevant studies, grants the legislature no deference at all. Compare ante, at 12–13 (stating that the studies do not provide evidence that violent video games “cause” harm (emphasis deleted)), at 12–13 (citing longitudinal studies finding causation). C I can find no “less restrictive” alternative to California’s law that would be “at least |
Justice Breyer | 2,011 | 2 | second_dissenting | Brown v. Entertainment Merchants Assn. | https://www.courtlistener.com/opinion/219734/brown-v-entertainment-merchants-assn/ | restrictive” alternative to California’s law that would be “at least as effective.” See Reno, 1 U.S., at 874. The majority points to a voluntary alterna tive: The industry tries to prevent those under 17 from buying extremely violent games by labeling those games an “M” (Mature) and encouraging retailers to restrict their sales to those 17 and older. See ante, at 15–16. But this voluntary system has serious enforcement gaps. When California enacted its law, a Federal Trade Com mission (FTC) study had found that nearly 70% of unac companied 13- to 16-year-olds were able to buy M-rated video games. FTC, Marketing Violent Entertainment to Children 27 (2004), online at http://www.ftc.gov/os/2004/ 07/040708kidsviolencerpt.pdf. Subsequently the volun- tary program has become more effective. But as of the FTC’s most recent update to Congress, 20% of those 18 BROWN v. ENTERTAINMENT MERCHANTS ASSN. BREYER, J., dissenting under 17 are still able to buy M-rated video games, and, breaking down sales by store, one finds that this num- ber rises to nearly 50% in the case of one large national chain. FTC, Marketing Violent Entertainment to Chil- dren 28 (2009), online at http://www.ftc.gov/os/2009/12/ P994511violententertainment.pdf. And the industry could easily revert back to the substantial noncompliance that existed in 2004, particularly after today’s broad ruling reduces the industry’s incentive to police itself. The industry also argues for an alternative technological solution, namely “filtering at the console level.” Brief for Respondents 53. But it takes only a quick search of the Internet to find guides explaining how to circum vent any such technological controls. YouTube viewers, for example, have watched one of those guides (called “How to bypass parental controls on the Xbox 360”) more than 47,000 times. See http://www.youtube.com/watch?v= CFlVfVmvN6k. IV The upshot is that California’s statute, as applied to its heartland of applications (i.e., buyers under 17; extremely violent, realistic video games), imposes a restriction on speech that is modest at most. That restriction is justified by a compelling interest (supplementing parents’ efforts to prevent their children from purchasing potentially harm ful violent, interactive material). And there is no equally effective, less restrictive alternative. California’s statute is consequently constitutional on its face—though litigants remain free to challenge the statute as applied in particu lar instances, including any effort by the State to apply it to minors aged 17. I add that the majority’s different conclusion creates a serious anomaly in First Amendment law. makes clear that a State can prohibit the sale to minors of depictions of nudity; today the Court makes clear that a Cite as: 564 U. S. (2011) 19 BREYER, J., |
Justice Breyer | 2,011 | 2 | second_dissenting | Brown v. Entertainment Merchants Assn. | https://www.courtlistener.com/opinion/219734/brown-v-entertainment-merchants-assn/ | a Cite as: 564 U. S. (2011) 19 BREYER, J., dissenting State cannot prohibit the sale to minors of the most vio lent interactive video games. But what sense does it make to forbid selling to a 13-year-old boy a magazine an image of a nude woman, while protecting a sale to that 13 year-old of an interactive video game in which he actively, but virtually, binds and gags the woman, then tortures and kills her? What kind of First Amendment would permit the government to protect children by restrict- ing sales of that extremely violent video game only when the woman—bound, gagged, tortured, and killed—is also topless? This anomaly is not compelled by the First Amendment. It disappears once one recognizes that extreme violence, where interactive, and out literary, artistic, or similar justification, can prove at least as, if not more, harmful to children as photographs of nudity. And the record here is more than adequate to support such a view. That is why I believe that controls the outcome here a fortiori. And it is why I believe California’s law is constitutional on its face. This case is ultimately less about censorship than it is about education. Our Constitution cannot succeed in securing the liberties it seeks to protect unless we can raise future generations committed cooperatively to mak ing our system of government work. Education, however, is about choices. Sometimes, children need to learn by making choices for themselves. Other times, choices are made for children—by their parents, by their teachers, and by the people acting democratically through their governments. In my view, the First Amendment does not disable government from helping parents make such a choice here—a choice not to have their children buy ex tremely violent, interactive video games, which they more than reasonably fear pose only the risk of harm to those children. For these reasons, I respectfully dissent. 20 BROWN v. ENTERTAINMENT MERCHANTS ASSN. BREYER, J., dissenting Appendix A to the opinion of BREYER, J. |
Justice White | 1,989 | 6 | majority | United States v. Sperry Corp. | https://www.courtlistener.com/opinion/112339/united-states-v-sperry-corp/ | Section 502 of the Foreign Relations Authorization Act, Fiscal Years 1986 and note following 50 U.S. C. 1701 (1982 ed., Supp. V), requires the Federal Reserve Bank of New York to deduct and pay into the United Treasury a percentage of any award made by the Iran-United Claims Tribunal in favor of an American claimant before remitting the award to the claimant. We are asked to consider in this case whether 502 violates the Just Compensation Clause or Due Process Clause of the Fifth Amendment[1] or the Origination Clause of Article I, 7.[2] I Appellees Sperry Corporation and Sperry World Trade, Inc. (hereinafter Sperry),[3] are American corporations that *55 entered into contracts with the Government of Iran prior to the seizure of the United Embassy in Tehran on November 4, 1979. The details of the seizure of the Embassy and diplomatic personnel and the ensuing diplomatic crisis want to repetition here. We need address only the means eventually established by the Governments of the United and Iran to resolve claims by American companies against Iran. On November 14, 1979, President Carter issued Executive Order No. 10, blocking the removal or transfer of all property of the Government of Iran subject to American jurisdiction. 3 CFR 457 One day later, the Secretary of the Treasury issued regulations invalidating any attachment affecting Iranian property covered by the Executive Order unless the attachment was licensed by the Secretary. 31 CFR 535.203(e) The regulations provided that any such license could be "amended, modified, or revoked at any time." 535.805. On November 26, 1979, the President granted a general license authorizing judicial proceedings against Iran but not the "entry of any judgment or of any decree or order of similar or analogous effect" 535.504(b)(1). A subsequently issued regulation made clear that the President's license authorized prejudgment attachments. 535.418. As part of the resolution of the diplomatic crisis, the United and Iran entered into an agreement embodied in two declarations of the Government of Algeria commonly referred to as the Algiers Accords (hereinafter the Accords). App. 29-42. The Accords provided for the establishment in The Hague of an international arbitral tribunal, known as the Iran-United Claims Tribunal (hereinafter the Tribunal), to hear claims brought by Americans against the Government of Iran. The establishment of the Tribunal was to *56 preclude litigation by Americans against Iran in American courts, so the United undertook to terminate such legal proceedings, unblock Iranian assets in the United and nullify all attachments against those assets. To implement the Accords, President Carter issued a series of Executive Orders on January 19, 1981, |
Justice White | 1,989 | 6 | majority | United States v. Sperry Corp. | https://www.courtlistener.com/opinion/112339/united-states-v-sperry-corp/ | issued a series of Executive Orders on January 19, 1981, revoking all licenses permitting the exercise of "any right, power, or privilege" with respect to Iranian funds and annulling all non-Iranian interests in Iranian assets acquired after the blocking order. Exec. Orders Nos. 12276-12285, 3 CFR 104-118 On February 24, 1981, President Reagan issued an Executive Order suspending all claims that "may be presented to the Tribunal" and providing that such claims "shall have no legal effect in any action now pending in any court of the United" Exec. Order No. 12294, 3 CFR 139 This Court upheld the revocation of the licenses and the suspension of the claims in Dames & Prior to the Accords, Sperry had filed suit against Iran in the United District Court for the District of Columbia and had obtained a prejudgment attachment of blocked Iranian assets, but the Executive Orders sustained in Dames & Moore invalidated that attachment and prohibited Sperry from further pursuing its claims against Iran in any American courts. Sperry therefore filed a claim against Iran with the Tribunal and also began settlement negotiations with Iran. In February 1982, Sperry and Iran reached an agreement requiring the payment by Iran to Sperry of $2.8 million. The Government of Iran gave the settlement final approval on July 8, 1982. Sperry and Iran then filed a joint application with the Tribunal, which was granted, to have the settlement entered as an "Award on Agreed Terms." The entry of the settlement provided Sperry with a significant benefit, for it gave the settlement agreement the status of an award by the Tribunal, and under the Accords, all awards of the Tribunal are "final *57 and binding" and are "enforceable in the courts of any nation in accordance with its laws." App. 40. The entry of the settlement also enabled Sperry to make use of the mechanism established by the Accords and the implementing Executive Orders for the payment of arbitral awards. As part of the Accords, $1 billion of the unblocked Iranian assets had been placed in a Security Account in the Bank of England for the payment of awards. Awards made by the Tribunal in favor of American claimants are paid from the Security Account to the Federal Reserve Bank of New York, which then pays the awards to the claimants. See We come now to the heart of this dispute. The Accords provided that "[t]he expenses of the Tribunal shall be borne equally by the two governments." App. 41. On June 7, 1982, the Department of the Treasury issued a "Directive License" requiring |
Justice White | 1,989 | 6 | majority | United States v. Sperry Corp. | https://www.courtlistener.com/opinion/112339/united-states-v-sperry-corp/ | the Department of the Treasury issued a "Directive License" requiring the Federal Reserve Bank of New York to deduct 2% from each award certified by the Tribunal and to pay the deducted amount into the Treasury "to reimburse the United Government for costs incurred for the benefit of U. S. nationals who have claims against Iran." When the Federal Reserve Bank of New York received Sperry's award, it deducted the 2% charge over Sperry's protest, deposited the charge in the Treasury, and paid Sperry the balance of its award. Sperry filed suit in the United Claims Court, contending that the 2% charge was unconstitutional and was not (as the United argued) authorized by the Independent Offices Appropriation Act, 1952 (IOAA), 31 U.S. C. 483a (1976 ed.).[4] The Claims Court held in an oral ruling on May 1, 1985, that the Directive License violated IOAA. App. to Juris. Statement 26a-51a. Congress reacted swiftly by enacting 502, which specifically requires the assessment of a charge against successful American *58 claimants before the Tribunal and directs the Federal Reserve Bank of New York to deduct from Tribunal awards paid out of the Security Account an amount equal to 1 1/2% of the first $5 million and 1% of any amount over $5 million. Section 502(a) states that these charges are to be deducted "as reimbursement to the United Government for expenses incurred in connection with the arbitration of claims of United claimants against Iran before [the] Tribunal and the maintenance of the Security Account established pursuant to the [Accords]." Congress made 502 effective retroactive to June 7, 1982, the date on which the Treasury had issued the Directive License struck down by the Claims Court. See 502(d). Sperry renewed its challenge to the deduction in the Claims Court, arguing that the 1 1/2% deduction authorized by 502 was unconstitutional. The Claims Court rejected the constitutional claims and dismissed Sperry's suit. The Court of Appeals for the Federal Circuit reversed and held that 502 was unconstitutional as it caused a taking of Sperry's private property without just compensation. The Court of Appeals likened the 1 1/2% deduction by the Federal Reserve Bank of New York to the permanent physical occupation by the Government of private property which, this Court held in is always a "taking" requiring just compensation. The Court of Appeals was unmoved by the United ' argument that there was no taking given the benefits that Sperry had obtained from the Tribunal: "[W]e do not see the benefit of the Tribunal to Sperry when prior to the Accords it had secured the |
Justice White | 1,989 | 6 | majority | United States v. Sperry Corp. | https://www.courtlistener.com/opinion/112339/united-states-v-sperry-corp/ | Sperry when prior to the Accords it had secured the attachment of Iranian assets sufficient to cover its eventual award and, had the President not suspended American claims, would have had no need for the Tribunal." The United invoked our appellate jurisdiction under the version of 28 U.S. C. 1252 (1982 ed.) in effect before its *59 amendment in[5] We noted probable jurisdiction, and we now reverse. II Sperry argues that the deduction is a part of Congress' scheme to shift to American claimants against Iran those costs of settling the diplomatic crisis that should have been borne by the Nation as a whole. As we see it, however, Sperry has not identified any of its property that was taken without just compensation. To the extent the Court of Appeals' decision may be read as concluding that Sperry suffered a taking of its property because its prejudgment attachment against Iranian assets was nullified by the Executive Orders implementing the Accords, see that conclusion is incorrect; we held in Dames & n. 6, that American litigants against Iran had no property interest in such attachments. Nor did Sperry suffer the deprivation of its claim against Iran. Sperry presented its claim to the Tribunal and settled the claim for a substantial sum.[6] And we note that Sperry makes no claim that the gross amount of the award was less *60 than what would have been recovered in ordinary litigation and that being forced to take the lesser amount was an unconstitutional taking of property. The case thus turns only on the constitutionality of the deduction. As for the deduction itself, the United urges that it is not a taking at all but is a reasonable "user fee" assessed against claimants before the Tribunal and intended to reimburse the United for its costs in connection with the Tribunal. Sperry responds that the 502 charge cannot be upheld as a user fee because there has been no showing that the amount of the deduction approximates the cost of the Tribunal to the United or bears any relationship to Sperry's use of the Tribunal or the value of the Tribunal's services to Sperry. None of Sperry's submissions is persuasive. Section 502(a) specifically states that the deductions are made as "reimbursement to the United Government for expenses incurred in connection with the arbitration of claims of United claimants against Iran before [the] Tribunal and the maintenance of the Security Account" Given especially this specific declaration by Congress that the deductions are intended to reimburse costs incurred by the United the burden must lie with Sperry to |
Justice White | 1,989 | 6 | majority | United States v. Sperry Corp. | https://www.courtlistener.com/opinion/112339/united-states-v-sperry-corp/ | by the United the burden must lie with Sperry to demonstrate that the reality of 502 belies its express language before we conclude that the deductions are actually takings. Cf. That burden has not been met. This Court has never held that the amount of a user fee must be precisely calibrated to the use that a party makes of Government services. Nor does the Government need to record invoices and billable hours to justify the cost of its services. All that we have required is that the user fee be a "fair approximation of the cost of benefits supplied." In that case, the Court upheld a flat registration fee assessed by the Federal Government on civil aircraft, including aircraft owned by the against a challenge that the fee *61 violated the principle of intergovernmental tax immunity. In holding that the registration charge could be upheld because it was a user fee rather than a tax, the Court rejected Massachusetts' argument that the "amount of the tax is a flat annual fee and hence is not directly related to the degree of use of the airways." The Court recognized that when the Federal Government applies user charges to a large number of parties, it probably will charge a user more or less than it would under a perfect user-fee system, but we declined to impose a requirement that the Government "give weight to every factor affecting appropriate compensation for airport and airway use,"[7] *62 The deductions authorized by 502 are not so clearly excessive as to belie their purported character as user fees. This is not a situation where the Government has appropriated all, or most, of the award to itself and labeled the booty as a user fee. Cf. ; Webb's Fabulous Pharmacies,[8] We need not state what percentage of the award would be too great a take to qualify as a user fee, for we are convinced that on the facts of this case, 1 1/2% does not qualify as a "taking" by any standard of excessiveness. This was obviously the judgment of Congress and we abide by it.[9] *63 Sperry complains that the United has taken its property by charging it for the use of procedures that it has been forced to use, or at least that it would rather not have used. But as we have a reasonable user fee is not a taking if it is imposed for the reimbursement of the cost of government services. "A governmental body has an obvious interest in making those who specifically benefit from its services pay the cost" |
Justice White | 1,989 | 6 | majority | United States v. Sperry Corp. | https://www.courtlistener.com/opinion/112339/united-states-v-sperry-corp/ | those who specifically benefit from its services pay the cost" Though we may accept Sperry's word that it would have preferred to pursue its action against Iran in the familiar and proximate federal district courts, we cannot accept its contention that it did not benefit in any way from the procedures established by the Accords. The fact is that Sperry did benefit directly from the existence and functions of the Tribunal. The Accords that established the Tribunal and the Executive Orders that implemented the Accords assured Sperry that any award made to it, whether as the result of a settlement or otherwise, could be enforced in the courts of any nation and actually paid in this country. Had the President not agreed to the establishment of the Tribunal and the Security Account, Sperry would have had no assurance that it could have pursued its action against Iran to judgment or that a judgment would have been readily collectible. As it was, Sperry filed its claim with the Tribunal, arrived at a settlement with Iran, and had the settlement entered as a formal award by the Tribunal, which was paid in full except for the deduction at issue in this case. It is not at all dispositive that the award to Sperry was more the result of private negotiations between Sperry and Iran than the Tribunal procedures placed at Sperry's disposal. Sperry filed its claim with the Tribunal and had a formal award entered. Furthermore, Sperry may be required to pay a charge for the availability of the Tribunal even if it never actually used the Tribunal; Sperry received the "benefit from [the Tribunal] in the sense that the services are available for [its] use." *64 ; see also Clyde Mallory Had Sperry's negotiations with Iran failed, it would have then had the opportunity to use the hearing rooms, translation facilities, and facilities for service of documents made available through the Tribunal and the State Department. The Tribunal made available to claimants such as Sperry sufficient benefits to justify the imposition of a reasonable user fee. III We turn next to Sperry's due process claims. Sperry urges that 502 violates the Due Process Clause because the deductions apply to awards, such as Sperry's, made by the Tribunal prior to the enactment of the statute. Our standard of review is settled: "[R]etroactive legislation does have to meet a burden not faced by legislation that has only future effects. `It does not follow that what Congress can legislate prospectively it can legislate retrospectively. The retroactive aspects of legislation, as well as the prospective |
Justice White | 1,989 | 6 | majority | United States v. Sperry Corp. | https://www.courtlistener.com/opinion/112339/united-states-v-sperry-corp/ | The retroactive aspects of legislation, as well as the prospective aspects, must meet the test of due process, and the justifications for the latter may not suffice for the former.' But that burden is met simply by showing that the retroactive application of the legislation is itself justified by a rational legislative purpose." Pension Benefit Guaranty (citation omitted). We agree with the United that the retroactive application of 502 is justified by a rational legislative purpose. Retroactive application of 502 ensures that all successful claimants before the Tribunal are treated alike in that all have to contribute toward the costs of the Tribunal. If Congress had made the application of 502 prospective only, the costs of the Tribunal would have fallen disproportionately on the claimants whose awards, for whatever reason, were *65 delayed, and Congress might have had to increase the percentage charge on those claimants to recoup a sufficient portion of the Federal Government's costs. Claimants who were fortunate enough to obtain awards prior to the enactment of the statute would have obtained a windfall by avoiding contribution. It is surely proper for Congress to legislate retrospectively to ensure that costs of a program are borne by the entire class of persons that Congress rationally believes should bear them. Cf. Pension Benefit Guaranty at ; Nor does 502 violate the equal protection component of the Due Process Clause[10] because it assesses a user fee only against claimants who have actually received an award from the Tribunal and not against all claimants before the Tribunal. The classification implicitly made by 502 neither burdens fundamental constitutional rights nor creates suspect classifications, so again our standard of review is that of rationality. See United Railroad Retirement Congress could have rationally concluded that only those who are successful before the Tribunal realize a benefit therefrom sufficient to justify assessment of a fee. Congress could also have determined that assessing a user fee against all claimants would undesirably deter those whose claims were small or uncertain of success from presenting them to the Tribunal. This case is wholly unlike where the Court was unable to discern any legitimate interest that was served by a requirement that the State be reimbursed for the cost of criminal trial transcripts by incarcerated prisoners unsuccessful in their appeals but not by other indigent appellants, even other unsuccessful ones who had not been incarcerated. Here the costs are imposed on only the successful claimants, not, as in Rinaldi, only the unsuccessful ones, a situation presenting entirely different considerations. *66 Moreover, as a sensible distinction may be made between successful |
Justice White | 1,989 | 6 | majority | United States v. Sperry Corp. | https://www.courtlistener.com/opinion/112339/united-states-v-sperry-corp/ | Moreover, as a sensible distinction may be made between successful claimants who have completed the Tribunal proceedings and all other claimants. IV As a final ground for affirming the judgment below, Sperry relies on an argument presented to, but not passed on by, the Court of Appeals, i. e., that 502 was enacted in violation of the Origination Clause of Article I, 7, which provides that "[a]ll Bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with Amendments as on other Bills." Sperry refers us to the legislative history of the Foreign Relations Authorization Act, which indicates that 502 was added as a Senate amendment to a bill that contained no revenue-raising provisions when it originated in the House. We do not reach the merits of this contention. In another case to be argued this Term, we have directed the parties to brief whether claims based on the Origination Clause present nonjusticiable political questions. See United v. Munoz-Flores, cert. granted, post, p. 808; cf. ; Although this Court has on prior occasions appeared to address the merits of Origination Clause claims, see, e. g., Flint v. Stone Tracy ; ; Twin City it would be inappropriate for us to do so now, before we decide the threshold question of justiciability in Munoz-Flores. Furthermore, even assuming that Origination Clause claims are justiciable, we would benefit from the views of the Court of Appeals, which found it unnecessary to address the Origination Clause issue. Accordingly, the judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. |
Justice Scalia | 2,007 | 9 | concurring | Gall v. United States | https://www.courtlistener.com/opinion/145843/gall-v-united-states/ | I join the opinion of the Court. In I wrote separately to state my view that any appellate review of sentences for substantive reasonableness will necessarily result in a sentencing scheme constitutionally indistinguishable from the mandatory Guidelines struck down in United Whether a sentencing scheme uses mandatory Guidelines, a "proportionality test" for Guidelines variances, or a deferential abuse-of-discretion standard, there will be some sentences upheld only on the basis of additional judge-found facts. Although I continue to believe that substantive-reasonableness review is inherently flawed, I give stare decisis effect to the statutory holding of Rita. The highly deferential standard adopted by the Court today will result in far fewer unconstitutional sentences than the proportionality standard employed by the Eighth Circuit. Moreover, as I noted in Rita, the Court has not foreclosed as-applied constitutional challenges to sentences. The door therefore *603 remains open for a defendant to demonstrate that his sentence, whether inside or outside the advisory Guidelines range, would not have been upheld but for the existence of a fact found by the sentencing judge and not by the jury. |
Justice Stevens | 1,991 | 16 | dissenting | Gilmer v. Interstate/Johnson Lane Corp. | https://www.courtlistener.com/opinion/112584/gilmer-v-interstatejohnson-lane-corp/ | Section 1 of the Federal Arbitration Act (FAA) states: "[N]othing herein contained shall apply to contracts of employment of seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce." 9 U.S. C. 1. The Court today, in holding that the FAA compels enforcement of arbitration clauses even when claims of age discrimination are at issue, skirts the antecedent question whether the coverage of the Act even extends to arbitration clauses contained in employment contracts, regardless of the subject matter of the claim at issue. In my opinion, arbitration clauses contained in employment agreements are specifically exempt from coverage of the FAA, and for that reason respondent Interstate/Johnson Lane Corporation cannot, pursuant to the FAA, compel petitioner to submit his claims arising under the Age Discrimination in Employment Act of 1967 (ADEA), 29 U.S. C. 621 et seq., to binding arbitration. I Petitioner did not, as the majority correctly notes, ante, at 25, n. 2, raise the issue of the applicability of the FAA to employment contracts at any stage of the proceedings below. Nor did petitioner raise the coverage issue in his petition for writ of certiorari before this Court. It was amici who first raised the argument in their briefs in support of petitioner prior to oral argument of the case. See Brief for American Federation of Labor and Congress of Industrial Organizations as Amicus Curiae; Brief for American Association of Retired Persons as Amicus Curiae; Brief for Lawyers' Committee for Civil Rights Under Law as Amicus Curiae 17-18. Notwithstanding the apparent waiver of the issue below, I believe that the Court should reach the issue of the coverage of the FAA to employment disputes because resolution of the *37 question is so clearly antecedent to disposition of this case. On a number of occasions, this Court has considered issues waived by the parties below and in the petition for certiorari because the issues were so integral to decision of the case that they could be considered "fairly subsumed" by the actual questions presented. See, e. g., ("The question of retroactivity with regard to petitioner's fair cross section claim has been raised only in an amicus brief. Nevertheless, that question is not foreign to the parties, who have addressed retroactivity with respect to petitioner's Batson claim. Moreover, our sua sponte consideration of retroactivity is far from novel" (citations omitted)); (notwithstanding petitioner's seemingly deliberate failure to raise the equal protection issue, "[w]e agree with the State that resolution of petitioner's claim properly turns on application of equal protection principles and express no view on the |
Justice Stevens | 1,991 | 16 | dissenting | Gilmer v. Interstate/Johnson Lane Corp. | https://www.courtlistener.com/opinion/112584/gilmer-v-interstatejohnson-lane-corp/ | of equal protection principles and express no view on the merits of any of petitioner's Sixth Amendment arguments"); See also R. Stern, E. Gressman, & S. Shapiro, Supreme Court Practice 6.26 (describing rule concerning need for presenting questions below and in petition for certiorari, and deviations from rule). Only this Term, the Court has on at least two occasions decided cases on grounds not argued in any of the courts below or in the petitions for certiorari. In we decided the case on an issue that not only was not raised below or in any of the papers in this Court, but that also was not raised at any point during oral argument before the Court. "In our view, however," the decided question was "antecedent to these [issues presented] and ultimately dispositive of the present dispute." at *38 77. Similarly, in the Court issued a decision on a question which the parties had not argued below and evidently had not anticipated would be at issue in this Court, "since respondent did not even mention Sykes or cause-and-prejudice in its brief or at oral argument, much less request the Court to adopt this standard." In my opinion the considerations in favor of reaching an issue not presented below or in the petition for certiorari are more compelling in this case than in the cited cases. Here the issue of the applicability of the FAA to employment contracts was adequately briefed and raised by the amici in support of petitioner. More important, however, is that respondent and its amici had full opportunity to brief and argue the same issue in opposition. See Brief for Respondent 42-50; Brief for Securities Industry Association, Inc., as Amicus Curiae 18-20; Brief for Equal Employment Advisory Council et al. as Amici Curiae 14-16. Moreover, the Court amply raised the issue with the parties at oral argument, at which both sides were on notice and fully prepared to argue the merits of the question. Finally, as in Arcadia, the issue whether the FAA even covers employment disputes is clearly "antecedent and ultimately dispositive" of the question whether courts and respondent may rely on the FAA to compel petitioner to submit his ADEA claims to arbitration. II The Court, declining to reach the issue for the reason that petitioner never raised it below, nevertheless concludes that "it would be inappropriate to address the scope of the 1 exclusion because the arbitration clause being enforced here is not contained in a contract of employment. Rather, the arbitration clause at issue is in Gilmer's securities registration application, which is a contract |
Justice Stevens | 1,991 | 16 | dissenting | Gilmer v. Interstate/Johnson Lane Corp. | https://www.courtlistener.com/opinion/112584/gilmer-v-interstatejohnson-lane-corp/ | is in Gilmer's securities registration application, which is a contract with the securities exchanges, not with Interstate." Ante, at 25, n. 2. In my *39 opinion the Court too narrowly construes the scope of the exclusion contained in 1 of the FAA. There is little dispute that the primary concern animating the FAA was the perceived need by the business community to overturn the common-law rule that denied specific enforcement of agreements to arbitrate in contracts between business entities. The Act was drafted by a committee of the American Bar Association (ABA), acting upon instructions from the ABA to consider and report upon "the further extension of the principle of commercial arbitration." Report of the Forty-third Annual Meeting of the ABA, 45 A. B. A. Rep. 75 (1920). At the Senate Judiciary Subcommittee hearings on the proposed bill, the chairman of the ABA committee responsible for drafting the bill assured the Senators that the bill "is not intended [to] be an act referring to labor disputes, at all. It is purely an act to give the merchants the right or the privilege of sitting down and agreeing with each other as to what their damages are, if they want to do it. Now that is all there is in this." Hearing on S. 4213 and S. 4214 before a Subcommittee of the Senate Committee on the Judiciary, 67th Cong., 4th Sess., 9 (1923). At the same hearing, Senator Walsh stated: "The trouble about the matter is that a great many of these contracts that are entered into are really not [voluntary] things at all. Take an insurance policy; there is a blank in it. You can take that or you can leave it. The agent has no power at all to decide it. Either you can make that contract or you can not make any contract. It is the same with a good many contracts of employment. A man says, `These are our terms. All right, take it or leave it.' Well, there is nothing for the man to do except to sign it; and then he surrenders his right to have his case tried by the court, and has to have it tried before a tribunal in which he has no confidence at all." *40 Given that the FAA specifically was intended to exclude arbitration agreements between employees and employers, I see no reason to limit this exclusion from coverage to arbitration clauses contained in agreements entitled "Contract of Employment." In this case, the parties conceded at oral argument that Gilmer had no "contract of employment" as such with |
Justice Stevens | 1,991 | 16 | dissenting | Gilmer v. Interstate/Johnson Lane Corp. | https://www.courtlistener.com/opinion/112584/gilmer-v-interstatejohnson-lane-corp/ | that Gilmer had no "contract of employment" as such with respondent. Gilmer was, however, required as a condition of his employment to become a registered representative of several stock exchanges, including the New York Stock Exchange (NYSE). Just because his agreement to arbitrate any "dispute, claim or controversy" with his employer that arose out of the employment relationship was contained in his application for registration before the NYSE rather than in a specific contract of employment with his employer, I do not think that Gilmer can be compelled pursuant to the FAA to arbitrate his employment-related dispute. Rather, in my opinion the exclusion in 1 should be interpreted to cover any agreements by the employee to arbitrate disputes with the employer arising out of the employment relationship, particularly where such agreements to arbitrate are conditions of employment. My reading of the scope of the exclusion contained in 1 is supported by early judicial interpretations of the FAA. As of three Courts of Appeals had held that the FAA's exclusion of "contracts of employment" referred not only to individual contracts of employment, but also to collective-bargaining agreements. See Lincoln of rev'd, ; United Electrical, Radio & Machine Workers of ; Amalgamated Assn. of Street, Electric R. and Motor Coach Employees of Indeed, the application of the FAA's exclusionary clause to arbitration provisions in collective-bargaining agreements was one of the issues raised in the petition for certiorari and *41 briefed at great length in Lincoln and its companion cases, Goodall-Sanford, and General Electric Although the Court decided the enforceability of the arbitration provisions in the collective-bargaining agreements by reference to 301 of the Labor Management Relations Act, 1947, 29 U.S. C. 185, it did not reject the Courts of Appeals' holdings that the arbitration provisions would not otherwise be enforceable pursuant to the FAA since they were specifically excluded under 1. In dissent, Justice Frankfurter perceived a "rejection, though not explicit, of the availability of the Federal Arbitration Act to enforce arbitration clauses in collective-bargaining agreements in the silent treatment given that Act by the Court's opinion. If an Act that authorizes the federal courts to enforce arbitration provisions in contracts generally, but specifically denies authority to decree that remedy for `contracts of employment,' were available, the Court would hardly spin such power out of the empty darkness of 301. I would make this rejection explicit, recognizing that when Congress passed legislation to enable arbitration agreements to be enforced by the federal courts, it saw fit to exclude this remedy with respect to labor contracts." Textile Workers v. Lincoln III Not only |
Justice Stevens | 1,991 | 16 | dissenting | Gilmer v. Interstate/Johnson Lane Corp. | https://www.courtlistener.com/opinion/112584/gilmer-v-interstatejohnson-lane-corp/ | to labor contracts." Textile Workers v. Lincoln III Not only would I find that the FAA does not apply to employment-related disputes between employers and employees in general, but also I would hold that compulsory arbitration conflicts with the congressional purpose animating the ADEA, in particular. As this Court previously has noted, authorizing the courts to issue broad injunctive relief is the cornerstone to eliminating discrimination in society. Albemarle Paper The ADEA, like Title VII of the Civil Rights Act of 1964, authorizes *42 courts to award broad, class-based injunctive relief to achieve the purposes of the Act. 29 U.S. C. 626(b). Because commercial arbitration is typically limited to a specific dispute between the particular parties and because the available remedies in arbitral forums generally do not provide for class-wide injunctive relief, see Shell, ERISA and Other Federal Employment Statutes: When is Commercial Arbitration an "Adequate Substitute" for the Courts?, 68 Texas L. Rev. 509, 568 I would conclude that an essential purpose of the ADEA is frustrated by compulsory arbitration of employment discrimination claims. Moreover, as Chief Justice Burger explained: "Plainly, it would not comport with the congressional objectives behind a statute seeking to enforce civil rights protected by Title VII to allow the very forces that had practiced discrimination to contract away the right to enforce civil rights in the courts. For federal courts to defer to arbitral decisions reached by the same combination of forces that had long perpetuated invidious discrimination would have made the foxes guardians of the chickens." In my opinion the same concerns expressed by Chief Justice Burger with regard to compulsory arbitration of Title VII claims may be said of claims arising under the ADEA. The Court's holding today clearly eviscerates the important role played by an independent judiciary in eradicating employment discrimination. IV When the FAA was passed in 1925, I doubt that any legislator who voted for it expected it to apply to statutory claims, to form contracts between parties of unequal bargaining power, or to the arbitration of disputes arising out of the employment relationship. In recent years, however, the Court *43 "has effectively rewritten the statute,"[1] and abandoned its earlier view that statutory claims were not appropriate subjects for arbitration. See Mitsubishi Although I remain persuaded that it erred in doing so,[2] the Court has also put to one side any concern about the inequality of bargaining power between an entire industry, on the one hand, and an individual customer or employee, on the other. See ante, at 32-33. Until today, however, the Court has not read 2 of |
Justice Ginsburg | 2,014 | 5 | majority | EPA v. EME Homer City Generation, L. P. | https://www.courtlistener.com/opinion/2672207/epa-v-eme-homer-city-generation-l-p/ | These cases concern the efforts of Congress and the Environmental Protection Agency (EPA or Agency) to cope with a complex problem: air pollution emitted in one State, but causing harm in other States. Left unregulated, the emitting or upwind State reaps the benefits of the economic activity causing the pollution without bearing all the costs. See Revesz, Federalism and Interstate Envi ronmental Externalities, (1996). Conversely, downwind States to which the pollu tion travels are unable to achieve clean air because of the influx of out-of-state pollution they lack authority to con trol. See S. Rep. No. 101–228, p. 49 To tackle the 2 EPA v. EME HOMER CITY GENERATION, L. P. Opinion of the Court problem, Congress included a Good Neighbor Provision in the Clean Air Act (Act or CAA). That provision, in its current phrasing, instructs States to prohibit in-state sources “from emitting any air pollutant in amounts which will contribute significantly” to downwind States’ “nonattainment or interfere with maintenance,” of any EPA-promulgated national air quality standard. 42 U.S. C. Interpreting the Good Neighbor Provision, EPA adopted the Cross-State Air Pollution Rule (commonly and herein after called the Transport Rule). The rule calls for consid eration of costs, among other factors, when determining the emission reductions an upwind State must make to improve air quality in polluted downwind areas. The Court of Appeals for the D. C. Circuit vacated the rule in its entirety. It held, 2 to 1, that the Good Neighbor Provi sion requires EPA to consider only each upwind State’s physically proportionate responsibility for each downwind State’s air quality That reading is demanded, according to the D. C. Circuit, so that no State will be required to decrease its emissions by more than its ratable share of downwind-state pollution. In U. S. A. we reversed a D. C. Circuit decision that failed to accord deference to EPA’s reasonable interpretation of an ambiguous Clean Air Act provision. Satisfied that the Good Neighbor Provision does not command the Court of Appeals’ cost-blind con struction, and that EPA reasonably interpreted the provi sion, we reverse the D. C. Circuit’s judgment. I A Air pollution is transient, heedless of state boundaries. Pollutants generated by upwind sources are often trans ported by air currents, sometimes over hundreds of miles, Cite as: 572 U. S. (2014) 3 Opinion of the Court to downwind States. As the pollution travels out of state, upwind States are relieved of the associated costs. Those costs are borne instead by the downwind States, whose ability to achieve and maintain satisfactory air quality is hampered by the steady |
Justice Ginsburg | 2,014 | 5 | majority | EPA v. EME Homer City Generation, L. P. | https://www.courtlistener.com/opinion/2672207/epa-v-eme-homer-city-generation-l-p/ | and maintain satisfactory air quality is hampered by the steady stream of infiltrating pollution. For several reasons, curtailing interstate air pollution poses a complex challenge for environmental regulators. First, identifying the upwind origin of downwind air pollu tion is no easy endeavor. Most upwind States propel pollutants to more than one downwind State, many downwind States receive pollution from multiple upwind States, and some States qualify as both upwind and downwind. See rief for Federal Petitioners 6. The over lapping and interwoven linkages between upwind and downwind States with which EPA had to contend number in the thousands.1 Further complicating the problem, pollutants do not emerge from the smokestacks of an upwind State and uniformly migrate downwind. Some pollutants stay with in upwind States’ borders, the wind carries others to downwind States, and some subset of that group drifts to States without air quality problems. “The wind bloweth where it listeth, and thou hearest the sound thereof, but canst not tell whence it cometh, and whither it goeth.” The Holy ible, John 3:8 (King James Version). In craft ing a solution to the problem of interstate air pollution, regulators must account for the vagaries of the wind. Finally, upwind pollutants that find their way down wind are not left unaltered by the journey. Rather, as the gases emitted by upwind polluters are carried downwind, they are transformed, through various chemical processes, into altogether different pollutants. The offending gases —————— 1 For the rule challenged here, EPA evaluated 2,479 separate link ages between downwind and upwind States. rief for Federal Petition ers 6. 4 EPA v. EME HOMER CITY GENERATION, L. P. Opinion of the Court at issue in these cases—nitrogen oxide (NOX) and sulfur dioxide (SO2)—often develop into ozone and fine particu late matter (PM2.5) by the time they reach the atmos pheres of downwind States. See – 48223 (2011). See also –4576 (describing the components of ozone and PM2.5). Down wind air quality must therefore be measured for ozone and PM2.5 concentrations. EPA’s chore is to quantify the amount of upwind gases (NOX and SO2) that must be reduced to enable downwind States to keep their levels of ozone and PM2.5 in check. Over the past 50 years, Congress has addressed inter state air pollution several times and with increasing rigor. In 1963, Congress directed federal authorities to “encour age cooperative activities by the States and local govern ments for the prevention and control of air pollution.” 77 Stat. 393, 42 U.S. C. (1964 ed.). In 1970, Congress made this instruction more concrete, introducing features still key to the |
Justice Ginsburg | 2,014 | 5 | majority | EPA v. EME Homer City Generation, L. P. | https://www.courtlistener.com/opinion/2672207/epa-v-eme-homer-city-generation-l-p/ | this instruction more concrete, introducing features still key to the Act. For the first time, Congress directed EPA to establish national ambient air quality standards (NAAQS) for pollutants at levels that will protect public health. See –1680, as amended, 42 U.S. C. 7409 (2006 ed.). Once EPA settles on a NAAQS, the Act requires the Agency to designate “nonattainment” areas, i.e., locations where the concentration of a regulated pollutant exceeds the NAAQS. The Act then shifts the burden to States to propose plans adequate for compliance with the NAAQS. Each State must submit a State Implementation Plan, or SIP, to EPA within three years of any new or revised NAAQS. If EPA determines that a State has failed to submit an adequate SIP, either in whole or in part, the Act requires the Agency to promulgate a Federal Implementa tion Plan, or FIP, within two years of EPA’s determina Cite as: 572 U. S. (2014) 5 Opinion of the Court tion, “unless the State corrects the deficiency” before a FIP is issued. The Act lists the matters a SIP must cover. Among SIP components, the 1970 version of the Act required SIPs to include “adequate provisions for intergovernmental coop eration” concerning interstate air pollution. 42 U.S. C. This statutory requirement, with its text altered over time, has come to be called the Good Neighbor Provision. In 1977, Congress amended the Good Neighbor Provi sion to require more than “cooperation.” It directed States to submit SIPs that included provisions “adequate” to “prohibi[t] any stationary source within the State from emitting any air pollutant in amounts which will prevent attainment or maintenance [of air quality stand ards] by any other State.” 42 U.S. C. (1976 ed., Supp. II). The amended provision thus explicitly instructed upwind States to reduce emissions to account for pollution exported beyond their borders. As then written, however, the provision regulated only individual sources that, considered alone, emitted enough pollution to cause nonattainment in a downwind State. ecause it is often “impossible to say that any single source or group of sources is the one which actually prevents attainment” downwind, S. Rep. No. 101– 228, p. 21 the 1977 version of the Good Neighbor Provision proved ineffective, see (noting the provi sion’s inability to curb the collective “emissions [of] multi ple sources”). Congress most recently amended the Good Neighbor Provision in 1990. The statute, in its current form, re quires SIPs to “contain adequate provisions prohibiting —————— 2 FIPs and SIPs were introduced in the 1970 version of the Act; the particular deadlines discussed here were added in 1990. |
Justice Ginsburg | 2,014 | 5 | majority | EPA v. EME Homer City Generation, L. P. | https://www.courtlistener.com/opinion/2672207/epa-v-eme-homer-city-generation-l-p/ | Act; the particular deadlines discussed here were added in 1990. See 104 Stat. 2409, 2422–2423, 42 U.S. C. 7410(c) (2006 ed.). 6 EPA v. EME HOMER CITY GENERATION, L. P. Opinion of the Court any source or other type of emissions activity within the State from emitting any air pollutant in amounts which will contribute significantly to nonattainment in, or interfere with maintenance by, any other State with respect to any [NAAQS].” 42 U.S. C. (2006 ed.). The controversy before us centers on EPA’s most recent attempt to construe this provision. C Three times over the past two decades, EPA has at tempted to delineate the Good Neighbor Provision’s scope by identifying when upwind States “contribute significantly” to nonattainment downwind. In 1998, EPA issued a rule known as the “NOX SIP Call.” That regulation lim ited NOX emissions in 23 upwind States to the extent such emissions contributed to nonattainment of ozone stand ards in downwind States. See 57358. In the D. C. Cir cuit upheld the NOX SIP Call, specifically affirming EPA’s use of costs to determine when an upwind State’s contri bution was “significan[t]” within the meaning of the stat ute. 74–679. In 2005, EPA issued the Clean Air Interstate Rule, or CAIR. CAIR regulated both NOX and SO2 emissions, insofar as such emissions contributed to downwind nonattainment of two NAAQS, both set in 1997, one concerning the permissible annual measure of PM2.5, and another capping the average ozone level gauged over an 8-hour period. See The D. C. Circuit initially vacated CAIR as arbitrary and capricious. See North (per curiam). On rehearing, the court decided to leave the rule in place, while encouraging EPA to act with dispatch in dealing with problems the court had identified. See North The rule challenged here—the Transport Rule—is EPA’s Cite as: 572 U. S. (2014) 7 Opinion of the Court response to the D. C. Circuit’s North Carolina decision. Finalized in August 2011, the Transport Rule curtails NOX and SO2 emissions of 27 upwind States to achieve down wind attainment of three different NAAQS: the two 1997 NAAQS previously addressed by CAIR, and the 2006 NAAQS for PM2.5 levels measured on a daily basis. See 76 Fed. Reg. 48208–48209. Under the Transport Rule, EPA employed a “two-step approach” to determine when upwind States “contribute[d] significantly to nonattainment,” and there fore in “amounts” that had to be eliminated. At step one, called the “screening” analysis, the Agency excluded as de minimis any upwind State that contributed less than one percent of the three NAAQS3 to any downwind State “receptor,” a location at |
Justice Ginsburg | 2,014 | 5 | majority | EPA v. EME Homer City Generation, L. P. | https://www.courtlistener.com/opinion/2672207/epa-v-eme-homer-city-generation-l-p/ | three NAAQS3 to any downwind State “receptor,” a location at which EPA measures air quality. See at 48236–482.4 If all of an upwind State’s con tributions fell below the one-percent threshold, that State would be considered not to have “contribute[d] signifi- cantly” to the nonattainment of any downwind State. at 48236. States in that category were screened out and exempted from regulation under the rule. The remaining States were subjected to a second in quiry, which EPA called the “control” analysis. At this stage, the Agency sought to generate a cost-effective allo cation of emission reductions among those upwind States “screened in” at step one. The control analysis proceeded this way. EPA first calculated, for each upwind State, the quantity of emis sions the State could eliminate at each of several cost —————— 3 With respect to each NAAQS addressed by the rule, the one-percent threshold corresponded to levels of 0.15 micrograms per cubic meter (µg/m3) for annual PM2.5, 0.35 µg/m3 for daily PM2.5, and 0.8 parts per billion (ppb) for 8-hour ozone. See –482. 4 If, for example, the NAAQS for ozone were 100 ppb, a contribution of less than 1 ppb to any downwind location would fall outside EPA’s criteria for significance. 8 EPA v. EME HOMER CITY GENERATION, L. P. Opinion of the Court thresholds. See at 48248–48249. Cost for these pur poses is measured as cost per ton of emissions prevented, for instance, by installing scrubbers on powerplant smoke stacks.5 EPA estimated, for example, the amount each upwind State’s NOX emissions would fall if all pollution sources within each State employed every control measure available at a cost of $500 per ton or less. See at 48249–48251. The Agency then repeated that analysis at ascending cost thresholds. See 6 Armed with this information, EPA conducted complex modeling to establish the combined effect the upwind reductions projected at each cost threshold would have on air quality in downwind States. See The Agency then identified “significant cost threshold[s],” points in its model where a “noticeable change occurred in downwind air quality, such as where large upwind emission reductions become available because a certain type of emissions control strategy becomes cost-effective.” For example, reductions of NOX sufficient to resolve or significantly curb downwind air quality problems could be achieved, EPA determined, at a cost threshold of $500 per ton (applied uniformly to all regulated upwind States). “Moving beyond the $500 cost threshold,” EPA concluded, “would result in only minimal additional reductions [in emissions].”7 Finally, EPA translated the cost thresholds it had se —————— 5 Toillustrate, a technology priced at |
Justice Ginsburg | 2,014 | 5 | majority | EPA v. EME Homer City Generation, L. P. | https://www.courtlistener.com/opinion/2672207/epa-v-eme-homer-city-generation-l-p/ | it had se —————— 5 Toillustrate, a technology priced at $5,000 and capable of eliminat ing two tons of pollution would be stated to “cost” $2,500 per ton. 6 For SO2, EPA modeled reductions that would be achieved at cost levels of $500, $1,600, $2,300, $2,800, $3,300, and $10,000 per ton eliminated. See at 48251–48253. 7 For SO2, EPA determined that, for one group of upwind States, all downwind air quality problems would be resolved at the $500 per ton threshold. See For another group of States, however, this level of controls would not suffice. For those States, EPA found that pollution controls costing $2,300 per ton were necessary. See at 48259. Cite as: 572 U. S. (2014) 9 Opinion of the Court lected into amounts of emissions upwind States would be required to eliminate. For each regulated upwind State, EPA created an annual emissions “budget.” These budg ets represented the quantity of pollution an upwind State would produce in a given year if its in-state sources im plemented all pollution controls available at the chosen cost thresholds. See8 If EPA’s projected improvements to downwind air quality were to be realized, an upwind State’s emissions could not exceed the level this budget allocated to it, subject to certain adjustments not relevant here. Taken together, the screening and control inquiries defined EPA’s understanding of which upwind emissions were within the Good Neighbor Provision’s ambit. In short, under the Transport Rule, an upwind State “con tribute[d] significantly” to downwind nonattainment to the extent its exported pollution both (1) produced one percent or more of a NAAQS in at least one downwind State (step one) and (2) could be eliminated cost-effectively, as deter mined by EPA (step two). See Upwind States would be obliged to eliminate all and only emis sions meeting both of these criteria.9 For each State regulated by the Transport Rule, EPA contemporaneously promulgated a FIP allocating that State’s emission budget among its in-state sources. See 48284–48287.10 For each of these States, —————— 8 In 2014, for example, pollution sources within Texas would be per mitted to emit no more than 243,954 tons of SO2, subject to variations specified by EPA. See 9 Similarly, upwind States EPA independently determined to be “in terfer[ing] with [the] maintenance” of NAAQS downwind were required to eliminate pollution only to the extent their emissions satisfied both of these criteria. See 10 These FIPs specified the maximum amount of pollution each in state pollution source could emit. Sources below this ceiling could sell unused “allocations” to sources that could not reduce emissions to the necessary |
Justice Ginsburg | 2,014 | 5 | majority | EPA v. EME Homer City Generation, L. P. | https://www.courtlistener.com/opinion/2672207/epa-v-eme-homer-city-generation-l-p/ | to sources that could not reduce emissions to the necessary level as cheaply. See –48272. This type of “cap 10 EPA v. EME HOMER CITY GENERATION, L. P. Opinion of the Court EPA had determined that the State had failed to submit a SIP adequate for compliance with the Good Neighbor Provision. These determinations regarding SIPs became final after 60 days, see 42 U.S. C. ed., Supp. V ), and many went unchallenged.11 EPA views the SIP determinations as having triggered its statutory obligation to promulgate a FIP within two years, see a view contested by respondents, see Part II, infra. D A group of state and local governments (State respond ents), joined by industry and labor groups (Industry re spondents), petitioned for review of the Transport Rule in the U. S. Court of Appeals for the D. C. Circuit. Over the dissent of Judge Rogers, the Court of Appeals vacated the rule in its entirety. See EPA’s actions, the appeals court held, exceeded the Agency’s statutory authority in two respects. y promul gating FIPs before giving States a meaningful opportunity to adopt their own implementation plans, EPA had, in the court’s view, upset the CAA’s division of responsibility between the States and the Federal Government. In the main, the Court of Appeals acknowledged, EPA’s FIP authority is triggered at the moment the Agency disap proves a SIP. See Thus, when a State proposes —————— and-trade” system cuts costs while still reducing pollution to target levels. 11 Three States did challenge EPA’s determinations. See Petition for Review in Ohio v. EPA, No. 11–3988 (CA6); Petition for Review in Kansas v. EPA, No. 12–1019 (CADC); Notice in Georgia v. EPA, No. 11– 1427 (CADC). Those challenges were not consolidated with this pro ceeding, and they remain pending (held in abeyance for these cases) in the Sixth and D. C. Circuits. See Twelfth Joint Status Report in Ohio v. EPA, No. 11–3988 (CA6); Order in Kansas v. EPA, No. 11–1333 (CADC, May 10, 2013); Order in Georgia v. EPA, No. 11–1427 (CADC, May 10, 2013). Cite as: 572 U. S. (2014) 11 Opinion of the Court a SIP inadequate to achieve a NAAQS, EPA could promul gate a FIP immediately after disapproving that SIP. See ut the Court of Appeals ruled that a different regime applies to a State’s failure to meet its obligations under the Good Neighbor Provision. While a NAAQS was a “clear numerical target,” a State’s good neighbor obligation remained “nebulous and unknown,” the court observed, until EPA calculated the State’s emission budget. Without these budgets, the Court of |
Justice Ginsburg | 2,014 | 5 | majority | EPA v. EME Homer City Generation, L. P. | https://www.courtlistener.com/opinion/2672207/epa-v-eme-homer-city-generation-l-p/ | the State’s emission budget. Without these budgets, the Court of Appeals said, upwind States would be compelled to take a “stab in the dark” at calculating their own significant contribution to interstate air pollution. The D. C. Circuit read the Act to avoid putting States in this position: EPA had an implicit statutory duty, the court held, to give upwind States a reasonable opportunity to allocate their emission budgets among in-state sources before the Agency’s authority to issue FIPs could be triggered. at The D. C. Circuit also held that the Agency’s two-part interpretation of the Good Neighbor Provision ignored three “red lines cabin[ing the] EPA’s authority.” at 19. First, the D. C. Circuit interpreted the Good Neighbor Provision to require upwind States to reduce emissions in “a manner proportional to their contributio[n]” to pollution in downwind States. The Transport Rule, however, treated all regulated upwind States alike, re gardless of their relative contribution to the overall prob lem. See It required all upwind States “screened in” at step one to reduce emissions in accord with the uniform cost thresholds set during the step two control analysis. Imposing these uniform cost thresholds, the Court of Appeals observed, could force some upwind States to reduce emissions by more than their “fair share.” According to the Court of Appeals, EPA had also failed to ensure that the Transport Rule did not mandate up 12 EPA v. EME HOMER CITY GENERATION, L. P. Opinion of the Court wind States to reduce pollution unnecessarily. The Good Neighbor Provision, the D. C. Circuit noted, “targets [only] those emissions from upwind States that ‘contribute sig nificantly to nonattainment’ ” of a NAAQS in downwind States. Pollution reduction beyond that goal was “unnecessary over-control,” outside the purview of the Agency’s statutory mandate. ecause the emission budgets were calculated by reference to cost alone, the court concluded that EPA had done nothing to guard against, or even measure, the “over-control” potentially imposed by the Transport Rule. See Finally, by deciding, at the screening analysis, that upwind contributions below the one-percent threshold were insignificant, EPA had established a “floor” on the Agency’s authority to act. See and n. 13. Again pointing to the rule’s reliance on costs, the Court of Ap peals held that EPA had failed to ensure that upwind States were not being forced to reduce emissions below the one-percent threshold. See In dissent, Judge Rogers criticized the majority for deciding two questions that were not, in her view, properly before the court. See at 40–46, 51–58. First, she addressed the majority’s insistence that FIPs abide a |
Justice Ginsburg | 2,014 | 5 | majority | EPA v. EME Homer City Generation, L. P. | https://www.courtlistener.com/opinion/2672207/epa-v-eme-homer-city-generation-l-p/ | First, she addressed the majority’s insistence that FIPs abide a State’s opportunity to allocate its emission budget among in-state sources. She regarded the respondents’ plea to that effect as an untimely attack on EPA’s previous SIP disapprovals. See at 40–46. Second, in Judge Rogers’ assessment, the respondents had failed to raise their substantive objections to the Transport Rule with the specificity necessary to preserve them for review. See at 51–58. On the merits, Judge Rogers found nothing in the Act to require, or even suggest, that EPA must quan- tify a State’s good neighbor obligations before it promul gated a FIP. See at 46–51. She also disagreed with the court’s conclusion that the Transport Rule unreasona bly interpreted the Act. See at 58–60. Cite as: 572 U. S. (2014) 13 Opinion of the Court We granted certiorari to decide whether the D. C. Cir cuit had accurately construed the limits the CAA places on EPA’s authority. See 570 U. S. (2013). II A Once EPA has calculated emission budgets, the D. C. Circuit held, the Agency must give upwind States the opportunity to propose SIPs allocating those budgets among in-state sources before issuing a FIP. 696 F.3d, at As the State respondents put it, a FIP allocating a State’s emission budget “must issue after EPA has quanti fied the States’ good-neighbor obligations [in an emission budget] and given the States a reasonable opportunity to meet those obligations in SIPs.” rief for State Respond ents 20. efore reaching the merits of this argument, we first reject EPA’s threshold objection that the claim is untimely. According to the Agency, this argument—and the D. C. Circuit’s opinion accepting it—rank as improper collateral attacks on EPA’s prior SIP disapprovals. As earlier re counted, see at 9–10, EPA, by the time it issued the Transport Rule, had determined that each regulated upwind State had failed to submit a SIP adequate to satisfy the Good Neighbor Provision. Many of those de terminations, because unchallenged, became final after 60 days, see 42 U.S. C. and did so before the petitions here at issue were filed. EPA argues that the Court cannot question exercise of the Agency’s FIP author ity without subjecting these final SIP disapprovals to untimely review. We disagree. The gravamen of the State respondents’ challenge is not that EPA’s disapproval of any particular SIP was erroneous. Rather, respondents urge that, not withstanding these disapprovals, the Agency was obliged to grant an upwind State a second opportunity to promul 14 EPA v. EME HOMER CITY GENERATION, L. P. Opinion of the Court gate adequate SIPs once |
Justice Ginsburg | 2,014 | 5 | majority | EPA v. EME Homer City Generation, L. P. | https://www.courtlistener.com/opinion/2672207/epa-v-eme-homer-city-generation-l-p/ | L. P. Opinion of the Court gate adequate SIPs once EPA set the State’s emission budget. This claim does not depend on the validity of the prior SIP disapprovals. Even assuming the legitimacy of those disapprovals, the question remains whether EPA was required to do more than disapprove a SIP, as the State respondents urge, to trigger the Agency’s statutory authority to issue a FIP.12 Turning to the merits, we hold that the text of the stat ute supports EPA’s position. As earlier noted, see at 4–5, the CAA sets a series of precise deadlines to which the States and EPA must adhere. Once EPA issues any new or revised NAAQS, a State has three years to adopt a SIP adequate for compliance with the Act’s requirements. See 42 U.S. C. Among those requirements is the Act’s mandate that SIPs “shall” include provisions sufficient to satisfy the Good Neighbor Provision. If EPA determines a SIP to be inadequate, the Agency’s mandate to replace it with a FIP is no less absolute: “[EPA] shall promulgate a [FIP] at any time within 2 years after the [Agency] “(A) finds that a State has failed to make a required submission or finds that the plan or plan revision submitted by the State does not satisfy the minimum [relevant] criteria or —————— 12 The State respondents make a second argument we do not reach. They urge that EPA could not impose FIPs on several upwind States whose SIPs had been previously approved by the Agency under CAIR. EPA changed those approvals to disapprovals when it issued the Transport Rule, see and the States assert that the process by which EPA did so was improper. That argument was not passed on by the D. C. Circuit, see and we leave it for the Court of Appeals to consider in the first instance on remand. Cite as: 572 U. S. (2014) 15 Opinion of the Court “() disapproves a [SIP] in whole or in part, “unless the State corrects the deficiency, and [EPA] approves the plan or plan revision, before the [Agency] promulgates such [FIP].” In other words, once EPA has found a SIP inadequate, the Agency has a statutory duty to issue a FIP “at any time” within two years (unless the State first “corrects the defi ciency,” which no one contends occurred here). The D. C. Circuit, however, found an unwritten excep tion to this strict time prescription for SIPs aimed at implementing the Good Neighbor Provision. Expecting any one State to develop a “comprehensive solution” to the “collective problem” of interstate air pollution |
Justice Ginsburg | 2,014 | 5 | majority | EPA v. EME Homer City Generation, L. P. | https://www.courtlistener.com/opinion/2672207/epa-v-eme-homer-city-generation-l-p/ | “comprehensive solution” to the “collective problem” of interstate air pollution without first receiving EPA’s guidance was, in the Court of Appeals’ assessment, “set[ting] the States up to fail.” 696 F.3d, at 36–. The D. C. Circuit therefore required EPA, after promulgating each State’s emission budget, to give the State a “reasonable” period of time to propose SIPs im plementing its budget. See at However sensible (or not) the Court of Appeals’ posi tion,13 a reviewing court’s “task is to apply the text [of the statute], not to improve upon it.” Pavelic & LeFlore v. Marvel Entertainment Group, Div. of Cadence Industries Corp., Nothing in the Act dif —————— 13 On this point, the dissent argues that it is “beyond responsible debate that the States cannot possibly design FIP-proof SIPs without knowing the EPA-prescribed targets at which they must aim.” Post, at 18. Many of the State respondents thought otherwise, however, when litigating the matter in See Final rief for Petitioning States in No. 98–1497 (CADC), p. 34 (“EPA has the responsibility to establish NAAQS,” but without further intervention by EPA, “States [have] the duty and right to develop SIPs to meet those NAAQS.”). See also at (“EPA’s role is to determine whether the SIP submitted is ‘adequate’ not to dictate contents of the submittal in the first instance. [E]ach State has the right and the obligation to write a SIP that complies with including the ‘good neighbor’ provision.”). 16 EPA v. EME HOMER CITY GENERATION, L. P. Opinion of the Court ferentiates the Good Neighbor Provision from the several other matters a State must address in its SIP. Rather, the statute speaks without reservation: Once a NAAQS has been issued, a State “shall” propose a SIP within three years, and that SIP “shall” include, among other components, provisions adequate to satisfy the Good Neighbor Provision, Nor does the Act condition the duty to promulgate a FIP on EPA’s having first quantified an upwind State’s good neighbor obligations. As Judge Rogers observed in her dissent from the D. C. Circuit’s decision, the Act does not require EPA to furnish upwind States with information of any kind about their good neighbor obligations before a FIP issues. See Instead, a SIP’s failure to satisfy the Good Neighbor Provision, without more, triggers EPA’s obligation to issue a federal plan within two years. After EPA has disapproved a SIP, the Agency can wait up to two years to issue a FIP, during which time the State can “correc[t] the deficiency” on its own. ut EPA is not obliged to wait two years or postpone its |
Justice Ginsburg | 2,014 | 5 | majority | EPA v. EME Homer City Generation, L. P. | https://www.courtlistener.com/opinion/2672207/epa-v-eme-homer-city-generation-l-p/ | is not obliged to wait two years or postpone its action even a single day: The Act empowers the Agency to promulgate a FIP “at any time” within the two-year limit. Carving out an exception to the Act’s precise deadlines, as the D. C. Circuit did, “rewrites a decades-old statute whose plain text and structure estab lish a clear chronology of federal and State responsibili ties.” The practical difficulties cited by the Court of Appeals do not justify departure from the Act’s plain text. See 461–462 (2002) (We “must presume that a legislature says in a statute what it means and means in a statute what it says there.” (internal quotation marks omitted)). When Con gress elected to make EPA’s input a prerequisite to state action under the Act, it did so expressly. States develop ing vehicle inspection and maintenance programs under Cite as: 572 U. S. (2014) 17 Opinion of the Court the CAA, for example, must await EPA guidance before issuing SIPs. 42 U.S. C. A State’s obli gation to adopt a SIP, moreover, arises only after EPA has first set the NAAQS the State must meet. Had Congress intended similarly to defer States’ discharge of their obligations under the Good Neighbor Provision, Congress, we take it, would have included a similar direc tion in that section. See (“We do not lightly assume that Congress has omitted from its adopted text requirements that it nonetheless intends to apply, and our reluctance is even greater when Congress has shown elsewhere in the same statute that it knows how to make such a requirement manifest.”). In short, nothing in the statute places EPA under an obligation to provide specific metrics to States before they undertake to fulfill their good neighbor obligations. y altering the schedule Congress provided for SIPs and FIPs, the D. C. Circuit stretched out the process. It al lowed a delay Congress did not order and placed an infor mation submission obligation on EPA Congress did not impose. The D. C. Circuit, we hold, had no warrant thus to revise the CAA’s action-ordering prescriptions. C At oral argument, the State respondents emphasized EPA’s previous decisions, in the NOX SIP Call and CAIR, to quantify the emission reductions required of upwind States before the window to propose a SIP closed. See Tr. of Oral Arg. –39, 42–43, 45–46. In their view, by failing to accord States a similar grace period after issuing States’ emission budgets, EPA acted arbitrarily. See Whatever pattern the Agency followed in its NOX SIP call and CAIR proceedings, EPA retained discretion to alter its |
Justice Ginsburg | 2,014 | 5 | majority | EPA v. EME Homer City Generation, L. P. | https://www.courtlistener.com/opinion/2672207/epa-v-eme-homer-city-generation-l-p/ | call and CAIR proceedings, EPA retained discretion to alter its course provided it gave a reasonable explanation for doing so. Motor Vehicle Mfrs. Assn. of United States, 18 EPA v. EME HOMER CITY GENERATION, L. P. Opinion of the Court 42 (1983). The Agency presented such an explanation in the Transport Rule. As noted, see the D. C. Circuit’s North Carolina decision admonished EPA to act with dispatch in amending or replacing CAIR, the Transport Rule’s predecessor. See 550 F.3d, at (warning EPA that the stay of the court’s decision to va cate CAIR would not persist “indefinite[ly]”). Given North Carolina’s stress on expeditious action to cure the infir- mities the court identified in CAIR, EPA thought it “[in]appropriate to establish [the] lengthy transition period” entailed in allowing States time to propose new or amended SIPs implementing the Transport Rule emission budgets. See (citing North Carolina, ). Endeavoring to satisfy the D. C. Circuit’s directive, EPA acted speedily, issuing FIPs contemporane ously with the Transport Rule. In light of the firm dead lines imposed by the Act, which we hold the D. C. Circuit lacked authority to alter, we cannot condemn EPA’s deci sion as arbitrary or capricious.14 III A The D. C. Circuit also held that the Transport Rule’s two-step interpretation of the Good Neighbor Provision conflicts with the Act. efore addressing this holding, we take up a jurisdictional objection raised by EPA. The CAA directs that “[o]nly an objection to a rule —————— 14 Inlight of the CAA’s “core principle” of cooperative federalism, the dissent believes EPA abused its discretion by failing to give States an additional opportunity to submit SIPs in satisfaction of the Good Neighbor Provision. Post, at 19. ut nothing in the statute so restricts EPA. To the contrary, as earlier observed, see the plain text of the CAA grants EPA plenary authority to issue a FIP “at any time” within the two-year period that begins the moment EPA deter mines a SIP to be inadequate. (emphasis added). Cite as: 572 U. S. (2014) 19 Opinion of the Court raised with reasonable specificity during the period for public comment may be raised during judicial review.” 42 U.S. C. Respondents failed to state their objections to the Transport Rule during the comment period with the “specificity” required for preservation, EPA argues. See rief for Federal Petitioners 34–42. This failure at the administrative level, EPA urges, fore closes judicial review. Assuming, without deciding, that respondents did not meet the Act’s “reasonable specificity” requirement during the comment period, we do not regard that lapse as “juris dictional.” This |
Justice Ginsburg | 2,014 | 5 | majority | EPA v. EME Homer City Generation, L. P. | https://www.courtlistener.com/opinion/2672207/epa-v-eme-homer-city-generation-l-p/ | we do not regard that lapse as “juris dictional.” This Court has cautioned against “profligate use” of the label “jurisdictional.” Sebelius v. Auburn Re- gional Medical Center, 568 U. S. (2013) (slip op., ). A rule may be “mandatory,” yet not “jurisdictional,” we have explained. See Arbaugh v. Y & H Corp., 546 U.S. 500, 510 (2006). Section 7607(d)(7)(), we hold, is of that character. It does not speak to a court’s authority, but only to a party’s procedural obligations. See Kontrick v. Ryan, Had EPA pursued the “reasonable specificity” argument vigorously before the D. C. Circuit, we would be obligated to address the merits of the argument. See Gonzalez v. Thaler, 565 U. S. (slip op., at 10). ut EPA did not press the argument unequivocally. efore the D. C. Circuit, it indi cated only that the “reasonable specificity” prescription might bar judicial review. rief for Respondent EPA et al. in No. 11–1302 (CADC), p. 30. See also We therefore do not count the prescription an impassable hindrance to our adjudication of the respondents’ attack on EPA’s interpretation of the Transport Rule. We turn to that attack mindful of the importance of the issues re spondents raise to the ongoing implementation of the Good Neighbor Provision. 20 EPA v. EME HOMER CITY GENERATION, L. P. Opinion of the Court We routinely accord dispositive effect to an agency’s reasonable interpretation of ambiguous statutory lan guage. U. S. A. is the pathmarking decision, and it bears a notable resemblance to the cases before us. concerned EPA’s definition of the term “source,” as used in the 1977 Amendments to the CAA. Those amendments placed additional restrictions on companies’ liberty to add new pollution “sources” to their factories. See Although “source” might have been interpreted to refer to an indi vidual smokestack, EPA construed the term to refer to an entire plant, thereby “treat[ing] all of the pollution emitting devices within the [plant] as though they were encased within a single ‘bubble.’” Under the Agency’s interpretation, a new pollution-emitting device would not subject a plant to the additional restrictions if the “altera tion [did] not increase the total emissions [produced by] the plant.” This Court held EPA’s interpretation of “source” a rea sonable construction of an ambiguous statutory term. When “Congress has not directly addressed the precise [interpretative] question at issue,” we cautioned, a review ing court cannot “simply impose its own construction o[f] the statute.” Rather, the agency is charged with filling the “gap left open” by the ambiguity. at 866. ecause “ ‘a full understanding of the force of the statutory |
Justice Ginsburg | 2,014 | 5 | majority | EPA v. EME Homer City Generation, L. P. | https://www.courtlistener.com/opinion/2672207/epa-v-eme-homer-city-generation-l-p/ | “ ‘a full understanding of the force of the statutory policy depend[s] upon more than ordinary knowledge’ ” of the situation, the administering agency’s construction is to be accorded “controlling weight unless arbitrary, capricious, or manifestly contrary to the statute.” (quoting United States v. Shimer, 367 U.S. 4, 382 (1961)). Determining that none of those terms fit EPA’s interpretation of “source,” the Court de ferred to the Agency’s judgment. Cite as: 572 U. S. (2014) 21 Opinion of the Court We conclude that the Good Neighbor Provision delegates authority to EPA at least as certainly as the CAA provi sions involved in The statute requires States to eliminate those “amounts” of pollution that “contribute significantly to nonattainment” in downwind States. 42 U.S. C. (emphasis added). Thus, EPA’s task15 is to reduce upwind pollution, but only in “amounts” that push a downwind State’s pollution concentrations above the relevant NAAQS. As noted earlier, however, the nonattainment of downwind States results from the collec tive and interwoven contributions of multiple upwind States. See The statute therefore calls upon the Agency to address a thorny causation problem: How should EPA allocate among multiple contributing up- wind States responsibility for a downwind State’s excess pollution? A simplified example illustrates the puzzle EPA faced. Suppose the Agency sets a NAAQS, with respect to a particular pollutant, at 100 parts per billion (ppb), and that the level of the pollutant in the atmosphere of down wind State A is 130 ppb. Suppose further that EPA has determined that each of three upwind States—X, Y, and Z—contributes the equivalent of 30 ppb of the relevant pollutant to State A’s airspace. The Good Neighbor Provi sion, as just observed, prohibits only upwind emissions that contribute significantly to downwind nonattainment. EPA’s authority under the provision is therefore limited to eliminating a total of 30 ppb,16 i.e., the overage caused by —————— 15 Though we speak here of “EPA’s task,” the Good Neighbor Provi sion is initially directed to upwind States. As earlier explained, see Part II–, only after a State has failed to propose a SIP ade quate for compliance with the provision is EPA called upon to act. 16 ecause of the uncertainties inherent in measuring interstate air pollution, see –4, reductions of exactly 30 ppb likely are unattainable. See infra, –31. 22 EPA v. EME HOMER CITY GENERATION, L. P. Opinion of the Court the collective contribution of States X, Y, and Z.17 How is EPA to divide responsibility among the three States? Should the Agency allocate reductions propor tionally (10 ppb each), on a per capita basis, |
Justice Ginsburg | 2,014 | 5 | majority | EPA v. EME Homer City Generation, L. P. | https://www.courtlistener.com/opinion/2672207/epa-v-eme-homer-city-generation-l-p/ | propor tionally (10 ppb each), on a per capita basis, on the basis of the cost of abatement, or by some other metric? See rief for Federal Petitioners 50 (noting EPA’s consideration of different approaches). The Good Neighbor Provision does not answer that question for EPA. Cf. 467 U.S., at 860 (“[T]he language of [the CAA] simply does not compel any given interpretation of the term ‘source.’ ”). Under we read Congress’ silence as a delegation of authority to EPA to select from among reasonable op tions. See United18 Yet the Court of Appeals believed that the Act speaks clearly, requiring EPA to allocate responsibility for reduc ing emissions in “a manner proportional to” each State’s “contributio[n]” to the 696 F.3d, Nothing —————— 17 For simplicity’s sake, the hypothetical assumes that EPA has not required any emission reductions by the downwind State itself. 18 The statutory gap identified also exists in the Good Neighbor Provi sion’s second instruction. That instruction requires EPA to eliminate amounts of upwind pollution that “interfere with maintenance” of a NAAQS by a downwind State. This mandate con tains no qualifier analogous to “significantly,” and yet it entails a delegation of administrative authority of the same character as the one discussed above. Just as EPA is constrained, under the first part of the Good Neighbor Provision, to eliminate only those amounts that “con tribute to nonattainment,” EPA is limited, by the second part of the provision, to reduce only by “amounts” that “interfere with mainte- nance,” i.e., by just enough to permit an already-attaining State to maintain satisfactory air quality. (Emphasis added.) With multiple upwind States contributing to the maintenance problem, however, EPA confronts the same challenge that the “contribute significantly” man date creates: How should EPA allocate reductions among multiple upwind States, many of which contribute in amounts sufficient to impede downwind maintenance? Nothing in either clause of the Good Neighbor Provision provides the criteria by which EPA is meant to apportion responsibility. Cite as: 572 U. S. (2014) 23 Opinion of the Court in the text of the Good Neighbor Provision propels EPA down this path. Understandably so, for as EPA notes, the D. C. Circuit’s proportionality approach could scarcely be satisfied in practice. See App. in No. 11–1302 etc. (CADC), p. 2312 (“[W]hile it is possible to determine an emission reduction percentage if there is a single down wind [receptor], most upwind states contribute to multiple downwind [receptors] (in multiple states) and would have a different reduction percentage for each one.”). To illustrate, consider a variation on the example set out above. Imagine |
Justice Ginsburg | 2,014 | 5 | majority | EPA v. EME Homer City Generation, L. P. | https://www.courtlistener.com/opinion/2672207/epa-v-eme-homer-city-generation-l-p/ | consider a variation on the example set out above. Imagine that States X and Y now contribute air pollution to State A in a ratio of one to five, i.e., State Y contributes five times the amount of pollution to State A than does State X. If State A were the only downwind State to which the two upwind States contributed, the D. C. Circuit’s proportionality requirement would be easy to meet: EPA could require State Y to reduce its emissions by five times the amount demanded of State X. The realities of interstate air pollution, however, are not so simple. Most upwind States contribute pollution to multiple downwind States in varying amounts. See 76 Fed. Reg. 48239–48246. See also rief for Respondent Calpine Corp. et al. in Support of Petitioners 48–49 (offer ing examples). Suppose then that States X and Y also contribute pollutants to a second downwind State (State ), this time in a ratio of seven to one. Though State Y contributed a relatively larger share of pollution to State A, with respect to State State X is the greater offender. Following the proportionality approach with respect to State would demand that State X reduce its emissions by seven times as much as State Y. Recall, however, that State Y, as just hypothesized, had to effect five times as large a reduction with respect to State A. The Court of Appeals’ proportionality edict with respect to both State A and State appears to work neither mathematically nor in practical application. Proportionality as to one down 24 EPA v. EME HOMER CITY GENERATION, L. P. Opinion of the Court wind State will not achieve proportionality as to others. Quite the opposite. And where, as is generally true, up wind States contribute pollution to more than two down wind receptors, proportionality becomes all the more elusive. Neither the D. C. Circuit nor respondents face up to this The dissent, for its part, strains to give meaning to the D. C. Circuit’s proportionality constraint as applied to a world in which multiple upwind States contribute emissions to multiple downwind locations. In the dissent’s view, upwind States must eliminate emissions by “what ever minimum amount reduces” their share of the overage in each and every one of the downwind States to which they are linked. See post, at 8. In practical terms, this means each upwind State will be required to reduce emis sions by the amount necessary to eliminate that State’s largest downwind contribution. The dissent’s formulation, however, does not account for the combined and cumu- lative effect of each |
Justice Ginsburg | 2,014 | 5 | majority | EPA v. EME Homer City Generation, L. P. | https://www.courtlistener.com/opinion/2672207/epa-v-eme-homer-city-generation-l-p/ | account for the combined and cumu- lative effect of each upwind State’s reductions on attain ment in multiple downwind locations. See (“Under a proportional-reduction approach, State X would be required to eliminate emissions of that pollutant by whatever min imum amount reduces both State A’s level by 0.2 unit and State ’s by 0.7 unit.” (emphasis added)). The result would be costly overregulation unnecessary to, indeed in conflict with, the Good Neighbor Provision’s goal of attainment.19 —————— 19 To see why, one need only slightly complicate the world envisioned by the dissent. Assume the world is made up of only four States—two upwind (States X and Y), and two downwind (States A and ). Suppose also, as the dissent allows, see post, at 9, that the reductions State X must make to eliminate its share of the amount by which State A is in nonattainment are more than necessary for State X to eliminate its share of State ’s nonattainment. As later explained, see infra, at 29– 30, this kind of “over-control,” we agree with the dissent, is acceptable under the statute. Suppose, however, that State Y also contributes to pollution in both State A and State such that the reductions it must Cite as: 572 U. S. (2014) 25 Opinion of the Court In response, the dissent asserts that EPA will “simply be required to make allowance for” the overregulation caused by its “proportional-reduction” approach. Post, at 11. What criterion should EPA employ to determine which States will have to make those “allowance[s]” and by how much? The dissent admits there are “multiple ways” EPA might answer those questions. ut proportionality cannot be one of those ways, for the proportional-reduction approach is what led to the over regulation in the first place. And if a nonproportional approach can play a role in setting the final allocation of reduction obligations, then it is hardly apparent why EPA, free to depart from proportionality at the back end, cannot do so at the outset. Persuaded that the Good Neighbor Provision does not dictate the particular allocation of emissions among con tributing States advanced by the D. C. Circuit, we must next decide whether the allocation method chosen by EPA is a “permissible construction of the statute.” 467 U.S., As EPA interprets the statute, upwind emissions rank as “amounts [that] contribute signifi cantly to nonattainment” if they (1) constitute one percent —————— make to eliminate its proportion of State ’s overage exceed the reduc tions it must make to bring State A into attainment. In this case, the dissent would have State X |
Justice Ginsburg | 2,014 | 5 | majority | EPA v. EME Homer City Generation, L. P. | https://www.courtlistener.com/opinion/2672207/epa-v-eme-homer-city-generation-l-p/ | attainment. In this case, the dissent would have State X reduce by just enough to eliminate its share of State A’s nonattainment and more than enough to eliminate its share of State ’s overage. The converse will be true as to State Y: Under the dissent’s approach, State Y would have to reduce by the “minimum” necessary to eliminate its proportional share of State ’s nonattainment and more than enough to eliminate its proportion of State A’s overage. The result is that the total amount by which both States X and Y are required to reduce will exceed what is necessary for attainment in all downwind States involved (i.e., in both State A and State ). Over-control thus unnecessary to achieving attainment in all involved States is impermissible under the Good Neighbor Provision. See infra, n. 23. The problem would worsen were the hypothet ical altered to include more than two downwind States and two upwind States, the very real circumstances EPA must address. 26 EPA v. EME HOMER CITY GENERATION, L. P. Opinion of the Court or more of a relevant NAAQS in a nonattaining downwind State and (2) can be eliminated under the cost threshold set by the Agency. See In other words, to identify which emissions were to be eliminated, EPA considered both the magnitude of upwind States’ contributions and the cost associated with eliminating them. The Industry respondents argue that, however EPA ultimately divides responsibility among upwind States, the final calculation cannot rely on costs. The Good Neighbor Provision, respondents and the dissent empha size, “requires each State to prohibit only those ‘amounts’ of air pollution emitted within the State that ‘contribute significantly’ to another State’s nonattaintment.” rief for Industry Respondents 23 (emphasis added). See also post, The cost of preventing emissions, they urge, is wholly unrelated to the actual “amoun[t]” of air pollution an upwind State contributes. rief for Industry Respond ents 23. ecause the Transport Rule considers costs, respondents argue, “States that contribute identical ‘amounts’ may be deemed [by EPA] to have [made] substantially different” contributions. ut, as just explained, see –22, the Agency cannot avoid the task of choosing which among equal “amounts” to eliminate. The Agency has chosen, sensibly in our view, to reduce the amount easier, i.e., less costly, to eradicate, and nothing in the text of the Good Neighbor Provision precludes that choice. Using costs in the Transport Rule calculus, we agree with EPA, also makes good sense. Eliminating those amounts that can cost-effectively be reduced is an efficient and equitable solution to the allocation problem the Good Neighbor Provision |
Justice Ginsburg | 2,014 | 5 | majority | EPA v. EME Homer City Generation, L. P. | https://www.courtlistener.com/opinion/2672207/epa-v-eme-homer-city-generation-l-p/ | equitable solution to the allocation problem the Good Neighbor Provision requires the Agency to address. Effi cient because EPA can achieve the levels of attainment, i.e., of emission reductions, the proportional approach aims to achieve, but at a much lower overall cost. Equita Cite as: 572 U. S. (2014) 27 Opinion of the Court ble because, by imposing uniform cost thresholds on regu lated States, EPA’s rule subjects to stricter regulation those States that have done relatively less in the past to control their pollution. Upwind States that have not yet implemented pollution controls of the same stringency as their neighbors will be stopped from free riding on their neighbors’ efforts to reduce pollution. They will have to bring down their emissions by installing devices of the kind in which neighboring States have already invested. Suppose, for example, that the industries of upwind State A have expended considerable resources installing modern pollution-control devices on their plants. Facto ries in upwind State by contrast, continue to run old, dirty plants. Yet, perhaps because State A is more popu lous and therefore generates a larger sum of pollution overall, the two States’ emissions have equal effects on downwind attainment. If State A and State are re quired to eliminate emissions proportionally (i.e., equally), sources in State A will be compelled to spend far more per ton of reductions because they have already utilized lower cost pollution controls. State A’s sources will also have to achieve greater reductions than would have been required had they not made the cost-effective reductions in the first place. State A, in other words, will be tolled for having done more to reduce pollution in the past.20 EPA’s cost based allocation avoids these anomalies. Obligated to require the elimination of only those “amounts” of pollutants that contribute to the nonattain ment of NAAQS in downwind States, EPA must decide how to differentiate among the otherwise like contribu tions of multiple upwind States. EPA found decisive the —————— 20 The dissent’s approach is similarly infirm. It, too, would toll those upwind States that have already invested heavily in means to reduce the pollution their industries cause, while lightening the burden on States that have done relatively less to control pollution emanating from local enterprises. 28 EPA v. EME HOMER CITY GENERATION, L. P. Opinion of the Court difficulty of eliminating each “amount,” i.e., the cost in curred in doing so. Lacking a dispositive statutory in struction to guide it, EPA’s decision, we conclude, is a “reasonable” way of filling the “gap left open by Congress.”21 C The D. C. |
Justice Ginsburg | 2,014 | 5 | majority | EPA v. EME Homer City Generation, L. P. | https://www.courtlistener.com/opinion/2672207/epa-v-eme-homer-city-generation-l-p/ | the “gap left open by Congress.”21 C The D. C. Circuit stated two further objections to EPA’s cost-based method of defining an upwind State’s contribu tion. Once a State was screened in at step one of EPA’s analysis, its emission budget was calculated solely with reference to the uniform cost thresholds the Agency selected at step two. The Transport Rule thus left open the possibility that a State might be compelled to reduce emissions beyond the point at which every affected down wind State is in attainment, a phenomenon the Court of Appeals termed “over-control.” 696 F.3d, ; see at 12. Second, EPA’s focus on costs did not foreclose, as the D. C. Circuit accurately observed, the possibility that an upwind State would be required to reduce its emissions by so much that the State no longer contributed one per —————— 21 The dissent, see post, at 12–13, relies heavily on our decision in In Whitman, we held that the relevant text of the CAA “unambiguously bars” EPA from considering costs when determining a NAAQS. at 471. Section 7409(b)(1) commands EPA to set NAAQS at levels “requi site to protect the public health” with “an adequate margin of safety.” This mandate, we observed in Whitman, was “absolute,” and precluded any other consideration (e.g., cost) in the NAAQS calculation. at 465 (internal quotation marks omitted). Not so of the Good Neighbor Provision, which grants EPA discretion to eliminate “amounts [of pollution that] contribute significantly to nonattainment” down wind. On the particular “amounts” that should qualify for elimination, the statute is silent. Unlike the provision at issue in Whitman, which provides express criteria by which EPA is to set NAAQS, the Good Neighbor Provision, as earlier explained, fails to provide any metric by which EPA can differentiate among the contributions of multiple upwind States. See –22. Cite as: 572 U. S. (2014) 29 Opinion of the Court cent or more of a relevant NAAQS to any downwind State. This would place the State below the mark EPA had set, during the screening phase, as the initial threshold of “significan[ce].” See and n. 13. We agree with the Court of Appeals to this extent: EPA cannot require a State to reduce its output of pollution by more than is necessary to achieve attainment in every downwind State or at odds with the one-percent threshold the Agency has set. If EPA requires an upwind State to reduce emissions by more than the amount necessary to achieve attainment in every downwind State to which it is linked, the Agency will have overstepped its authority, under |
Justice Ginsburg | 2,014 | 5 | majority | EPA v. EME Homer City Generation, L. P. | https://www.courtlistener.com/opinion/2672207/epa-v-eme-homer-city-generation-l-p/ | is linked, the Agency will have overstepped its authority, under the Good Neighbor Provision, to eliminate those “amounts [that] contribute to nonattainment.” Nor can EPA demand reductions that would drive an upwind State’s contribution to every downwind State to which it is linked below one percent of the relevant NAAQS. Doing so would be counter to step one of the Agency’s interpreta tion of the Good Neighbor Provision. See 76 Fed. Reg. 48236 (“[S]tates whose contributions are below th[e] thresholds do not significantly contribute to nonattain ment of the relevant NAAQS.”). Neither possibility, however, justifies wholesale invali dation of the Transport Rule. First, instances of “over control” in particular downwind locations, the D. C. Cir cuit acknowledged, see 696 F.3d, may be incidental to reductions necessary to ensure attainment elsewhere. ecause individual upwind States often “contribute signif icantly” to nonattainment in multiple downwind locations, the emissions reduction required to bring one linked downwind State into attainment may well be large enough to push other linked downwind States over the attainment line.22 As the Good Neighbor Provision seeks attainment —————— 22 The following example, based on the record, is offered in rief for Respondent Calpine Corp. et al. in Support of Petitioners 52–54. Ohio, 30 EPA v. EME HOMER CITY GENERATION, L. P. Opinion of the Court in every downwind State, however, exceeding attainment in one State cannot rank as “over-control” unless unneces sary to achieving attainment in any downwind State. Only reductions unnecessary to downwind attainment anywhere fall outside the Agency’s statutory authority.23 Second, while EPA has a statutory duty to avoid over control, the Agency also has a statutory obligation to avoid “under-control,” i.e., to maximize achievement of attain ment downwind. For reasons earlier explained, see –4, a degree of imprecision is inevitable in tackling the problem of interstate air pollution. Slight changes in wind patterns or energy consumption, for example, may vary downwind air quality in ways EPA might not have antici pated. The Good Neighbor Provision requires EPA to seek —————— West Virginia, Pennsylvania, and Indiana each contribute in varying amounts to five different nonattainment areas in three downwind States. Implementation of the Transport Rule, EPA model ing demonstrates, will bring three of these five areas into attainment by a comfortable margin, and a fourth only barely. See fig. 2. The fifth downwind receptor, however, will still fall short of attainment despite the reductions the rule requires. See ut if EPA were to lower the emission reductions required of the upwind States to reduce over-attainment in the first three areas, the area barely achieving attainment would no |
Justice Ginsburg | 2,014 | 5 | majority | EPA v. EME Homer City Generation, L. P. | https://www.courtlistener.com/opinion/2672207/epa-v-eme-homer-city-generation-l-p/ | first three areas, the area barely achieving attainment would no longer do so, and the area still in nonattainment would fall even further behind. Thus, “over-control” of the first three downwind receptors is essential to the attainment achieved by the fourth and to the fifth’s progress toward that goal. 23 The dissent suggests that our qualification of the term “over control” is tantamount to an admission that “nothing stands in the way of [a] proportional-reduction approach.” Post, at 9. Not so. Permitting “over-control” as to one State for the purpose of achieving attainment in another furthers the stated goal of the Good Neighbor Provision, i.e., attainment of NAAQS. y contrast, a proportional-reduction scheme is neither necessary to achieve downwind attainment, nor mandated by the terms of the statute, as earlier discussed, see –25. Permitting “over-control” for the purpose of achieving proportionality would thus contravene the clear limits the statute places on EPA’s good neighbor authority, i.e., to eliminate only those “amounts” of upwind pollutants essential to achieving attainment downwind. Cite as: 572 U. S. (2014) 31 Opinion of the Court downwind attainment of NAAQS notwithstanding the uncertainties. Hence, some amount of over-control, i.e., emission budgets that turn out to be more demanding than necessary, would not be surprising. Required to balance the possibilities of under-control and over-control, EPA must have leeway in fulfilling its statutory mandate. Finally, in a voluminous record, involving thousands of upwind-to-downwind linkages, respondents point to only a few instances of “unnecessary” emission reductions, and even those are contested by EPA. Compare rief for Industry Respondents 19 with Reply rief for Federal Petitioners 21–22. EPA, for its part, offers data, contested by respondents, purporting to show that few (if any) up wind States have been required to limit emissions below the one-percent threshold of significance. Compare rief for Federal Petitioners 54–55, with rief for Industry Respondents 40. If any upwind State concludes it has been forced to regulate emissions below the one-percent threshold or beyond the point necessary to bring all downwind States into attainment, that State may bring a particularized, as applied challenge to the Transport Rule, along with any other as-applied challenges it may have. Cf. abbitt v. Sweet Home Chapter, Communities for Great Ore., 515 U.S. 687, 699–700 (1995) (approving agency’s reasonable interpretation of statute despite possibility of improper applications); American Hospital Assn. v. NLR, 499 U.S. 606, 619 (1991) (rejecting facial challenge to National Labor Relations oard rule despite possible arbitrary applications). Satisfied that EPA’s cost-based methodol- ogy, on its face, is not “arbitrary, capricious, or manifestly contrary to the statute,” 467 U.S., |
Justice Ginsburg | 2,014 | 5 | majority | EPA v. EME Homer City Generation, L. P. | https://www.courtlistener.com/opinion/2672207/epa-v-eme-homer-city-generation-l-p/ | “arbitrary, capricious, or manifestly contrary to the statute,” 467 U.S., we uphold the Transport Rule. The possibility that the rule, in uncommon particular applications, might exceed EPA’s statutory authority does not warrant judicial condemna tion of the rule in its entirety. 32 EPA v. EME HOMER CITY GENERATION, L. P. Opinion of the Court In sum, we hold that the CAA does not command that States be given a second opportunity to file a SIP after EPA has quantified the State’s interstate pollution obliga tions. We further conclude that the Good Neighbor Provi sion does not require EPA to disregard costs and consider exclusively each upwind State’s physically proportionate responsibility for each downwind air quality EPA’s cost-effective allocation of emission reductions among upwind States, we hold, is a permissible, work- able, and equitable interpretation of the Good Neighbor Provision. * * * For the reasons stated, the judgment of the United States Court of Appeals for the D. C. Circuit is reversed, and the cases are remanded for further proceedings con sistent with this opinion. It is so ordered. JUSTICE ALITO took no part in the consideration or decision of these cases. Cite as: 572 U. S. (2014) 1 SCALIA, J., dissenting SUPREME COURT OF THE UNITED STATES Nos. 12–1182 and 12–1183 ENVIRONMENTAL PROTECTION AGENCY ET AL., PETITIONERS 12–1182 v. EME HOMER CITY GENERATION, L. P., ET AL.; AND AMERICAN LUNG ASSOCIATION ET AL., PETITIONERS 12–1183 v. EME HOMER CITY GENERATION, L. P., ET AL. |
Justice Ginsburg | 2,013 | 5 | dissenting | University of Tex. Southwestern Medical Center v. Nassar | https://www.courtlistener.com/opinion/931121/university-of-tex-southwestern-medical-center-v-nassar/ | Title VII of the Civil Rights Act of 1964, 42 U.S. C. et seq., makes it an “unlawful employment prac tice” to “discriminate against any individual because of such individual’s race, color, religion, sex, or national origin.” –2(a) (emphasis added). Backing up that core provision, Title VII also makes it an “unlawful em ployment practice” to discriminate against any individual “because” the individual has complained of, opposed, or participated in a proceeding about, prohibited discrimina tion. –3(a) (emphasis added). This form of discrim ination is commonly called “retaliation,” although Title VII itself does not use that term. The Court has recognized that effective protection against retaliation, the office of –3(a), is essential to securing “a workplace where individuals are not discriminated against because of their racial, ethnic, religious, or gender-based status.” Burling ton N. & S. F. R. (Burlington ). That is so because “fear of retalia tion is the leading reason why people stay silent” about the discrimination they have encountered or observed. (internal quota tion marks and brackets omitted). 2 UNIVERSITY OF TEX. SOUTHWESTERN MEDICAL CENTER v. NASSAR GINSBURG, J., dissenting Similarly worded, the ban on discrimination and the ban on retaliation against a discrimination complainant have traveled together: Title VII plaintiffs often raise the two pro visions in tandem. Today’s decision, however, drives a wedge between the twin safeguards in so-called “mixed motive” cases. To establish discrimination, all agree, the complaining party need show only that race, color, reli gion, sex, or national origin was “a motivating factor” in an employer’s adverse action; an employer’s proof that “other factors also motivated the [action]” will not defeat the discrimination claim. –2(m). But a retaliation claim, the Court insists, must meet a stricter standard: The claim will fail unless the complainant shows “but-for” causation, i.e., that the employer would not have taken the adverse employment action but for a design to retaliate. In so reining in retaliation claims, the Court misappre hends what our decisions teach: Retaliation for complain ing about discrimination is tightly bonded to the core pro hibition and cannot be disassociated from it. Indeed, this Court has explained again and again that “retaliation in response to a complaint about [proscribed] discrimina tion is discrimination” on the basis of the characteristic Congress sought to immunize against adverse employment action. 179, n. 3 (2005) (emphasis added; internal quotation marks omitted). The Court shows little regard for the trial judges who will be obliged to charge discrete causation standards when a claim of discrimination “because of,” e.g., race is coupled with a claim of discrimination “because” the indi vidual |
Justice Ginsburg | 2,013 | 5 | dissenting | University of Tex. Southwestern Medical Center v. Nassar | https://www.courtlistener.com/opinion/931121/university-of-tex-southwestern-medical-center-v-nassar/ | coupled with a claim of discrimination “because” the indi vidual has complained of race discrimination. And jurors will puzzle over the rhyme or reason for the dual stand ards. Of graver concern, the Court has seized on a provi sion, –2(m), adopted by Congress as part of an endeavor to strengthen Title VII, and turned it into a measure reducing the force of the ban on retaliation. Cite as: 570 U. S. 3 GINSBURG, J., dissenting I Dr. Naiel Nassar is of Middle Eastern descent. A spe cialist in the treatment of HIV/AIDS, Nassar was a faculty member of the University of Texas Southwestern Medical Center (UTSW) from 1995 until 2006, save for a period during which he left his employment to continue his edu cation. UTSW is affiliated with Parkland Hospital and, like other faculty members at the University, Nassar also worked as a physician at the Hospital. Beginning in 2001, Nassar served as Associate Medical Director of the Hospi tal’s Amelia Court Clinic. Until 2004, Dr. Phillip Keiser, Medical Director of the Clinic, was Nassar’s principal supervisor. In that year, UTSW hired Dr. Beth Levine to oversee the Clinic and to supervise Keiser. Before Levine commenced her employ ment at UTSW, she interviewed her potential subordi nates. Meeting with other Clinic doctors for only 15 to 20 minutes, Levine spent an hour and a half with Nassar, engaging in a detailed review of his resume and reading from a list of prepared questions. Record 2926–2928. Once Levine came on board, she expressed concern to Keiser about Nassar’s productivity and questioned his work ethic. at 2361–2362. According to Keiser, Le- vine “never seemed to [be] satisf[ied]” with his assurances that Nassar was in fact working harder than other physi cians. Disconcerted by Levine’s scrutiny, Nassar several times complained about it to Levine’s supervisor, Dr. Gregory Fitz, Chair of Internal Medicine. App. to Pet. for Cert. 4. In 2005, Levine opposed hiring another physician who, like Nassar, was of Middle Eastern descent. In Keiser’s presence, Levine remarked that “Middle Easterners are lazy.” When that physician was hired by Park land, Levine said, again in Keiser’s presence, that the Hospital had “hired another one.” See also Record 2–2400. Keiser presented to Levine objective data 4 UNIVERSITY OF TEX. SOUTHWESTERN MEDICAL CENTER v. NASSAR GINSBURG, J., dissenting demonstrating Nassar’s high productivity. Levine then began criticizing Nassar’s billing practices. Her criticism did not take into account that Nassar’s salary was funded by a federal grant that precluded billing for most of his services. App. to Pet. for Cert. 3. Because of Levine’s hostility, |
Justice Ginsburg | 2,013 | 5 | dissenting | University of Tex. Southwestern Medical Center v. Nassar | https://www.courtlistener.com/opinion/931121/university-of-tex-southwestern-medical-center-v-nassar/ | App. to Pet. for Cert. 3. Because of Levine’s hostility, Nassar sought a way to continue working at the Clinic without falling under her supervision. To that end, Nassar engaged in discussions with the Hospital about dropping his affiliation with UTSW and retaining his post at Parkland. Although he was initially told that an affiliation agreement between UTSW and Parkland obliged Parkland to fill its staff physician posts with UTSW faculty, talks with the Hos pital continued. Eventually, Parkland verbally offered Nassar a position as a staff physician. See App. 67–71, 214–216, 326–330. In July 2006, Nassar resigned from his position at UTSW. “The primary reason [for his] resignation,” Nassar wrote in a letter to Fitz, “[was] the continuing harassment and discrimination by Dr. Beth Levine.” App. to Pet. for Cert. 5 Ac cording to Keiser, Nassar’s letter shocked Fitz, who told Keiser that, because Levine had been “publicly humili- ated,” she should be “publicly exonerated.” App. 41. Fitz’s opposition to Parkland’s hiring Nassar prompted the Hospital to withdraw the offer to engage him. App. to Pet. for Cert. 5–6. After accepting a position at a smaller HIV/AIDS clinic in Fresno, California, Nassar filed a complaint with the Equal Employment Opportunity Commission (EEOC). The agency found “credibl[e] testimonial evidence,” that UTSW had retaliated against Nassar for his allegations of discrimination by Levine. Brief for Respondent 8 (citing Pl. Trial Exh. 78). Nassar then filed suit in District Court alleging that UTSW had discriminated against him, in violation of Title VII, on the basis of his race, religion, and Cite as: 570 U. S. 5 GINSBURG, J., dissenting national origin, see –2(a), and had constructively discharged him. App. to Pet. for Cert. 6; Complaint ¶23. He further alleged that UTSW had retaliated against him for complaining about Levine’s behavior. App. to Pet. for Cert. 6. On the retaliation claim, the District Court instructed the jury that Nassar “[did] not have to prove that retalia tion was [UTSW’s] only motive, but he [had to] prove that [UTSW] acted at least in part to retaliate.” The jury found UTSW liable for both constructive discharge and retaliation. At the remedial phase, the judge charged the jury not to award damages for “actions which [UTSW] prove[d] by a preponderance of the evidence it would have taken even if it had not considered Nassar’s protected activity.” at 42–43. Finding that UTSW had not met its proof burden, the jury awarded Nassar $438,167.66 in backpay and $3,187,500 in compensatory damages. at 43–44.1 The Court of Appeals for the Fifth Circuit affirmed in part.2 Responding to UTSW’s argument |
Justice Ginsburg | 2,013 | 5 | dissenting | University of Tex. Southwestern Medical Center v. Nassar | https://www.courtlistener.com/opinion/931121/university-of-tex-southwestern-medical-center-v-nassar/ | the Fifth Circuit affirmed in part.2 Responding to UTSW’s argument that the District Court erred in instructing the jury on a mixed-motive theory of retaliation, the Fifth Circuit held that the in struction conformed to Circuit precedent. 454, n. 16 (2012) (citing Smith v. Xerox Corp., 602 F.3d 320, 330 (2010)).3 —————— 1 The District Court reduced compensatory damages to $300,000, the statutory cap under Title VII. See 42 U.S. C. 2 The Court of Appeals found the evidence insufficient to support the claim of constructive discharge and reversed the District Court’s judgment to that extent. See App. to Pet. for Cert. 8–10. That ruling is not contested here. 3 The Fifth Circuit has since reversed course in an unpublished opin ion, concluding that –2(m)’s motivating-factor prescription does not apply to retaliation claims. See 6 UNIVERSITY OF TEX. SOUTHWESTERN MEDICAL CENTER v. NASSAR GINSBURG, J., dissenting II This Court has long acknowledged the symbiotic rela tionship between proscriptions on discrimination and pro- scriptions on retaliation. Antidiscrimination provisions, the Court has reasoned, endeavor to create a workplace where individuals are not treated differently on account of race, ethnicity, religion, or sex. See Burlington 548 U. S., at Antiretaliation provisions “see[k] to secure that primary objective by preventing an employer from interfering with an employee’s efforts to secure or advance enforcement of [antidiscrimination] guarantees.” As the Court has comprehended, “Title VII depends for its enforcement upon the cooperation of employees who are willing to file complaints and act as witnesses.” “ ‘[E]ffective enforcement,’ ” there fore, can “ ‘only be expected if employees [feel] free to approach officials with their grievances.’ ” (quoting 292 (1960)). See also 555 U. S., at Adverting to the close connection between discrimina tion and retaliation for complaining about discrimination, this Court has held, in a line of decisions unbroken until today, that a ban on discrimination encompasses retalia tion. In Sullivan v. Little Hunting Park, Inc., 396 U.S. 229, 237 (1969), the Court determined that 42 U.S. C. which provides that “[a]ll citizens of the United States shall have the same right as is enjoyed by white citizens to inherit, purchase, lease, sell, hold, and convey real and personal property,” protected a white man who suffered retaliation after complaining of discrimina tion against his black tenant. v. Birmingham Board of Education elaborated on that holding in the context of sex discrimination. “Retaliation against a per son because [he] has complained of sex discrimination,” the Court found it inescapably evident, “is another form of intentional sex discrimination.” As the Cite as: 570 U. S. 7 GINSBURG, J., |
Justice Ginsburg | 2,013 | 5 | dissenting | University of Tex. Southwestern Medical Center v. Nassar | https://www.courtlistener.com/opinion/931121/university-of-tex-southwestern-medical-center-v-nassar/ | As the Cite as: 570 U. S. 7 GINSBURG, J., dissenting Court explained: “Retaliation is, by definition, an intentional act. It is a form of ‘discrimination’ because the complainant is being subject to differential treatment. Moreover, re taliation is discrimination ‘on the basis of sex’ because it is an intentional response to the nature of the com plaint: an allegation of sex discrimination.” at 173–174 (citations omitted). interpreted Title IX of the Educational Amendments of 1972, 20 U.S. C. Noting that the legislation followed three years after Sullivan, the Court found it “not only appropriate but also realistic to presume that Congress was thoroughly familiar with Sullivan and expected its enactment of Title IX to be interpreted in conformity with it.” (in ternal quotation marks and alterations omitted). was similarly reasoned. The Court there held that the federal-sector provision of the Age Discrimination in Employment Act of 1967 (ADEA), 29 U.S. C. §3a(a), barring discrimination “based on age,” also proscribes retaliation. 553 U. S., at 479–491. “What said about the relationship between Sullivan and the enactment of Title IX,” the Court observed, “can be said as well about the relation- ship between Sullivan and the enactment of the ADEA’s federal-sector provision.” See also CBOCS West, (retalia tion for race discrimination constitutes discrimination based on race under 42 U.S. C. There is no sound reason in this case to stray from the decisions in Sullivan, Gómez-Pérez, and CBOCS West. III A The Title VII provision key here, –2(m), states that “an unlawful employment practice is established 8 UNIVERSITY OF TEX. SOUTHWESTERN MEDICAL CENTER v. NASSAR GINSBURG, J., dissenting when the complaining party demonstrates that race, color, religion, sex, or national origin was a motivating factor for any employment practice, even though other factors also motivated the practice.” Section 2000e–2(m) was enacted as part of the Civil Rights Act of which amended Title VII, along with other federal antidiscrimination statutes. See The amendments were intended to provide “additional protections against unlaw ful discrimination in employment,” and to “re spon[d] to a number of decisions by [this Court] that sharply cut back on the scope and effectiveness” of antidis crimination laws, H. R. Rep. No. 102–40, pt. II, pp. 2–4 (hereinafter House Report Part II) ; ; Lorance v. AT&T Technologies, Inc., ). Among the decisions found inadequately protective was Price A plurality of the Court in that case held that the words “because of ” in –2(a) encompass claims challenging an employment decision attributable to “mixed motives,” i.e., one motivated by both legitimate and illegitimate factors. See at 240–242.4 A Title VII |
Justice Ginsburg | 2,013 | 5 | dissenting | University of Tex. Southwestern Medical Center v. Nassar | https://www.courtlistener.com/opinion/931121/university-of-tex-southwestern-medical-center-v-nassar/ | legitimate and illegitimate factors. See at 240–242.4 A Title VII plaintiff, the plurality concluded, need show only that a prohibited factor contributed to the employment decision—not that it was the but-for or sole cause. at 240–244. But see at 281–282 (KENNEDY, J., dissenting). An employer would not be liable, however, if it could show by a preponderance of the evidence that it would have taken the same action absent the illegitimate motive. at 244–245. —————— 4 Justices White and O’Connor separately concurred and would have required the Title VII plaintiff to show that protected characteristics constituted a substantial motivating factor in the adverse employment decision. See Price (White, J., concurring in judgment); (O’Connor, J., concur ring in judgment). Cite as: 570 U. S. 9 GINSBURG, J., dissenting Congress endorsed the plurality’s conclusion that, to be actionable under Title VII, discrimination must be a moti vating factor in, but need not be the but-for cause of, an adverse employment action. See House Report Part II, at 18. Congress disagreed with the Court, however, insofar as the Price decision allowed an employer to escape liability by showing that the same action would have been taken regardless of improper motive. House Report Part II, at 18. See also H. R. Rep. No. 102–40, pt. I, pp. 45–48 (hereinafter House Report Part I). “If Title VII’s ban on discrimination in employment is to be meaningful,” the House Report explained, “victims of intentional discrimination must be able to obtain relief, and perpetrators of discrimination must be held liable for their actions.” House Report Part II, at 18. Superseding Price in part, Congress sought to “restore” the rule of decision followed by several Cir cuits that any discrimination “actually shown to play a role in a contested employment decision may be the sub ject of liability.” House Report Part II, at 18. See also House Report Part I, at 48. To that end, Congress enacted –2(m) and –5(g)(2)(B). The latter provides that an employer’s proof that an adverse employment action would have been taken in any event does not shield the employer from liability; such proof, however, limits the plaintiff ’s remedies to declaratory or injunctive relief, attorney’s fees, and costs. Critically, the rule Congress intended to “restore” was not limited to substantive discrimination. As the House Report explained, “the Committee endors[ed] the decisional law” in (CA8 1985) (en banc), which held that a violation of Title VII is established when the trier of fact determines that “an unlawful motive played some part in the employment decision or decisional process.” ; see House Report Part I, |
Justice Ginsburg | 2,013 | 5 | dissenting | University of Tex. Southwestern Medical Center v. Nassar | https://www.courtlistener.com/opinion/931121/university-of-tex-southwestern-medical-center-v-nassar/ | decision or decisional process.” ; see House Report Part I, at 48. Prior to the Civil Rights Act, 10 UNIVERSITY OF TEX. SOUTHWESTERN MEDICAL CENTER v. NASSAR GINSBURG, J., dissenting Bibbs had been applied to retaliation claims. See, e.g., 900 (CA8 1987) (“Should the court find that retaliation played some invidious part in the [plaintiff ’s] termination, a violation of Title VII will be established under Bibbs.”). See also B There is scant reason to think that, despite Congress’ aim to “restore and strengthen laws that ban discrimi nation in employment,” House Report Part II, at 2, Con gress meant to exclude retaliation claims from the newly enacted “motivating factor” provision. Section 2000e–2(m) provides that an “unlawful employment practice is estab lished” when the plaintiff shows that a protected charac teristic was a factor driving “any employment practice.” Title VII, in –3(a), explicitly denominates retalia tion, like status-based discrimination, an “unlawful em ployment practice.” Because “any employment prac- tice” necessarily encompasses practices prohibited under –3(a), –2(m), by its plain terms, covers retaliation. Notably, when it enacted –2(m), Congress did not tie the new provision specifically to §–2(a)–(d), which proscribe discrimination “because of ” race, color, religion, gender, or national origin. Rather, Congress added an entirely new provision to codify the causation standard, one encompassing “any employment practice.” –2(m). Also telling, –2(m) is not limited to situations in which the complainant’s race, color, religion, sex, or na tional origin motivates the employer’s action. In contrast, Title VII’s substantive antidiscrimination provisions refer to the protected characteristics of the complaining party. See §–2(a)(1)–(2), (c)(2) 11 GINSBURG, J., dissenting al’s” protected characteristics); §–2(b), (c)(1), (d) (re ferring to “his race, color, religion, sex, or national origin”). Congress thus knew how to limit Title VII’s coverage to victims of status-based discrimination when it was so minded. It chose, instead, to bring within – 2(m) “any employment practice.” To cut out retaliation from –2(m)’s scope, one must be blind to that choice. Cf. n. 3 (omission of reference to the complaining party’s sex in Title IX sup ports the conclusion that the statute protects a male plain tiff from retaliation in response to complaints about sex discrimination against women). C From the inception of –2(m), the agency entrusted with interpretation of Title VII and superintendence of the Act’s administration, the EEOC, see –5, has understood the provision to cover retaliation claims. Shortly after Congress amended Title VII to include the motivating-factor provision, the EEOC issued guidance advising that, “[a]lthough [–2(m)] does not specify retaliation as a basis for finding liability whenever it is a motivating factor |
Justice Ginsburg | 2,013 | 5 | dissenting | University of Tex. Southwestern Medical Center v. Nassar | https://www.courtlistener.com/opinion/931121/university-of-tex-southwestern-medical-center-v-nassar/ | basis for finding liability whenever it is a motivating factor for an action, neither does it suggest any basis for deviating from the Commission’s long standing rule that it will find liability whenever retaliation plays any role in an employment decision.” EEOC, Revised Enforcement Guidance on Recent Devel opments in Disparate Treatment Theory, p. 20, n. 14 (July 14, 1992) (hereinafter EEOC Guidance), available at http://www.eeoc.gov/policy/docs/disparat.html (as visited June 21, and in Clerk of Court’s case file). As the EEOC’s initial guidance explained, “if retaliation were to go unremedied, it would have a chilling effect upon the willingness of individuals to speak out against employ ment discrimination.” In its compliance manual, the EEOC elaborated on its 12 UNIVERSITY OF TEX. SOUTHWESTERN MEDICAL CENTER v. NASSAR GINSBURG, J., dissenting conclusion that “[–2(m)] applies to retaliation.” 2 EEOC Compliance Manual p. 614:0008, n. 45 (May 20, 1998) (hereinafter EEOC Compliance Manual). That reading, the agency observed, tracked the view, widely held by courts, “that the evidentiary framework for proving employment discrimination based on race, sex, or other protected class status also applies to claims of dis crimination based on retaliation.” “[A]n interpreta tion of [–2(m)] that permit[ted] proven retaliation to go unpunished,” the EEOC noted, would “undermin[e] the purpose of the anti-retaliation provisions of maintain ing unfettered access to the statutory remedial mecha nism.” The position set out in the EEOC’s guidance and com pliance manual merits respect. See ; Federal Express Corp. v. Holowecki, (“[EEOC’s] policy statements, embodied in its compliance manual and inter nal directives reflect a body of experience and informed judgment. As such, they are entitled to a measure of respect under the less deferential Skidmore standard.” ). If the breadth of –2(m) can be deemed ambiguous (although I believe its meaning is plain), the provision should be construed to accord with the EEOC’s well-reasoned and longstanding guidance. IV The Court draws the opposite conclusion, ruling that retaliation falls outside the scope of –2(m). In so holding, the Court ascribes to Congress the unlikely pur pose of separating retaliation claims from discrimination claims, thereby undermining the Legislature’s effort to fortify the protections of Title VII. None of the reasons the Court offers in support of its restrictive interpretation of –2(m) survives inspection. Cite as: 570 U. S. 13 GINSBURG, J., dissenting A The Court first asserts that reading –2(m) to encompass claims for retaliation “is inconsistent with the provision’s plain language.” Ante, at 12. The Court acknowledges, however, that “the text of the motivating factor provision begins by referring to unlawful em ployment practices,” a term that undeniably |
Justice Ginsburg | 2,013 | 5 | dissenting | University of Tex. Southwestern Medical Center v. Nassar | https://www.courtlistener.com/opinion/931121/university-of-tex-southwestern-medical-center-v-nassar/ | referring to unlawful em ployment practices,” a term that undeniably includes retaliation. Nevermind that, the Court continues, for –2(m) goes on to reference as “motivating factor[s]” only “race, color, religion, sex, or national origin.” The Court thus sees retaliation as a protected activity entirely discrete from status-based discrimination. This vision of retaliation as a separate concept runs up against precedent. See at 6–7. Until today, the Court has been clear eyed on just what retaliation is: a manifestation of status-based discrimination. As explained in the context of sex discrimination, “retalia tion is discrimination ‘on the basis of sex’ because it is an intentional response to the nature of the complaint: an allegation of sex discrimination.” The Court does not take issue with ’s insight. Instead, it distinguishes and like cases on the ground that they concerned laws in which “Congress’ treatment of the subject of prohibited discrimination was both broad and brief.” Ante, at 15. Title VII, by contrast, “is a detailed statutory scheme,” that “enumerates specific unlawful employment practices,” “defines key terms,” and “exempts certain types of employers.” Ante, at 16. Accord ingly, the Court says, “it would be improper to indulge [the] suggestion that Congress meant to incorporate [in Title VII] the default rules that apply only when Congress writes a broad and undifferentiated statute.” It is strange logic indeed to conclude that when Con gress homed in on retaliation and codified the proscrip tion, as it did in Title VII, Congress meant protection 14 UNIVERSITY OF TEX. SOUTHWESTERN MEDICAL CENTER v. NASSAR GINSBURG, J., dissenting against that unlawful employment practice to have less force than the protection available when the statute does not mention retaliation. It is hardly surprising, then, that our jurisprudence does not support the Court’s conclusion. In Gómez-Pérez, the Court construed the federal-sector provision of the ADEA, which proscribes “discrimination based on age,” 29 U.S. C. §3a(a), to bar retaliation. The Court did so mindful that another part of the Act, the provision applicable to private-sector employees, explicitly proscribes retaliation and, moreover, “set[s] out a specific list of forbidden employer practices.” Gómez-Pérez, 553 U. S., at 486–487 (citing 29 U.S. C. and (d)). The Court suggests that “the la[w] at issue in Gómez-Pérez [was a] broad, general ba[r] on discrimina tion.” Ante, at 15. But, as our opinion in that case ob serves, some of the ADEA’s provisions are brief, broad, and general, while others are extensive, specific, and So too of Title VII. See (“The ADEA federal-sector provision was patterned di rectly after Title VII’s federal-sector discrimination ban [which] contains a broad prohibition |
Justice Ginsburg | 2,013 | 5 | dissenting | University of Tex. Southwestern Medical Center v. Nassar | https://www.courtlistener.com/opinion/931121/university-of-tex-southwestern-medical-center-v-nassar/ | Title VII’s federal-sector discrimination ban [which] contains a broad prohibition of ‘discrimination,’ rather than a list of specific prohibited practices.” (some internal quotation marks omitted)). It makes little sense to apply a different mode of analysis to Title VII’s – 2(m) and the ADEA’s §3a(a), both brief statements on discrimination in the context of larger statutory schemes.5 —————— 5 The Court obscures the inconsistency between today’s opinion and Gómez-Pérez by comparing §3a to all of Title VII. See ante, at 16 (“Unlike Title IX, and the federal-sector provisions of the ADEA, Title VII is a detailed statutory scheme.”). That comparison is inapt. Like Title VII, the ADEA is a “detailed statutory scheme.” Compare (citing Title VII provisions that proscribe status-based discrimination by employers, employment agencies, labor organiza tions, and training programs; bar retaliation; prohibit advertising a preference for certain protected characteristics; define terms; exempt certain employers; and create an agency with rulemaking and enforce ment authority), with 29 U.S. C. –(e) 15 GINSBURG, J., dissenting The Court’s reliance on of the Civil Rights Act of and the Americans with Disabilities Act of (ADA), is similarly unavailing. According to the Court, Congress’ explicit reference to –3(a) in “reinforc[es] the conclusion that Congress acted deliberately when it omitted retaliation claims from –2(m).” Ante, at 13. The same is true of the ADA, the Court says, as “Congress provided not just a general prohibition on discrimination ‘because of [an individual’s] disability,’ but also seven paragraphs of detailed description of the practices that would constitute the prohibited discrimination [a]nd an express antiretaliation provision.” Ante, at 17. This argument is underwhelming. Yes, Congress has sometimes addressed retaliation explicitly in antidiscrim ination statutes. When it does so, there is no occasion for interpretation. But when Congress simply targets dis crimination “because of ” protected characteristics, or, as in –2(m), refers to employment practices motivated by race, color, religion, sex, or national origin, how should courts comprehend those phrases? They should read them informed by this Court’s consistent holdings that such phrases draw in retaliation, for, in truth, retaliation is a —————— ination by employers, employment agencies, and labor unions; barring retaliation; prohibiting advertising a preference for employees of a particular age), (granting rulemaking authority to the EEOC), and §0 (defining terms). Thus, §3a is just like –2(m) in the relevant respect: both are single provisions comprised within a detailed scheme. 6 Now codified at 42 U.S. C. –1(b), provides: “It shall not be unlawful under –2 or 2000e–3 for an em ployer to take any action otherwise prohibited by such section, with respect to an employee |
Justice Ginsburg | 2,013 | 5 | dissenting | University of Tex. Southwestern Medical Center v. Nassar | https://www.courtlistener.com/opinion/931121/university-of-tex-southwestern-medical-center-v-nassar/ | otherwise prohibited by such section, with respect to an employee in a workplace in a foreign country if compliance with such section would cause such employer to violate the law of the foreign country in which such workplace is located.” The provision was framed to accord with this Court’s decision in 16 UNIVERSITY OF TEX. SOUTHWESTERN MEDICAL CENTER v. NASSAR GINSBURG, J., dissenting “form of intentional [status-based] discrimination.” See at 6–7. That is why the Court can point to no prior instance in which an antidiscrimination law was found not to cover retaliation. The Court’s volte-face is particularly imprudent in the context of –2(m), a provision added as part of Con gress’ effort to toughen protections against workplace discrimination. B The Court also disassociates retaliation from status based discrimination by stressing that the bar on the latter appears in –2, while the proscription of retal iation appears in a separate provision, –3. Section 2000e–2, the Court asserts, “contains Title VII’s ban on status-based discrimination and says nothing about retaliation.” Ante, at 13. Retaliation, the Court therefore concludes, should not be read into –2(m). Ante, at 13–14. The Court’s reasoning rests on a false premise. Section 2000e–2 does not deal exclusively with discrimination based on protected characteristics. The provisions stated after §–2(a)–(d) deal with a variety of matters, some of them unquestionably covering retaliation. For example, –2(n), enacted in tandem with and located immediately after –2(m), limits opportunities to collaterally attack employment practices installed to im plement a consent judgment. Section 2000e–2(n) applies beyond the substantive antidiscrimination provisions in –2; indeed, it applies beyond Title VII to encom pass claims “under the Constitution or [other] Federal civil rights laws.” –2(n)(1)(A). Thus, if an employee sues for retaliatory discharge in violation of –3(a), and a consent judgment orders reinstatement, any person adversely affected by that judgment (e.g., an employee who loses seniority as a result) would generally be barred Cite as: 570 U. S. 17 GINSBURG, J., dissenting from attacking the judgment if she was given actual no- tice of the proposed order and a reasonable opportunity to present objections. That Congress placed the consent judgment provision in –2 and not in –3 is of no moment. As the text of the provision plainly conveys, –2(n) would reach consent judgments settling complaints about retaliation, just as it would cover con sent judgments settling complaints about status-based discrimination. Section 2000e–2(g) is similarly illustrative. Under that provision, “it shall not be an unlawful employment prac tice for an employer to discharge [an] individual” if she fails to fulfill any requirement imposed in the interest |
Justice Ginsburg | 2,013 | 5 | dissenting | University of Tex. Southwestern Medical Center v. Nassar | https://www.courtlistener.com/opinion/931121/university-of-tex-southwestern-medical-center-v-nassar/ | she fails to fulfill any requirement imposed in the interest of national security. Because –3(a) renders retal- iation an “unlawful employment practice,” –2(g)’s exemption would no doubt apply to a Title VII retaliatory discharge claim. Given these provisions, Congress’ place ment of the motivating-factor provision within –2 cannot bear the weight the Court places on it.7 C The Court gives no deference to the EEOC’s longstand ing position that –2(m) applies to retaliation be cause, the Court charges, the agency did not “address the particular interplay among the status-based antidiscrimi —————— 7 The Court’s assertion that we “confronted a similar structural dis pute in” ante, at 17, as sumes its own conclusion. As the Court explains, in Nakshian, the plaintiff argued that §3a of the ADEA afforded the right to trial by An amendment to the private-sector provision, codified at 29 U.S. C. granted that right to plaintiffs suing private employers, as well as state and local governmental entities. But no one argued in Nakshian that the private-sector amendment applied to the federal-sector provision. Hence, Nakshian’s holding that the ADEA does not permit a federal-sector plaintiff to try her case before a jury is relevant only if the Court is correct that –2(m) does not cover retaliation claims. 18 UNIVERSITY OF TEX. SOUTHWESTERN MEDICAL CENTER v. NASSAR GINSBURG, J., dissenting nation provision (–2(a)), the antiretaliation provi sion (–3(a)), and the motivating-factor provision (–2(m)).” Ante, at 21. Not so. In its compliance manual, the EEOC noted that some courts had concluded that –2(m) does not cover retaliation, citing as an example In that decision, the Third Circuit acknowledged it was “given pause by the fact that courts have generally borrowed from discrimination law in determining the burdens and order of proof in retaliation cases.” One could therefore say, the Third Circuit continued, that “Congress knew of the practice of borrowing in retaliation cases, and presumed that courts would continue this practice after the Act.” While Woodson rejected that argument, the EEOC found it sound. See EEOC Compliance Manual, at 614:0008, n. 45 (“Courts have long held that the eviden tiary framework for proving employment discrimination based on race, sex, or other protected class status also applies to claims of discrimination based on retaliation.”). See also EEOC Guidance, at 20, n. 14 (while –2(m) does not explicitly refer to retaliation, nothing in the provision calls for deviation from the longstanding practice of finding liability when a plaintiff demonstrates that retaliatory intent motivated an adverse employment decision). By adverting to Woodson, the EEOC made clear that it considered the very argument the Court |
Justice Ginsburg | 2,013 | 5 | dissenting | University of Tex. Southwestern Medical Center v. Nassar | https://www.courtlistener.com/opinion/931121/university-of-tex-southwestern-medical-center-v-nassar/ | made clear that it considered the very argument the Court relies on today. Putting down the agency’s appraisal as “generic,” ante, at 22, is thus conspicuously unfair comment. The Court’s second reason for refusing to accord de- ference to the EEOC fares no better. The EEOC’s conclu- sion that “the lessened causation standard is necessary in order to prevent ‘proven retaliation’ from ‘go[ing] unpun ished,’ ” the Court reasons, “is circular” because it “as sumes the answer to the central question at issue here, Cite as: 570 U. S. 19 GINSBURG, J., dissenting which is what causal relationship must be shown in order to prove retaliation.” That reasoning will not wash. Under the motivating-factor test set out in –2(m), a plaintiff prevails if she shows that proscribed conduct “was a motivating factor” for the adverse employment action she encountered, “even though other factors also moti- vated the [action].” She will succeed, although the relief to which she is entitled may be restricted. See Under the Court’s view, proof that retaliation was a factor motivating an adverse employment action is insufficient to establish liability under –3(a). The Court’s but-for causation standard does not mean that the plaintiff has failed to prove she was subjected to unlawful retaliation. It does mean, however, that proof of a retaliatory motive alone yields no victory for the plaintiff. Put otherwise, the Court’s view “permits proven retaliation to go unpun ished,” just as the EEOC recognized. See EEOC Compli ance Manual, at 614:0008, n. 45. V A Having narrowed –2(m) to exclude retaliation claims, the Court turns to to answer the question presented: Whether a plaintiff must demonstrate but-for causation to establish liability under –3(a). The Court held in that, in contrast to Title VII, of the ADEA does not authorize any age discrimi nation claim asserting mixed motives. Explaining that uniform interpretation of the two statutes is sometimes unwarranted, the Court noted in that the phrase “because of age” in has not been read “to bar discrimination against people of all ages, even though the Court had previously interpreted ‘because of race [or] sex’ in Title VII to bar discrimination against people of all races and both sexes.” n. 2. Yet 20 UNIVERSITY OF TEX. SOUTHWESTERN MEDICAL CENTER v. NASSAR GINSBURG, J., dissenting which took pains to distinguish ADEA claims from Title VII claims, is invoked by the Court today as pathmarking. See ante, at 2 (“The holding and analysis of [] are instructive here.”). The word “because” in Title VII’s retaliation provision, –3(a), the Court tells us, should be interpreted not to accord with |
Justice Ginsburg | 2,013 | 5 | dissenting | University of Tex. Southwestern Medical Center v. Nassar | https://www.courtlistener.com/opinion/931121/university-of-tex-southwestern-medical-center-v-nassar/ | Court tells us, should be interpreted not to accord with the interpretation of that same word in the companion status-based discrimination provision of Ti- tle VII, –2(a). Instead, statutory lines should be crossed: The meaning of “because” in Title VII’s retaliation provision should be read to mean just what the Court held “because” means for ADEA-liability purposes. But see (“When conducting statutory interpretation, we ‘must be careful not to apply rules applicable under one statute to a different statute without careful and critical examination.’ ”(quoting Holowecki, 552 U. S., 93)). In other words, the employer prevailed in because, according to the Court, the ADEA’s anti discrimination prescription is not like Title VII’s. But the employer prevails again in Nassar’s case, for there is no “meaningful textual difference,” ante, at 11, between the ADEA’s use of “because” and the use of the same word in Title VII’s retaliation provision. What sense can one make of this other than “heads the employer wins, tails the employee loses”? It is a standard principle of statutory interpretation that identical phrases appearing in the same statute—here, Title VII—ordinarily bear a consistent meaning. See Powerex Corp. v. Reliant Energy Services, Inc., 551 U.S. 224, 232 (2007). Following that principle, Title VII’s retaliation provision, like its status-based discrimination provision, would permit mixed-motive claims, and the same causation standard would apply to both provisions. B The Court’s decision to construe –3(a) to require Cite as: 570 U. S. 21 GINSBURG, J., dissenting but-for causation in line with is even more con founding in light of Price Recall that Price interpreted “because of ” in –2(a) to permit mixed-motive claims. See The Court today rejects the proposition that, if –2(m) does not cover retaliation, such claims are governed by Price Water house’s burden-shifting framework, i.e., if the plaintiff shows that discrimination was a motivating factor in an adverse employment action, the defendant may escape liability only by showing it would have taken the same action had there been no illegitimate motive. It is wrong to revert to Price the Court says, because the Civil Rights Act’s amendments to Title VII abrogated that decision. This conclusion defies logic. Before the amend ments, several courts had applied Price ’s burden-shifting framework to retaliation claims.8 In the Court’s view, Congress designed –2(m)’s motivating factor standard not only to exclude retaliation claims, but also to override, sub silentio, Circuit precedent apply- ing the Price framework to such claims. And with what did the Congress replace the Price Water house burden-shifting framework? With a but-for causa tion requirement applied to the ADEA 17 years |
Justice Ginsburg | 2,013 | 5 | dissenting | University of Tex. Southwestern Medical Center v. Nassar | https://www.courtlistener.com/opinion/931121/university-of-tex-southwestern-medical-center-v-nassar/ | but-for causa tion requirement applied to the ADEA 17 years after the amendments to Title VII. Shut from the Court’s sight is a legislative record replete with state ments evincing Congress’ intent to strengthen antidis crimination laws and thereby hold employers accountable for prohibited discrimination. See Civil Rights Act of ; House Report Part II, at 18. It is an odd mode of statutory interpretation that divines Con gress’ aim in by looking to a decision of this Court, —————— 8 See ; Carter v. South Central Bell, ; Williams v. Mallinckrodt, 22 UNIVERSITY OF TEX. SOUTHWESTERN MEDICAL CENTER v. NASSAR GINSBURG, J., dissenting made under a different statute in 2008, while ignor ing the overarching purpose of the Congress that enacted the Civil Rights Act, see –10. C The Court shows little regard for trial judges who must instruct juries in Title VII cases in which plaintiffs allege both status-based discrimination and retaliation. Nor is the Court concerned about the capacity of jurors to follow instructions conforming to today’s decision. Causation is a complicated concept to convey to juries in the best of cir cumstances. Asking jurors to determine liability based on different standards in a single case is virtually certain to sow confusion. That would be tolerable if the governing statute required double standards, but here, for the rea sons already stated, it does not. VI A The Court’s assertion that the but-for cause require ment it adopts necessarily follows from –3(a)’s use of the word “because” fails to convince. Contrary to the Court’s suggestion, see ante, at 5–6, the word “because” does not inevitably demand but-for causation to the exclu sion of all other causation formulations. When more than one factor contributes to a plaintiff ’s injury, but-for causa tion is problematic. See, e.g., 1 Restatement (Third) of Torts Comment a, p. 385 (2005) (noting near univer sal agreement that the but-for standard is inappropriate when multiple sufficient causes exist) (hereinafter Re statement Third); Restatement of Torts Comment b, p. 18 (1934) (legal cause is a cause that is a “substantial factor in bringing about the harm”). When an event is “overdetermined,” i.e., when two forces create an injury each alone would be sufficient to cause, modern tort law permits the plaintiff to prevail upon Cite as: 570 U. S. 23 GINSBURG, J., dissenting showing that either sufficient condition created the harm. Restatement Third 76–377. In contrast, under the Court’s approach (which it erroneously calls “textbook tort law,” ante, at 6), a Title VII plaintiff alleging retalia tion cannot establish liability if her firing was prompted by |
Justice Ginsburg | 2,013 | 5 | dissenting | University of Tex. Southwestern Medical Center v. Nassar | https://www.courtlistener.com/opinion/931121/university-of-tex-southwestern-medical-center-v-nassar/ | tion cannot establish liability if her firing was prompted by both legitimate and illegitimate factors. Ante, at 18–19. Today’s opinion rehashes arguments rightly rejected in Price Concurring in the judgment in that case, Justice O’Connor recognized the disconnect between the standard the dissent advocated, which would have imposed on the plaintiff the burden of showing but-for causation, see 286–287 (KENNEDY, J., dissenting), and the common-law doctrines on which the dissent relied. As Justice O’Connor explained: “[I]n the area of tort liability, from whence the dis sent’s ‘but-for’ standard of causation is derived, the law has long recognized that in certain ‘civil cases’ leaving the burden of persuasion on the plaintiff to prove ‘but-for’ causation would be both unfair and de structive of the deterrent purposes embodied in the concept of duty of care. Thus, in multiple causation cases, where a breach of duty has been established, the common law of torts has long shifted the burden of proof to defendants to prove that their negligent actions were not the ‘but-for’ cause of the plaintiff ’s in” at 2–264 (concurring in judgment) (cit ing 84–87, 199 P.2d 1, 3–4 (1948)). Justice Brennan’s plurality opinion was even less solici tous of the dissent’s approach. Noting that, under the standard embraced by the dissent in Price neither of two sufficient forces would constitute cause even if either one alone would have led to the injury, the plural ity remarked: “We need not leave our common sense at the doorstep when we interpret a statute.” 24 UNIVERSITY OF TEX. SOUTHWESTERN MEDICAL CENTER v. NASSAR GINSBURG, J., dissenting B As the plurality and concurring opinions in Price Water house indicate, a strict but-for test is particularly ill suited to employment discrimination cases. Even if the test is appropriate in some tort contexts, “it is an entirely differ ent matter to determine a ‘but-for’ relation when consider[ing], not physical forces, but the mind-related characteristics that constitute motive.” 557 U. S., at 190 (BREYER, J., dissenting). When assessing an employ er’s multiple motives, “to apply ‘but-for’ causation is to engage in a hypothetical inquiry about what would have happened if the employer’s thoughts and other circum stances had been different.” See also Price (“ ‘[A]t times the [but-for] test demands the impossible. It challenges the imagination of the trier to probe into a purely fanciful and unknowable state of affairs.’ ” (quoting Malone, Ruminations on Cause-In-Fact, 9 Stan. L. Rev. 60, 67 (1956))). This point, lost on the Court, was not lost on Congress. When Title VII was enacted, Congress considered and rejected an amendment that would |
Justice Ginsburg | 2,013 | 5 | dissenting | University of Tex. Southwestern Medical Center v. Nassar | https://www.courtlistener.com/opinion/931121/university-of-tex-southwestern-medical-center-v-nassar/ | was enacted, Congress considered and rejected an amendment that would have placed the word “solely” before “because of [the complainant’s] race, color, religion, sex, or national origin.” See 110 Cong. Rec. 2728, 13837–13838 (1964). Senator Case, a prime sponsor of Title VII, commented that a “sole cause” standard would render the Act “totally nugatory.” Life does not shape up that way, the Senator suggested, comment ing “[i]f anyone ever had an action that was motivated by a single cause, he is a different kind of animal from any I know of.” * * * The Court holds, at odds with a solid line of decisions recognizing that retaliation is inextricably bound up with status-based discrimination, that –2(m) excludes Cite as: 570 U. S. 25 GINSBURG, J., dissenting retaliation claims. It then reaches outside of Title VII to arrive at an interpretation of “because” that lacks sensitiv ity to the realities of life at work. In this endeavor, the Court is guided neither by precedent, nor by the aims of legislators who formulated and amended Title VII. In- deed, the Court appears driven by a zeal to reduce the number of retaliation claims filed against employers. See ante, at 18–19. Congress had no such goal in mind when it added –2(m) to Title VII. See House Report Part II, at 2. Today’s misguided judgment, along with the judgment in Vance v. Ball State Univ., post, p. 1, should prompt yet another Civil Rights Restoration Act. For the reasons stated, I would affirm the judgment of the Fifth Circuit |
Justice Breyer | 2,004 | 2 | majority | Illinois v. Lidster | https://www.courtlistener.com/opinion/131154/illinois-v-lidster/ | This Fourth Amendment case focuses upon a highway checkpoint where police stopped motorists to ask them for information about a recent hit-and-run accident. We hold that the police stops were reasonable, hence, constitutional. *422 I The relevant background is as follows: On Saturday, August 23, 1997, just after midnight, an unknown motorist traveling eastbound on a highway in Lombard, Illinois, struck and killed a 70-year-old bicyclist. The motorist drove off without identifying himself. About one week later at about the same time of night and at about the same place, local police set up a highway checkpoint designed to obtain more information about the accident from the motoring public. Police cars with flashing lights partially blocked the eastbound lanes of the highway. The blockage forced traffic to slow down, leading to lines of up to 15 cars in each lane. As each vehicle drew up to the checkpoint, an officer would stop it for 10 to 15 seconds, ask the occupants whether they had seen anything happen there the previous weekend, and hand each driver a flyer. The flyer said "ALERT FATAL HIT & RUN ACCIDENT" and requested "ASSISTANCE IN IDENTIFYING THE VEHICLE AND DRIVER INVOLVED IN THIS ACCIDENT WHICH KILLED A 70 YEAR OLD BICYCLIST." App. 9. Robert Lidster, the respondent, drove a minivan toward the checkpoint. As he approached the checkpoint, his van swerved, nearly hitting one of the officers. The officer smelled alcohol on Lidster's breath. He directed Lidster to a side street where another officer administered a sobriety test and then arrested Lidster. Lidster was tried and convicted in Illinois state court of driving under the influence of alcohol. Lidster challenged the lawfulness of his arrest and conviction on the ground that the government had obtained much of the relevant evidence through use of a checkpoint stop that violated the Fourth Amendment. The trial court rejected that challenge. But an Illinois appellate court reached the opposite conclusion. The Illinois Supreme Court agreed *423 with the appellate court. It held (by a vote of 4 to 3) that our decision in required it to find the stop unconstitutional. Because lower courts have reached different conclusions about this matter, we granted certiorari. See We now reverse the Illinois Supreme Court's determination. II The Illinois Supreme Court basically held that our decision in Edmond governs the outcome of this case. We do not agree. Edmond involved a checkpoint at which police stopped vehicles to look for evidence of drug crimes committed by occupants of those vehicles. After stopping a vehicle at the checkpoint, police would examine (from outside the |
Justice Breyer | 2,004 | 2 | majority | Illinois v. Lidster | https://www.courtlistener.com/opinion/131154/illinois-v-lidster/ | vehicle at the checkpoint, police would examine (from outside the vehicle) the vehicle's interior; they would walk a drug-sniffing dog around the exterior; and, if they found sufficient evidence of drug (or other) crimes, they would arrest the vehicle's occupants. We found that police had set up this checkpoint primarily for general "crime control" purposes, i.e., "to detect evidence of ordinary criminal wrongdoing." We noted that the stop was made without individualized suspicion. And we held that the Fourth Amendment forbids such a stop, in the absence of special circumstances. The checkpoint stop here differs significantly from that in Edmond. The stop's primary law enforcement purpose was not to determine whether a vehicle's occupants were committing a crime, but to ask vehicle occupants, as members of the public, for their help in providing information about a crime in all likelihood committed by others. The police expected the information elicited to help them apprehend, not the vehicle's occupants, but other individuals. *424 Edmond's language, as well as its context, makes clear that the constitutionality of this latter, information-seeking kind of stop was not then before the Court. Edmond refers to the subject matter of its holding as "stops justified only by the generalized and ever-present possibility that interrogation and inspection may reveal that any given motorist has committed some crime." We concede that Edmond describes the law enforcement objective there in question as a "general interest in crime control," but it specifies that the phrase "general interest in crime control" does not refer to every "law enforcement" objective. n. 1. We must read this and related general language in Edmond as we often read general language in judicial opinions as referring in context to circumstances similar to the circumstances then before the Court and not referring to quite different circumstances that the Court was not then considering. Neither do we believe, Edmond aside, that the Fourth Amendment would have us apply an Edmond-type rule of automatic unconstitutionality to brief, information-seeking highway stops of the kind now before us. For one thing, the fact that such stops normally lack individualized suspicion cannot by itself determine the constitutional outcome. As in Edmond, the stop here at issue involves a motorist. The Fourth Amendment does not treat a motorist's car as his castle. See, e. g., New ; United And special law enforcement concerns will sometimes justify highway stops without individualized suspicion. See Michigan Dept. of State ; Moreover, unlike Edmond, the context here (seeking information from the public) is one in which, by definition, the concept of individualized suspicion has little role |
Justice Breyer | 2,004 | 2 | majority | Illinois v. Lidster | https://www.courtlistener.com/opinion/131154/illinois-v-lidster/ | by definition, the concept of individualized suspicion has little role to play. Like certain other forms of police activity, say, *425 crowd control or public safety, an information-seeking stop is not the kind of event that involves suspicion, or lack of suspicion, of the relevant individual. For another thing, information-seeking highway stops are less likely to provoke anxiety or to prove intrusive. The stops are likely brief. The police are not likely to ask questions designed to elicit self-incriminating information. And citizens will often react positively when police simply ask for their help as "responsible citizen[s]" to "give whatever information they may have to aid in law enforcement." Further, the law ordinarily permits police to seek the voluntary cooperation of members of the public in the investigation of a crime. "[L]aw enforcement officers do not violate the Fourth Amendment by merely approaching an individual on the street or in another public place, by asking him if he is willing to answer some questions, [or] by putting questions to him if the person is willing to listen." See also ALI, Model Code of Pre-Arraignment Procedure 110.1(1) (1975) ("[L]aw enforcement officer may request any person to furnish information or otherwise cooperate in the investigation or prevention of crime"). That, in part, is because voluntary requests play a vital role in police investigatory work. See, e. g., ; U. S. Dept. of Justice, Eyewitness Evidence: A Guide for Law Enforcement 14-15 (Oct. 1999) (instructing law enforcement to gather information from witnesses near the scene). The importance of soliciting the public's assistance is offset to some degree by the need to stop a motorist to obtain that help a need less likely present where a pedestrian, not a motorist, is involved. The difference is significant in light of our determinations that such an involuntary stop amounts *426 to a "seizure" in Fourth Amendment terms. E. g., Edmond, That difference, however, is not important enough to justify an Edmond-type rule here. After all, as we have said, the motorist stop will likely be brief. Any accompanying traffic delay should prove no more onerous than many that typically accompany normal traffic congestion. And the resulting voluntary questioning of a motorist is as likely to prove important for police investigation as is the questioning of a pedestrian. Given these considerations, it would seem anomalous were the law (1) ordinarily to allow police freely to seek the voluntary cooperation of pedestrians but (2) ordinarily to forbid police to seek similar voluntary cooperation from motorists. Finally, we do not believe that an Edmond-type rule is needed to prevent |
Justice Breyer | 2,004 | 2 | majority | Illinois v. Lidster | https://www.courtlistener.com/opinion/131154/illinois-v-lidster/ | not believe that an Edmond-type rule is needed to prevent an unreasonable proliferation of police checkpoints. -860 Practical considerations namely, limited police resources and community hostility to related traffic tieups seem likely to inhibit any such proliferation. See Fell, Ferguson, Williams, & Fields, Why Aren't Sobriety Checkpoints Widely Adopted as an Enforcement Strategy in the United States? 35 Accident Analysis & Prevention 897 (finding that sobriety checkpoints are not more widely used due to the lack of police resources and the lack of community support). And, of course, the Fourth Amendment's normal insistence that the stop be reasonable in context will still provide an important legal limitation on police use of this kind of information-seeking checkpoint. These considerations, taken together, convince us that an Edmond-type presumptive rule of unconstitutionality does not apply here. That does not mean the stop is automatically, or even presumptively, constitutional. It simply means that we must judge its reasonableness, hence, its constitutionality, on the basis of the individual circumstances. And as this Court said in in judging reasonableness, we look to "the gravity of the public concerns served by the seizure, the degree to which the seizure advances the public interest, and the severity of the interference with individual liberty." See also ; III We now consider the reasonableness of the checkpoint stop before us in light of the factors just mentioned, an issue that, in our view, has been fully argued here. See Brief for Petitioner 14-18; Brief for Respondent 17-27. We hold that the stop was constitutional. The relevant public concern was grave. Police were investigating a crime that had resulted in a human death. No one denies the police's need to obtain more information at that time. And the stop's objective was to help find the perpetrator of a specific and known crime, not of unknown crimes of a general sort. Edmond, The stop advanced this grave public concern to a significant degree. The police appropriately tailored their checkpoint stops to fit important criminal investigatory needs. The stops took place about one week after the hit-and-run accident, on the same highway near the location of the accident, and at about the same time of night. And police used the stops to obtain information from drivers, some of whom might well have been in the vicinity of the crime at the time it occurred. See App. 28-29 (describing police belief that motorists routinely leaving work after night shifts at nearby industrial complexes might have seen something relevant). Most importantly, the stops interfered only minimally with liberty of the sort the Fourth |
Justice Breyer | 2,004 | 2 | majority | Illinois v. Lidster | https://www.courtlistener.com/opinion/131154/illinois-v-lidster/ | interfered only minimally with liberty of the sort the Fourth Amendment seeks to protect. Viewed objectively, each stop required only a brief wait in line a very few minutes at most. Contact with the police lasted only a few seconds. ; 496 *428 U. S., 8 Police contact consisted simply of a request for information and the distribution of a flyer. ; 7 Viewed subjectively, the contact provided little reason for anxiety or alarm. The police stopped all vehicles systematically. ; And there is no allegation here that the police acted in a discriminatory or otherwise unlawful manner while questioning motorists during stops. For these reasons we conclude that the checkpoint stop was constitutional. The judgment of the Illinois Supreme Court is Reversed. JUSTICE STEVENS, with whom JUSTICE SOUTER and JUSTICE GINSBURG join, concurring in part and dissenting in part. There is a valid and important distinction between seizing a person to determine whether she has committed a crime and seizing a person to ask whether she has any information about an unknown person who committed a crime a week earlier. I therefore join Parts I and II of the Court's opinion explaining why our decision in is not controlling in this case. However, I find the issue discussed in Part III of the opinion closer than the Court does and believe it would be wise to remand the case to the Illinois state courts to address that issue in the first instance. In contrast to pedestrians, who are free to keep walking when they encounter police officers handing out flyers or seeking information, motorists who confront a roadblock are required to stop, and to remain stopped for as long as the officers choose to detain them. Such a seizure may seem *429 relatively innocuous to some, but annoying to others who are forced to wait for several minutes when the line of cars is lengthened for example, by a surge of vehicles leaving a factory at the end of a shift. Still other drivers may find an unpublicized roadblock at midnight on a Saturday somewhat alarming. On the other side of the equation, the likelihood that questioning a random sample of drivers will yield useful information about a hit-and-run accident that occurred a week earlier is speculative at best. To be sure, the sample in this case was not entirely random: The record reveals that the police knew that the victim had finished work at the Post Office shortly before the fatal accident, and hoped that other employees of the Post Office or the nearby industrial park |
Justice Breyer | 2,004 | 2 | majority | Illinois v. Lidster | https://www.courtlistener.com/opinion/131154/illinois-v-lidster/ | employees of the Post Office or the nearby industrial park might work on similar schedules and, thus, have been driving the same route at the same time the previous week. That is a plausible theory, but there is no evidence in the record that the police did anything to confirm that the nearby businesses in fact had shift changes at or near midnight on Saturdays, or that they had reason to believe that a roadblock would be more effective than, say, placing flyers on the employees' cars. In short, the outcome of the multifactor test prescribed in is by no means clear on the facts of this case. Because the Illinois Appellate Court and the State Supreme Court held that the Lombard roadblock was per se unconstitutional under neither court attempted to apply the Brown test. "We ordinarily do not decide in the first instance issues not resolved below." Pierce We should be especially reluctant to abandon our role as a court of review in a case in which the constitutional inquiry requires analysis of local conditions and practices more familiar to judges closer to the scene. I would therefore remand the case to the Illinois *430 courts to undertake the initial analysis of the issue that the Court resolves in Part III of its opinion. To that extent, I respectfully dissent. |
Justice Stevens | 1,978 | 16 | majority | Exxon Corp. v. Governor of Maryland | https://www.courtlistener.com/opinion/109896/exxon-corp-v-governor-of-maryland/ | A Marylad provides that a producer or refier of petroleum products (1) may ot operate ay retail service statio withi the State, ad (2) must exted all "volutary *120 allowaces" uiformly to all service statios it supplies.[1] The questios preseted are whether the violates either the Commerce or the Due Process Clause of the Costitutio of the Uited States, or is directly or idirectly pre-empted by the cogressioal expressio of policy favorig vigorous competitio foud i 2 (b) of the Clayto Act, as ameded by the Robiso-Patma Act,[2] The Court of Appeals of Marylad aswered these questios i *121 favor of the validity of the We affirm. I The Marylad is a outgrowth of the 193 shortage of petroleum. I respose to complaits about iequitable distributio of gasolie amog retail statios, the Goveror of Marylad directed the State Comptroller to coduct a market survey. The results of that survey idicated that gasolie statios operated by producers or refiers had received preferetial treatmet durig the period of short supply. The Comptroller therefore proposed legislatio which, accordig to the Court of Appeals, was "desiged to correct the iequities i the distributio ad pricig of gasolie reflected by the survey." After legislative hearigs ad a "special veto hearig" before the Goveror, the bill was eacted ad siged ito law. Shortly before the effective date of the Act, Exxo Corp. filed a declaratory judgmet actio challegig the i the Circuit Court of Ae Arudel Couty, Md. The essetial facts alleged i the complait are ot i dispute. All of the gasolie sold by Exxo i Marylad is trasported ito the State from refieries located elsewhere. Although Exxo sells the bulk of this gas to wholesalers ad idepedet retailers, it also sells directly to the cosumig public through 36 compay-operated statios.[3] Exxo uses these statios to test iovative marketig cocepts or products.[] Focusig primarily o the Act's requiremet that it discotiue its operatio of these 36 retail statios, Exxo's complait challeged the *122 validity of the o both costitutioal ad federal statutory grouds.[5] Durig the esuig ie moths, six other oil compaies istituted comparable actios. Three of these plaitiffs, or their subsidiaries, sell their gasolie i Marylad exclusively through compay-operated statios.[6] These refiers, usig trade ames such as "Red Head" ad "Scot," cocetrate largely o high-volume sales with prices cosistetly lower tha those offered by idepedet dealer-operated major brad statios. Testimoy preseted by these refiers idicated that compay owership is essetial to their method of private brad, low-priced competitio. They therefore joied Exxo i its attack o the divestiture provisios of the Marylad The three |
Justice Stevens | 1,978 | 16 | majority | Exxon Corp. v. Governor of Maryland | https://www.courtlistener.com/opinion/109896/exxon-corp-v-governor-of-maryland/ | attack o the divestiture provisios of the Marylad The three other plaitiffs, like Exxo, sell major brads primarily through dealer-operated statios, although they also operate at least oe retail statio each.[] They, too, challeged the 's divestiture provisios, but, i additio, they specially challeged the requiremet that "volutary allowaces" be exteded uiformly to all retail service statios supplied i the State. Although ot defied i the the term "volutary allowaces" refers to temporary price reductios grated by the oil compaies to idepedet dealers who *123 are ijured by local competitive price reductios of competig retailers.[8] The oil compaies regard these temporary allowaces as legitimate price reductios protected by 2 (b). I advace of trial, Exxo, Shell, ad Gulf moved for a partial summary judgmet declarig this portio of the Act ivalid as i coflict with 2 (b). The Circuit Court grated the motio, ad the trial the focused o the validity of the divestiture provisios. As brought out durig the trial, the saliet characteristics of the Marylad retail gasolie market are as follows: Approximately 3,800 retail service statios i Marylad sell over 20 differet brads of gasolie. However, o petroleum products are produced or refied i Marylad, ad the umber of statios actually operated by a refier or a affiliate is relatively small, represetig about 5% of the total umber of Marylad retailers. The refiers itroduced evidece idicatig that their owership of retail service statios has produced sigificat beefits for the cosumig public.[9] Moreover, the three refiers that ow market solely through compay-operated statios may elect to withdraw from the Marylad market altogether if the is eforced. There was, however, o evidece that the total quatity of petroleum products shipped ito Marylad would be affected by the[10] After trial, the Circuit Court held the etire ivalid, primarily o substative due process grouds. The Marylad Court of Appeals reversed, rejectig all of the refiers' attacks agaist both the divestiture provisios ad *12 the volutary-allowace provisio. Most of those attacks are ot pursued here;[11] istead, appellats have focused their appeals o the claims that the Marylad violates the Due Process ad Commerce Clauses ad that it is i coflict with the Robiso-Patma Act. II Appellats' substative due process argumet requires little discussio.[12] The evidece preseted by the refiers may cast some doubt o the wisdom of the but it is, by ow, absolutely clear that the Due Process Clause does ot empower the judiciary "to sit as a `superlegislature to weigh the wisdom of legislatio'" (citatio omitted). Respodig to evidece that producers ad refiers were favorig compay-operated statios i the allocatio of |
Justice Stevens | 1,978 | 16 | majority | Exxon Corp. v. Governor of Maryland | https://www.courtlistener.com/opinion/109896/exxon-corp-v-governor-of-maryland/ | ad refiers were favorig compay-operated statios i the allocatio of gasolie ad that this would evetually decrease the competitiveess of the retail market, the State eacted a law prohibitig producers ad refiers from operatig their ow statios. Appellats argue that this respose is irratioal ad that it will frustrate rather tha further the State's desired goal of ehacig competitio. But, as the Court of Appeals observed, this argumet rests simply o a evaluatio of the ecoomic wisdom of the ad caot override the State's authority "to legislate agaist what are foud to be ijurious practices i their iteral commercial ad busiess affairs" Licol Federal Labor[13] Regardless of the ultimate ecoomic *125 efficacy of the we have o hesitacy i cocludig that it bears a reasoable relatio to the State's legitimate purpose i cotrollig the gasolie retail market, ad we therefore reject appellats' due process claim. III Appellats argue that the divestiture provisios of the Marylad violate the Commerce Clause i three ways: (1) by discrimiatig agaist iterstate commerce; (2) by uduly burdeig iterstate commerce; ad (3) by imposig cotrols o a commercial activity of such a essetially iterstate character that it is ot ameable to state regulatio. Plaily, the Marylad does ot discrimiate agaist iterstate goods, or does it favor local producers ad refiers. Sice Marylad's etire gasolie supply flows i iterstate commerce ad sice there are o local producers or refiers, such claims of disparate treatmet betwee iterstate ad local commerce would be meritless. Appellats, however, focus o the retail market, arguig that the effect of the is to protect i-state idepedet dealers from out-of-state competitio. They coted that the divestiture provisios "create a protected eclave for Marylad idepedet dealers."[1] As support for this propositio, they rely o the fact that the burde of the divestiture requiremets falls solely o iterstate compaies. But this fact does ot lead, either logically or as a practical matter, to a coclusio that the State is discrimiatig agaist iterstate commerce at the retail level. As the record shows, there are several major iterstate marketers of petroleum that ow ad operate their ow retail *126 gasolie statios.[15] These iterstate dealers, who compete directly with the Marylad idepedet dealers, are ot affected by the Act because they do ot refie or produce gasolie. I fact, the Act creates o barriers whatsoever agaist iterstate idepedet dealers; it does ot prohibit the flow of iterstate goods, place added costs upo them, or distiguishes betwee i-state ad out-of-state compaies i the retail The absece of ay of these factors fully distiguishes this case from those i which a |
Justice Stevens | 1,978 | 16 | majority | Exxon Corp. v. Governor of Maryland | https://www.courtlistener.com/opinion/109896/exxon-corp-v-governor-of-maryland/ | factors fully distiguishes this case from those i which a State has bee foud to have discrimiated agaist iterstate See, e. g., ; Dea Milk For istace, the Court i Hut oted that the challeged state raised the cost of doig busiess for out-of-state dealers, ad, i various other ways, favored the i-state dealer i the local -352. No comparable claim ca be made here. While the refiers will o loger ejoy their same status i the Marylad market, i-state idepedet dealers will have o competitive advatage over out-of-state dealers. The fact that the burde of a state regulatio falls o some iterstate compaies does ot, by itself, establish a claim of discrimiatio agaist iterstate [16] * Appellats argue, however, that this fact does show that the Marylad impermissibly burdes iterstate They poit to evidece i the record which idicates that, because of the divestiture requiremets, at least three refiers will stop sellig i Marylad, ad which also supports their claim that the elimiatio of compay-operated statios will deprive the cosumer of certai special services. Eve if we assume the truth of both assertios, either warrats a fidig that the impermissibly burdes iterstate Some refiers may choose to withdraw etirely from the Marylad market, but there is o reaso to assume that their share of the etire supply will ot be promptly replaced by other iterstate refiers. The source of the cosumers' supply may switch from compay-operated statios to idepedet dealers, but iterstate commerce is ot subjected to a impermissible burde simply because a otherwise valid regulatio causes some busiess to shift from oe iterstate supplier to aother. The crux of appellats' claim is that, regardless of whether the State has iterfered with the movemet of goods i iterstate commerce, it has iterfered "with the atural fuctioig of the iterstate market either through prohibitio or through burdesome regulatio." Appellats the claim that the "will surely chage the market structure by weakeig the idepedet refiers"[1] We caot, however, accept appellats' uderlyig otio that the Commerce Clause protects the particular structure or methods of operatio i a retail See As idicated by the Court i Hughes, the Clause protects the iterstate market, ot particular iterstate firms, from prohibitive *128 or burdesome regulatios. It may be true that the cosumig public will be ijured by the loss of the high-volume, low-priced statios operated by the idepedet refiers, but agai that argumet relates to the wisdom of the ot to its burde o Fially, we caot adopt appellats' ovel suggestio that because the ecoomic market for petroleum products is atio-wide, o State has the |
Justice Stevens | 1,978 | 16 | majority | Exxon Corp. v. Governor of Maryland | https://www.courtlistener.com/opinion/109896/exxon-corp-v-governor-of-maryland/ | market for petroleum products is atio-wide, o State has the power to regulate the retail marketig of gas. Appellats poit out that may state legislatures have either eacted or cosidered proposals similar to Marylad's,[18] ad that the cumulative effect of this sort of legislatio may have serious implicatios for their atioal marketig operatios. While this cocer is a sigificat oe, we do ot fid that the Commerce Clause, by its ow force, pre-empts the field of retail gas marketig. To be sure, "the Commerce Clause acts as a limitatio upo state power eve without cogressioal implemetatio." But this Court has oly rarely held that the Commerce Clause itself pre-empts a etire field from state regulatio, ad the oly whe a lack of atioal uiformity would impede the flow of iterstate goods. See Wabash, St. L. & P. R. Co. v. Illiois, ; see also Cooley v. Board of Wardes, The evil that appellats perceive i this litigatio is ot that the several States will eact differig regulatios, but rather that they will all coclude that divestiture provisios are warrated. The problem thus is ot oe of atioal uiformity. I the absece of a relevat cogressioal declaratio of policy, or a showig of a specific discrimiatio agaist, or burdeig *129 of, iterstate commerce, we caot coclude that the States are without power to regulate i this area. IV Exxo, Phillips, Shell, ad Gulf coted that the requiremet that volutary allowaces be exteded to all retail service statios is either i direct coflict with 2 (b) of the Clayto Act, as ameded by the Robiso-Patma Act, or, more geerally, i coflict with the basic federal policy i favor of competitio, which is reflected i the Sherma Act as well as 2 (b). I rejectig these cotetios, the Marylad Court of Appeals oted that the Marylad covered two differet competitive situatios.[19] I the first situatio a competig retailer lowers its price o its ow, ad the oil compay gives its ow retailer a price reductio to eable it to meet that lower price. I the secod situatio, the competig retailer's lower price is subsidized by its supplier, ad the oil compay gives its ow retailer a price reductio to meet the competitio. The good-faith defese of 2 (b) is clearly ot available to the oil compay i the first situatio because the volutary allowace would ot be a respose to competitio from aother oil compay. See FTC v. Su Oil Co., I the secod situatio the law is usettled,[20] but the *130 Court of Appeals cocluded that the defese would also be uavailable. |
Justice Stevens | 1,978 | 16 | majority | Exxon Corp. v. Governor of Maryland | https://www.courtlistener.com/opinion/109896/exxon-corp-v-governor-of-maryland/ | of Appeals cocluded that the defese would also be uavailable. The court therefore reasoed that there was o coflict betwee the Marylad ad 2 (b), sice the did ot apply to ay allowace protected by federal law. I our opiio, it is ot ecessary to decide whether the 2 (b) defese would apply i the secod situatio, for eve assumig that it does, there is o coflict betwee the Marylad ad the Robiso-Patma Act sufficiet to require pre-emptio. Appellats' first argumet is that compliace with the Marylad may cause them to violate the Robiso-Patma Act. They stress the possibility that the requiremet that a price reductio be made o a statewide basis may result i discrimiatio betwee customers who would otherwise receive the same price, ad they describe various hypothetical situatios to illustrate this poit.[21] But, "[i] this as i other areas of coicidet federal ad state regulatio, the `teachig of this Court's decisios ejoi[s] seekig out coflicts betwee state ad federal regulatio where oe clearly exists.' Huro Cemet" Seagram & Sos, Ic. v. Hostetter, See also State v. Texaco, Ic., The Court i Seagram & Sos wet o to say that "[a]lthough it is possible to evisio circumstaces uder which price discrimiatios *131 proscribed by the Robiso-Patma Act might be compelled by [the state ], the existece of such potetial coflicts is etirely too speculative i the preset posture of this case" to warrat pre-emptio. That cousel of restrait applies with eve greater force here. For eve if we were to delve ito the hypothetical situatios posed by appellats, we would ot be preseted with a state that requires a violatio of the Robiso-Patma Act. Istead, the alleged "coflict" here is i the possibility that the Marylad may require uiformity i some situatios i which the Robiso-Patma Act would permit localized discrimiatio.[22] This sort of hypothetical coflict is ot sufficiet to warrat pre-emptio. Appellats, however, also claim that the Robiso-Patma Act does ot simply permit localized discrimiatio, but actually establishes a federal right to egage i discrimiatory pricig i certai situatios. They argue that this federal right may be foud directly i 2 (b), or, more geerally, i our Natio's basic policy favorig competitio as reflected i the Sherma Act as well as 2 (b). We fid either argumet persuasive. The proviso i 2 (b) of the Clayto Act, as ameded by *132 the Robiso-Patma Act, is merely a exceptio to that 's broad prohibitio agaist discrimiatory pricig. It created o ew federal right; quite the cotrary, it defied a specific, limited defese, ad eve arrowed the good-faith defese |
Justice Stevens | 1,978 | 16 | majority | Exxon Corp. v. Governor of Maryland | https://www.courtlistener.com/opinion/109896/exxon-corp-v-governor-of-maryland/ | a specific, limited defese, ad eve arrowed the good-faith defese that had previously existed.[23] To be sure, the defese is a importat oe, ad the iterpretatio of its cotours has bee iformed by the uderlyig atioal policy favorig competitio which it reflects.[2] But it is illogical to ifer that by excludig certai competitive behavior from the geeral ba agaist discrimiatory pricig, Cogress iteded to pre-empt the States' power to prohibit ay coduct withi that exclusio. This Court is geerally reluctat to ifer pre-emptio, see, e. g., De Caas v. Bica, 35-358, 5; Merrill Lych, Pierce, Feer & ad it would be particularly iappropriate to do so i this case because the basic purposes of the state ad the Robiso-Patma Act are similar. Both reflect a policy choice favorig the iterest i equal treatmet of all customers *133 over the iterest i allowig sellers freedom to make selective competitive decisios.[25] Appellats poit out that the Robiso-Patma Act itself may be characterized as a exceptio to, or a qualificatio of, the more basic atioal policy favorig free competitio,[26] ad argue that the Marylad "udermi[es]" the competitive balace that Cogress struck betwee the Robiso-Patma ad Sherma Acts.[2] This is merely aother way of statig that the Marylad will have a aticompetitive effect. I this sese, there is a coflict betwee the ad the cetral policy of the Sherma Actour "charter of ecoomic liberty." Norther Pacific R. Co. v. Uited States, Nevertheless, this sort of coflict caot itself costitute a sufficiet reaso for ivalidatig the Marylad For if a adverse effect o competitio were, i ad of itself, eough to reder a state ivalid, the States' power to egage i ecoomic regulatio would be effectively destroyed.[28] We are, therefore, satisfied that either the broad implicatios of the Sherma Act or the Robiso-Patma Act ca fairly *13 be costrued as a cogressioal decisio to pre-empt the power of the Marylad Legislature to eact this law. The judgmet is affirmed. So ordered. MR. JUSTICE POWELL took o part i the cosideratio or decisio of these cases. MR. JUSTICE BLACKMUN, cocurrig i part ad dissetig i part. Although I agree that the Marylad Motor Fuel Ispectio Law[1] does ot offed substative due process or federal atitrust *135 policy, I disset from Part III of the Court's opiio because it fails to codem impermissible discrimiatio agaist iterstate commerce i retail gasolie marketig. The divestiture provisios. Md. Code A., Art. 56, 15E (b) ad (c) (hereiafter referred to as (b) ad (c)), preclude out-of-state competitors from retailig gasolie withi Marylad. The effect is to protect i-state retail service statio |
Justice Stevens | 1,978 | 16 | majority | Exxon Corp. v. Governor of Maryland | https://www.courtlistener.com/opinion/109896/exxon-corp-v-governor-of-maryland/ | Marylad. The effect is to protect i-state retail service statio dealers from the competitio of the out-of-state busiesses. This protectioist discrimiatio is ot justified by ay legitimate state iterest that caot be vidicated by more evehaded regulatio. Sectios (b) ad (c), therefore, violate the Commerce [2] I I Marylad the retail marketig of gasolie is iterstate commerce, for all petroleum products come from outside the State. Retailers serve iterstate travelers. To the extet that particular retailers succeed or fail i their busiesses, the iterstate wholesale market for petroleum products is affected. Cf. Dea Milk[3] The *136 regulatio of retail gasolie sales is therefore withi the scope of the Commerce See ibid.; Miesota v. Barber,[] A The Commerce Clause forbids discrimiatio agaist iterstate commerce, which repeatedly has bee held to mea that States ad localities may ot discrimiate agaist the trasactios of out-of-state actors i iterstate markets. E. g., ; Halliburto Oil Well 33 U.S. 6, ; Dea Milk 30 U. S., at 35; Best & 311 U.S. 5-6 (190). The discrimiatio eed ot appear o the face of the state or local regulatio. "The commerce clause forbids discrimiatio, whether forthright or igeious. I each case it is our duty to determie whether the uder attack, whatever its ame may be, will i its practical operatio work discrimiatio agaist iterstate " (footote omitted). The state or local authority eed ot ited to discrimiate i order to offed the policy of maitaiig a free-flowig atioal ecoomy. As demostrated i Hut, a that o its face restricts both itrastate ad iterstate trasactios may violate the Clause by havig the "practical effect" of discrimiatig i its operatio. 32 U.S., -352. If discrimiatio results from a the burde falls upo the state or local govermet to demostrate legitimate local beefits justifyig the iequality ad to show that less discrimiatory alteratives caot protect the local iterests. *13 ; Dea Milk 30 U. S., at 35. This Court does ot merely accept without aalysis purported local iterests. Istead, it idepedetly idetifies the character of the iterests ad judges for itself whether alteratives will be adequate. For example, i Dea Milk the city attempted to justify a milk pasteurizatio ordiace by claimig it to be a ecessary health measure. The city's assertio was ot coclusive, however: "A differet view, that the ordiace is valid simply because it professes to be a health measure, would mea that the Commerce Clause of itself imposes o limitatios o state actio other tha those laid dow by the Due Process Clause, save for the rare istace where a state artlessly discloses a |
Justice Stevens | 1,978 | 16 | majority | Exxon Corp. v. Governor of Maryland | https://www.courtlistener.com/opinion/109896/exxon-corp-v-governor-of-maryland/ | for the rare istace where a state artlessly discloses a avowed purpose to discrimiate agaist iterstate goods." I a idepedet assessmet of the asserted purpose, the Court determied exactly how the ordiace protected public health ad the cocluded that other measures could accomplish the same eds. at 35-356. The city's public health purpose therefore did ot justify the discrimiatio, ad the ordiace violated the Commerce B With this backgroud, the ucostitutioal discrimiatio i the Marylad becomes apparet. No facial iequality exists; (b) ad (c) preclude all refiers ad producers from marketig gasolie at the retail level. But give the structure of the retail gasolie market i Marylad, the effect of (b) ad (c) is to exclude a class of predomiatly out-of-state gasolie retailers while providig protectio from competitio to a class of oitegrated retailers that is overwhelmigly composed of local busiessme. I 19, of the 3,80 gasolie service statios i the State, 3,5 were operated by oitegrated local retail dealers. App. 191, 569, 55. Of the 233 compay-operated statios, 19 beloged to out-of-state *138 itegrated producers or refiers. Thirty-four were operated by oitegrated compaies that would ot have bee affected immediately by the Marylad[5] The oly i-state itegrated petroleum firm, Crow Cetral Petroleum, Ic., operated just two service statios. Of the class of statios statutorily isulated from the competitio of the out-of-state itegrated firms, the, more tha 99% were operated by local busiess iterests. Of the class of eterprises excluded etirely from participatio i the retail gasolie market, 95% were out-of-state firms, operatig 98% of the statios i the class. The discrimiatio suffered by the out-of-state itegrated producers ad refiers is sigificat. Five of the excluded eterprises, Ashlad Oil, Ic., BP Oil, Ic., Kayo Oil Co., Petroleum Marketig Corp., ad Souther States Cooperative, Ic., market obraded gasolie through price competitio rather tha through brad recogitio. Of the 98 statios marketig gasolie i this maer, all but 6 are compay operated. The compay operatios result from the domiat fact of price competitio marketig. Accordig to repeated testimoy from petroleum ecoomics experts ad officers of price marketerstestimoy that the trial court did ot discreditsuch obraded statios ca compete successfully oly if they have day-to-day cotrol of the retail price of their products, the hours of operatio of their statios, ad related busiess details. App. 320, 35, 30-31, 9-1, 503-50, *139 51, 529-530; Joit App. to Jurisdictioal Statemets 102a et seq. Oly with such cotrol ca sufficiet sales volume be achieved to produce satisfactory profits at prices two to three cets a gallo below those of the major braded statios. Dealer operatio of |
Justice Stevens | 1,978 | 16 | majority | Exxon Corp. v. Governor of Maryland | https://www.courtlistener.com/opinion/109896/exxon-corp-v-governor-of-maryland/ | below those of the major braded statios. Dealer operatio of statios precludes such cotrol because of the illegality of vertical price fixig. See, e. g., 15 U.S. C. 1 (196 ed.); White Motor Co. v. Uited States, Therefore, because (b) ad (c) forbid compay operatios, these out-of-state competitors will have to abado the Marylad retail market altogether. App. 100, 35-358, 5, 519; Joit App. to Jurisdictioal Statemets 103a et seq.[6] For the same reaso 32 other out-of-state atioal obraded itegrated marketers, who operate their ow statios without dealers, will be precluded from eterig the Marylad retail gasolie The record also cotais testimoy that the discrimiatio will burde the operatios of major braded compaies, such as appellats Exxo. Phillips, Shell, ad Gulf, all of which are out-of-state firms. Most importatly, (b) ad (c) will preclude these compaies, as well as those metioed i the previous paragraph, from competig directly for the profits of retail marketig. Accordig to Richard T. Harvi, retail sales maager for Exxo's easter marketig regio, Exxo's compay-operated statios i Marylad aually retur 15% of the compay's ivestmeta profit of $00,000 i 19. App. 316. Sectios (b) ad (c) will force this retur to be shared with the local dealers. I additio, the ba of the sectios will preclude the majors from ehacig brad recogitio ad cosumer acceptace through retail outlets with compay-cotrolled stadards. at 316, 320, 6, 668-669. Their ability directly to moitor cosumer prefereces ad *10 reactios will be dimiished. at 315, 69, 669. Ad their opportuity for experimetatio with retail marketig techiques will be curtailed. at 316-31, 6-69, 669. I short, the divestiture provisios, which will require the appellat majors to cease operatio of property valued at more tha $10 millio, will iflict sigificat ecoomic hardship o Marylad's major brad compaies, all of which are out-of-state firms. Similar hardship is ot imposed upo the local service statio dealers by the divestiture provisios. Ideed, rather tha restrictig their ability to compete, the Marylad Act effectively ad perhaps itetioally improves their competitive positio by isulatig them from competitio by out-of-state itegrated producers ad refiers. I its aswers to the various complaits i this case, the State repeatedly coceded that the Act was iteded to protect "the retail dealer as a idepedet busiessma [by] reducig the cotrol ad domiace of the vertically itegrated petroleum producer ad refier i the retail " ; see at 51, 5, 10, 128, 132, 1, 1. At trial the State's expert said that the legislatio would have the effect of protectig the local dealers agaist the out-of-state competitio. I short, the foudatio of the |
Justice Stevens | 1,978 | 16 | majority | Exxon Corp. v. Governor of Maryland | https://www.courtlistener.com/opinion/109896/exxon-corp-v-governor-of-maryland/ | agaist the out-of-state competitio. I short, the foudatio of the discrimiatio i this case is that the local dealers may cotiue to eter retail trasactios ad to compete for retail profits while the will dey similar opportuities to the class composed almost etirely of out-of-state busiesses.[] *11 With discrimiatio proved agaist iterstate commerce, the burde falls upo the State to justify the distictio with legitimate state iterests that caot be vidicated with more evehaded regulatio. O the record before the Court, the State fails to carry its burde. It asserts oly i geeral terms a desire to maitai competitio i gasolie retailig. Although this is a laudable goal, it caot be accepted without further aalysis, just as the Court could ot accept the mere assertio of a public health justificatio i Dea Milk. Here, the State igores the secod half of its resposibility; it does ot eve attempt to demostrate why competitio caot be preserved without baig the out-of-state iterests from the retail The State's showig may be so meager because ay legitimate iterest i competitio ca be vidicated with more evehaded regulatio. First, to the extet that the State's iterest i competitio is othig more tha a desire to protect particular competitorsless efficiet local busiessmefrom the legal competitio of more efficiet out-of-state firms, the iterest is illegitimate uder the Commerce A atioal ecoomy would hardly flourish if each State could effectively isist that local oitegrated dealers hadle product retailig to the exclusio of out-of-state itegrated firms that would ot have sufficiet local political clout to challege the ifluece of local busiessme with their local govermet leaders.[8] Each State would be ecouraged to "legislate accordig *12 to its estimate of its ow iterests, the importace of its ow products, ad the local advatages or disadvatages of its positio i a political or commercial view." J. Story, Commetaries o the Costitutio of the Uited States 259 (th ed. 183), quoted i H. P. Hood & Sos v. Du Mod, (199). See also, e. g., The Federalist, Nos. 11, 12 (Hamilto), No. 2 (Madiso). The Commerce Clause simply does ot couteace such parochialism. Secod, a legitimate cocer of the State could be to limit the ecoomic power of vertical itegratio. But othig i the record suggests that the vertical itegratio that has *13 already occurred i the Marylad petroleum market has ihibited competitio. Ideed, the trial court foud that the retail market, domiated by 3,5 dealer outlets costitutig more tha 90% of the State's service statios, is highly competitive.[9] Therefore, the State has show o eed for the divestiture of existig compay-owed |
Justice Stevens | 1,978 | 16 | majority | Exxon Corp. v. Governor of Maryland | https://www.courtlistener.com/opinion/109896/exxon-corp-v-governor-of-maryland/ | has show o eed for the divestiture of existig compay-owed statios required by (c). The legitimacy of ay cocer about future itegratio, which could support the discrimiatio of (b), is suspect because of the exemptio grated wholesalers, which, ot surprisigly, are local busiesses able to ifluece the state legislature.[10] See *1 Third, the State appears to be cocered about ufair competitive behavior such as predatory pricig or iequitable allocatio of petroleum products by the itegrated firms. These are the oly examples of specific miscoduct asserted i the State's aswers. App. 33-3, 5-55, 81-83, 109-111, 133-13, 18-19. But oe of the cocers support the discrimiatio i (b) ad (c). There is o proof i the record that ay sigificat portio of the class of out-of-state firms burdeed by the divestiture sectios has egaged i such miscoduct. Furthermore, predatory pricig ad ufair allocatio already have bee prohibited by both state ad federal law. See, e. g., Emergecy Petroleum Allocatio Act of 193, 8 Stat. 628, 15 U.S. C. 51 et seq. (196 ed.); Eergy Policy ad Coservatio Act, 61, 15 U.S. C. 60g (196 ed.); Marylad Motor Fuel Ispectio Law, Md. Code A., Art. 56, 15E (f) ; Marylad Atitrust Act, Md. Com. Law Code A. 11-201 et seq. (195); Marylad Ufair Sales Act, Md. Com. Law Code A. 11-01 et seq. (195). Less discrimiatory legislatio, which would regulate the leasig of all service statios, ot just those owed by the out-of-state itegrated producers ad refiers, could prevet whatever evils arise from short-term *1 leases. Cf. Marylad Gasolie Products Marketig Act, Md. Com. Law Code A. 11-30 (g)[11] I sum, the State has asserted before this Court oly a vague iterest i preservig competitio i its retail gasolie It has ot show why its iterest caot be vidicated by legislatio less discrimiatory toward out-of-state retailers. It therefore has ot met its burde to justify the discrimiatio iheret i (b) ad (c), ad they violate the Commerce II The argumets of the Court's opiio, the Marylad Court of Appeals decisio,[12] ad appellees do ot remove the ucostitutioal tait from the discrimiatio iheret i (b) ad (c). A The Court offers essetially three resposes to the discrimiatio i the retail gasolie market imposed by the divestiture provisios.[13] First, the Court says that the discrimiatio *16 agaist the class of out-of-state producers ad refiers does ot violate the Commerce Clause because the State has ot imposed similar discrimiatio agaist other out-of-state retailers. Ate, at 125-126. This is said to distiguish the preset case from I fact, however, the ucostitutioal discrimiatio i Hut was ot agaist |
Justice Stevens | 1,978 | 16 | majority | Exxon Corp. v. Governor of Maryland | https://www.courtlistener.com/opinion/109896/exxon-corp-v-governor-of-maryland/ | fact, however, the ucostitutioal discrimiatio i Hut was ot agaist all out-of-state iterests. North Carolia had eacted a requirig that apples marketed i closed cotaiers withi the State bear "`o grade other tha the applicable U. S. grade or stadard.'" 32 U.S., 5. The Commissio coteded that the provisio discrimiated agaist iterstate commerce because it prohibited the display of superior Washigto State apple gradig marks. The Court did ot strike dow the provisio because it discrimiated agaist the marketig techiques of all out-of-state growers. The provisio imposed o discrimiatio o growers from States that employed oly the Uited States Departmet of Agriculture gradig system.[1] Despite this *1 lack of uiversal discrimiatio, the Court declared the provisio ucostitutioal because it discrimiated agaist a sigle segmet of out-of-state marketers of apples, amely, the Washigto State growers who employed the superior gradig system. I this regard, the Marylad divestiture provisios are idetical to, ot distiguishable from, the North Carolia i Hut. Here, the discrimiatio has bee imposed agaist a segmet of the out-of-state retailers of gasolie, amely, those who also refie or produce petroleum. To accept the argumet of the Court, that is, that discrimiatio must be uiversal to offed the Commerce Clause, aively will foster protectioist discrimiatio agaist iterstate I the future, States will be able to isulate i-state iterests from competitio by idetifyig the most potet segmets of out-of-state busiess, baig them, ad permittig less effective out-of-state actors to remai. The record shows that the Court permits Marylad to effect just such discrimiatio i this case. The State bas the most powerful out-of-state firms from retailig gasolie withi its boudaries. It the isulates the forced divestiture of 199 service statios from costitutioal attack by permittig out-of-state firms such as Patry Pride, Fisca, Hi-Way, ad Midway to cotiue to operate 3 gasolie statios. Effective out-of-state competitio is thereby emasculatedo doubt, a igeious discrimiatio. But as stated at the outset, "the commerce clause forbids discrimiatio, whether forthright or igeious." Best & 311 U. S., at 5. Secod, the Court coteds, as a subpart of its primary argumet, that the discrimiatio i Hut "raised the cost of doig busiess for out-of-state dealers, ad, i various other ways, favored the i-state dealers i the local -352. No comparable claim ca be made here." Ate, at 126. Oce it is see that the discrimiatio i Hut raised the cost of doig busiess for oly oe group of the out-of-state marketers of apples, the fallacy of the Court's *18 argumet appears. I fact, here the burde imposed upo the class of out-of-state retailers subject to the discrimiatio |
Justice Stevens | 1,978 | 16 | majority | Exxon Corp. v. Governor of Maryland | https://www.courtlistener.com/opinion/109896/exxon-corp-v-governor-of-maryland/ | upo the class of out-of-state retailers subject to the discrimiatio of (b) ad (c) far exceeds the burdes i Hut. I Hut the merely icreased costs ad deprived the Washigto growers of the competitive advatages of the use of their gradig system. Here, the bas the refiers ad producers from the retail market altogethera burde that lacks comparability with the effects i Hut oly because it is more severe. Third, the Court asserts without citatio: "The fact that the burde of a state regulatio falls o some iterstate compaies does ot, by itself, establish a claim of discrimiatio agaist iterstate " Ate, at 126. This propositio is correct oly to the extet that it is icomplete; it does ot apply to the facts preset here. It is true that merely demostratig a burde o some out-of-state actors does ot prove ucostitutioal discrimiatio. But whe the burde is sigificat, whe it falls o the most umerous ad effective group of out-of-state competitors, whe a similar burde does ot fall o the class of protected i-state busiessme, ad whe the State caot justify the resultig disparity by showig that its legislative iterests caot be vidicated by more evehaded regulatio, ucostitutioal discrimiatio exists. The facts of this litigatio demostrate such discrimiatio, ad the Court does ot argue persuasively to the cotrary. B The cotetios of the Marylad Court of Appeals, which also foud o violatio of the Commerce Clause, are o more covicig tha the argumets of the Court's opiio. First, the Court of Appeals reasoed that (b) ad (c) did ot discrimiate agaist the class of out-of-state refiers ad producers because the wholesale flow of petroleum products ito the State was ot restricted. 31, 111 This supposedly distiguished the preset *19 facts from those of Dea Milk which ivolved ucostitutioal discrimiatio agaist iterstate To begi with, however, the distictio draw by the Court of Appeals is basically irrelevat. The Marylad has ot effected discrimiatio with regard to the wholesalig or iterstate trasport of petroleum. The discrimiatio exists with regard to retailig. The fact that gasolie will cotiue to flow ito the State does ot permit the State to dey out-of-state firms the opportuity to retail it oce it arrives. Furthermore, Dea Milk caot be distiguished o the groud asserted by the Court of Appeals. There, this Court ivalidated21 of the Geeral Ordiaces of the city of Madiso (199), which outlawed the local sale of milk ot pasteurized withi five miles of the city. The sectio did ot legally or effectively block the flow of out-of-state milk ito Madiso to ay greater extet |
Justice Stevens | 1,978 | 16 | majority | Exxon Corp. v. Governor of Maryland | https://www.courtlistener.com/opinion/109896/exxon-corp-v-governor-of-maryland/ | flow of out-of-state milk ito Madiso to ay greater extet tha the restrictios o sales of gasolie by out-of-state compaies block the flow of gasolie here. I Dea Milk out-of-state producers could brig their milk to Madiso, have it pasteurized i Madiso, ad sell it i Madiso without violatig21. If the flow of milk were at all restricted, it was merely because the out-of-state producers chose ot to deal with the Madiso pasteurizers. Similarly, the flow of gasolie ito Marylad may be restricted if the out-of-state producers ad refiers choose ot to supply the dealers who replace the compay-owed operatios.[15] Secod, the Court of Appeals said the Marylad legislatio did ot offed the Commerce Clause because the legislature iteded to preserve competitio, ot to discrimiate agaist iterstate 29 Md., at 31, 30 A. 2d, at 111. *150 With this argumet, the court fell ito the same trap that cofies the State's proffered justificatios for the discrimiatio of (b) ad (c). To begi with, the fact that o discrimiatio was iteded is irrelevat where, as here, discrimiatory effects result from the statutory scheme. Furthermore, the fact that the legislature might have had a laudable itet whe it passed the law caot by itself justify the divestiture provisios. The State must also show that its iterests caot be vidicated by less discrimiatory alteratives. The Court of Appeals erroeously failed to require such a showig from the appellees. Third, the Court of Appeals resurrected the outdated otio that retailig is merely local activity ot subject to the strictures of the Commerce 29 Md., at 32, 30 A. 2d, at 111-1115, citig Crescet Oil 25 U.S. 129 I Crescet Oil the Court said that the operatio of cotto gis was local maufacturig rather tha iterstate As explaied at the begiig of Part I of this opiio, however, the iterstate character of the retail gasolie market ad 5 years of iterveig costitutioal ad ecoomic developmet prevet the applicatio of Crescet Oil to the facts of this litigatio. See 3 ad ad accompayig C Fially, othig i the argumet of the appellees saves the distictios i (b) ad (c) from the tait of ucostitutioality. First, the State argues that discrimiatio agaist iterstate commerce has ot occurred because "[]o exus betwee iterstate as opposed to local iterests iheres i the productio or refiig of petroleum." Brief for Appellees 23. Although this statemet might be correct i the abstract, it is icorrect i reality, give the structure of the Marylad petroleum Due to geological formatio as so far kow, o petroleum is produced i Marylad; due to the |
Justice Stevens | 1,978 | 16 | majority | Exxon Corp. v. Governor of Maryland | https://www.courtlistener.com/opinion/109896/exxon-corp-v-governor-of-maryland/ | kow, o petroleum is produced i Marylad; due to the ecoomics of productio ad refiig, as well as to the geology, *151 o petroleum is refied i Marylad. As a matter of actual fact, the, a iheret exus does exist betwee the out-of-state status of producers ad refiers ad the distributio ad retailig of gasolie i Marylad. The Commerce Clause does ot forbid oly legislatio that discrimiates uder all factual circumstaces. It forbids discrimiatio i effect agaist iterstate commerce o the specific facts of each case. If productio or refiig of gasolie occurred i Marylad, (b) ad (c) might ot be ucostitutioal. Uder those differet circumstaces, however, the producers ad refiers would have a fair opportuity to ifluece their local legislators ad thereby to prevet the eactmet of ecoomically disruptive legislatio. Uder those circumstaces, the ecoomic disruptio would be felt directly i Marylad, which would ted to make the local political processes resposive to the problems thereby created. Uder those circumstaces, (b) ad (c) might ever have bee passed. I this case, however, the ecoomic disruptio of the sectios is visited upo out-of-state ecoomic iterests ad ot upo i-state busiesses. Oe of the basic assumptios of the Commerce Clause is that local political systems will ted to be uresposive to problems ot felt by local costituets; istead, local political uits are expected to act i their costituets' iterests.[16] Oe of the basic purposes of the Clause, therefore, is to prevet the vidicatio of such self-iterest from ufairly burdeig out-of-state cocers ad thereby disruptig the atioal ecoomy. *152 Secod, appellees argue, as did the Court of Appeals, that (b) ad (c) do ot discrimiate impermissibly because the Marylad Legislature passed them with the itet to preserve competitio. As explaied above, however, the mere assertio of a laudable purpose does ot carry the State's burde to justify the discrimiatory effects of the See Parts I-B ad Third, appellees rely upo the Court of Appeals' cotetio that ucostitutioal discrimiatio agaist iterstate commerce ca be foud oly where the flow of iterstate goods is curtailed. Appellees' assertio fares o better tha did the court's because the appellees fail to show how the effect o the flow of iterstate goods varies i kid betwee this case ad Dea Milk. See Part III The Court's decisio brigs to mid the well-kow words of Mr. Justice Cardozo: "To give etrace to [protectioism] would be to ivite a speedy ed of our atioal solidarity. The Costitutio was framed uder the domiio of a political philosophy less parochial i rage. It was framed upo the theory that the peoples |
Justice Breyer | 2,006 | 2 | second_dissenting | Arlington Central School Dist. Bd. of Ed. v. Murphy | https://www.courtlistener.com/opinion/145629/arlington-central-school-dist-bd-of-ed-v-murphy/ | The ndividuals with Disabilities Education Act (DEA or Act), 20 U.S. C. A. et seq., (Supp. 2006), says that a court may “award reasonable attorneys’ fees as part of the costs to the parents” who are prevailing parties. Unlike the Court, believe that the word “costs” includes, and authorizes payment of, the costs of experts. The word “costs” does not define its own scope. Neither does the phrase “attorneys’ fees as part of costs.” But Members of Congress did make clear their intent by, among other things, approving a Conference Report that specified that “the term ‘attorneys’ fees as part of the costs’ include[s] reasonable expenses of expert witnesses and reasonable costs of any test or evaluation which is found to be necessary for the preparation of the parent or guard ian’s case in the action or proceeding.” H. R. Conf. Rep. No. 99–687, p. 5 (1986); Appendix A, infra, at 19. No Senator or Representative voiced any opposition to this statement in the discussion preceding the vote on the Conference Report—the last vote on the bill before it was sent to the President. can find no good reason for this Court to interpret the language of this statute as meaning the precise opposite of what Congress told us it intended. 2 ARLNGTON CENTRAL SCHOOL DST. BD. OF ED. v. MURPHY BREYER, J., dissenting There are two strong reasons for interpreting the statu tory phrase to include the award of expert fees. First, that is what Congress said it intended by the phrase. Second, that interpretation furthers the DEA’s statutorily defined purposes. A Congress added the DEA’s cost-shifting provision when it enacted the Handicapped Children’s Protection Act of 1986 (HCPA), Senator Lowell Weicker introduced the relevant bill in 1985. 1 Cong. Rec. 1979– 1980 (1985). As introduced, it sought to overturn this Court’s determination that the then-current version of the DEA (and other civil rights statutes) did not authorize courts to award attorneys’ fees to prevailing parents in DEA cases. See The bill provided that “[i]n any action or proceeding brought under this subsection, the court, in its discretion, may award a reasonable attorney’s fee as part of the costs to a parent or legal representative of a handicapped child or youth who is the prevailing party.” 1 Cong. Rec. 1980; see S. Rep. No. 99–112, p. 2 (1985). After hearings and debate, several Senators introduced a new bill in the Senate that would have put a cap on attorneys’ fees for legal services lawyers, but at the same time would have explicitly authorized the award of “a reasonable attorney’s |
Justice Breyer | 2,006 | 2 | second_dissenting | Arlington Central School Dist. Bd. of Ed. v. Murphy | https://www.courtlistener.com/opinion/145629/arlington-central-school-dist-bd-of-ed-v-murphy/ | would have explicitly authorized the award of “a reasonable attorney’s fee, reasonable witness fees, and other reasonable expenses of the civil action, in addition to the costs to a parent who is the prevailing party.” While no Senator objected to the latter provision, some objected to the cap. See, e.g., at –18 (Additional Views of Senators Kerry, Kennedy, Pell, Dodd, Simon, Metzenbaum and Matsunaga) (accepting cost-shifting provision, but objecting to cap and other aspects of the bill). A bipartisan group of Senators, led by Cite as: 548 U. S. (2006) 3 BREYER, J., dissenting Senators Hatch and Weicker, proposed an alternative bill that authorized courts to award “a reasonable attorney’s fee in addition to the costs to a parent” who prevailed. at 15–16 (Additional Views of Senators Hatch, Weicker, Stafford, Dole, Pell, Matsunaga, Simon, Kerry, Kennedy, Metzenbaum, Dodd, and Grassley); 1 Cong. Rec. 289. Senator Weicker explained that the bill: “will enable courts to compensate parents for what ever reasonable costs they had to incur to fully secure what was guaranteed to them by the EHA. As in other fee shifting statutes, it is our intent that such awards will include, at the discretion of the court, reasonable attorney’s fees, necessary expert witness fees, and other reasonable expenses which were necessary for parents to vindicate their claim to a free appropriate public education for their handicapped child.” Not a word of opposition to this statement (or the provi sion) was voiced on the Senate floor, and S. 415 passed without a recorded vote. The House version of the bill also reflected an intention to authorize recovery of expert costs. Following the House hearings, the Committee on Education and Labor pro duced a substitute bill that authorized courts to “award reasonable attorneys’ fees, expenses and costs” to prevail ing parents. H. R. Rep. No. 99–296, pp. 1, 5 (1985) (em phasis added). The House Report stated that “The phrase ‘expenses and costs’ includes expenses of expert witnesses; the reasonable costs of any study, re port, test, or project which is found to be necessary for the preparation of the parents’ or guardian’s due proc ess hearing, state administrative review or civil action; as well as traditional costs and expenses incurred in the course of litigating a case (e.g., depositions and in terrogatories).” 4 ARLNGTON CENTRAL SCHOOL DST. BD. OF ED. v. MURPHY BREYER, J., dissenting No one objected to this statement. By the time H. R. 1523 reached the floor, another substitute bill was introduced. 1 Cong. Rec. 369 (1985). This new bill did not change in any respect the text |
Justice Breyer | 2,006 | 2 | second_dissenting | Arlington Central School Dist. Bd. of Ed. v. Murphy | https://www.courtlistener.com/opinion/145629/arlington-central-school-dist-bd-of-ed-v-murphy/ | new bill did not change in any respect the text of the authorization of expenses and costs. t did add a provision, however, that directed the General Accounting Office (GAO)—now known as the Government Accountability Office, see 31 U.S. C. A. note (Supp. 2006)—to study and report to Congress on the fiscal impact of the cost-shifting provision. See at 369–370. The newly substituted bill passed the House without a recorded vote. Members of the House and Senate (including all of the primary sponsors of the HCPA) then met in conference to work out certain differences. At the conclusion of those negotiations, they produced a Conference Report, which contained the text of the agreed-upon bill and a “Joint Explanatory Statement of the Committee of the Confer ence.” See H. R. Conf. Rep. No. 99–687 (1986), Appendix A, infra. The Conference accepted the House bill’s GAO provision with “an amendment expanding the data collec tion requirements of the GAO study to include information regarding the amount of funds expended by local educa tional agencies and state educational agencies on civil actions and administrative proceedings.” And it accepted (with minor changes) the cost-shifting provisions provided in both the Senate and House versions. The conferees explained: “With slightly different wording, both the Senate bill and the House amendment provide for the awarding of attorneys’ fees in addition to costs. The Senate re cedes to the House and the House recedes to the Sen ate with an amendment clarifying that ‘the court, in its discretion, may award reasonable attorneys’ fees as part of the costs’ This change in wording incor porates the Supreme Court[’s] Marek v. Chesny deci Cite as: 548 U. S. (2006) 5 BREYER, J., dissenting sion [473 U. S 1 (1985)]. The conferees intend that the term ‘attorneys’ fees as part of the costs’ include rea sonable expenses and fees of expert witnesses and the reasonable costs of any test or evaluation which is found to be necessary for the preparation of the parent or guardian’s case in the action or proceeding, as well as traditional costs incurred in the course of litigating a case.” The Conference Report was returned to the Senate and the House. A motion was put to each to adopt the Confer ence Report, and both the Senate and the House agreed to the Conference Report by voice votes. See Appendix B, infra, at 22 (Senate); Appendix C, infra, at 23 (House). No objection was raised to the Conference Report’s statement that the cost-shifting provision was intended to authorize expert costs. concede that “sponsors of the legislation did |
Justice Breyer | 2,006 | 2 | second_dissenting | Arlington Central School Dist. Bd. of Ed. v. Murphy | https://www.courtlistener.com/opinion/145629/arlington-central-school-dist-bd-of-ed-v-murphy/ | authorize expert costs. concede that “sponsors of the legislation did not mention anything on the floor about expert or consult ant fees” at the time the Conference Report was submit ted. Ante, at 3, n. 2 (GNSBURG, J., concurring in part and concurring in judgment). But do not believe that silence is significant in light of the fact that every Senator and three of the five Representatives who spoke on the floor had previously signed his name to the Conference Re port—a Report that made Congress’ intent clear on the first page of its explanation. See Appendix A, infra, at 19. And every Senator and Representative that took the floor preceding the votes voiced his strong support for the Con ference Report. 2 Cong. Rec. 16823–16825 (1986) (Sen ate); at 607–612 (House). The upshot is that Members of both Houses of Congress voted to adopt both the statutory text before us and the Conference Report that made clear that the statute’s words include the expert costs here in question. B The Act’s basic purpose further supports interpreting 6 ARLNGTON CENTRAL SCHOOL DST. BD. OF ED. v. MURPHY BREYER, J., dissenting the provision’s language to include expert costs. The DEA guarantees a “free” and “appropriate” public educa tion for “all” children with disabilities. 20 U.S. C. A. (d)(1)(A) (Supp. 2006); see also (defining “free appropriate public education” as one “provided at public expense,” “without charge”); (defining “special education” as “specially designed instruction, at no cost to parents, to meet the unique needs of a child with a disability” ). Parents have every right to become involved in the Act’s efforts to provide that education; indeed, the Act encour ages their participation. (c)(5)(B) (DEA “ensur[es] that families of [disabled] children have meaningful oppor tunities to participate in the education of their children at school”). t assures parents that they may question a school district’s decisions about what is “appropriate” for their child. And in doing so, they may secure the help of experts. (parents have “the right to be accom panied and advised by counsel and by individuals with special knowledge or training with respect to the problems of children with disabilities”); see generally v. Weast, 546 U. S. (slip op., at 3–4) (detailing Act’s procedures); Board of Ed. of Hendrick Hudson Central School Dist., Westchester 205– 206 (1982) (emphasizing importance of Act’s procedural guarantees). The practical significance of the Act’s participatory rights and procedural protections may be seriously dimin ished if parents are unable to obtain reimbursement for the costs of their experts. n DEA cases, experts are necessary. See Kuriloff |
Justice Breyer | 2,006 | 2 | second_dissenting | Arlington Central School Dist. Bd. of Ed. v. Murphy | https://www.courtlistener.com/opinion/145629/arlington-central-school-dist-bd-of-ed-v-murphy/ | their experts. n DEA cases, experts are necessary. See Kuriloff & Goldberg, s Mediation a Fair Way to Resolve Special Education Disputes? First Empiri cal Findings, 2 Harv. Negotiation L. Rev. 35, 40 (1997) (detailing findings of study showing high correlation be tween use of experts and success of parents in challenging school district’s plan); Kuriloff, s Justice Served by Due Cite as: 548 U. S. (2006) 7 BREYER, J., dissenting Process?: Affecting the Outcome of Special Education Hearings in Pennsylvania, 48 Law & Contemp. Prob. 89, 100–101, 109 (1985) (same); see also Brief for National Disability Rights Network et al. as Amici Curiae 6–15 (collecting sources); cf. at (slip op., at 5) (GNSBURG, J., dissenting) (“[T]he vast majority of parents whose children require the benefits and protec tions provided in the DEA lack knowledge about the educational resources available to their child and the sophistication to mount an effective case against a district- proposed EP” (internal quotation marks and alterations omitted)). Experts are also expensive. See Brief for Respondents 28, n. (collecting District Court decisions awarding expert costs ranging from $200 to $7,600, and noting three reported cases in which expert awards exceeded $10,000). The costs of experts may not make much of a dent in a school district’s budget, as many of the experts they use in DEA proceedings are already on the staff. Cf. Oberti v. Board of Ed. Clemen School Dist., But to parents, the award of costs may mat ter enormously. Without potential reimbursement, par ents may well lack the services of experts entirely. See Department of Education, M. Wagner et al., The ndivid ual and Household Characteristics of Youth With Disabili ties: A Report from the National Longitudinal Transi- tion Study–2 (NLTS–2), pp. 3–5 (Aug. 2003) (finding that 25% of disabled children live in poverty and 65% live in households with incomes less than $50,000); see Department ofEducation, M. Wagner et al., The Child- ren We Serve: The Demographic Characteristics of Ele mentary and Middle School Students with Disabilities and Their Households, p. 28 (Sept. 2002), available at http: // www.seels.net / designdocs / SEELS _ Children _ We _ Serve_Report.pdf (as visited June 23, 2006, and available in Clerk of Court’s case file) (finding that 36% of disabled 8 ARLNGTON CENTRAL SCHOOL DST. BD. OF ED. v. MURPHY BREYER, J., dissenting children live in households with incomes of $25,000 or less). n a word, the Act’s statutory right to a “free” and “ap propriate” education may mean little to those who must pay hundreds of dollars to obtain it. That is why this |
Justice Breyer | 2,006 | 2 | second_dissenting | Arlington Central School Dist. Bd. of Ed. v. Murphy | https://www.courtlistener.com/opinion/145629/arlington-central-school-dist-bd-of-ed-v-murphy/ | hundreds of dollars to obtain it. That is why this Court has previously avoided interpretations that would bring about this kind of result. See School Comm. of (1985) (construing DEA provision granting equitable authority to courts to include the power to order reim bursement for parents who switch their child to private schools if that decision later proves correct); (without cost reimbursement for prevailing parents, “the child’s right to a free appropriate public education, the parents’ right to participate fully in developing a proper individualized education plan (EP), and all of the proce dural safeguards would be less than complete”); Florence County School Dist. (holding that prevailing parents are not barred from reim bursement for switching their child to a private school that does not meet the DEA’s definition of a free and appropriate education). n we explained: “DEA was intended to ensure that children with disabilities receive an education that is both appropriate and free. To read the provisions of to bar reimbursement in the circumstances of this case would defeat this statu tory purpose.” at –14 (citation omitted). To read the word “costs” as requiring successful parents to bear their own expenses for experts suffers from the same problem. Today’s result will leave many parents and guardians “without an expert with the firepower to match the opposition,” at (slip op., at 11), a far cry from the level playing field that Congress envisioned. The majority makes essentially three arguments against Cite as: 548 U. S. (2006) 9 BREYER, J., dissenting this interpretation. t says that the statute’s purpose and “legislative history is simply not enough” to overcome: (1) the fact that this is a Spending Clause case; (2) the text of the statute; and (3) our prior cases which hold that the term “costs” does not include expert costs. Ante, at 12. do not find these arguments convincing. A At the outset the majority says that it “is guided by the fact that Congress enacted the DEA pursuant to the Spending Clause.” Ante, at 3. “n a Spending Clause case,” the majority adds, “the key is not what a majority of the Members of both Houses intend but what the States are clearly told regarding the conditions that go along with the acceptance of those funds.” Ante, at 12. Thus, the statute’s “conditions must be set out ‘unambiguously.’ ” Ante, at 3–4 and Rowley, 458 U.S., at 204, n. 26). And “[w]e must ask” whether the statute “furnishes clear notice regarding the liability at issue in this case.” Ante, at 4. agree that the statute on its face |
Justice Breyer | 2,006 | 2 | second_dissenting | Arlington Central School Dist. Bd. of Ed. v. Murphy | https://www.courtlistener.com/opinion/145629/arlington-central-school-dist-bd-of-ed-v-murphy/ | Ante, at 4. agree that the statute on its face does not clearly tell the States that they must pay expert fees to prevailing parents. But do not agree that the majority has posed the right question. For one thing, we have repeatedly examined the nature and extent of the financial burdens that the DEA imposes without reference to the Spending Clause or any “clear-statement rule.” See, e.g., Burling ; at (same); –1011 (attorneys’ fees); Cedar Rap Community School Dist. v. Garret F., 526 U.S. 66, 76–79 (1999) (continuous nursing service); but see (THOMAS, J., joined by KENNEDY, J., dissent ing). Those cases did not ask whether the statute “fur nishes clear notice” to the affirmative obligation or liabil ity at issue. 10 ARLNGTON CENTRAL SCHOOL DST. BD. OF ED. v. MURPHY BREYER, J., dissenting For another thing, neither Pennhurst nor any other case suggests that every spending detail of a Spending Clause statute must be spelled out with unusual clarity. To the contrary, we have held that Pennhurst’s requirement that Congress “unambiguously” set out “a condition on the grant of federal money” does not necessarily apply to legislation setting forth “the remedies available against a noncomplying State.” 790, n. (1983) (rejecting Pennhurst based argument that Elementary and Secondary Educa tion Act of 1965 did not unambiguously provide that the Secretary could recover federal funds that are misused by a State). We have added that Pennhurst does not require Congress “specifically” to “identify” and “proscribe each condition in [Spending Clause] legislation.” Jackson v. Birmingham Bd. of Ed., (reject ing argument that Pennhurst precluded interpreting Title X’s private cause of action to encompass retaliation (in ternal quotation marks and alterations omitted)); see also 665–666 (1985). And we have denied any implication that “suits under Spending Clause legislation are suits in contract, or that contract-law principles apply to all issues that they raise.” 188–189, n. 2 (2002) These statements and holdings are not surprising. After all, the basic objective of Pennhurst’s clear-statement requirement does not demand textual clarity in respect to every detail. That is because ambiguity about the precise nature of a statutory program’s details—particularly where they are of a kind that States might have antici pated—is rarely relevant to the basic question: Would the States have accepted the Federal Government’s funds had they only known the nature of the accompanying condi tions? Often, the later filling-in of details through judicial interpretation will not lead one to wonder whether fund Cite as: 548 U. S. (2006) 11 BREYER, J., dissenting ing recipients would have agreed to enter the basic pro gram |
Justice Breyer | 2,006 | 2 | second_dissenting | Arlington Central School Dist. Bd. of Ed. v. Murphy | https://www.courtlistener.com/opinion/145629/arlington-central-school-dist-bd-of-ed-v-murphy/ | recipients would have agreed to enter the basic pro gram at all. Given the nature of such details, it is clear that the States would have entered the program regard less. At the same time, to view each statutory detail of a highly complex federal/state program (involving say, transportation, schools, the environment) simply through the lens of linguistic clarity, rather than to assess its meanings in terms of basic legislative purpose, is to risk a set of judicial interpretations that can prevent the pro gram, overall, from achieving its basic objectives or that might well reduce a program in its details to incoherence. This case is about just such a detail. Permitting parents to recover expert fees will not lead to awards of “indeter minate magnitude, untethered to compensable harm” and consequently will not “pose a concern that recipients of federal funding could not reasonably have anticipated.” (SOUTER, J., joined by O’Connor, J., concurring) (citation and internal quotation marks omitted). Unlike, say, punitive damages, an award of costs to expert parties is neither “unorthodox” nor “inde terminate,” and thus does not throw into doubt whether the States would have entered into the program. at 188. f determinations as to whether the DEA requires States to provide continuing nursing services, Cedar Rap or reimbursement for private school tuition, Burling, do not call for linguistic clarity, then the precise content of recoverable “costs” does not call for such clarity here a fortiori. B f the Court believes that the statute’s language is unambiguous, must disagree. The provision at issue says that a court “may award reasonable attorneys’ fees as part of the costs” to parents who prevail in an action brought under the Act. 20 U.S. C. A. (Supp. 2006). The statute neither defines the word “costs” nor 12 ARLNGTON CENTRAL SCHOOL DST. BD. OF ED. v. MURPHY BREYER, J., dissenting points to any other source of law for a definition. And the word “costs,” alone, says nothing at all about which costs falls within its scope. Neither does the statutory phrase—“as part of the costs to the parents of a child with a disability who is the pre vailing party”—taken in its entirety unambiguously fore close an award of expert fees. agree that, read literally, that provision does not clearly grant authority to award any costs at all. And one might read it, as the Court does, as referencing another federal statute, 28 U.S. C. which provides that authority. See ante, ; see also (federal taxation of cost statute). But such a read ing is not inevitable. The provision (indeed, the |
Justice Breyer | 2,006 | 2 | second_dissenting | Arlington Central School Dist. Bd. of Ed. v. Murphy | https://www.courtlistener.com/opinion/145629/arlington-central-school-dist-bd-of-ed-v-murphy/ | a read ing is not inevitable. The provision (indeed, the entire Act) says nothing about that other statute. And one can, consistent with the language, read the provision as both embodying a general authority to award costs while also specifying the inclusion of “reasonable attorneys’ fees” as part of those costs (as saying, for example, that a court “may award reasonable attorneys’ fees as part of [a] costs [award]”). This latter reading, while linguistically the less natural, is legislatively the more likely. The majority’s alternative reading, by cross-referencing only the federal general cost- awarding statute (which applies solely in federal courts), would produce a jumble of different cost definitions appli cable to similar DEA administrative and state-court proceedings in different States. See (“A judge or clerk of any court of the United States may tax as costs the following.” ). This result is particu larly odd, as all DEA actions must begin in state due process hearings, where the federal cost statute clearly does not apply, and the overwhelming majority of these actions are never appealed to any court. See GAO, Report to the Ranking Minority Member, Committee on Health, Education, Labor and Pensions, U. S. Senate, Special Education: Numbers of Formal Disputes are Generally Cite as: 548 U. S. (2006) BREYER, J., dissenting Low and States Are Using Mediation and Other Strategies to Resolve Conflicts (GAO–03–897), p. (2003) (approxi mately 3,000 administrative hearings annually; under 10% appealed to state or federal court); see also Moore v. District of Columbia, (en banc) (joining other Circuits in holding that DEA author izes an “award of attorney fees to a parent who prevails in [DEA] administrative proceedings”). And when parents do appeal, they can file their actions in either state or federal courts. 20 U.S. C. A. (Supp. 2006). Would Congress “obviously” have wanted the content of the word “costs” to vary from State to State, proceeding to proceeding? Ante, Why? At most, the majority’s reading of the text is plausible; it is not the only possible reading. C The majority’s most persuasive argument does not focus on either the Spending Clause or lack of statutory ambigu ity. Rather, the majority says that “costs” is a term of art. n light of the law’s long practice of excluding expert fees from the scope of the word “costs,” along with this Court’s cases interpreting the word similarly in other statutes, the “legislative history is simply not enough.” Ante, at 12. am perfectly willing to assume that the majority is correct about the traditional scope of the word “costs.” n two cases this Court |
Justice Breyer | 2,006 | 2 | second_dissenting | Arlington Central School Dist. Bd. of Ed. v. Murphy | https://www.courtlistener.com/opinion/145629/arlington-central-school-dist-bd-of-ed-v-murphy/ | scope of the word “costs.” n two cases this Court has held that the word “costs” is limited to the list set forth in 28 U.S. C. and does not include fees paid to experts. See Crawford Fitting Co. v. J. T. Gibbons, nc., (interpreting Fed. Rule Civ. Proc. 54(d)); West Virginia Univ. Hospitals, nc. v. (interpreting 42 U.S. C. (1988 ed.)). But Congress is free to redefine terms of art. See, e.g., –90 (citing examples of statutes that shift “‘costs of litigation (including expert witness fees)’ ”). And we have suggested that it might well 14 ARLNGTON CENTRAL SCHOOL DST. BD. OF ED. v. MURPHY BREYER, J., dissenting do so through a statutory provision worded in a manner similar to the statute here—indeed, we cited the Conference Report language here at issue. at 91–92, n. 5 (charac terizing language as an “apparent effort to depart from ordinary meaning and to define a term of art” and noting that Congress made no such “effort” in respect to 42 U.S. C. ). Regardless, here the statute itself indicates that Con gress did not intend to use the word “costs” as a term of art. The HCPA, which added the cost-shifting provision (in to the DEA, also added another provision (in directing the GAO to “conduct a study of the impact of the amendments to the [DEA] made by section 2” over a 31⁄2 year period following the Act’s effective date. 100 Stat. 797. To determine the fiscal impact of (the cost- shifting provision), ordered the GAO to submit a report to Congress containing, among other things, the following information: “Data, for a geographically representative select sam ple of States, indicating (A) the specific amount of at torneys’ fees, costs, and expenses awarded to the pre vailing party, in each action and proceeding under [] from the date of the enactment of this Act through fiscal year 1988, and the range of such fees, costs and expenses awarded in the actions and pro ceedings under such section, categorized by type of complaint and (B) for the same sample as in (A) the number of hours spent by personnel, including attor neys and consultants, involved in the action or pro ceeding, and expenses incurred by the parents and the State educational agency and local educational agency.” (b)(3), 97–798 f Congress intended the word “costs” in to authorize an award of only those costs listed in the federal cost statute, why did it use the word “expenses” in (b)(3)(A) Cite as: 548 U. S. (2006) 15 BREYER, J., dissenting as part of the “amount |
Subsets and Splits
No community queries yet
The top public SQL queries from the community will appear here once available.