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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/ | (2006) 15 BREYER, J., dissenting as part of the “amount awarded to the prevailing party”? When used as a term of art, after all, “costs” does not cover expenses. Nor does the federal costs statute cover any expenses—at least not any that Congress could have wanted the GAO to study. Cf. 28 U.S. C. (referring only once to “expenses,” and doing so solely to refer to special interpretation services provided in actions initiated by the United States). Further, why did Congress, when asking the GAO (in the statute itself) to study the “numbers of hours spent by personnel” include among those personnel both attorneys “and consultants”? Who but experts could those consult ants be? Why would Congress want the GAO to study the hours that those experts “spent,” unless it thought that it would help keep track of the “costs” that the statute imposed? Of course, one might, through speculation, find other answers to these questions. One might, for example, imagine that Congress wanted the GAO to study the expenses that payment of expert fees engendered in state- court proceedings where state, but not federal, law re quires that “ ‘expenses’ other than ‘costs’ might be receiv able.” Ante, n. 1; but see at 12-. Or one might think that the word “expenses” is surplusage. Ante, n. 1; but see 4 (expressing Court’s “ ‘reluctan[ce] to treat statutory terms as surplusage in any setting,’” but especially when they play “a pivotal role in the statutory scheme”). Or one might believe that Congress was interested in the hours these experts spent, but not in the fees they obtained. Ante, But these answers are not necessarily consis tent with the purpose of the GAO study provision, a pur pose revealed by the language of the provision and its position in the statute. ts placement and its reference to indicate that Congress ordered the study to help it keep track of the magnitude of the reimbursements that an 16 ARLNGTON CENTRAL SCHOOL DST. BD. OF ED. v. MURPHY BREYER, J., dissenting earlier part of the new statute (namely, mandated. See (stating that purpose of GAO study was to determine the “impact” of “section 2”). And the only reimbursement requirement that mandates is the payment of “costs.” But why speculate about this? We know what Congress intended the GAO study to cover. t told the GAO in its Conference Report that the word “costs” included the costs of experts. And, not surprisingly, the GAO made clear that it understood precisely what Congress asked it to do. n its final report, the GAO wrote: “Parents |
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/ | to do. n its final report, the GAO wrote: “Parents can receive reimbursement from state or local education agencies for some or all of their attorney fees and related expenses if they are the prevailing party in part or all of administra tive hearings or court proceedings. Expert witness fees, costs of tests or evaluations found to be necessary during the case, and court costs for services rendered during ad ministrative and court proceedings are examples of reim bursable expenses.” GAO, Briefing Report to Congres sional Requesters, Special Education: The Attorney Fees Provision of Public Law 99–372 GAO/HRD–22BR, p. (Nov. 1989). At the very least, this amounts to some indi cation that Congress intended the word “costs,” not as a term of art, not as it was used in the statutes at issue in and Crawford Fitting, but rather as including cer tain additional “expenses.” f that is so, the claims of tradition, of the interpretation this Court has given other statutes, cannot be so strong as to prevent us from exam ining the legislative history. And that history could not be more clear about the matter: Congress intended the statutory phrase “attorneys’ fees as part of the costs” to include the costs of experts. See Part For the reasons have set forth, cannot agree with the majority’s conclusion. Even less can agree with its fail Cite as: 548 U. S. (2006) BREYER, J., dissenting ure to consider fully the statute’s legislative history. That history makes Congress’ purpose clear. And our ultimate judicial goal is to interpret language in light of the statute’s purpose. Only by seeking that purpose can we avoid the substitution of judicial for legislative will. Only by reading language in its light can we maintain the democratic link between voters, legislators, statutes, and ultimate imple mentation, upon which the legitimacy of our constitutional system rests. n my view, to keep faith with that interpretive goal, we must retain all traditional interpretive tools—text, struc ture, history, and purpose. And, because faithful interpre tation is art as well as science, we cannot, through rule or canon, rule out the use of any of these tools, automatically and in advance. Cf. 810–811 (CA2 1934) (L. Hand, J.). Nothing in the Constitution forb us from giving significant weight to legislative history. By disregarding a clear statement in a legislative report adopted without opposition in both Houses of Congress, the majority has reached a result no Member of Congress expected or overtly desired. t has adopted an interpretation that undercuts, rather than furthers, the statute’s purpose, a “free” and “appropriate” public |
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/ | than furthers, the statute’s purpose, a “free” and “appropriate” public education for “all” children with disabilities. See Circuit City Stores, nc. v. Adams, 3 (STEVENS, J., joined by SOUTER, GNSBURG, and BREYER, JJ., dissenting) (“A method of statutory interpretation that is deliberately uninformed, and hence unconstrained, may produce a result that is consistent with a court’s own views of how things should be, but it may also defeat the very purpose for which a provision was enacted”). And it has adopted an approach that, fear, divorces law from life. See at 193 (BREYER, J., joined by GNSBURG, J., dissenting). For these reasons, respectfully dissent. 18 ARLNGTON CENTRAL SCHOOL DST. BD. OF ED. v. MURPHY Appendix A to opinion of BREYER, J. APPENDX A TO OPNON OF BREYER, J. [Text of Act omitted.] Cite as: 548 U. S. (2006) 19 Appendix A to opinion of BREYER, J. 20 ARLNGTON CENTRAL SCHOOL DST. BD. OF ED. v. MURPHY Appendix A to opinion of BREYER, J. Cite as: 548 U. S. (2006) 21 Appendix A to opinion of BREYER, J. 22 ARLNGTON CENTRAL SCHOOL DST. BD. OF ED. v. MURPHY Appendix B to opinion of BREYER, J. APPENDX B TO OPNON OF BREYER, J. Excerpts from Congressional Record 2 Cong. Rec. 16823–16825 (1986) (Senate) HANDCAPPED CHLDREN’S PROTECTON ACT—CONFERENCE REPORT Mr. WECKER. Mr. President, submit a report of the committee of conference on S. 415 and ask for its immedi ate consideration. The PRESDNG OFFCER. The report will be stated. The legislative clerk read as follows: The committee of conference on the disagreeing votes of the two Houses on the amendments of the House to the bill (S. 415) to amend the Education of the Handicapped Act to authorize the award of reasonable attorneys’ fees to certain prevailing parties, and to clarify the effect of the Education of the Handicapped Act on rights, procedures, and remedies under other laws relating to the prohibition on discrimination, having met, after full and free confer ence, have agreed to recommend and do recommend to their respective Houses this report, signed by a majority of the conferees. The PRESDNG OFFCER. Without objection, the Senate will proceed to the consideration of the conference report. [Floor statements omitted.] Mr. WECKER. Mr. President, move adoption of the conference report. The PRESDNG OFFCER. The question is on agree ing to the conference report. The conference report was agreed to. Mr. WECKER. Mr. President, move to reconsider the vote by which the conference report was agreed to. Cite as: 548 U. S. (2006) 23 Appendix C to opinion of BREYER, J. APPENDX C |
Justice Kagan | 2,011 | 3 | majority | Milner v. Department of Navy | https://www.courtlistener.com/opinion/206090/milner-v-department-of-navy/ | The Freedom of Information Act (FOIA), 5 U.S. C. requires federal agencies to make Government records available to the public, subject to nine exemptions for specific categories of material. This case concerns the scope of Exemption 2, which protects from disclosure material that is “related solely to the internal personnel rules and practices of an agency.” Respondent Department of the Navy (Navy or Government) invoked Exemption 2 to deny a FOIA request for data and maps used to help store explosives at a naval base in Washing ton State. We hold that Exemption 2 does not stretch so far. I Congress enacted FOIA to overhaul the public disclosure section of the Administrative Procedure Act (APA), 5 U.S. C. (964 ed.). That section of the APA “was plagued with vague phrases” and gradually became more “a withholding statute than a disclosure statute.” Congress intended FOIA to “permit access to official information 2 MILNER v. DEPARTMENT OF NAVY Opinion of the Court long shielded unnecessarily from public view.” FOIA thus mandates that an agency disclose records on request, unless they fall within one of nine exemptions. These exemptions are “explicitly made exclusive,” at and must be “narrowly construed,” At issue here is Exemption 2, which shields from com pelled disclosure documents “related solely to the internal personnel rules and practices of an agency.” Congress enacted Exemption 2 to replace the APA’s ex emption for “any matter relating solely to the internal management of an agency,” 5 U.S. C. (964 ed.). Believing that the “sweep” of the phrase “internal man agement” had led to excessive withholding, Congress drafted Exemption 2 “to have a narrower reach.” Depart ment of Air We considered the extent of that reach in Department of Air There, we rejected the Government’s invocation of Exemption 2 to withhold case summaries of honor and ethics hearings at the United States Air Force Academy. The exemption, we suggested, primarily targets material concerning employee relations or human re sources: “use of parking facilities or regulations of lunch hours, statements of policy as to sick leave, and the like.” (quoting S. Rep. No. 8, 89th Cong., st Sess., 8 (965) (hereinafter S. Rep.)); see “[T]he general thrust” of Exemption 2, we explained, “is simply to relieve agencies of the burden of assembling and maintaining [such information] for public inspection.” We concluded that the case summaries did not fall within the exemption because they “d[id] not concern only routine matters” of “merely internal significance.” at 70. But we stated a possible caveat to our interpretation of Exemption 2: That understanding of the provision’s coverage governed, |
Justice Kagan | 2,011 | 3 | majority | Milner v. Department of Navy | https://www.courtlistener.com/opinion/206090/milner-v-department-of-navy/ | of Exemption 2: That understanding of the provision’s coverage governed, we wrote, “at least where the situation Cite as: 562 U. S. (20) Opinion of the Court is not one where disclosure may risk circumvention of agency regulation.” In the D. C. Circuit converted this caveat into a new definition of Exemption 2’s scope. Crooker approved the use of Exemption 2 to shield a man ual designed to train Government agents in law enforce ment surveillance techniques. The D. C. Circuit noted that it previously had understood Exemption 2 to “refe[r] only to ‘pay, pensions, vacations, hours of work, lunch hours, parking, etc.’ ” ). But the court now thought Exemption 2 should also cover any “predominantly internal” materials, Crooker, 670 F.2d, –057, whose disclosure would “significantly ris[k] circumvention of agency regulations or statutes,” at 074. This construction of Exemption 2, the court rea soned, flowed from FOIA’s “overall design,” its legislative history, “and even common sense,” because Congress could not have meant to “enac[t] a statute whose provisions undermined the effectiveness of law enforcement agencies.” In the ensuing years, three Courts of Appeals adopted the D. C. Circuit’s interpretation of Exemption 2. See 575 F.d 959, 965 (CA9 2009) (case below); Massey v. FBI, F.d 620, 622 (CA2 99); Kaganove v. EPA, 856 F.2d 884, 889 (CA7 988).2 And that interpretation spawned a —————— The court adopted the “predominantly internal” standard as a way of implementing the exemption’s requirement that materials “relat[e] solely to” an agency’s internal personnel rules and practices. The word “solely,” the court reasoned, “has to be given the construction, consonant with reasonableness, of ‘predominantly’ ” because otherwise “solely” would conflict with the expansive term “related.” 670 F.2d, at 056 (some internal quotation marks omitted). 2 Three other Courts of Appeals had previously taken a narrower view of Exemption 2’s scope, consistent with the interpretation adopted in 4 MILNER v. DEPARTMENT OF NAVY Opinion of the Court new terminology: Courts applying the Crooker approach now refer to the “Low 2” exemption when discussing mate rials concerning human resources and employee relations, and to the “High 2” exemption when assessing records whose disclosure would risk circumvention of the law. See, ; Schiller v. NLRB, 964 F.2d 205, 208 (CADC 992). Congress, as well, took notice of the D. C. Circuit’s decision, borrowing language from Crooker to amend Exemption 7(E) when next enacting revisions to FOIA. The amended version of Exemption 7(E) shields certain “records or information compiled for law enforcement purposes” if their disclosure “could rea sonably be expected to risk circumvention of the law.” see Freedom |
Justice Kagan | 2,011 | 3 | majority | Milner v. Department of Navy | https://www.courtlistener.com/opinion/206090/milner-v-department-of-navy/ | be expected to risk circumvention of the law.” see Freedom of Information Reform Act of 986, –. II The FOIA request at issue here arises from the Navy’s operations at Naval Magazine Indian Island, a base in Puget Sound, Washington. The Navy keeps weapons, ammunition, and explosives on the island. To aid in the storage and transport of these munitions, the Navy uses data known as Explosive Safety Quantity Distance (ESQD) ESQD informa tion prescribes “minimum separation distances” for explo sives and helps the Navy design and construct storage —————— See 09–0 (concluding that Exemption 2 covers only an agency’s internal “housekeeping matters” (internal quotation marks omitted)); (holding that Exemp tion 2 “must not be read so broadly as to exempt” an Occupational Safety and Health Administration manual for training compliance officers); 7 (“[T]he internal practices and policies referred to in [Exemption 2] relate only to employee-employer type concerns”). These Circuits have never revised their understandings of the See infra, n. 7. Cite as: 562 U. S. (20) 5 Opinion of the Court facilities to prevent chain reactions in case of detonation. The ESQD calculations are often incorporated into specialized maps depicting the effects of hypothetical explosions. See, App. 52. In 200 and 2004, petitioner Glen Milner, a Puget Sound resident, submitted FOIA requests for all ESQD information relating to Indian The Navy refused to release the data, stating that disclo sure would threaten the security of the base and surround ing community. In support of its decision to withhold the records, the Navy invoked Exemption 2. The District Court granted summary judgment to the Navy, and the Court of Appeals affirmed, relying on the High 2 interpretation developed in Crooker. 575 F.d, at 96. The Court of Appeals explained that the ESQD information “is predominantly used for the internal pur pose of instructing agency personnel on how to do their jobs.” And disclosure of the material, the court determined, “would risk circumvention of the law” by “point[ing] out the best targets for those bent on wreak ing havoc”—for example, “[a] terrorist who wished to hit the most damaging target.” The ESQD infor mation, the court concluded, therefore qualified for a High 2 575 F.d, We granted certiorari in light of the Circuit split re specting Exemption 2’s meaning, 56 U. S. (200), and we now reverse. —————— The Navy also invoked Exemption 7(F), which applies to “records or information compiled for law enforcement purposes, but only to the extent that the production of such records could reasonably be expected to endanger the life or physical safety of any individual.” |
Justice Kagan | 2,011 | 3 | majority | Milner v. Department of Navy | https://www.courtlistener.com/opinion/206090/milner-v-department-of-navy/ | to endanger the life or physical safety of any individual.” 5 U.S. C. The courts below did not decide whether the Navy could withhold the ESQD data under that 575 F.d 959, 97, n. 8 (CA9 2009); No. CV–06–00 (WD Wash., Oct. 0, 2007), App. to Pet. for Cert. 4, 25, 6 MILNER v. DEPARTMENT OF NAVY Opinion of the Court III Our consideration of Exemption 2’s scope starts with its text. See, Park ’N Fly, (“Statutory construction must begin with the language employed by Congress and the assumption that the ordinary meaning of that language accurately expresses the legislative purpose”). Judicial decisions since FOIA’s enactment have analyzed and reanalyzed the meaning of the But compara tively little attention has focused on the provision’s 2 simple words: “related solely to the internal personnel rules and practices of an agency.” The key word in that dozen—the one that most clearly marks the provision’s boundaries—is “personnel.” When used as an adjective, as it is here to modify “rules and practices,” that term refers to human resources matters. “Personnel,” in this common parlance, means “the selec tion, placement, and training of employees and the formulation of policies, procedures, and relations with [or involving] employees or their representatives.” Webster’s Third New International Dictionary 687 (966) (hereinaf ter Webster’s). So, for example, a “personnel department” is “the department of a business firm that deals with problems affecting the employees of the firm and that usually interviews applicants for jobs.” Random House Dictionary 075 (966) (hereinafter Random House). “Personnel management” is similarly “the phase of man agement concerned with the engagement and effective utilization of manpower to obtain optimum efficiency of human resources.” Webster’s 687. And a “personnel agency” is “an agency for placing employable persons in jobs; employment agency.” Random House 075. FOIA itself provides an additional example in Exemp tion 6. See (994) (“A term appearing in several places in a statutory Cite as: 562 U. S. (20) 7 Opinion of the Court text is generally read the same way each time it appears”). That exemption, just a few short paragraphs down from Exemption 2, protects from disclosure “personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of per sonal privacy.” Here too, the statute uses the term “personnel” as a modifier meaning “human re sources.” See Tr. of Oral Arg. 2 (“[The Court:] It’s [an] H. R. file, right? [The Government:] That’s generally true”). As we recognized in “the common and con gressional meaning of ‘personnel file’ ” is the file “show ing, for example, |
Justice Kagan | 2,011 | 3 | majority | Milner v. Department of Navy | https://www.courtlistener.com/opinion/206090/milner-v-department-of-navy/ | ‘personnel file’ ” is the file “show ing, for example, where [an employee] was born, the names of his parents, where he has lived from time to time, his school records, results of examinations, [and] evaluations of his work performance.” It is the file typically maintained in the human resources office—otherwise known (to recall an example offered above) as the “personnel department.” Exemption 2 uses “personnel” in the exact same way. An agency’s “personnel rules and practices” are its rules and practices dealing with employee relations or human resources. The D. C. Circuit, in a pre-Crooker decision, gave as examples “matters relating to pay, pensions, vacations, hours of work, lunch hours, parking, etc.” 59 F.2d, at ; see That “etc.” is important; we doubt any court could know enough about the Federal Government’s operations to formulate a com prehensive list. But all the rules and practices referenced in Exemption 2 share a critical feature: They concern the conditions of employment in federal agencies—such mat ters as hiring and firing, work rules and discipline, com pensation and benefits.4 Courts in practice have had little —————— 4 Government records also must satisfy the other requirements of Exemption 2 to be exempt from disclosure. Information must “relat[e] solely”—meaning, as usual, “exclusively or only,” Random House 54 8 MILNER v. DEPARTMENT OF NAVY Opinion of the Court difficulty identifying the records that qualify for withhold ing under this reading: They are what now commonly fall within the Low 2 Our construction of the statutory language simply makes clear that Low 2 is all of 2 (and that High 2 is not 2 at all, see infra, at 0–4). The statute’s purpose reinforces this understanding of the We have often noted “the Act’s goal of broad disclosure” and insisted that the exemptions be “given a narrow compass.” Department of ; see Department of Interior v. Klamath Water Users Protective Assn., 52 U.S. 7–8 (200).5 This practice of “constru[ing] FOIA exemp tions narrowly,” Department of Justice v. Landano, 508 U.S. 65, 8 (99), stands on especially firm footing with respect to Exemption 2. As described earlier, Con gress worded that provision to hem in the prior APA ex emption for “any matter relating solely to the internal management of an agency,” which agencies had used to prevent access to masses of documents. See 425 U.S., 62. We would ill-serve Congress’s purpose by —————— —to the agency’s “personnel rules and practices.” And the information must be “internal”; that is, the agency must typically keep the records to itself for its own use. See Webster’s 80 (“internal” means |
Justice Kagan | 2,011 | 3 | majority | Milner v. Department of Navy | https://www.courtlistener.com/opinion/206090/milner-v-department-of-navy/ | itself for its own use. See Webster’s 80 (“internal” means “existing or situated within the limits of something”). An agency’s human resources documents will often meet these conditions. 5 The dissent would reject this longstanding rule of construction in favor of an approach asking courts “to turn Congress’ public informa tion objectives into workable agency practice.” Post, at 8–9 (opinion of BREYER, J.). But nothing in FOIA either explicitly or implicitly grants courts discretion to expand (or contract) an exemption on this basis. In enacting FOIA, Congress struck the balance it thought right—generally favoring disclosure, subject only to a handful of specified exemptions— and did so across the length and breadth of the Federal Government. See, John Doe 52–5 The judicial role is to enforce that congressionally determined balance rather than, as the dissent suggests, post, at 4–6, to assess case by case, department by department, and task by task whether disclo sure interferes with good government. Cite as: 562 U. S. (20) 9 Opinion of the Court construing Exemption 2 to reauthorize the expansive withholding that Congress wanted to halt. Our reading instead gives the exemption the “narrower reach” Con gress intended, through the simple device of confining the provision’s meaning to its words. The Government resists giving “personnel” its plain meaning on the ground that Congress, when drafting Exemption 2, considered but chose not to enact language exempting “internal employment rules and practices.” Brief for Respondent 0–4, and n. This drafting history, the Navy maintains, proves that Congress did not wish “to limit the Exemption to employment-related mat ters,” even if the adjective “personnel” conveys that meaning in other contexts, But we think the Navy’s evidence insufficient: The scant history con cerning this word change as easily supports the inference that Congress merely swapped one synonym for another. Cf. Mead (noting with respect to the “unexplained disappearance of one word from an unenacted bill” that “mute intermediate legislative maneuvers are not reliable” aids to statutory interpretation (internal quotation marks omitted)). Those of us who make use of legislative history believe that clear evidence of congressional intent may illuminate ambigu ous text. We will not take the opposite tack of allowing ambiguous legislative history to muddy clear statutory language. Exemption 2, as we have construed it, does not reach the ESQD information at issue here. These data and maps calculate and visually portray the magnitude of hypothetical detonations. By no stretch of imagination do they relate to “personnel rules and practices,” as that term is most naturally understood. They concern the physical rules governing explosives, not the workplace rules |
Justice Kagan | 2,011 | 3 | majority | Milner v. Department of Navy | https://www.courtlistener.com/opinion/206090/milner-v-department-of-navy/ | concern the physical rules governing explosives, not the workplace rules gov erning sailors; they address the handling of dangerous 0 MILNER v. DEPARTMENT OF NAVY Opinion of the Court materials, not the treatment of employees. The Navy therefore may not use Exemption 2, interpreted in accord with its plain meaning to cover human resources matters, to prevent disclosure of the requested maps and data. IV The Government offers two alternative readings of Exemption 2 to support withholding the ESQD informa tion. We cannot square either with the statute. A The Navy first encourages us to adopt the construction of Exemption 2 pioneered by Crooker, which shields mate rial not only if it meets the criteria set out above (Low 2), but also if it is “predominant[ly] interna[l]” and its “disclo sure would significantly risk[] circumvention of federal agency functions” (High 2). Brief for Respondent 4 (in ternal quotation marks omitted). The dissent, too, favors this reading of the statute. Post, at But the Crooker interpretation, as already suggested, suffers from a patent flaw: It is disconnected from Exemption 2’s text. The High 2 test (in addition to substituting the word “predomi nantly” for “solely,” see n. ignores the plain meaning of the adjective “personnel,” see at 6–9, and adopts a circumvention requirement with no basis or referent in Exemption 2’s language. Indeed, the only way to arrive at High 2 is by taking a red pen to the statute— “cutting out some” words and “pasting in others” until little of the actual provision remains. (CADC 200). Because this is so, High 2 is better labeled “Non 2” (and Low 2 just 2). In support of its text-light approach to the statute, the Government relies primarily on legislative history, placing particular emphasis on the House Report concerning FOIA. See Brief for Respondent –8. A statement in that Report buttresses the High 2 understanding of the Cite as: 562 U. S. (20) Opinion of the Court exemption and, indeed, specifically rejects the Low 2 construction. According to the Report: “Operating rules, guidelines, and manuals of procedure for Government investigators or examiners would be exempt from disclo sure [under Exemption 2], but this exemption would not cover employee relations and working conditions and routine administrative procedures.” H. R. Rep. No. 7, 89th Cong., 2d Sess., 0 (966). But the Senate Report says exactly the opposite, explaining in support of a Low 2 interpretation that the phrase “internal personnel rules and practices of an agency” means “rules as to personnel’s use of parking facilities or regulation of lunch hours, statements of policy as to |
Justice Kagan | 2,011 | 3 | majority | Milner v. Department of Navy | https://www.courtlistener.com/opinion/206090/milner-v-department-of-navy/ | or regulation of lunch hours, statements of policy as to sick leave, and the like.” S. Rep., at 8.6 In we gave reasons for thinking the Senate Report the more reliable of the two. See 425 U.S., 66. But the more fundamental point is what we said before: Legislative history, for those who take it into ac count, is meant to clear up ambiguity, not create it. See ; Wong Yang (950) (declining to consult legislative history when that “history is more conflicting than the text is ambiguous”). When presented, on the one hand, with clear statutory language and, on the other, with dueling committee re ports, we must choose the language. The Government also advances, in support of Crooker’s High 2 approach, an argument based on subsequent legis lative action. Congress, the Government notes, amended Exemption 7(E) in 986 to cover law enforcement records whose production “would disclose techniques and proce dures for law enforcement investigations or prosecutions, —————— 6 We are perplexed that the dissent takes seriously Crooker’s notion that the reports are “reconcilable.” Post, at 4. To strip the matter to its essentials, the House Report says: “Exemption 2 means A, but not B.” The Senate Report says: “Exemption 2 means B.” That is the very definition of “irreconcilable.” 2 MILNER v. DEPARTMENT OF NAVY Opinion of the Court or would disclose guidelines for law enforcement investi gations or prosecutions if such disclosure could reason ably be expected to risk circumvention of the law.” That amendment, the Government con tends, codified Crooker’s “circumvention of the law” stan dard and, in so doing, ratified Crooker’s holding. Brief for Respondent 42–4. The dissent likewise counts as signifi cant that Congress “t[ook] note” of Crooker in revising FOIA. Post, ; see post, But the Government and the dissent neglect the key feature of the 986 amendment: Congress modified not Exemption 2 (the subject of Crooker), but instead Exemp tion 7(E). And the Crooker construction of Exemption 2 renders Exemption 7(E) superfluous and so deprives that amendment of any effect. See, TRW 54 U.S. 9, (200) (noting canon that statutes should be read to avoid making any provision “superfluous, void, or insignificant” (internal quotation marks omitted)). We cannot think of any document eligible for withholding under Exemption 7(E) that the High 2 reading does not capture: The circumvention standard is the same, and the law enforcement records listed in Exemption 7(E) are “predominantly internal.” So if Congress had agreed with Crooker’s reading of Exemption 2, it would have had no reason to alter Exemption 7(E). In that event, Congress would either |
Justice Kagan | 2,011 | 3 | majority | Milner v. Department of Navy | https://www.courtlistener.com/opinion/206090/milner-v-department-of-navy/ | to alter Exemption 7(E). In that event, Congress would either have left the statute alone (on the theory that Crooker would do the necessary work) or would have amended Exemption 2 specifically to ratify Crooker. The decision instead to amend Exemption 7(E) suggests that Congress approved the circumvention standard only as to law enforcement materials, and not as to the wider set of records High 2 covers. Perhaps this legislative action does not show that Congress affirmatively disagreed with Crooker; maybe Congress was agnostic about whether the circumvention standard should apply to other records. But one thing is clear: The 986 amendment does not Cite as: 562 U. S. (20) Opinion of the Court ratify, approve, or otherwise signal agreement with Crooker’s interpretation of Exemption 2. This argument therefore cannot save the High 2 construction. The dissent offers one last reason to embrace High 2, and indeed stakes most of its wager on this argument. Crooker, the dissent asserts, “has been consistently relied upon and followed for 0 years” by other lower courts. Post, ; see post, at –2. But this claim, too, trips at the starting gate. It would be immaterial even if true, because we have no warrant to ignore clear statutory language on the ground that other courts have done so. And in any event, it is not true. Prior to Crooker, three Circuits adopted the reading of Exemption 2 we think right, and they have not changed their minds. See n. 2, 7 —————— 7 The dissent’s view that “two of th[ese] Circuits [have] not adher[ed] to their early positions” is incorrect. Post, In Abraham & P.L.C. v. United States, cited by the dissent, the Sixth Circuit rejected the Government’s claim that Exemption 2 shielded records of federal tax lien filings. 8 F.d 075, 082 (998). The court nowhere discussed the High 2 versus Low 2 question at issue here. Its only reference to Crooker concerned the part of that decision interpreting “solely” to mean “predominantly.” See 8 F.d, at 080; see also n. Subsequently, the Sixth Circuit once again held, in Rugiero v. Department of Justice, that Exemption 2 applies to “routine matters of merely internal significance.” 5 (200). In Sladek v. Bensinger, which the dissent also cites, the Fifth Circuit insisted that the Government disclose a Drug Enforcement Administration agent’s manual because it “is not the type of trivial rule, such as allocation of parking facilities, that is covered by Exemption 2.” (9). In confirming this Low 2 interpretation of the statute, the court acknowledged that another Circuit had embraced the High 2 standard. |
Justice Kagan | 2,011 | 3 | majority | Milner v. Department of Navy | https://www.courtlistener.com/opinion/206090/milner-v-department-of-navy/ | acknowledged that another Circuit had embraced the High 2 standard. The court, however, declined to consider this alternative interpretation because it would not have changed the case’s outcome. See Finally, the Eighth Circuit’s last word on Exemption 2 is clear, and the dissent does not say otherwise. The exemption, according to that most recent Eighth Circuit decision, applies “only [to an agency’s] housekeep ing matters.” 576 F.2d, 09–0 (internal quotation marks omitted). The dissent is surely right to say, post that Crooker “has guided nearly every FOIA case decided over the last 0 years” in 4 MILNER v. DEPARTMENT OF NAVY Opinion of the Court Since Crooker, three other Circuits have accepted the High 2 reading. See One Circuit has reserved judgment on the High 2-Low 2 debate. See Audubon 04 F.d 20, 20–204 (CA0 997). And the rest have not considered the matter. (No one should think Crooker has been extensively discussed or debated in the Courts of Appeals. In the past three decades, Crooker’s analysis of Exemption 2 has been cited a sum total of five times in federal appellate decisions outside the D. C. Circuit—on average, once every six years.) The result is a 4 to split among the Circuits.8 We will not flout all usual rules of statutory interpretation to take the side of the bare majority. B Presumably because Crooker so departs from Exemption 2’s language, the Government also offers another con struction, which it says we might adopt “on a clean slate,” “based on the plain text alone.” Brief for Respondent 5. On this reading, the exemption “encompasses records concerning an agency’s internal rules and practices for its personnel to follow in the discharge of their governmental functions.” ; see also –4 (Exemption 2 “applies generally to matters concerning internal rules and practices to guide agency personnel in performing —————— Circuits applying Crooker; but that statement does not hold in the Circuits using the Low 2 approach. 8 Notably, even those courts approving Crooker have disagreed about how to apply High 2. Fault lines include whether the risk of circum vention must be significant, see, Hidalgo v. FBI, 54 F. Supp. 2d 250, 25 (DC 2008); Pet. for Cert. 5–6; whether courts should con sider the public interest in disclosure when calculating that risk, see, Department of Justice, Guide to the Freedom of Information Act, p. 85 (2009); and whether an agency must regulate the person or entity threatening circumvention; compare, 575 F.d, with, 78 The disagreement is not surprising. Because High 2 is nowhere evident in the statute, courts lack the normal guideposts |
Justice Kagan | 2,011 | 3 | majority | Milner v. Department of Navy | https://www.courtlistener.com/opinion/206090/milner-v-department-of-navy/ | nowhere evident in the statute, courts lack the normal guideposts for ascertaining its coverage. Cite as: 562 U. S. (20) 5 Opinion of the Court their duties”). According to the Government, this inter pretation makes sense because “the phrase ‘personnel rules and practices of an agency’ is logically understood to mean an agency’s rules and practices for its personnel.” But the purported logic in the Government’s definition eludes us. We would not say, in ordinary parlance, that a “personnel file” is any file an employee uses, or that a “personnel department” is any department in which an employee serves. No more would we say that a “personnel rule or practice” is any rule or practice that assists an employee in doing her job. The use of the term “personnel” in each of these phrases connotes not that the file or de partment or practice/rule is for personnel, but rather that the file or department or practice/rule is about personnel— i.e., that it relates to employee relations or human re sources. This case well illustrates the point. The records requested, as earlier noted, are explosives data and maps showing the distances that potential blasts travel. This information no doubt assists Navy personnel in storing munitions. But that is not to say that the data and maps relate to “personnel rules and practices.” No one staring at these charts of explosions and using ordinary language would describe them in this manner. Indeed, the Government’s “clean slate” construction reaches such documents only by stripping the word “per sonnel” of any real meaning. Under this interpretation, an agency’s “internal personnel rules and practices” ap pears to mean all its internal rules and practices. That is because agencies necessarily operate through personnel, and so all their internal rules and practices are for per sonnel. The modifier “personnel,” then, does no modifying work; it does not limit the class of internal rules and practices that Exemption 2 covers. What is most naturally viewed as the provision’s key word—the term that ought 6 MILNER v. DEPARTMENT OF NAVY Opinion of the Court to define its scope—does nothing more than state the truism that in an agency it is “personnel” who follow internal rules and practices. And this odd reading would produce a sweeping exemp tion, posing the risk that FOIA would become less a dis closure than “a withholding statute.” Mink, 40 U.S., at Many documents an agency generates in some way aid employees in carrying out their responsibilities. If Exemption 2 were to reach all these records, it would tend to engulf other FOIA exemptions, rendering |
Justice Kagan | 2,011 | 3 | majority | Milner v. Department of Navy | https://www.courtlistener.com/opinion/206090/milner-v-department-of-navy/ | records, it would tend to engulf other FOIA exemptions, rendering ineffective the limitations Congress placed on their application. Exemp tion 7, for example, shields records compiled for law en forcement purposes, but only if one of six specified criteria is met. Yet on the Government’s view, an agency could bypass these restrictions by invoking Exemp tion 2 whenever law enforcement records guide personnel in performing their duties. Indeed, an agency could use Exemption 2 as an all-purpose back-up provision to with hold sensitive records that do not fall within any of FOIA’s more targeted exemptions.9 —————— 9 The dissent asserts that “0 years of experience” with a more expan sive interpretation of the exemption suggests no “seriou[s] inter fere[nce] with FOIA’s informational objectives.” Post, at 6. But those objectives suffer any time an agency denies a FOIA request based on an improper interpretation of the statute. To give just one example, the U. S. Forest Service has wrongly invoked Exemption 2 on multiple occasions to withhold information about (of all things) bird nesting sites. See Audubon 04 F.d 20, 20 (CA0 997); Maricopa Audubon 08 F.d 082, 084 (CA9 997). And recent statistics raise a concern that federal agencies may too readily use Exemption 2 to refuse disclosure. According to amicus Public Citizen, “while reliance on exemptions overall rose 8% from 998 to 2006, reliance on Exemption 2 rose 44% during that same time period.” Brief for Public Citizen et al. as Amici Curiae 24. In 2009 alone, federal departments cited Exemption 2 more than 72,000 times to prevent access to records. See Brief for Allied Daily Newspa pers of Washington et al. as Amici Curiae We do not doubt that many of these FOIA denials were appropriate. But we are unable to Cite as: 562 U. S. (20) 7 Opinion of the Court Interpreted in this way, Exemption 2—call it “Super 2” now—would extend, rather than narrow, the APA’s former exemption for records relating to the “internal manage ment of an agency.” 5 U.S. C. (964 ed.). We doubt that even the “internal management” provision, which Congress thought allowed too much withholding, see would have protected all information that guides employees in the discharge of their duties, includ ing the explosives data and maps in this case. And per haps needless to say, this reading of Exemption 2 violates the rule favoring narrow construction of FOIA exemptions. See, 456 U.S., at ; 425 U.S., at 6. Super 2 in fact has no basis in the text, context, or purpose of FOIA, and we accordingly reject it. V Although we |
Justice Kagan | 2,011 | 3 | majority | Milner v. Department of Navy | https://www.courtlistener.com/opinion/206090/milner-v-department-of-navy/ | of FOIA, and we accordingly reject it. V Although we cannot interpret Exemption 2 as the Gov ernment proposes, we recognize the strength of the Navy’s interest in protecting the ESQD data and maps and other similar The Government has informed us that “[p]ublicly disclosing the [ESQD] information would significantly risk undermining the Navy’s ability to safely and securely store military ordnance,” Brief for Respon dent 47, and we have no reason to doubt that representa tion. The Ninth Circuit similarly cautioned that disclo sure of this information could be used to “wrea[k] havoc” and “make catastrophe more likely.” 575 F.d, Concerns of this kind—a sense that certain sensitive information should be exempt from disclosure—in part led the Crooker court to formulate the High 2 standard. See 670 F.2d, at 074 (contending that “common sense” sup ported the High 2 interpretation because Congress would not have wanted FOIA to “undermin[e] the effective —————— accept the dissent’s unsupported declaration that a sweeping construc tion of Exemption 2 has not interfered with Congress’s goal of broad disclosure. 8 MILNER v. DEPARTMENT OF NAVY Opinion of the Court ness of law enforcement agencies”). And we acknowledge that our decision today upsets three decades of agency practice relying on Crooker, and therefore may force con siderable adjustments. We also note, however, that the Government has other tools at hand to shield national security information and other sensitive materials. Most notably, Exemption of FOIA prevents access to classified documents. §552(b)(); see 575 F.d, 80 (Exemp tion is “specifically designed to allow government agen cies to withhold information that might jeopardize our national security”). The Government generally may clas sify material even after receiving a FOIA request, see Exec. Order No. 526, §.7(d), 75 Fed. Reg. 7 (2009); an agency therefore may wait until that time to decide whether the dangers of disclosure outweigh the costs of classification. See Tr. of Oral Arg. 29–0. Exemption also may mitigate the Government’s security concerns. That provision applies to records that any other statute exempts from disclosure, thus offering Con gress an established, streamlined method to authorize the withholding of specific records that FOIA would not oth erwise protect. And Exemption 7, as already noted, pro tects “information compiled for law enforcement purposes” that meets one of six criteria, including if its release “could reasonably be expected to endanger the life or physical safety of any individual.” The Navy argued below that the ESQD data and maps fall within Exemp tion 7(F), see n. and that claim remains open for the Ninth Circuit to address on remand. If these |
Justice Breyer | 2,009 | 2 | second_dissenting | Gross v. FBL Financial Services, Inc. | https://www.courtlistener.com/opinion/145857/gross-v-fbl-financial-services-inc/ | I agree with Justice STEVENS that mixed-motive instructions are appropriate in the Age Discrimination in Employment Act context. And I join his opinion. The Court rejects this conclusion on the ground that the words "because of" require a plaintiff to prove that age was the "but-for" cause of his employer's adverse employment action. Ante, at 2350. But the majority does not explain why this is so. The words "because of" do not inherently require a showing of "but-for" causation, and I see no reason to read them to require such a showing. It is one thing to require a typical tort plaintiff to show "but-for" causation. In that context, reasonably objective scientific or commonsense theories of physical causation make the concept of "but-for" causation comparatively easy to understand and relatively easy to apply. But it is an entirely different matter to determine a "but-for" relation when we consider, not physical forces, but the mind-related characterizations that constitute motive. Sometimes we speak of determining or discovering motives, but more often we *2359 ascribe motives, after an event, to an individual in light of the individual's thoughts and other circumstances present at the time of decision. In a case where we characterize an employer's actions as having been taken out of multiple motives, say, both because the employee was old and because he wore loud clothing, to apply "but-for" causation is to engage in a hypothetical inquiry about what would have happened if the employer's thoughts and other circumstances had been different. The answer to this hypothetical inquiry will often be far from obvious, and, since the employee likely knows less than does the employer about what the employer was thinking at the time, the employer will often be in a stronger position than the employee to provide the answer. All that a plaintiff can know for certain in such a context is that the forbidden motive did play a role in the employer's decision. And the fact that a jury has found that age did play a role in the decision justifies the use of the word "because," i.e., the employer dismissed the employee because of his age (and other things). See Price I therefore would see nothing wrong in concluding that the plaintiff has established a violation of the statute. But the law need not automatically assess liability in these circumstances. In Price Waterhouse, the plurality recognized an affirmative defense where the defendant could show that the employee would have been dismissed regardless. The law permits the employer this defense, not because the forbidden motive, age, had no role in |
Justice Breyer | 2,009 | 2 | second_dissenting | Gross v. FBL Financial Services, Inc. | https://www.courtlistener.com/opinion/145857/gross-v-fbl-financial-services-inc/ | not because the forbidden motive, age, had no role in the actual decision, but because the employer can show that he would have dismissed the employee anyway in the hypothetical circumstance in which his age-related motive was absent. And it makes sense that this would be an affirmative defense, rather than part of the showing of a violation, precisely because the defendant is in a better position than the plaintiff to establish how he would have acted in this hypothetical situation. See ; cf. ante, at 2356 (STEVENS, J., dissenting) (describing the Title VII framework). I can see nothing unfair or impractical about allocating the burdens of proof in this way. The instruction that the District Court gave seems appropriate and lawful. It says, in pertinent part: "Your verdict must be for plaintiff if all the following elements have been proved by the preponderance of the evidence: "[The] plaintiff's age was a motivating factor in defendant's decision to demote plaintiff. "However, your verdict must be for defendant if it has been proved by the preponderance of the evidence that defendant would have demoted plaintiff regardless of his age. "As used in these instructions, plaintiff's age was `a motivating factor,' if plaintiff's age played a part or a role in the defendant's decision to demote plaintiff. However, plaintiff's age need not have been the only reason for defendant's decision to demote plaintiff." App. 9-10. For these reasons as well as for those set forth by Justice STEVENS, I respectfully dissent. |
per_curiam | 2,002 | 200 | per_curiam | Horn v. Banks | https://www.courtlistener.com/opinion/121156/horn-v-banks/ | The Court of Appeals for the Third Circuit granted respondent federal habeas corpus relief from his death sentence Applying the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) standard of review,[1] the Court of Appeals concluded that the Pennsylvania Supreme Court had unreasonably applied federal law in evaluating respondent's claim that his penalty phase jury instructions and verdict forms were improper under The Court of Appeals found it unnecessary to evaluate whether Mills applies retroactively to s on habeas review per because the Pennsylvania Supreme Court had not ruled on -543 In avoiding the Teague issue, the Court of Appeals directly contravened in which we held that federal courts must address the Teague question when it is properly argued by the government We thus grant the petition for a writ of certiorari and reverse the Court of Appeals' determination that a Teague analysis was unnecessary[2] *268 Respondent, George Banks, was convicted of 12 counts of first-degree murder stemming from a series of shootings on September 25, 1982 During the penalty phase of his trial, the jury was instructed, in part: "The sentence you impose will depend upon your findings concerning aggravating and mitigating circumstances The Crime[s] Code in this Commonwealth provides that the verdict must be a sentence of death if the jury unanimously finds at least one aggravating circumstance and no mitigating circumstance, or if the jury unanimously finds one or more aggravating circumstances which outweigh any mitigating circumstance or circumstances" In relevant part, the verdict form required the jury to check a box indicating that "[w]e the jury have found unanimously" either "[a]t least one aggravating circumstance and no mitigating circumstances," or "[o]ne or more aggravating circumstances which outweigh any mitigating circumstance or circumstances" -550 The jury marked the latter box, and also checked two other boxes indicating the aggravating circumstance (multiple offenses punishable by at least life in prison) and mitigating circumstance (extreme mental or emotional disturbance) that it had found Respondent was sentenced to death on each count of firstdegree murder After respondent's direct appeal was denied, we decided Mills, in which we held that the Constitution prohibits a State from requiring jurors unanimously to agree that a particular mitigating circumstance exists before they are permitted to consider that circumstance in their sentencing Subsequently, in state postconviction proceedings, respondent raised a Mills challenge to the jury instructions and verdict forms in his arguing that they improperly "suggested to the jury that its *269 findings as to mitigating circumstances must be unanimous" 656 A 2d, at The Pennsylvania Supreme Court rejected his claim: "[B]oth the verbal |
per_curiam | 2,002 | 200 | per_curiam | Horn v. Banks | https://www.courtlistener.com/opinion/121156/horn-v-banks/ | The Pennsylvania Supreme Court rejected his claim: "[B]oth the verbal instructions given by the court as well as the instructions printed on the verdict slips were correct and not impermissibly suggestive of a unanimity requirement with respect to mitigating circumstances" Respondent petitioned for federal habeas relief, which the United States District Court for the Middle District of Pennsylvania denied The District Court rejected respondent's Mills claim on the merits, applying the AEDPA standard of review articulated in 28 US C 2254(d): "Supreme Court precedent did not require an outcome contrary to that reached by the state courts" Because the court found the AEDPA standard of review dispositive, it did "not address the parties' arguments concerning the retroactivity of Mills " The Court of Appeals for the Third Circuit reversed the District Court in part, granting respondent relief from his death sentence under Mills The Court of Appeals first asked: "Are we compelled to conduct a retroactivity analysis under Teague?" It recognized that, per Teague, retroactivity is a "`threshold question,'" but it found "Teague not to govern [its] analysis" in this because "we do not need to focus on anything other than the reasoning and determination of the Pennsylvania Supreme Court," which had not ruled on and n 13[3] It rejected petitioners' contention that the state court's failure to rule on retroactivity was irrelevant to whether Teague should apply in federal court: *270 "Teague teaches that the federal courts habeas corpus proceeding should be reluctant to apply new rules of federal jurisprudence in state court s decided before such new rules were handed down Principles of comity and finality counsel that we maintain a circumscribed scope of habeas review Here, however as we have noted, the Pennsylvania Supreme Court applied Mills We are examining the application of Mills, not because we wish to impose a new rule not considered by the Pennsylvania Supreme Court, but as the court in fact did consider and apply it In such a situation, Teague is not implicated Accordingly, we need ask only whether the Pennsylvania Supreme Court's application of Mills should be disturbed under the AEDPA standards" Freed from performing a Teague analysis concerning Mills ` retroactivity, a question which has created some disagreement among the Federal Circuits,[4] the Court of Appeals asked "whether the Pennsylvania Supreme Court determination regarding the constitutionality of the instructions, verdict slip, and polling of the jury involved an unreasonable application of Mills " It then found the state court's application of federal law unreasonable under the standards of 28 US C 2254(d), relying on both Mills and The Court |
per_curiam | 2,002 | 200 | per_curiam | Horn v. Banks | https://www.courtlistener.com/opinion/121156/horn-v-banks/ | US C 2254(d), relying on both Mills and The Court of Appeals explained that, "[c]onsidered as a whole, the jury instructions leave no doubt that `there is a reasonable likelihood that the jury has applied the challenged instruction in a way that prevents the consideration of constitutionally relevant evidence' " (quoting ) *271 Petitioners seek a writ of certiorari, arguing that the Court of Appeals erred by not performing a Teague analysis, by applying Mills retroactively to respondent's and by concluding that the state court's decision was unreasonable under Mills We find it unnecessary to resolve the latter two of these claims, because we determine that the Court of Appeals committed a clear error by failing to perform a Teague analysis In Teague, we explained that "[u]nless they fall within an exception to the general rule, new constitutional rules of criminal procedure will not be applicable to those s which have become final before the new rules are announced" 489 US, at 310[5] And in Caspari, we held that "[a] threshold question in every habeas therefore, is whether the court is obligated to apply the Teague rule to the defendant's claim [A] federal court may, but need not, decline to apply Teague if the State does not argue it But if the State does argue that the defendant seeks the benefit of a new rule of constitutional law, the court must apply Teague before considering the merits of the claim" 510 US, at 389 Here, petitioners raised the Teague issue both in the District Court, see and in the Court of Appeals, see 271 F3d, at 542-543 Thus, per Caspari, a not cited in the opinion below, it was incumbent upon the Court of Appeals to perform a Teague analysis before granting respondent relief under Mills The Court of Appeals erred in concluding that it did "not need to focus on anything other than the reasoning *272 and determination of the Pennsylvania Supreme Court" Although the Court of Appeals may have simply overlooked Caspari, its opinion can also be read to imply that AEDPA has changed the relevant legal principles articulated in Caspari, see n 13 While it is of course a necessary prerequisite to federal habeas relief that a prisoner satisfy the AEDPA standard of review set forth in 28 US C 2254(d) ("[a]n application shall not be granted unless" the AEDPA standard of review is satisfied (emphasis added)), none of our postAEDPA s have suggested that a writ of habeas corpus should automatically issue if a prisoner satisfies the AEDPA standard, or that AEDPA relieves courts from the |
Justice Scalia | 1,991 | 9 | second_dissenting | Edmonson v. Leesville Concrete Co. | https://www.courtlistener.com/opinion/112610/edmonson-v-leesville-concrete-co/ | I join JUSTICE O'CONNOR's dissent, which demonstrates that today's opinion is wrong in principle. I write to observe that it is also unfortunate in its consequences. The concrete benefits of the Court's newly discovered constitutional rule are problematic. It will not necessarily be a net help rather than hindrance to minority litigants in obtaining racially diverse juries. In criminal cases, already prevents the prosecution from using race-based strikes. The effect of today's decision (which logically must apply to criminal prosecutions) will be to prevent the defendant from doing soso that the minority defendant can no longer seek to prevent an all-white jury, or to seat as many jurors of his own race as possible. To be sure, it is ordinarily more difficult to prove race-based strikes of white jurors, but defense counsel can generally be relied upon to do what we say the Constitution requires. So in criminal cases, today's decision represents a net loss to the minority litigant. In civil cases that is probably not true but it does not represent an unqualified gain either. Both sides have peremptory challenges, and they are sometimes used to assure rather than to prevent a racially diverse jury. The concrete costs of today's decision, on the other hand, are not at all doubtful; and they are enormous. We have now added to the duties of already-submerged state and federal trial courts the obligation to assure that race is not included among the other factors (sex, age, religion, political *645 views, economic status) used by private parties in exercising their peremptory challenges. That responsibility would be burden enough if it were not to be discharged through the adversary process; but of course it is. When combined with our decision this Term in which held that the party objecting to an allegedly race-based peremptory challenge need not be of the same race as the challenged juror, today's decision means that both sides, in all civil jury cases, no matter what their race (and indeed, even if they are artificial entities such as corporations), may lodge racial-challenge objections and, after those objections have been considered and denied, appeal the denials with the consequence, if they are successful, of having the judgments against them overturned. Thus, yet another complexity is added to an increasingly Byzantine system of justice that devotes more and more of its energy to sideshows and less and less to the merits of the case. Judging by the number of Batson claims that have made their way even as far as this Court under the pre-Powers regime, it is a certainty that the |
Justice Stewart | 1,972 | 18 | majority | Loper v. Beto | https://www.courtlistener.com/opinion/108490/loper-v-beto/ | The petitioner, Otis Loper, was brought to trial in a criminal court in 1947 upon a charge of statutory rape. The alleged victim, Loper's 8-year-old step-daughter, was the only witness who identified him as the perpetrator of the crime. The sole witness for the defense was Loper himself, who testified that he had not assaulted the victim in any way. For the purpose of impeaching Loper's credibility, the prosecutor was permitted on cross-examination to interrogate Loper about his previous criminal record. In response to this line of questioning, Loper admitted in damaging detail to four previous felony convictions during the period 1931-1940, three in Mississippi and one in Tennessee.[1]*475 At the conclusion of the one-day trial the jury found Loper guilty as charged and sentenced him to a term of 50 years in prison. *476 Loper initiated the present habeas corpus proceeding in the United States District Court for the Southern District of in 1969. He alleged, among other things, that the previous convictions used to impeach his credibility at the trial were constitutionally invalid under because he had been denied the assistance of counsel in the Mississippi and Tennessee courts that had convicted him.[2]*477 His sworn testimony at the habeas corpus hearing confirmed these allegations.[3] In addition, he produced court *478 records to corroborate this testimony.[4] The District Court denied habeas corpus relief, placing "little or no credence" in Loper's testimony, and holding that in any event "the question does not rise to constitutional stature and is not subject to collateral attack."[5] On appeal, the Court of Appeals for the Fifth Circuit *479 affirmed the judgment of the District Court. Although recognizing "the force of Loper's argument to the effect that such convictions may have impaired his credibility in the minds of the jury as a witness in his own behalf," the appellate court held that "the use of such convictions as evidence for purposes of impeachment which goes only to credibility, is not nearly so serious as the use of a conviction for enhancement, which may add years of imprisonment to the sentence of a defendant. The issue presented raises an evidentiary question. The fact that there are possible infirmities in the evidence does not necessarily raise an issue of constitutional proportions which would require reversal."[6] *480 We limited our grant of certiorari to a single constitutional question, worded as follows in the petition for certiorari: Does the use of prior, void convictions for impeachment purposes deprive a criminal defendant of due process of law where their use might well have influenced the outcome of the case? This |
Justice Stewart | 1,972 | 18 | majority | Loper v. Beto | https://www.courtlistener.com/opinion/108490/loper-v-beto/ | might well have influenced the outcome of the case? This is a recurring question that has received conflicting answers in the United States Courts of Appeals.[7] It is a question that has also divided state appellate courts.[8] *481 The starting point in considering this question is, of course, In that case the Court unanimously announced a clear and simple constitutional rule: In the absence of waiver, a felony conviction is invalid if it was obtained in a court that denied the defendant the help of a lawyer.[9] The Court dealt with a sequel to Gideon in There a indictment charging the petitioner with assault contained allegations of previous felony convictions, that, if proved, would have increased the punishment for assault under the state recidivist statutes. The indictment was read to the jury at the beginning of the trial. Records of two of the previous convictions were offered in evidence during the course of the trial, and it appeared that at least one of these convictions had been obtained in violation of Gideon. In reversing the judgment, the Court said: "To permit a conviction obtained in violation of to be used against a person either to support guilt or enhance punishment for another offense is to erode the principle of that case. Worse yet, since the defect in the prior conviction was denial of the right to counsel, the accused in effect suffers anew from the deprivation of that right." Earlier this Term we had before us a case in which it appeared that previous convictions obtained in violation *482 of Gideon had played a part in the determination of the length of a convicted defendant's prison sentence. United We there ruled that the Court of Appeals for the Ninth Circuit had been correct in holding that the teaching of Burgett required a remand of the case to the trial court for resentencing. The Tucker case involved only that aspect of Burgett that prohibits the use of invalid prior convictions to "enhance punishment." The case now before us involves the use of such convictions "to support guilt."[10] For the issue of innocence or guilt in this case turned entirely on whether the jury would believe the testimony of an 8-year-old girl or that of Loper. And the sole purpose for which the prior convictions were permitted to be used was to destroy the credibility of Loper's testimony in the eyes of the jury.[11] *483 Unless Burgett is to be forsaken, the conclusion is inescapable that the use of convictions constitutionally invalid under to impeach a defendant's credibility deprives him of due |
Justice Stewart | 1,972 | 18 | majority | Loper v. Beto | https://www.courtlistener.com/opinion/108490/loper-v-beto/ | under to impeach a defendant's credibility deprives him of due process of law.[12] We can put the matter no better than in the words of the Court of Appeals for the First Circuit: "We conclude that the Burgett rule against use of uncounseled convictions `to prove guilt' was intended to prohibit their use `to impeach credibility,' for the obvious purpose and likely effect of impeaching the defendant's credibility is to imply, if not prove, guilt. Even if such prohibition was not originally contemplated, we fail to discern any distinction which would allow such invalid convictions to be used to impeach credibility. The absence of counsel impairs the reliability of such convictions just as much when used to impeach as when used as direct proof of guilt." A dissenting opinion filed today suggests that our decision presses the "sound doctrine of retroactivity beyond the outer limits of its logic." On the contrary, our decision in this case follows directly from the rationale under which was given retroactive application. We have said that the principle *484 established in Gideon goes to "the very integrity of the fact-finding process" in criminal trials, and that a conviction obtained after a trial in which the defendant was denied the assistance of a lawyer "lacked reliability." 639 and n. 20. Loper has "suffered anew" from this unconstitutional deprivation, regardless of whether the prior convictions were used to impeach him before or after the Gideon decision. It would surely be unreasonable, as one dissenting opinion suggests, to expect the judge at Loper's trial to have anticipated Gideon, just as it would have been unreasonable to have expected the judge at Gideon's trial to have foreseen our later decision in that case. But a necessary result of applying any decision retroactively is to invalidate rulings made by trial judges that were correct under the law prevailing at the time the judges made them.[13] If the retroactivity of Gideon is "sound," then this case cannot be decided under the ill-starred and discredited doctrine of The judgment before us is set aside, and the case is remanded to the Court of Appeals for further proceedings consistent with this opinion. It is so ordered. *485 MR. JUSTICE WHITE, concurring in the result. The Court of Appeals affirmed the denial of Loper's petition for habeas corpus, reasoning that the use of invalid prior convictions to impeach a defendant in a criminal case does not raise an issue of constitutional proportions even though so using those convictions might well have influenced the outcome of the case. It was on that issue that we |
Justice Stewart | 1,972 | 18 | majority | Loper v. Beto | https://www.courtlistener.com/opinion/108490/loper-v-beto/ | of the case. It was on that issue that we granted certiorari; and as our past cases now stand, I agree with MR. JUSTICE STEWART that the Court of Appeals' reasons for affirming the District Court were erroneous. This judgment, however, does not necessarily mean that Loper's conviction must be set aside. There remain issues, unresolved by the Court of Appeals, as to whether the challenged prior convictions were legally infirm: was Loper represented by counsel at the time of the earlier convictions; if not, did he waive counsel? These matters are best considered in the first instance by the Court of Appeals. The same is true with respect to the legal significance of the lack of proof with respect to the validity of one or more of the prior convictions used for impeachment purposes at Loper's trial. In this connection, I do not understand our prior decisions to hold that there is no room in cases such as this for a finding of harmless error; and if this case is ultimately to turn on whether there was harmless error or not, I would prefer to have the initial judgment of the lower court. MR. CHIEF JUSTICE BURGER, with whom MR. |
Justice O'Connor | 1,983 | 14 | concurring | Brown v. Thomson | https://www.courtlistener.com/opinion/110983/brown-v-thomson/ | By its decisions today in this case and in Karcher v. Daggett, ante, p. 725, the Court upholds, in the former, the allocation of one representative to a county in a state legislative plan with an 89% maximum deviation from population equality and strikes down, in the latter, a congressional reapportionment plan for the State of New Jersey where the maximum deviation is 0.6984%. As a Member of the majority in both cases, I feel compelled to explain the reasons for my joinder in these apparently divergent decisions. In my view, the "one-person, one-vote" principle is the guiding ideal in evaluating both congressional and legislative redistricting schemes. In both situations, however, ensuring equal representation is not simply a matter of numbers. There must be flexibility in assessing the size of the deviation against the importance, consistency, and neutrality of the state policies alleged to require the population disparities. Both opinions recognize this need for flexibility in examining the asserted state policies.[1] In Karcher, New Jersey *849 has not demonstrated that the population variances in congressional districts were necessary to preserve minority voting strength the only justification offered by the State. Ante, at 742-744. Here, by contrast, there can be no doubt that the population deviation resulting from the provision of one representative to Niobrara County is the product of the consistent and nondiscriminatory application of Wyoming's longstanding policy of preserving county boundaries. In addition, as the Court emphasizes, in this case we are not required to decide whether, and do not suggest that, "Wyoming's nondiscriminatory adherence to county boundaries justifies the population deviations that exist throughout Wyoming's representative districts." Ante, at 846. Thus, the relevant percentage in this case is not the 89% maximum deviation when the State of Wyoming is viewed as a whole, but the additional deviation from equality produced by the allocation of one representative to Niobrara County. In this regard, I would emphasize a point acknowledged by the majority. See ante, at 844-845. Although the maximum deviation figure is not the controlling element in an apportionment challenge, even the consistent and nondiscriminatory application of a legitimate state policy cannot justify substantial population deviations throughout the State where the effect would be to eviscerate the one-person, one-vote principle. In short, as the Court observes, ibid., there is clearly *850 some outer limit to the magnitude of the deviation that is constitutionally permissible even in the face of the strongest justifications. In the past, this Court has recognized that a state legislative apportionment scheme with a maximum population deviation exceeding 10% creates a prima facie case of |
Justice White | 1,992 | 6 | majority | United States v. Fordice | https://www.courtlistener.com/opinion/112782/united-states-v-fordice/ | In 1954, this Court held that the concept of "`separate but equal'" has no place in the field of public education. (Brown I) The following year, the Court ordered an end to segregated public education "with all deliberate speed." Since these decisions, the Court has had many occasions to evaluate whether a public school district has met its affirmative obligation to dismantle its prior de jure segregated system in elementary and secondary In these cases we decide what standards to apply in determining whether the State of Mississippi has met this obligation in the university context. I Mississippi launched its public university system in 48 by establishing the University of Mississippi, an institution dedicated to the higher education exclusively of white persons. In succeeding decades, the State erected additional postsecondary, single-race educational facilities. Alcorn State University opened its doors in 71 as "an agricultural college for the education of Mississippi's black youth." Creation of four more exclusively white institutions followed: Mississippi State University (80), Mississippi University for Women (85), University of Southern Mississippi (1912), and Delta State University (1925). The State added two more solely black institutions in 1940 and 1950: in the former year, Jackson State University, which was charged with training "black teachers for the black public" ; and in the latter year, Mississippi Valley State University, *722 whose functions were to educate teachers primarily for rural and elementary and to provide vocational instruction to black students. Despite this Court's decisions in Brown I and Brown Mississippi's policy of de jure segregation continued. The first black student was not admitted to the University of Mississippi until and then only by court order. See (CA5), cert. denied, For the next 12 years the segregated public university system in the State remained largely intact. Mississippi State University, Mississippi University for Women, University of Southern Mississippi, and Delta State University each admitted at least one black student during these years, but the student composition of these institutions was still almost completely white. During this period, Jackson State and Mississippi Valley State were exclusively black; Alcorn State had admitted five white students by In 1969, the United States Department of Health, Education and Welfare (HEW) initiated efforts to enforce Title VI of the Civil Rights Act of 1964, 42 U.S. C. 2000d.[1] HEW requested that the State devise a plan to disestablish the formerly de jure segregated university system. In June 1973, the Board of Trustees of State Institutions of Higher Learning (Board) submitted a plan of compliance, which expressed the aims of improving educational opportunities for all Mississippi citizens by setting |
Justice White | 1,992 | 6 | majority | United States v. Fordice | https://www.courtlistener.com/opinion/112782/united-states-v-fordice/ | of improving educational opportunities for all Mississippi citizens by setting numerical goals on the enrollment of other-race students at state universities, hiring other-race faculty members, and instituting remedial programs and special recruitment efforts to achieve those goals. App. 898 900. HEW rejected this Plan as failing to comply with Title VI because it did not go far enough in the areas of student *723 recruitment and enrollment, faculty hiring, elimination of unnecessary program duplication, and institutional funding practices to ensure that "a student's choice of institution or campus, henceforth, will be based on other than racial criteria." The Board reluctantly offered amendments, prefacing its reform pledge to HEW with this statement: "With deference, it is the position of the Board of Trustees that the Mississippi system of higher education is in compliance with Title VI of the Civil Rights Act of 1964." At this time, the racial composition of the State's universities had changed only marginally from the levels of which were almost exclusively single race.[2] Though HEW refused to accept the modified Plan, the Board adopted it But even the limited effects of this Plan in disestablishing the prior de jure segregated system were substantially constricted by the state legislature, which refused to fund it until fiscal year 1978, and even then at well under half the amount sought by the Board. App. 896-897, 1444-1445, 1448-1449.[3] Private petitioners initiated this lawsuit in 1975. They complained that Mississippi had maintained the racially segregative effects of its prior dual system of postsecondary education in violation of the Fifth, Ninth, Thirteenth, and Fourteenth Amendments, 42 U.S. C. 1981 and 1983, and Title VI of the Civil Rights Act of 1964, 42 U.S. C. 2000d. *724 Shortly thereafter, the United States filed its complaint in intervention, charging that state officials had failed to satisfy their obligation under the Equal Protection Clause of the Fourteenth Amendment and Title VI to dismantle Mississippi's dual system of higher education. After this lawsuit was filed, the parties attempted for 12 years to achieve a consensual resolution of their differences through voluntary dismantlement by the State of its prior separated system. The board of trustees implemented reviews of existing curricula and program "mission" at each institution. In 1981, the Board issued "Mission Statements" that identified the extant purpose of each public university. These "missions" were clustered into three categories: comprehensive, urban, and regional. "Comprehensive" universities were classified as those with the greatest existing resources and program offerings. All three such institutions (University of Mississippi, Mississippi State, and Southern Mississippi) were exclusively white under the prior de jure segregated |
Justice White | 1,992 | 6 | majority | United States v. Fordice | https://www.courtlistener.com/opinion/112782/united-states-v-fordice/ | Mississippi) were exclusively white under the prior de jure segregated system. The Board authorized each to continue offering doctoral degrees and to assert leadership in certain disciplines. Jackson State, the sole urban university, was assigned a more limited research and degree mission, with both functions geared toward its urban setting. It was exclusively black at its inception. The "regional" designation was something of a misnomer, as the Board envisioned those institutions primarily in an undergraduate role, rather than a "regional" one in the geographical sense of serving just the localities in which they were based. Only the universities classified as "regional" included institutions that, prior to desegregation, had been either exclusively whiteDelta State and Mississippi University for Womenor exclusively blackAlcorn State and Mississippi Valley State. By the mid-1980's, 30 years after Brown, more than 99 percent of Mississippi's white students were enrolled at University of Mississippi, Mississippi State, Southern Mississippi, Delta State, and Mississippi University for Women. *725 The student bodies at these universities remained predominantly white, averaging between 80 and 91 percent white students. Seventy-one percent of the State's black students attended Jackson State, Alcorn State, and Mississippi Valley State, where the racial composition ranged from 92 to 99 percent black. By the parties concluded that they could not agree on whether the State had taken the requisite affirmative steps to dismantle its prior de jure segregated system. They proceeded to trial. Both sides presented voluminous evidence on a full range of educational issues spanning admissions standards, faculty and administrative staff recruitment, program duplication, on-campus discrimination, institutional funding disparities, and satellite campuses. Petitioners argued that in various ways the State continued to reinforce historic, race-based distinctions among the universities. Respondents argued generally that the State had fulfilled its duty to disestablish its state-imposed segregative system by implementing and maintaining good-faith, nondiscriminatory race-neutral policies and practices in student admission, faculty hiring, and operations. Moreover, they suggested, the State had attracted significant numbers of qualified black students to those universities composed mostly of white persons. Respondents averred that the mere continued existence of racially identifiable universities was not unlawful given the freedom of students to choose which institution to attend and the varying objectives and features of the State's universities. At trial's end, based on the testimony of 71 witnesses and 56,700 pages of exhibits, the District Court entered extensive findings of fact. The court first offered a historical overview of the higher education institutions in Mississippi and the developments in the system between 1954 and the filing of this suit in 1975. -1530. It *726 then made specific findings recounting |
Justice White | 1,992 | 6 | majority | United States v. Fordice | https://www.courtlistener.com/opinion/112782/united-states-v-fordice/ | in 1975. -1530. It *726 then made specific findings recounting post-1975 developments, including a description at the time of trial, in those areas of the higher education system under attack by plaintiffs: admission requirements and recruitment; institutional classification and assignment of missions; duplication of programs; facilities and finance; the land grant institutions; faculty and staff; and governance. The court's conclusions of law followed. As an overview, the court outlined the common ground in the action: "Where a state has previously maintained a racially dual system of public education established by law, it assumes an `affirmative duty' to reform those policies and practices which required or contributed to the separation of races." Noting that courts unanimously hold that the affirmative duty to dismantle a racially dual structure in elementary and secondary also governs in the higher education context, the court observed that there was disagreement whether applied in all of its aspects to formerly dual systems of higher education, i. e., whether "some level of racial mixture at previously segregated institutions of higher learning is not only desirable but necessary to `effectively' desegregate the system." Relying on a Fifth Circuit three-judge court decision, Alabama State Teachers Assn. our per curiam affirmance of that case, and its understanding of our later decision in the court concluded that in the higher education context, "the affirmative duty to desegregate does not contemplate either restricting choice or the achievement of any degree of racial balance." Thus, the court stated: "While student enrollment and faculty and staff hiring patterns are to be examined, greater emphasis should instead be placed on current state higher education policies and practices in order to insure that such *727 policies and practices are racially neutral, developed and implemented in good faith, and do not substantially contribute to the continued racial identifiability of individual institutions." When it addressed the same aspects of the university system covered by the findings of fact in light of the foregoing standard, the court found no violation of federal law in any of them. "In summary, the court finds that current actions on the part of the defendants demonstrate conclusively that the defendants are fulfilling their affirmative duty to disestablish the former de jure segregated system of higher education." The Court of Appeals reheard the action en banc and affirmed the decision of the District Court. With a single exception, see infra, at 741, it did not disturb the District Court's findings of fact or conclusions of law. The en banc majority agreed that "Mississippi was constitutionally required to eliminate invidious racial distinctions and dismantle its dual |
Justice White | 1,992 | 6 | majority | United States v. Fordice | https://www.courtlistener.com/opinion/112782/united-states-v-fordice/ | required to eliminate invidious racial distinctions and dismantle its dual system." That duty, the court held, had been discharged since "the record makes clear that Mississippi has adopted and implemented race neutral policies for operating its colleges and universities and that all students have real freedom of choice to attend the college or university they wish" We granted the respective writs of certiorari filed by the United States and the private petitioners. I The District Court, the Court of Appeals, and respondents recognize and acknowledge that the State of Mississippi had the constitutional duty to dismantle the dual school system that its laws once mandated. Nor is there any dispute that this obligation applies to its higher education system. If the State has not discharged this duty, it remains in violation of the Fourteenth Amendment. *728 and its progeny clearly mandate this observation. Thus, the primary issue in these cases is whether the State has met its affirmative duty to dismantle its prior dual university system. Our decisions establish that a State does not discharge its constitutional obligations until it eradicates policies and practices traceable to its prior de jure dual system that continue to foster segregation. Thus we have consistently asked whether existing racial identifiability is attributable to the State, see, e. g., ; ; Pasadena City Bd. of ; ; and examined a wide range of factors to determine whether the State has perpetuated its formerly de jure segregation in any facet of its institutional system. See, e. g., Board of Ed. of Oklahoma City Public ; ; The Court of Appeals concluded that the State had fulfilled its affirmative obligation to disestablish its prior de jure segregated system by adopting and implementing race-neutral policies governing its college and university system. Because students seeking higher education had "real freedom" to choose the institution of their choice, the State need do no more. Even though neutral policies and free choice were not enough to dismantle a dual system of primary or secondary the Court of Appeals thought that universities "differ in character fundamentally" from lower levels of sufficiently so that our decision in justified the conclusion that the State had dismantled its former dual system. Like the United States, we do not disagree with the Court of Appeals' observation that a state university system is *729 quite different in very relevant respects from primary and secondary Unlike attendance at the lower level a student's decision to seek higher education has been a matter of choice. The State historically has not assigned university students to a particular institution. Moreover, like |
Justice White | 1,992 | 6 | majority | United States v. Fordice | https://www.courtlistener.com/opinion/112782/united-states-v-fordice/ | not assigned university students to a particular institution. Moreover, like public universities throughout the country, Mississippi's institutions of higher learning are not fungiblethey have been designated to perform certain missions. Students who qualify for admission enjoy a range of choices of which institution to attend. Thus, as the Court of Appeals stated, "[i]t hardly needs mention that remedies common to public school desegregation, such as pupil assignments, busing, attendance quotas, and zoning, are unavailable when persons may freely choose whether to pursue an advanced education and, when the choice is made, which of several universities to attend." We do not agree with the Court of Appeals or the District Court, however, that the adoption and implementation of race-neutral policies alone suffice to demonstrate that the State has completely abandoned its prior dual system. That college attendance is by choice and not by assignment does not mean that a race-neutral admissions policy cures the constitutional violation of a dual system. In a system based on choice, student attendance is determined not simply by admissions policies, but also by many other factors. Although some of these factors clearly cannot be attributed to state policies, many can be. Thus, even after a State dismantles its segregative admissions policy, there may still be state action that is traceable to the State's prior de jure segregation and that continues to foster segregation. The Equal Protection Clause is offended by "sophisticated as well as simple-minded modes of discrimination." If policies traceable to the de jure system are still in force and have discriminatory effects, those policies too must be reformed to the extent practicable and consistent with sound educational practices. Freeman, *730 ; at ; ; Florida ex rel.[4] We also disagree with respondents that the Court of Appeals and District Court properly relied on our decision in Bazemore neither requires nor justifies the conclusions reached by the two courts below.[5] *731 Bazemore raised the issue whether the financing and operational assistance provided by a state university's extension service to voluntary 4H and Homemaker Clubs was inconsistent with the Equal Protection Clause because of the existence of numerous all-white and all-black clubs. Though prior to 1965 the clubs were supported on a segregated basis, the District Court had found that the policy of segregation had been completely abandoned and that no evidence existed of any lingering discrimination in either services or membership; any racial imbalance resulted from the wholly voluntary and unfettered choice of private individuals. Bazemore, In this context, we held inapplicable the Court's judgment that a voluntary choice program was insufficient to dismantle a |
Justice White | 1,992 | 6 | majority | United States v. Fordice | https://www.courtlistener.com/opinion/112782/united-states-v-fordice/ | that a voluntary choice program was insufficient to dismantle a de jure dual system in public primary and secondary but only after satisfying ourselves that the State had not fostered segregation by playing a part in the decision of which club an individual chose to join. Bazemore plainly does not excuse inquiry into whether Mississippi has left in place certain aspects of its prior dual system that perpetuate the racially segregated higher education system. If the State perpetuates policies and practices traceable to its prior system that continue to have segregative effectswhether by influencing student enrollment decisions or by fostering segregation in other facets of the university systemand such policies are without sound educational justification and can be practicably eliminated, the State has not satisfied its burden of proving that it has dismantled its prior system. Such policies run afoul of the Equal Protection Clause, even though the State has abolished the legal requirement that whites and blacks be educated separately and has established racially neutral policies *732 not animated by a discriminatory purpose.[6] Because the standard applied by the District Court did not make these inquiries, we hold that the Court of Appeals erred in affirming the District Court's ruling that the State had brought itself into compliance with the Equal Protection Clause in the operation of its higher education system.[7] IV Had the Court of Appeals applied the correct legal standard, it would have been apparent from the undisturbed factual *733 findings of the District Court that there are several surviving aspects of Mississippi's prior dual system which are constitutionally suspect; for even though such policies may be race neutral on their face, they substantially restrict a person's choice of which institution to enter, and they contribute to the racial identifiability of the eight public universities. Mississippi must justify these policies or eliminate them. It is important to state at the outset that we make no effort to identify an exclusive list of unconstitutional remnants of Mississippi's prior de jure system. In highlighting, as we do below, certain remnants of the prior system that are readily apparent from the findings of fact made by the District Court and affirmed by the Court of Appeals,[8] we by no means suggest that the Court of Appeals need not examine, in light of the proper standard, each of the other policies now governing the State's university system that have been challenged or that are challenged on remand in light of the standard that we articulate today. With this caveat in mind, we address four policies of the present system: admissions standards, |
Justice White | 1,992 | 6 | majority | United States v. Fordice | https://www.courtlistener.com/opinion/112782/united-states-v-fordice/ | we address four policies of the present system: admissions standards, program duplication, institutional mission assignments, and continued operation of all eight public universities. We deal first with the current admissions policies of Mississippi's public universities. As the District Court found, the three flagship historically white universities in the systemUniversity *734 of Mississippi, Mississippi State University, and University of Southern Mississippienacted policies in 1963 requiring all entrants to achieve a minimum composite score of 15 on the test administered by the American College Testing Program (ACT). The court described the "discriminatory taint" of this policy, an obvious reference to the fact that, at the time, the average ACT score for white students was and the average score for blacks was The District Court concluded, and the en banc Court of Appeals agreed, that present admissions standards derived from policies enacted in the 1970's to redress the problem of student ; Obviously, this midpassage justification for perpetuating a policy enacted originally to discriminate against black students does not make the present admissions standards any less constitutionally suspect. The present admissions standards are not only traceable to the de jure system and were originally adopted for a discriminatory purpose, but they also have present discriminatory effects. Every Mississippi resident under 21 seeking admission to the university system must take the ACT test. Any applicant who scores at least 15 qualifies for automatic admission to any of the five historically white institutions except Mississippi University for Women, which requires a score of for automatic admission unless the student has a 3.0 high school grade average. Those scoring less than 15 but at least 13 automatically qualify to enter Jackson State University, Alcorn State University, and Mississippi Valley State University. Without doubt, these requirements restrict the range of choices of entering students as to which institution they may attend in a way that perpetuates segregation. Those scoring 13 or 14, with some exceptions, are excluded from the five historically white universities and if they want a higher education must go to one of the historically black institutions or attend junior college with the hope *735 of transferring to a historically white institution.[9] Proportionately more blacks than whites face this choice: In 1985, 72 percent of Mississippi's white high school seniors achieved an ACT composite score of 15 or better, while less than 30 percent of black high school seniors earned that score. App. 1524-1525. It is not surprising then that Mississippi's universities remain predominantly identifiable by race. The segregative effect of this automatic entrance standard is especially striking in light of the differences in minimum |
Justice White | 1,992 | 6 | majority | United States v. Fordice | https://www.courtlistener.com/opinion/112782/united-states-v-fordice/ | is especially striking in light of the differences in minimum automatic entrance scores among the regional universities in Mississippi's system. The minimum score for automatic admission to Mississippi University for Women is ; it is 13 for the historically black universities. Yet Mississippi University for Women is assigned the same institutional mission as two other regional universities, Alcorn State and Mississippi Valley Statethat of providing quality undergraduate education. The effects of the policy fall disproportionately on black students who might wish to attend Mississippi University for Women; and though the disparate impact is not as great, the same is true of the minimum standard ACT score of 15 at Delta State Universitythe other "regional" universityas compared to the historically black "regional" universities where a score of 13 suffices for automatic admission. The courts below made little, if any, effort to justify in educational terms those particular disparities in entrance requirements or to inquire whether it was practicable to eliminate them. *736 We also find inadequately justified by the courts below or by the record before us the differential admissions requirements between universities with dissimilar programmatic missions. We do not suggest that absent a discriminatory purpose different programmatic missions accompanied by different admissions standards would be constitutionally suspect simply because one or more are racially identifiable. But here the differential admissions standards are remnants of the dual system with a continuing discriminatory effect, and the mission assignments "to some degree follow the historical racial assignments," Moreover, the District Court did not justify the differing admissions standards based on the different mission assignments. It observed only that in the 1970's, the board of trustees justified a minimum ACT score of 15 because too many students with lower scores were not prepared for the historically white institutions and that imposing the 15 score requirement on admissions to the historically black institutions would decimate attendance at those universities. The District Court also stated that the mission of the regional universities had the more modest function of providing quality undergraduate education. Certainly the comprehensive universities are also, among other things, educating undergraduates. But we think the 15 ACT test score for automatic admission to the comprehensive universities, as compared with a score of 13 for the regionals, requires further justification in terms of sound educational policy. Another constitutionally problematic aspect of the State's use of the ACT test scores is its policy of denying automatic admission if an applicant fails to earn the minimum ACT score specified for the particular institution, without also resorting to the applicant's high school grades as an additional factor in |
Justice White | 1,992 | 6 | majority | United States v. Fordice | https://www.courtlistener.com/opinion/112782/united-states-v-fordice/ | the applicant's high school grades as an additional factor in predicting college performance. The United States produced evidence that the American College Testing Program (ACTP), the administering organization of the ACT, discourages use of ACT scores as the sole admissions criterion *737 on the ground that it gives an incomplete "picture" of the student applicant's ability to perform adequately in college. App. 1209-1210. One ACTP report presented into evidence suggests that "it would be foolish" to substitute a 3- or 4-hour test in place of a student's high school grades as a means of predicting college performance. The record also indicated that the disparity between black and white students' high school grade averages was much narrower than the gap between their average ACT scores, thereby suggesting that an admissions formula which included grades would increase the number of black students eligible for automatic admission to all of Mississippi's public universities.[10] The United States insists that the State's refusal to consider information which would better predict college performance than ACT scores alone is irrational in light of most States' use of high school grades and other indicators along with standardized test scores. The District Court observed that the board of trustees was concerned with grade inflation and the lack of comparability in grading practices and course offerings among the State's diverse high Both the District Court and the Court of Appeals found this concern ample justification for the failure to consider high school grade performance along with ACT scores. In our view, such justification is inadequate because the ACT requirement was originally adopted for discriminatory purposes, the *738 current requirement is traceable to that decision and seemingly continues to have segregative effects, and the State has so far failed to show that the "ACT-only" admissions standard is not susceptible to elimination without eroding sound educational policy. A second aspect of the present system that necessitates further inquiry is the widespread duplication of programs. "Unnecessary" duplication refers, under the District Court's definition, "to those instances where two or more institutions offer the same nonessential or noncore program. Under this definition, all duplication at the bachelor's level of nonbasic liberal arts and sciences course work and all duplication at the master's level and above are considered to be unnecessary." The District Court found that 34.6 percent of the 29 undergraduate programs at historically black institutions are "unnecessarily duplicated" by the historically white universities, and that 90 percent of the graduate programs at the historically black institutions are unnecessarily duplicated at the historically white institutions. In its conclusions of law on this point, the |
Justice White | 1,992 | 6 | majority | United States v. Fordice | https://www.courtlistener.com/opinion/112782/united-states-v-fordice/ | institutions. In its conclusions of law on this point, the District Court nevertheless determined that "there is no proof" that such duplication "is directly associated with the racial identifiability of institutions," and that "there is no proof that the elimination of unnecessary program duplication would be justifiable from an educational standpoint or that its elimination would have a substantial effect on student choice." The District Court's treatment of this issue is problematic from several different perspectives. First, the court appeared to impose the burden of proof on the plaintiffs to meet a legal standard the court itself acknowledged was not yet formulated. It can hardly be denied that such duplication was part and parcel of the prior dual system of higher educationthe whole notion of "separate but equal" required duplicative programs in two sets of and that the present unnecessary duplication is a continuation of that practice. *739 Brown and its progeny, however, established that the burden of proof falls on the State, and not the aggrieved plaintiffs, to establish that it has dismantled its prior de jure segregated system. Brown The court's holding that petitioners could not establish the constitutional defect of unnecessary duplication, therefore, improperly shifted the burden away from the State. Second, implicit in the District Court's finding of "unnecessary" duplication is the absence of any educational justification and the fact that some, if not all, duplication may be practicably eliminated. Indeed, the District Court observed that such duplication "cannot be justified economically or in terms of providing quality education." 674 F. Supp., Yet by stating that "there is no proof" that elimination of unnecessary duplication would decrease institutional racial identifiability, affect student choice, and promote educationally sound policies, the court did not make clear whether it had directed the parties to develop evidence on these points, and if so, what that evidence revealed. See Finally, by treating this issue in isolation, the court failed to consider the combined effects of unnecessary program duplication with other policies, such as differential admissions standards, in evaluating whether the State had met its duty to dismantle its prior de jure segregated system. We next address Mississippi's scheme of institutional mission classification, and whether it perpetuates the State's formerly de jure dual system. The District Court found that, throughout the period of de jure segregation, University of Mississippi, Mississippi State University, and University of Southern Mississippi were the flagship institutions in the state system. They received the most funds, initiated the most advanced and specialized programs, and developed the widest range of curricular functions. At their inception, each was restricted for |
Justice White | 1,992 | 6 | majority | United States v. Fordice | https://www.courtlistener.com/opinion/112782/united-states-v-fordice/ | of curricular functions. At their inception, each was restricted for the education solely of white persons. The missions of Mississippi University for Women and Delta State University, by contrast, were more *740 limited than their other all-white counterparts during the period of legalized segregation. Mississippi University for Women and Delta State University were each established to provide undergraduate education solely for white students in the liberal arts and such other fields as music, art, education, and home economics. at -1528. When they were founded, the three exclusively black universities were more limited in their assigned academic missions than the five all-white institutions. Alcorn State, for example, was designated to serve as "an agricultural college for the education of Mississippi's black youth." at Jackson State and Mississippi Valley State were established to train black teachers. Though the District Court's findings do not make this point explicit, it is reasonable to infer that state funding and curriculum decisions throughout the period of de jure segregation were based on the purposes for which these institutions were established. In 1981, the State assigned certain missions to Mississippi's public universities as they then existed. It classified University of Mississippi, Mississippi State, and Southern Mississippi as "comprehensive" universities having the most varied programs and offering graduate degrees. Two of the historically white institutions, Delta State University and Mississippi University for Women, along with two of the historically black institutions, Alcorn State University and Mississippi Valley State University, were designated as "regional" universities with more limited programs and devoted primarily to undergraduate education. Jackson State University was classified as an "urban" university whose mission was defined by its urban location. The institutional mission designations adopted in 1981 have as their antecedents the policies enacted to perpetuate racial separation during the de jure segregated regime. The Court of Appeals expressly disagreed with the District Court by recognizing that the "inequalities among the institutions largely follow the mission designations, and the mission *741 designations to some degree follow the historical racial assignments." It nevertheless upheld this facet of the system as constitutionally acceptable based on the existence of good-faith racially neutral policies and procedures. That different missions are assigned to the universities surely limits to some extent an entering student's choice as to which university to seek admittance. While the courts below both agreed that the classification and mission assignments were made without discriminatory purpose, the Court of Appeals found that the record "supports the plaintiffs' argument that the mission designations had the effect of maintaining the more limited program scope at the historically black universities." We do not |
Justice White | 1,992 | 6 | majority | United States v. Fordice | https://www.courtlistener.com/opinion/112782/united-states-v-fordice/ | program scope at the historically black universities." We do not suggest that absent discriminatory purpose the assignment of different missions to various institutions in a State's higher education system would raise an equal protection issue where one or more of the institutions become or remain predominantly black or white. But here the issue is whether the State has sufficiently dismantled its prior dual system; and when combined with the differential admission practices and unnecessary program duplication, it is likely that the mission designations interfere with student choice and tend to perpetuate the segregated system. On remand, the court should inquire whether it would be practicable and consistent with sound educational practices to eliminate any such discriminatory effects of the State's present policy of mission assignments. Fourth, the State attempted to bring itself into compliance with the Constitution by continuing to maintain and operate all eight higher educational institutions. The existence of eight instead of some lesser number was undoubtedly occasioned by state laws forbidding the mingling of the races. And as the District Court recognized, continuing to maintain all eight universities in Mississippi is wasteful and irrational. The District Court pointed especially to the facts that Delta State and Mississippi Valley State are only 35 miles apart *742 and that only 20 miles separate Mississippi State and Mississippi University for Women. -1564. It was evident to the District Court that "the defendants undertake to fund more institutions of higher learning than are justified by the amount of financial resources available to the state," but the court concluded that such fiscal irresponsibility was a policy choice of the legislature rather than a feature of a system subject to constitutional scrutiny. Unquestionably, a larger rather than a smaller number of institutions from which to choose in itself makes for different choices, particularly when examined in the light of other factors present in the operation of the system, such as admissions, program duplication, and institutional mission designations. Though certainly closure of one or more institutions would decrease the discriminatory effects of the present system, see, e. g., United 7 F. Supp. 499, based on the present record we are unable to say whether such action is constitutionally required.[11] Elimination of program duplication and revision of admissions criteria may make institutional closure unnecessary. However, on remand this issue should be carefully explored by inquiring and determining whether retention of all eight institutions itself affects student choice and perpetuates the segregated higher education system, whether maintenance of each of the universities is educationally justifiable, and whether one or more of them can be practicably closed |
Justice White | 1,992 | 6 | majority | United States v. Fordice | https://www.courtlistener.com/opinion/112782/united-states-v-fordice/ | whether one or more of them can be practicably closed or merged with other existing institutions. Because the former de jure segregated system of public universities in Mississippi impeded the free choice of prospective *743 students, the State in dismantling that system must take the necessary steps to ensure that this choice now is truly free. The full range of policies and practices must be examined with this duty in mind. That an institution is predominantly white or black does not in itself make out a constitutional violation. But surely the State may not leave in place policies rooted in its prior officially segregated system that serve to maintain the racial identifiability of its universities if those policies can practicably be eliminated without eroding sound educational policies. If we understand private petitioners to press us to order the upgrading of Jackson State, Alcorn State, and Mississippi Valley State solely so that they may be publicly financed, exclusively black enclaves by private choice, we reject that request. The State provides these facilities for all its citizens and it has not met its burden under Brown to take affirmative steps to dismantle its prior de jure system when it perpetuates a separate, but "more equal" one. Whether such an increase in funding is necessary to achieve a full dismantlement under the standards we have outlined, however, is a different question, and one that must be addressed on remand. Because the District Court and the Court of Appeals failed to consider the State's duties in their proper light, the cases must be remanded. To the extent that the State has not met its affirmative obligation to dismantle its prior dual system, it shall be adjudged in violation of the Constitution and Title VI and remedial proceedings shall be conducted. The decision of the Court of Appeals is vacated, and the cases are remanded for further proceedings consistent with this opinion. It is so ordered. |
Justice Blackmun | 1,983 | 11 | majority | Crown, Cork & Seal Co. v. Parker | https://www.courtlistener.com/opinion/110963/crown-cork-seal-co-v-parker/ | The question that confronts us in this case is whether the filing of a class action tolls the applicable statute of limitations, and thus permits all members of the putative class to file individual actions in the event that class certification is *347 denied, provided, of course, that those actions are instituted within the time that remains on the limitations period. I Respondent Theodore Parker, a Negro male, was discharged from his employment with petitioner Crown, Cork & Seal Company, Inc., in July 1977. In October of that year, he filed a charge with the Equal Employment Opportunity Commission (EEOC) alleging that he had been harassed and then discharged on account of his race. On November 9, 1978, the EEOC issued a Determination Letter finding no reasonable cause to believe respondent's discrimination charge was true, and, pursuant to 706(f) of the Civil Rights Act of 1964 (Act), as amended, 42 U.S. C. 2000e-5(f), sent respondent a Notice of Right to Sue. App. 5A, 7A. Two months earlier, while respondent's charge was pending before the EEOC, two other Negro males formerly employed by petitioner filed a class action in the United States District Court for the District of Maryland. Pendleton v. Crown, Cork & Seal Co., Civ. No. M-78-1734. The complaint in that action alleged that petitioner had discriminated against its Negro employees with respect to hiring, discharges, job assignments, promotions, disciplinary actions, and other terms and conditions of employment, in violation of Title VII of the Act, as amended, 42 U.S. C. 2000e et seq. The named plaintiffs purported to represent a class of "black persons who have been, continue to be and who in the future will be denied equal employment opportunities by defendant on the grounds of race or color." App. to Brief for Petitioner 2a. It is undisputed that respondent was a member of the asserted In May 1979, the named plaintiffs in Pendleton moved for class certification. Nearly a year and a half later, on September 4, 1980, the District Court denied that motion. App. to Brief for Petitioner 7a. The court ruled that the named plaintiffs' claims were not typical of those of the class, that *348 the named plaintiffs would not be adequate representatives, and that the class was not so numerous as to make joinder impracticable. Thereafter, Pendleton proceeded as an individual action on behalf of its named plaintiffs.[1] On October 27, 1980, within 90 days after the denial of class certification but almost two years after receiving his Notice of Right to Sue, respondent filed the present Title VII action in the |
Justice Blackmun | 1,983 | 11 | majority | Crown, Cork & Seal Co. v. Parker | https://www.courtlistener.com/opinion/110963/crown-cork-seal-co-v-parker/ | Sue, respondent filed the present Title VII action in the United States District Court for the District of Maryland, alleging that his discharge was racially motivated. Respondent moved to consolidate his action with the pending Pendleton case, but petitioner opposed the motion on the ground that the two cases were at substantially different stages of preparation. The motion to consolidate was denied. The District Court then granted summary judgment for petitioner, ruling that respondent had failed to file his action within 90 days of receiving his Notice of Right to Sue, as required by the Act's 706(f)(1), 42 U.S. C. 2000e-5(f)(1). The United States Court of Appeals for the Fourth Circuit reversed. Relying on American & Constr. the Court of Appeals held that the filing of the Pendleton class action had tolled Title VII's statute of limitations for all members of the putative Because the Pendleton suit was instituted before respondent received his Notice, and because respondent had filed his action within 90 days after the denial of class certification, the Court of Appeals concluded that it was timely. Two other Courts of Appeals have held that the tolling rule of American applies only to putative class members who seek to intervene after denial of class certification, and not *349 to those who, like respondent, file individual actions.[2] We granted certiorari to resolve the conflict. II A American was a federal antitrust suit brought by the State of Utah on behalf of itself and a class of other public bodies and agencies. The suit was filed with only 11 days left to run on the applicable statute of The District Court eventually ruled that the suit could not proceed as a class action, and eight days after this ruling a number of putative class members moved to intervene. This Court ruled that the motions to intervene were not time-barred. The Court reasoned that unless the filing of a class action tolled the statute of limitations, potential class members would be induced to file motions to intervene or to join in order to protect themselves against the possibility that certification would be denied. The principal purposes of the class-action procedure promotion of efficiency and economy of litigation would thereby be frustrated. To protect the policies behind the class-action procedure, the Court held that "the commencement of a class action suspends the applicable statute of limitations as to all asserted members of the class who would have been parties had the suit been permitted to continue as a class action." Petitioner asserts that the rule of American was limited to |
Justice Blackmun | 1,983 | 11 | majority | Crown, Cork & Seal Co. v. Parker | https://www.courtlistener.com/opinion/110963/crown-cork-seal-co-v-parker/ | Petitioner asserts that the rule of American was limited to intervenors, and does not toll the statute of limitations for class members who file actions of their own.[3] Petitioner *350 relies on the Court's statement in American that "the commencement of the original class suit tolls the running of the statute for all purported members of the class who make timely motions to intervene after the court has found the suit inappropriate for class action status." While American concerned only intervenors, we conclude that the holding of that case is not to be read so narrowly. The filing of a class action tolls the statute of limitations "as to all asserted members of the class," not just as to intervenors. The American Court recognized that unless the statute of limitations was tolled by the filing of the class action, class members would not be able to rely on the existence of the suit to protect their rights. Only by intervening or taking other action prior to the running of the statute of limitations would they be able to ensure that their rights would not be lost in the event that class certification was denied. Much the same inefficiencies would ensue if American 's tolling rule were limited to permitting putative class members to intervene after the denial of class certification. There are many reasons why a class member, after the denial of class certification, might prefer to bring an individual suit rather than intervene. The forum in which the class action is pending might be an inconvenient one, for example, or the class member might not wish to share control over the litigation with other plaintiffs once the economies of a class action were no longer available. Moreover, permission to intervene might be refused for reasons wholly unrelated to the merits of the claim.[4] A putative class member who fears that class *351 certification may be denied would have every incentive to file a separate action prior to the expiration of his own period of The result would be a needless multiplicity of actions precisely the situation that Federal Rule of Civil Procedure 23 and the tolling rule of American were designed to avoid. B Failure to apply American to class members filing separate actions also would be inconsistent with the Court's reliance on American in In Eisen, the Court held that Rule 23(c)(2) required individual notice to absent class members, so that each class member could decide whether to "opt out" of the class and thereby preserve his right to pursue his own The named plaintiff in Eisen |
Justice Blackmun | 1,983 | 11 | majority | Crown, Cork & Seal Co. v. Parker | https://www.courtlistener.com/opinion/110963/crown-cork-seal-co-v-parker/ | right to pursue his own The named plaintiff in Eisen argued that such notice would be fruitless because the statute of limitations had long since run on the claims of absent class members. This argument, said the Court, was "disposed of by our recent decision in American which established that commencement of a class action tolls the applicable statute of limitations as to all members of the " If American 's tolling rule applies only to intervenors, this reference to American is misplaced and makes no sense. Eisen's notice requirement was intended to inform the class member that he could "preserve his opportunity to press his claim separately" by opting out of the But a class member would be unable to "press his claim separately" if the limitations period had expired while the class action was pending. The Eisen Court recognized this difficulty, but concluded that the right to opt out and press a separate claim remained meaningful *352 because the filing of the class action tolled the statute of limitations under the rule of American 417 U. S., If American were limited to intervenors, it would not serve the purpose assigned to it by Eisen; no class member would opt out simply to intervene. Thus, the Eisen Court necessarily read American as we read it today, to apply to class members who choose to file separate suits.[5] C The Court noted in American that a tolling rule for class actions is not inconsistent with the purposes served by statutes of 414 U.S., Limitations periods are intended to put defendants on notice of adverse claims and to prevent plaintiffs from sleeping on their rights, see Delaware State ; American ; but these ends are met when a class action is commenced. Class members who do not file suit while the class action is pending cannot be accused of sleeping on their rights; Rule 23 both permits and encourages class members *353 to rely on the named plaintiffs to press their claims. And a class complaint "notifies the defendants not only of the substantive claims being brought against them, but also of the number and generic identities of the potential plaintiffs who may participate in the judgment." American ; see United Airlines, The defendant will be aware of the need to preserve evidence and witnesses respecting the claims of all the members of the Tolling the statute of limitations thus creates no potential for unfair surprise, regardless of the method class members choose to enforce their rights upon denial of class certification. Restricting the rule of American to intervenors might reduce |
Justice Blackmun | 1,983 | 11 | majority | Crown, Cork & Seal Co. v. Parker | https://www.courtlistener.com/opinion/110963/crown-cork-seal-co-v-parker/ | certification. Restricting the rule of American to intervenors might reduce the number of individual lawsuits filed against a particular defendant but, as discussed above, this decrease in litigation would be counterbalanced by an increase in protective filings in all class actions. Moreover, although a defendant may prefer not to defend against multiple actions in multiple forums once a class has been decertified, this is not an interest that statutes of limitations are designed to protect. Cf. Goldlawr, Other avenues exist by which the burdens of multiple lawsuits may be avoided; the defendant may seek consolidation in appropriate cases, see Fed. Rule Civ. Proc. 42(a); 28 U.S. C. 1404 (change of venue), and multidistrict proceedings may be available if suits have been brought in different jurisdictions, see 28 U.S. C. 1407.[6] III We conclude, as did the Court in American that "the commencement of a class action suspends the applicable statute of limitations as to all asserted members of the class who would have been parties had the suit been permitted to continue *354 as a class action." 414 U.S., Once the statute of limitations has been tolled, it remains tolled for all members of the putative class until class certification is denied. At that point, class members may choose to file their own suits or to intervene as plaintiffs in the pending action. In this case, respondent clearly would have been a party in Pendleton if that suit had been permitted to continue as a class action. The filing of the Pendleton action thus tolled the statute of limitations for respondent and other members of the Pendleton Since respondent did not receive his Notice of Right to Sue until after the Pendleton action was filed, he retained a full 90 days in which to bring suit after class certification was denied. Respondent's suit was thus timely filed. The judgment of the Court of Appeals is Affirmed. |
Justice Scalia | 2,011 | 9 | dissenting | Montana v. Wyoming | https://www.courtlistener.com/opinion/215807/montana-v-wyoming/ | Thanks to improved irrigation techniques, Wyoming’s farmers and cattlemen appear to consume more of the water they divert from the Yellowstone River and its tributaries today than they did 60 years ago—that is to say, less of the diverted water ultimately finds its way back into the Yellowstone. The Court interprets the Yel lowstone River Compact (Compact), see Act of Oct. 30, 1951, ch. 629, to grant those Wyomans* the right to increase their consumption so long as they do not increase the volume of water they diverted beyond pre 1950 levels. Thus, it holds, Montana cannot complain that the increased consumption interferes with its residents’ pre-1950 appropriative water rights. I disagree because the Court’s analysis substitutes its none-too-confident reading of the common law, see ante, at 7–8, and n. 5, for the Compact’s definition of “beneficial use.” The doctrine of appropriation allocates perpetual water rights along a river, on a “first in time[,] superior in right” basis, (1922), to those who divert its flow and apply the water to a beneficial use. See Hinderlider v. La Plata River & —————— * The dictionary-approved term is “Wyomingite,” which is also the name of a type of lava, see Webster’s New International Dictionary 2961 (2d ed. 1957). I believe the people of Wyoming deserve better. 2 The “beneficial use” requirement does most of the legal work. It marks the types of uses that confer an appropriative right—irrigation being a paradigmatic example, see United 504, n. 2 (1945); and it “measure[s]” the extent of an ap propriator’s claim, see 505 (1924); A. Tarlock, Law of Water Rights and Re sources 5:68–5:69, pp. 5–130.3, 5–130.9 to 5– 130.10 (2010). At common law, an appropriator claims the volume of water diverted and “reasonably required” by his intended use. at 5–127, 5–130.2; see 377–378, The Compact borrows the concept of appropriation to define the rights of pre-1950 water users along the Yel lowstone River and its tributaries. Article V(A) promises that “[a]ppropriative rights to the beneficial uses of the water of the Yellowstone River System existing in each signatory State as of January 1, 1950, shall continue to be enjoyed in accordance with the laws governing the acquisi tion and use of water under the doctrine of appropriation.” Article II(H) elaborates that a “Beneficial Use” is one “by which the water supply of a drainage basin is depleted when usefully employed by the activities of man.” Like the common law, this definition lays out the types of uses that qualify as beneficial and the volume of water an appropriator may claim through his beneficial use. |
Justice Scalia | 2,011 | 9 | dissenting | Montana v. Wyoming | https://www.courtlistener.com/opinion/215807/montana-v-wyoming/ | of water an appropriator may claim through his beneficial use. But the Compact’s focus on whether a use depletes a river’s water supply—not whether it diverts the river’s flow— significantly limits the volume of water to which Wyoming is entitled. For purposes of the Compact, Wyoming may lay claim only to its beneficial users’ net consumption of water, that is, the volume of water diverted from the river minus the volume that flows (or seeps) back into the Cite as: 563 U. S. (2011) 3 SCALIA, J., dissenting river’s channel. This interpretation, and only this interpretation, gives meaning to the definition’s use of the word “depleted.” I cannot write off as an accident the choice of this word rather than the word consistently used elsewhere in the Compact: “diverted.” See Sosa v. Alvarez-Machain, 542 U.S. 692, 711, n. 9 (2004). The Compact’s authors knew how to use “diverted” and “diversion” when they wanted to. Those two words appear repeatedly in other provisions of the Compact, see Arts. II(G); V(B), (C); VII(A), (C), (D), –668; and the Compact defines them in the sentence immediately preceding the definition of “benefi cial use.” See Art. II(G), But the Compact’s authors chose to define beneficial use in terms of deple tion—the first and only time the Compact uses any deriva tive of the word “deplete.” It is in my view a clear indica tion that the Compact intends to break from the common law’s focus on diversion. The Court reduces the Compact’s deliberate use of “de pleted” to an inconsequential slip of the pen. According to today’s majority, Article II(H) speaks only to the types of uses that confer appropriative rights. “Nothing in the language,” it says, “suggests that ‘beneficial use’ means a measure of the amount of water depleted.” Ante, at 17. This is incomprehensible. On the Court’s own interpreta tion “beneficial use” not only defines the types of uses that confer appropriative rights, but also determines the vol ume of water to which the rights attach—viz., only that volume put to one of the specified types of uses. The only question before us is whether “beneficial use” measures the volume diverted or the volume depleted—and the language of the Compact makes that clear. The Court provides no plausible explanation for use of the word “depleted” instead of “diverted.” Its best effort is the suggestion that the word was used to ensure that hydroelectric power generation and other disfavored, 4 MONTANA v. WYOMING SCALIA, J., dissenting nondepletive uses do not confer appropriative rights. See That is highly unlikely, for two reasons. First, rely |
Justice Scalia | 2,011 | 9 | dissenting | Montana v. Wyoming | https://www.courtlistener.com/opinion/215807/montana-v-wyoming/ | See That is highly unlikely, for two reasons. First, rely ing on a subtle distinction between depletion and diversion would be one of the clumsiest ways imaginable to accom plish that simple goal, if it was not already accomplished by other provisions of the Compact. One would instead have expected the Compact simply to exclude the disfa vored uses from the “usefu[l] activities of man,” Art. II(H), which confer appropriative rights. Cf. –2–102(4) (2009) (listing types of beneficial uses). Second, and even more conclusively, hydroelectric generation, water wheels, and mill races— the allegedly disfavored uses Wyoming and the United States offer up to explain the word “depleted”—are already excluded from appropriative rights (and probably from any need for appropriative rights) by the Compact’s definition of diversion: “the taking or removing of water from the Yellowstone River or any tributary thereof when the water so taken or removed is not returned directly into the channel of the Yellowstone River or of the tributary from which it is taken.” Art. II(G), The modifying clause seems specifically designed to exclude hydroelectric dams, water wheels and mill races, which, when they divert water from the Yellowstone or its tributaries, “re tur[n it] directly into the channel from which it is taken.” The Court objects to my interpretation because the word “depleted” lacks the “clarity” necessary to “drastically redefine the term ‘beneficial use’ from its longstanding meaning,” ante, at 17. According to the Court, “[t]he amount of water put to ‘beneficial use’ has never been defined by net water consumption.” Before making this statement, the Court has spent some 10 pages, ante, at 7–16, conducting a “sensitive inquiry [that] counsels caution”; into a field (state water law) where the answer of this Court is not conclusive and hence not ipso facto cor Cite as: 563 U. S. (2011) 5 SCALIA, J., dissenting rect (“it is not this Court’s role to guide”); resulting in the Court’s best guess concerning “an unclear area of appro priation doctrine”; answering a question which “ ‘[n]o western state court [not even a lower court] appears to have conclusively answered.’ ” Ante, at 7–8, and n. 5. The Court calls that hitherto unanswered question “the law of return flows,” ante, at 7, but it can more accurately be described as the question whether the volume of water to which an appropriator acquires rights is the entire volume diverted for a beneficial use, or rather only the volume depleted by the beneficial use. Which is to say that “bene ficial use” has never had the “longstanding meaning” the Court posits. If it |
Justice Scalia | 2,011 | 9 | dissenting | Montana v. Wyoming | https://www.courtlistener.com/opinion/215807/montana-v-wyoming/ | never had the “longstanding meaning” the Court posits. If it has in the past been assumed to refer to all water diverted from the stream rather than all water depleted from the stream, that is only because the issue of which of the two it means has never arisen. I find it quite extraordinary that the Court should expend such heroic efforts (imagine how many cases had to be read!) answer ing a state water-law question that no court of any West ern State has ever answered—a question that would cross a Rabbi’s eyes—when the text in front of us provides the clear answer insofar as this Compact is concerned: “depleted.” The Court suggests that if the Compact’s authors wanted to break from (what it considers) the common law, they should have defined beneficial use as the “volume by which the water supply is depleted.” Ante, at 18 (in ternal quotation marks omitted). That objection seems to me to have little force when the Court cannot explain what work “depleted” is supposed to do other than indicate precisely the same concept more concisely. And the Court’s helpful drafting tip proves that speaking with greater clarity is not so easy. Following the Court’s advice would make nonsense of Article V(B) of the Compact. That provision allocates a fixed percentage “of the unused and unappropriated water” of various tributaries to each 6 MONTANA v. WYOMING SCALIA, J., dissenting State for post-1950 “storage or direct diversions for benefi cial use on new lands or for other purposes.” But if “beneficial use” in this last phrase means “the vol ume of water by which the water supply is depleted,” the provision makes no sense. It would allocate a fixed percentage of unused and unappropriated water for “a volume of water by which the water supply is depleted.” It makes perfect sense, of course, if “beneficial use” means all uses that deplete the stream. The Court also wonders why, “if Article V(A) were in tended to guarantee Montana a set quantity of water,” it did not “d[o] so as plainly as other” interstate water com pacts “that do just that.” Ante, at 18. This is a straw man. Montana does not demand a precise volume of water each year; nor does it insist that its pre-1950 water users al ways receive enough water to satisfy their pre-1950 needs. It merely asks that its pre-1950 water users occupy the same position relative to Wyoming’s pre-1950 users in 2011 as they did in 1950—that whatever would have flowed back into the Yellowstone after Wyoming appro priators’ beneficial |
per_curiam | 1,983 | 200 | per_curiam | Maggio v. Williams | https://www.courtlistener.com/opinion/111046/maggio-v-williams/ | On October 23, less than two days before Williams' scheduled execution, the Court of Appeals for the Fifth *47 Circuit stayed the execution "pending final action of the Supreme Court." Because we agree with applicant that the stay was improvidently imposed, we grant his motion to vacate the stay and to allow the State to reschedule Williams' execution. I Williams was sentenced to death for killing a security guard while robbing a grocery store in Baton Rouge, La. His conviction and sentence were affirmed by the Louisiana Supreme Court. After we denied Williams' petition for certiorari, and his request for rehearing, he unsuccessfully sought a writ of habeas corpus in the Louisiana state courts. He then filed his first petition for habeas corpus in the District Court for the Middle District of Louisiana, presenting the same 13 issues that had proved unavailing in the state courts. The District Court held no hearing, but issued a written opinion denying Williams' petition. See The District Court's judgment was affirmed by a panel of the Court of Appeals for the Fifth Circuit, ibid., but an order was entered directing that the appeal be reheard en banc. On rehearing, the en banc Court of Appeals rejected each of Williams' many objections to his conviction and sentence and affirmed the judgment of the District Court. On June 27, we again denied Williams' petition for certiorari, and we denied his request for rehearing on September 8, After unsuccessfully renewing his attempt to win relief in the state courts, Williams filed a second petition for habeas corpus in the District Court, raising two claims that had previously been rejected and two additional claims. The District Court issued a detailed opinion in which it refused to grant the writ or to stay Williams' execution. Because it believed Williams' *48 contentions to be "frivolous and without merit," the District Court also denied his request for a certificate of probable cause, which, under 28 U.S. C. 2253, is a prerequisite to an appeal. The Fifth Circuit granted a certificate of probable cause and affirmed the judgment of the District Court, but nevertheless issued a stay. The court reviewed Williams' claims and "expressly [found] that each is without merit." In light of recent actions by this Court, however, the Court of Appeals concluded with respect to Williams' "proportionality" claim that "a complete review of the law on this matter may be anticipated. With a person's life at stake, we must await that review or further directions from the Supreme Court." II Just last Term, we made clear that we would not |
per_curiam | 1,983 | 200 | per_curiam | Maggio v. Williams | https://www.courtlistener.com/opinion/111046/maggio-v-williams/ | Just last Term, we made clear that we would not automatically grant stays of execution in cases where the Court of Appeals had denied a writ of habeas corpus. A stay application addressed to a Circuit Justice or to the Court will be granted only if there exists " `a reasonable probability that four members of the Court would consider the underlying issue sufficiently meritorious for the grant of certiorari or the notation of probable jurisdiction.' " ). We perceive no reason to apply a different standard in determining whether a stay granted by a Court of Appeals pending disposition of a petition for certiorari to this Court should continue in effect. The grounds on which Williams would request certiorari are amply evident from his opposition to the motion to vacate the stay, his voluminous filings in the lower courts, and the opinions and proceedings in the District Court and Court of Appeals. None of these claims warrant certiorari and plenary consideration in this case. Accordingly, we conclude *49 that the stay, which the Court of Appeals apparently granted in view of the possibility that we would disagree with its analysis of the constitutional issues raised by Williams, should be vacated. Williams' claims may be summarized briefly. He argues, first, that the Louisiana Supreme Court reviewed the proportionality of his death sentence on a districtwide rather than a statewide basis, and that such review does not adequately ensure that his death sentence has been imposed in a rational and nonarbitrary manner. Second, the prosecutor's closing argument allegedly prejudiced the jury against Williams and elicited a decision based on passion rather than reason. Third, the trial court's instruction on lesser offenses, given despite the absence of evidence warranting such an instruction, is claimed to have violated the rule established in and to have denied Williams due process. Fourth, the exclusion for cause of three veniremen who opposed the death penalty at the guilt-innocence phase of Williams' trial, although proper under allegedly deprived Williams of a jury representative of a fair cross-section of the community. Williams' second, third, and fourth contentions warrant little discussion. As Williams made clear in his second petition for state habeas corpus, he challenged the prosecutor's closing argument, either directly or indirectly, in his first state habeas proceeding. The Louisiana Supreme Court ultimately rejected his challenge, although two justices indicated that the prosecutor's statements raised a substantial question and one concluded that the statements constituted reversible error. State ex rel. Williams' failure to raise this claim in his first federal habeas proceeding is inexcusable, but the District Court |
per_curiam | 1,983 | 200 | per_curiam | Maggio v. Williams | https://www.courtlistener.com/opinion/111046/maggio-v-williams/ | first federal habeas proceeding is inexcusable, but the District Court nevertheless gave it full consideration in the second federal habeas proceeding. Applying the standard established in the District *50 Court examined the prosecutor's closing argument at length and concluded that it did not render Williams' trial fundamentally unfair. The trial court's instruction on lesser offenses was clearly proper under state law, and the District Court's review of the record led it to conclude that the evidence fully justified the trial court's charge. Williams' challenge to the exclusion for cause of certain veniremen was previously rejected by the Fifth Circuit and was presented to this Court in his petitions for certiorari and his motion for rehearing following the denial of his second petition. He has now recast his argument as an attack on the representativeness of the jury that convicted him. In Witherspoon, we found the extant evidence insufficient to demonstrate that "the exclusion of jurors opposed to capital punishment results in an unrepresentative jury on the issue of guilt or substantially increases the risk of conviction." Williams claims that he is entitled to a hearing on the question whether the jury selection procedures followed here had these effects. But he has not alleged that veniremen were excluded for cause on any broader basis than authorized in Witherspoon. The District Court characterized the evidence proffered by Williams on the question whether the jury was less than neutral with respect to guilt as tentative and fragmentary, and we cannot conclude that it abused its discretion in refusing to hold an evidentiary hearing on this issue. Further review is not warranted. Williams' challenge to the Louisiana Supreme Court's proportionality review also does not warrant the issuance of a writ of certiorari. The en banc Fifth Circuit has carefully examined the Louisiana Supreme Court's procedure and found that it "provides adequate safeguards against freakish imposition of capital punishment." 679 F. 2d, at 395. This conclusion was challenged in this Court in Williams' petition for certiorari following the Court of Appeals' *51 decision and in his motion for reconsideration of our denial of that petition. We were, of course, fully aware at that time that we had agreed to decide whether some form of comparative proportionality review is constitutionally required. See Since agreeing to decide this issue in Pulley, the Court has consistently denied challenges to the Louisiana Supreme Court's proportionality review scheme that were identical to that raised by Williams. See Lindsey v. Louisiana, post, p. 908; James v. Louisiana, post, p. 908; rehearing denied, See also Narcisse v. Louisiana, post, p. 865. Williams |
per_curiam | 1,983 | 200 | per_curiam | Maggio v. Williams | https://www.courtlistener.com/opinion/111046/maggio-v-williams/ | denied, See also Narcisse v. Louisiana, post, p. 865. Williams asserts that his execution should be stayed because we have issued a stay in another Louisiana death case, But our decision there turned not on the substantiality of applicant's Pulley argument, but on the fact that applicant raised a substantial challenge to the effectiveness of his trial counsel, similar to those we shall resolve in two cases set for argument this Term. ; United As Williams notes, JUSTICE WHITE recently granted a stay in a case raising a proportionality challenge to a death sentence imposed in Texas. Autry v. Estelle, post, p. 1301. Also, on October 31, the Court declined to vacate that stay. Post, p. 925. In that case, however, the Texas Court of Criminal Appeals, like the California Supreme Court in Pulley, had wholly failed to compare applicant's case with other cases to determine whether his death sentence was disproportionate to the punishment imposed on others. Under those circumstances, it was reasonable to conclude that Autry's execution should be stayed pending the decision in Pulley, or until further order of the Court. That is not the case here. Our prior actions are ample evidence that we do not believe that the challenge to districtwide, rather than statewide, proportionality review is *52 an issue warranting a grant of certiorari. Our view remains the same. Nor did Williams convince the lower courts that he might have been prejudiced by the Louisiana Supreme Court's decision to review only cases from the judicial district in which he was convicted. Indeed, the District Court examined every published opinion of the Louisiana Supreme Court affirming a death sentence and concluded that Williams' sentence was not disproportionate regardless of whether the review was conducted on a districtwide or statewide basis. We see no reason to disturb that judgment. Finally, Williams has not shown, nor could he, that the penalty imposed was disproportionate to the crimes he was convicted of committing. III The District Court's careful opinion was fully reviewed by the Court of Appeals, which found no basis for upsetting the District Court's conclusion that Williams' contentions were meritless. The arguments that Williams raised for the first time in these proceedings are insubstantial, and the arguments that he has attempted to relitigate are no more persuasive now than they were when we first rejected them. We conclude, therefore, that the stay entered by the Court of Appeals should be vacated. It is so ordered. JUSTICE STEVENS, concurring in the judgment. |
Justice Souter | 2,007 | 20 | dissenting | Bowles v. Russell | https://www.courtlistener.com/opinion/145714/bowles-v-russell/ | The District Court told petitioner Keith Bowles that his notice of appeal was due on February 27, He filed a notice of appeal on February 26, only to be told that he was too late because his deadline had actually been February 24. It is intolerable for the judicial system to treat people this way, and there is not even a technical justification for condoning this bait and switch. I respectfully dissent. I "`Jurisdiction,'" we have warned several times in the last decade, "`is a word of many, too many, meanings.'" Steel ; 124 S. Ct. 6, ; ; Rockwell Int'l 167 L. Ed. 2d 1 This variety of meaning has insidiously tempted courts, this one included, to engage in "less than meticulous," at 124 S. Ct. 6, sometimes even "profligate use of the term," at In recent years, however, we have tried to clean up our language, and until today we have been avoiding the erroneous jurisdictional conclusions that flow from indiscriminate use of the ambiguous word. Thus, although we used to call the sort of time limit at issue here "mandatory and jurisdictional," United we have recently and repeatedly corrected that designation as a misuse of the "jurisdiction" label. at (citing Robinson as an example of improper use of the term "jurisdiction"); (same); at 124 S. Ct. 6 (same). But one would never guess this from reading the Court's opinion in this case, which suddenly restores Robinson's indiscriminate use of the "mandatory and jurisdictional" label to good law in the face of three unanimous repudiations of Robinson's error. See ante, at 2363-2364. This is puzzling, the more so because our recent (and, I repeat, unanimous) efforts to confine jurisdictional rulings to jurisdiction proper were obviously sound, and the majority makes no attempt to show they were not.[1] *2368 The stakes are high in treating time limits as jurisdictional. While a mandatory but nonjurisdictional limit is enforceable at the insistence of a party claiming its benefit or by a judge concerned with moving the docket, it may be waived or mitigated in exercising reasonable equitable discretion. But if a limit is taken to be jurisdictional, waiver becomes impossible, meritorious excuse irrelevant (unless the statute so provides), and sua sponte consideration in the courts of appeals mandatory, see[2] As the Court recognizes, ante, at 2364-2365, this is no way to regard time limits set out in a court rule rather than a statute, see 124 S. Ct. 6 ("Only Congress may determine a lower federal court's subject-matter jurisdiction"). But neither is jurisdictional treatment automatic when a time limit is statutory, |
Justice Souter | 2,007 | 20 | dissenting | Bowles v. Russell | https://www.courtlistener.com/opinion/145714/bowles-v-russell/ | is jurisdictional treatment automatic when a time limit is statutory, as it is in this case. Generally speaking, limits on the reach of federal statutes, even nontemporal ones, are only jurisdictional if Congress says so: "when Congress does not rank a statutory limitation on coverage as jurisdictional, courts should treat the restriction as nonjurisdictional in character." Thus, we have held "that time prescriptions, however emphatic, `are not properly typed "jurisdictional,"'" at ), absent some jurisdictional designation by Congress. Congress put no jurisdictional tag on the time limit here.[3] *2369 The doctrinal underpinning of this recently repeated view was set out in : "the label `jurisdictional' [is appropriate] not for claim-processing rules, but only for prescriptions delineating the classes of cases (subject-matter jurisdiction) and the persons (personal jurisdiction) falling within a court's adjudicatory authority." 124 S. Ct. 6. A filing deadline is the paradigm of a claim-processing rule, not of a delineation of cases that federal courts may hear, and so it falls outside the class of limitations on subject matter jurisdiction unless Congress says otherwise.[4] The time limit at issue here, far from defining the set of cases that may be adjudicated, is much more like a statute of limitations, which provides an affirmative defense, see Fed. Rule Civ. Proc. 8(c), and is not jurisdictional, Statutes of limitations may thus be waived, (19). Consistent with the traditional view of statutes of limitations, and the carefully limited concept of jurisdiction explained in Eberhart, and an exception to the time limit in (c) should be available when there is a good justification for one, for reasons we recognized years ago. In Harris Truck Lines, and we found that "unique circumstances" excused failures to comply with the time limit. In fact, much like this case, Harris and Thompson involved district court errors that misled litigants into believing they had more time to file notices of appeal than a statute actually provided. Thus, even back when we thoughtlessly called time limits jurisdictional, we did not actually treat them as beyond exemption to the point of shrugging at the inequity of penalizing a party for relying on what a federal judge had said to him. Since we did not dishonor reasonable reliance on a judge's official word back in the days when we *2370 uncritically had a jurisdictional reason to be unfair, it is unsupportable to dishonor it now, after repeatedly disavowing any such jurisdictional justification that would apply to the 14-day time limit of 2107(c). The majority avoids clashing with Harris and Thompson by overruling them on the ground of their "slumber," ante, at |
Justice Souter | 2,007 | 20 | dissenting | Bowles v. Russell | https://www.courtlistener.com/opinion/145714/bowles-v-russell/ | overruling them on the ground of their "slumber," ante, at 2366, and inconsistency with a time-limit-as-jurisdictional rule.[5] But eliminating those precedents underscores what has become the principal question of this case: why does today's majority refuse to come to terms with the steady stream of unanimous statements from this Court in the past four years, culminating in 's summary a year ago? The majority begs this question by refusing to confront what we have said: "in recent decisions, we have clarified that time prescriptions, however emphatic, `are not properly typed "jurisdictional."'" 546 U.S., at (quoting 541 U.S., at ). This statement of the Court, and those preceding it for which it stands as a summation, cannot be dismissed as "some dicta," ante, at 2363-2364, n. 2, and cannot be ignored on the ground that some of them were made in cases where the challenged restriction was not a time limit, see ante, at 2364-2365. By its refusal to come to grips with our considered statements of law the majority leaves the Court incoherent. In ruling that Bowles cannot depend on the word of a District Court Judge, the Court demonstrates that no one may depend on the recent, repeated, and unanimous statements of all participating Justices of this Court. Yet more incongruously, all of these pronouncements by the Court, along with two of our cases,[6] are jettisoned in a ruling for which the leading justification is stare decisis, see ante, at 2363-2364 ("This Court has long held"). II We have the authority to recognize an equitable exception to the 14-day limit, and we should do that here, as it certainly seems reasonable to rely on an order from a federal judge.[7] Bowles, though, does not have to convince us as a matter of first impression that his reliance was justified, for we only have to look as far as Thompson to know that he ought to prevail. There, the would-be appellant, Thompson, had filed post-trial motions 12 days after the District Court's final order. Although the rules said they should have been filed within 10, Fed. Rules Civ. Proc. 52(b) and 59(b) the trial court nonetheless had "specifically declared that the `motion for a new trial' was made `in ample time.'" U.S., at 385, Thompson relied on that statement in filing a notice of appeal within 60 days of the denial of the post-trial motions but not within 60 days of entry of the original judgment. Only timely post-trial motions affected the 60-day time limit for filing a *2371 notice of appeal, Rule 73(a) so the Court of Appeals held |
Justice Souter | 2,007 | 20 | dissenting | Bowles v. Russell | https://www.courtlistener.com/opinion/145714/bowles-v-russell/ | of appeal, Rule 73(a) so the Court of Appeals held the appeal untimely. We vacated because Thompson "relied on the statement of the District Court and filed the appeal within the assumedly new deadline but beyond the old deadline." at Thompson should control. In that case, and this one, the untimely filing of a notice of appeal resulted from reliance on an error by a district court, an error that caused no evident prejudice to the other party. Actually, there is one difference between Thompson and this case: Thompson filed his post-trial motions late and the District Court was mistaken when it said they were timely; here, the District Court made the error out of the blue, not on top of any mistake by Bowles, who then filed his notice of appeal by the specific date the District Court had declared timely. If anything, this distinction ought to work in Bowles's favor. Why should we have rewarded Thompson, who introduced the error, but now punish Bowles, who merely trusted the District Court's statement?[8] Under Thompson, it would be no answer to say that Bowles's trust was unreasonable because the 14-day limit was clear and counsel should have checked the judge's arithmetic. The 10-day limit on post-trial motions was no less pellucid in Thompson, which came out the other way. And what is more, counsel here could not have uncovered the court's error simply by counting off the days on a calendar. Federal Rule of Appellate Procedure 4(a)(6) allows a party to file a notice of appeal within 14 days of "the date when [the district court's] order to reopen is entered." See also (c)(2) The District Court's order was dated February 10, which reveals the date the judge signed it but not necessarily the date on which the order was entered. Bowles's lawyer therefore could not tell from reading the order, which he received by mail, whether it was entered the day it was signed. Nor is the possibility of delayed entry merely theoretical: the District Court's original judgment in this case, dated July 10, 2003, was not entered until July 28. See App. 11 (District Court docket). According to Bowles's lawyer, electronic access to the docket was unavailable at the time, so to learn when the order was actually entered he would have had to call or go to the courthouse and check. See Tr. of Oral Arg. 56-57. Surely this is more than equity demands, and unless every statement by a federal court is to be tagged with the warning "Beware of the Judge," Bowles's lawyer had no |
Justice Souter | 2,007 | 20 | dissenting | Bowles v. Russell | https://www.courtlistener.com/opinion/145714/bowles-v-russell/ | the warning "Beware of the Judge," Bowles's lawyer had no obligation to go behind the terms of the order he received. I have to admit that Bowles's counsel probably did not think the order might have been entered on a different day from *2372 the day it was signed. He probably just trusted that the date given was correct, and there was nothing unreasonable in so trusting. The other side let the order pass without objection, either not caring enough to make a fuss or not even noticing the discrepancy; the mistake of a few days was probably not enough to ring the alarm bell to send either lawyer to his copy of the federal rules and then off to the courthouse to check the docket.[9] This would be a different case if the year were wrong on the District Court's order, or if opposing counsel had flagged the error. But on the actual facts, it was reasonable to rely on a facially plausible date provided by a federal judge. I would vacate the decision of the Court of Appeals and remand for consideration of the merits. |
Justice Brennan | 1,988 | 13 | majority | City of Lakewood v. Plain Dealer Publishing Co. | https://www.courtlistener.com/opinion/112103/city-of-lakewood-v-plain-dealer-publishing-co/ | The city of Lakewood, a suburban community bordering Clevel, Ohio, appeals a judgment of the Court of Appeals *753 for the Sixth Circuit enjoining enforcement of its local ordinance regulating the placement of newsracks. The court's decision was based in part on its conclusion that the ordinance vests the mayor with unbridled discretion over which publishers may place newsracks on public property where. I Prior to 1983, the city of Lakewood absolutely prohibited the private placement of any structure on public property. On the strength of that law, the city denied the Plain Dealer Publishing Company (Newspaper) permission to place its coin-operated newspaper dispensing devices on city sidewalks. In response, the Newspaper brought suit in the District Court for the Northern District of Ohio challenging the ordinance. The District Court adjudged the absolute prohibition unconstitutional, but delayed entering a permanent injunction to give the city time to amend its law. Although the city could have appealed the District Court's judgment, it decided instead to adopt two ordinances permitting the placement of structures on city property under certain conditions. One of those ordinances specifically concerns newsracks. 901.181, Codified Ordinances, City of Lakewood[1] That ordinance gives the mayor the authority to grant or deny applications for annual newsrack permits. If the mayor denies an application, he is required to "stat[e] the reasons for such denial." In the event the mayor grants an application, the city issues an annual permit subject to several terms conditions. Among them are: (1) approval of the newsrack design by the city's Architectural Board of Review; (2) an agreement by the newsrack owner to indemnify the city against any liability arising from the newsrack, guaranteed by a $100,000 insurance policy to *754 that effect; (3) any "other terms conditions deemed necessary reasonable by the Mayor."[2] Dissatisfied with the new ordinance, the Newspaper elected not to seek a permit, instead amended its complaint in the District Court to challenge facially the law as amended. The District Court found the ordinance constitutional in its entirety, entered judgment in the city's favor. *755 The Court of Appeals for the Sixth Circuit reversed, finding the ordinance unconstitutional in three respects. First, it held that the ordinance gives the mayor unbounded discretion to grant or deny a permit application to place unlimited additional terms conditions on any permit that issues. Second, it concluded that in the absence of any express stards governing newsrack design, the design approval requirement effectively gives the Board unbridled discretion to deny applications. Finally, a majority of the panel decided that the indemnity insurance requirements for newsrack owners violate |
Justice Brennan | 1,988 | 13 | majority | City of Lakewood v. Plain Dealer Publishing Co. | https://www.courtlistener.com/opinion/112103/city-of-lakewood-v-plain-dealer-publishing-co/ | decided that the indemnity insurance requirements for newsrack owners violate the First Amendment because no similar burdens are placed on owners of other structures on public property.[3] The court found that the foregoing provisions of the law were not severable, therefore held the entire ordinance unconstitutional insofar as it regulates newsracks in commercial districts.[4] The city appealed, we noted probable jurisdiction. II At the outset, we confront the issue whether the Newspaper may bring a facial challenge to the city's ordinance. We conclude that it may. A Recognizing the explicit protection accorded speech the press in the text of the First Amendment, our cases have long held that when a licensing statute allegedly vests unbridled discretion in a government official over whether to permit or deny expressive activity, one who is subject to the law may challenge it facially without the necessity of first applying *7 for, being denied, a license.[5]E. g., ("In the area of freedom of expression it is well established that one has sting to challenge a statute on the ground that it delegates overly broad licensing discretion to an administrative office, whether or not his conduct could be proscribed by a properly drawn statute, whether or not he applied for a license") (emphasis added); See also adopted per curiam on rehearing, )); ; cf. Secretary of State of 9-957[6] *757 At the root of this long line of precedent is the time-tested knowledge that in the area of free expression a licensing statute placing unbridled discretion in the hs of a government official or agency constitutes a prior restraint may result in censorship. E. g., at ; ; ; ; ; And these evils engender identifiable risks to free expression that can be effectively alleviated only through a facial challenge. First, the mere existence of the licensor's unfettered discretion, coupled with the power of prior restraint, intimidates parties into censoring their own speech, even if the discretion power are never actually abused. As we said in Thornhill: "Proof of an abuse of power in the particular case has never been deemed a requisite for attack on the constitutionality of a statute purporting to license the dissemination of ideas. The power of the licensor against which John Milton directed his assault by his `Appeal for the Liberty of Unlicensed Printing' is pernicious not merely by reason of the censure of particular comments but by the reason of the threat to censure comments on matters of public concern. It is not merely the sporadic abuse of power by the censor but the pervasive threat inherent in its very |
Justice Brennan | 1,988 | 13 | majority | City of Lakewood v. Plain Dealer Publishing Co. | https://www.courtlistener.com/opinion/112103/city-of-lakewood-v-plain-dealer-publishing-co/ | the censor but the pervasive threat inherent in its very existence that constitutes the danger to freedom of discussion." 310 U. S., at See also Self-censorship is immune to an "as applied" challenge, for it derives from the individual's own actions, not an abuse of government power. It is not difficult to visualize a newspaper that relies to a substantial degree on single issue sales feeling significant pressure to endorse the incumbent mayor in an upcoming election, or to refrain *758 from criticizing him, in order to receive a favorable speedy disposition on its permit application. Only stards limiting the licensor's discretion will eliminate this danger by adding an element of certainty fatal to self-censorship. Cf. Hoffman And only a facial challenge can effectively test the statute for these stards. Second, the absence of express stards makes it difficult to distinguish, "as applied," between a licensor's legitimate denial of a permit its illegitimate abuse of censorial power. Stards provide the guideposts that check the licensor allow courts quickly easily to determine whether the licensor is discriminating against disfavored speech. Without these guideposts, post hoc rationalizations by the licensing official the use of shifting or illegitimate criteria are far too easy, making it difficult for courts to determine in any particular case whether the licensor is permitting favorable, suppressing unfavorable, expression. See, e. g., Joseph H. Munson ; Further, the difficulty delay inherent in the "as applied" challenge can itself discourage litigation. A newspaper espousing an unpopular viewpoint on a shoestring budget may be the likely target for a retaliatory permit denial, but may not have the time or financial means to challenge the licensor's action. That paper might instead find it easier to capitulate to what it perceives to be the mayor's preferred viewpoint, or simply to close up shop. Even if that struggling paper were willing able to litigate the case successfully, the eventual relief may be "too little too late." Until a judicial decree to the contrary, the licensor's prohibition sts. In the interim, opportunities for speech are irretrievably lost. ; see also at 0; In sum, without stards to fetter the licensor's discretion, the difficulties of proof the *759 case-by-case nature of "as applied" challenges render the licensor's action in large measure effectively unreviewable. B The foregoing concepts form the heart of our test to distinguish laws that are vulnerable to facial challenge from those that are not. As discussed above, we have previously identified two major First Amendment risks associated with unbridled licensing schemes: self-censorship by speakers in order to avoid being denied a license to |
Justice Brennan | 1,988 | 13 | majority | City of Lakewood v. Plain Dealer Publishing Co. | https://www.courtlistener.com/opinion/112103/city-of-lakewood-v-plain-dealer-publishing-co/ | speakers in order to avoid being denied a license to speak; the difficulty of effectively detecting, reviewing, correcting content-based censorship "as applied" without stards by which to measure the licensor's action. It is when statutes threaten these risks to a significant degree that courts must entertain an immediate facial attack on the law. Therefore, a facial challenge lies whenever a licensing law gives a government official or agency substantial power to discriminate based on the content or viewpoint of speech by suppressing disfavored speech or disliked speakers. This is not to say that the press or a speaker may challenge as censorship any law involving discretion to which it is subject. The law must have a close enough nexus to expression, or to conduct commonly associated with expression, to pose a real substantial threat of the identified censorship risks. The regulatory scheme in the present case contains two features which, at least in combination, justify the allowance of a facial challenge. First, Lakewood's ordinance requires that the Newspaper apply annually for newsrack licenses. Thus, it is the sort of system in which an individual must apply for multiple licenses over time, or periodically renew a license. When such a system is applied to speech, or to conduct commonly associated with speech, the licensor does not necessarily view the text of the words about to be spoken, but can measure their probable content or viewpoint by speech already uttered. See A speaker in this position is under no illusion regarding the *760 effect of the "licensed" speech on the ability to continue speaking in the future. Yet demonstrating the link between "licensed" expression the denial of a later license might well prove impossible. While perhaps not as direct a threat to speech as a regulation allowing a licensor to view the actual content of the speech to be licensed or permitted, see ; ; Bantam Books, a multiple or periodic licensing requirement is sufficiently threatening to invite judicial concern. A second feature of the licensing system at issue here is that it is directed narrowly specifically at expression or conduct commonly associated with expression: the circulation of newspapers. Such a framework creates an agency or establishes an official charged particularly with reviewing speech, or conduct commonly associated with it, breeding an "expertise" tending to favor censorship over speech. Indeed, a law requiring the licensing of printers has historically been declared the archetypical censorship statute. See 4 W. Blackstone, Commentaries *152. Here again, without stards to bound the licensor, speakers denied a license will have no way of proving that the decision |
Justice Brennan | 1,988 | 13 | majority | City of Lakewood v. Plain Dealer Publishing Co. | https://www.courtlistener.com/opinion/112103/city-of-lakewood-v-plain-dealer-publishing-co/ | license will have no way of proving that the decision was unconstitutionally motivated, faced with that prospect, they will be pressured to conform their speech to the licensor's unreviewable preference. Because of these features in the regulatory system at issue here, we think that a facial challenge is appropriate, that stards controlling the mayor's discretion must be required. Of course, the city may require periodic licensing, may even have special licensing procedures for conduct commonly associated with expression; but the Constitution requires that the city establish neutral criteria to insure that the licensing decision is not based on the content or viewpoint of the speech being considered. In contrast to the type of law at issue in this case, laws of general application that are not aimed at conduct commonly *761 associated with expression do not permit licensing determinations to be made on the basis of ongoing expression or the words about to be spoken, carry with them little danger of censorship. For example, a law requiring building permits is rarely effective as a means of censorship. To be sure, on rare occasion an opportunity for censorship will exist, such as when an unpopular newspaper seeks to build a new plant. But such laws provide too blunt a censorship instrument to warrant judicial intervention prior to an allegation of actual misuse. And if such charges are made, the general application of the statute to areas unrelated to expression will provide the courts a yardstick with which to measure the licensor's occasional speech-related decision. The foregoing discussion explains why the dissent's analogy between newspapers soda vendors is inapposite. See post, at 788-789. Newspapers are in the business of expression, while soda vendors are in the business of selling soft drinks. Even if the soda vendor engages in speech, that speech is not related to the soda; therefore preventing it from installing its machines may penalize unrelated speech, but will not directly prevent that speech from occurring. In sum, a law giving the mayor unbridled discretion to decide which soda vendors may place their machines on public property does not vest him with frequent opportunities to exercise substantial power over the content or viewpoint of the vendor's speech by suppressing the speech or directly controlling the vendor's ability to speak. The proper analogy is between newspapers leaflets. It is settled that leafletters may facially challenge licensing laws. See, e. g., ; This settled law is based on the accurate premise that peaceful pamphleteering "is not fundamentally different from the function of a newspaper." Organization for a Better (11); see also The dissent's |
Justice Brennan | 1,988 | 13 | majority | City of Lakewood v. Plain Dealer Publishing Co. | https://www.courtlistener.com/opinion/112103/city-of-lakewood-v-plain-dealer-publishing-co/ | newspaper." Organization for a Better (11); see also The dissent's theory therefore would turn the law on its head. That *762 result cannot be justified by relying on the meaningless distinction that here the newspapers are ultimately distributed by a machine rather than by h. First, the ordinance held invalid in applied to distribution "by h or otherwise." The Court did not even consider holding the law invalid only as to distribution by h. Second, such a distinction makes no sense in logic or theory. The effectiveness of the newsrack as a means of distribution, especially for low-budget, controversial neighborhood newspapers, means that the twin threats of self-censorship undetectable censorship are, if anything, greater for newsracks than for pamphleteers. Cf. ; C In an analysis divorced from a careful examination of the unique risks associated with censorship just discussed their relation to the law before us, the dissent reasons that if a particular manner of speech may be prohibited entirely, then no "activity protected by the First Amendment" can be implicated by a law imposing less than a total prohibition. It then finds that a total ban on newsracks would be constitutional. Therefore, the dissent concludes, the actual ordinance at issue involves no "activity protected by the First Amendment," thus is not subject to facial challenge. However, that reasoning is little more than a legal sleight-of-h, misdirecting the focus of the inquiry from a law allegedly vesting unbridled censorship discretion in a government official toward one imposing a blanket prohibition.[7] The key to the dissent's analysis is its "greater-includes-the-lesser" syllogism. But that syllogism is blind to the radically *763 different constitutional harms inherent in the "greater" "lesser" restrictions.[8] Presumably in the case of an ordinance that completely prohibits a particular manner of expression, the law on its face is both content viewpoint neutral. In analyzing such a hypothetical ordinance, the Court would apply the well-settled time, place, manner test. E. g., Consolidated Edison v. Public Service Comm'n of N. Y., ; Police Department of (12). The danger giving rise to the First Amendment inquiry is that the government is silencing or restraining a channel of speech; we ask whether some interest unrelated to speech justifies this silence. To put it another way, the question is whether "the manner of expression is basically incompatible with the normal activity of a particular place at a particular time." 408 U.S. (12). In contrast, a law or policy permitting communication in a certain manner for some but not for others raises the specter of content viewpoint censorship. This danger is at its zenith when |
Justice Brennan | 1,988 | 13 | majority | City of Lakewood v. Plain Dealer Publishing Co. | https://www.courtlistener.com/opinion/112103/city-of-lakewood-v-plain-dealer-publishing-co/ | content viewpoint censorship. This danger is at its zenith when the determination of who may speak who may not is left to the unbridled discretion of a government official. As demonstrated above, we have often uniformly held that such statutes or policies impose censorship on the public or the press, hence are unconstitutional, because without stards governing the exercise of discretion, a government official may decide who may speak who may not based upon the content of the speech or viewpoint of *764 the speaker. E. g., 379 U. S., ; Therefore, even if the government may constitutionally impose content-neutral prohibitions on a particular manner of speech, it may not condition that speech on obtaining a license or permit from a government official in that official's boundless discretion. It bears repeating that "[i]n the area of freedom of expression it is well established that one has sting to challenge a statute on the ground that it delegates overly broad licensing discretion to an administrative office, whether or not his conduct could be proscribed by a properly drawn statute, whether or not he applied for a license." 380 U. S., at Fundamentally, then, the dissent's proposal ignores the different concerns animating our test to determine whether an expressive activity may be banned entirely, our test to determine whether it may be licensed in an official's unbridled discretion. This point is aptly illustrated by a comparison of two of our prior cases: In this Court held that an ordinance prohibiting the use of sound trucks without permission from the Chief of Police was unconstitutional because the licensing official was able to exercise unbridled discretion in his decisionmaking, therefore could, in a calculated manner, censor certain viewpoints. Just seven months later the Court held in Kovacs that a city could absolutely ban the use of sound trucks. The plurality distinguished precisely on the ground that there the ordinance constituted censorship by allowing some to speak, but not others; in Kovacs the statute barred a particular manner of speech for[9] *765 is irreconcilable with the logic the dissent now puts forward. Under the dissent's novel rule, the Court in should first have determined whether the use of sound trucks could be prohibited completely. If so, as was held in Kovacs, the Court should have rejected the constitutional facial challenge. *766 No "activity protected by the First Amendment" (as the dissent defines it) would have been at issue.[10] The Kovacs/ comparison provides perhaps the clearest example of the flaw in the dissent's "greater-includes-the-lesser" reasoning. However, in a host of other First Amendment cases we have |
Justice Brennan | 1,988 | 13 | majority | City of Lakewood v. Plain Dealer Publishing Co. | https://www.courtlistener.com/opinion/112103/city-of-lakewood-v-plain-dealer-publishing-co/ | in a host of other First Amendment cases we have expressly or implicitly rejected that logic, have considered on the merits facial challenges to statutes or policies that embodied discrimination based on the content or viewpoint of expression, or vested officials with open-ended discretion that threatened the same, even where it was assumed that a properly drawn law could have greatly restricted or prohibited the manner of expression or circulation at issue. For instance, in Mosley we considered an ordinance banning all picketing near a school except labor picketing. The Court declared the law unconstitutional because the ordinance was sensitive to the content of the message. Whether or not the picket could have been prohibited entirely was not dispositive of the Court's inquiry. -99. Similarly, in 407 U.S. 1 (12), the Court summarily reversed a conviction based on Flower's return to a military facility to leaflet after having been ordered to leave once before. It was never doubted that a military commer may generally restrict access to a military facility. But, where the base was for all other purposes treated as part of the surrounding city, the Court refused to allow the commer unbridled discretion to prohibit Flower's leafletting. In (10), the Court struck down a statute permitting actors to wear a military uniform in a theater or motion picture production *767 only "if the portrayal does not tend to discredit that armed force." The Court noted that although a total prohibition would be valid, a prohibition sensitive to the viewpoint of speech could not st. Niemotko provides yet another example of the Court's rejection of "greater-includes-the-lesser" logic in the First Amendment area. There, a Jehovah's Witness was convicted of disorderly conduct after speaking in a park without a license. The Court decided that whatever power a city might have to prohibit all religious speech in its parks, it could not allow some but not all religious speech, depending on the exercise of unbridled discretion. -273. Or, as Justice Frankfurter put it in his concurring opinion, "[a] licensing stard which gives an official authority to censor the content of speech differs toto coelo from one limited by its terms, or by nondiscriminatory practice, to considerations of public safety the like." Cf. ; Madison Joint School (16) To counter this unanimous line of authority, the dissent does not refer to a single case supporting its view that we cannot consider a facial challenge to an ordinance alleged to constitute censorship over constitutionally protected speech merely because the manner used to circulate that speech might be otherwise regulated or prohibited entirely. Ultimately, |
Justice Brennan | 1,988 | 13 | majority | City of Lakewood v. Plain Dealer Publishing Co. | https://www.courtlistener.com/opinion/112103/city-of-lakewood-v-plain-dealer-publishing-co/ | that speech might be otherwise regulated or prohibited entirely. Ultimately, then, the dissent's reasoning must fall of its own weight. As the preceding discussion demonstrates, this Court has long been sensitive to the special dangers inherent in a law placing unbridled discretion directly to license speech, or conduct commonly associated with speech, in the *768 hs of a government official. In contrast, when the government is willing to prohibit a particular manner of speech entirely the speech it favors along with the speech it disfavors the risk of governmental censorship is simply not implicated. The "greater" power of outright prohibition raises other concerns, we have developed tests to consider them. But we see no reason, the dissent does not advance one, to ignore censorship dangers merely because other, unrelated concerns are satisfied. The dissent compounds its error by defining an "activity protected by the First Amendment" by the time, place, or (in this case) manner by which the activity is exercised. The actual "activity" at issue here is the circulation of newspapers, which is constitutionally protected. After all, "[l]iberty of circulating is as essential to [freedom of expression] as liberty of publishing; indeed, without the circulation, the publication would be of little value." Ex parte Jackson, ; The dissent's recharacterization of the issue is not merely semantic; substituting the time, place, or manner for the activity itself allows the dissent to define away a host of activities commonly considered to be protected. The right to demonstrate becomes the right to demonstrate at noise levels proscribed by law; the right to parade becomes the right to parade anywhere in the city 24 hours a day; the right to circulate newspapers becomes the right to circulate newspapers by way of newsracks placed on public property. Under the dissent's analysis, ordinances giving the Mayor unbridled discretion over whether to permit loud demonstrations or evening parades would not be vulnerable to a facial challenge, since they would not "requir[e] a license to engage in activity protected by the First Amendment." Post, at 777. But see *769 Moreover, we have never countenanced such linguistic prestidigitation, even where a regulation or total prohibition of the "manner" of speech has been upheld. In determining whether expressive conduct is at issue in a censorship case, we do not look solely to the time, place, or manner of expression, but rather to whether the activity in question is commonly associated with expression. For example, in Kovacs, it was never doubted that the First Amendment's protection of expression was implicated by the ordinance prohibiting sound trucks. The Court |
Justice Brennan | 1,988 | 13 | majority | City of Lakewood v. Plain Dealer Publishing Co. | https://www.courtlistener.com/opinion/112103/city-of-lakewood-v-plain-dealer-publishing-co/ | was implicated by the ordinance prohibiting sound trucks. The Court simply concluded that the First Amendment was not abridged. See also City Council of Los So here, the First Amendment is certainly implicated by the city's circulation restriction; the question we must resolve is whether the First Amendment is abridged. III Having concluded that the Newspaper may facially challenge the Lakewood ordinance, we turn to the merits. Section 901.181, Codified Ordinances, City of Lakewood, provides: "The Mayor shall either deny the application [for a permit], stating the reasons for such denial or grant said permit subject to the following terms" Section 901.181 (c) sets out some of those terms, including: "(7) such other terms conditions deemed necessary reasonable by the Mayor." It is apparent that the face of the ordinance itself contains no explicit limits on the mayor's discretion. Indeed, nothing in the law as written requires the mayor to do more than make the statement "it is not in the public interest" when denying a permit application. Similarly, the mayor could grant the application, but require the newsrack to be placed in an inaccessible location without providing any explanation whatever. To allow these illusory "constraints" to constitute the stards necessary to bound a licensor's discretion renders the guarantee against censorship little *770 more than a high-sounding ideal. See -. The city asks us to presume that the mayor will deny a permit application only for reasons related to the health, safety, or welfare of Lakewood citizens, that additional terms conditions will be imposed only for similar reasons. This presumes the mayor will act in good faith adhere to stards absent from the ordinance's face. But this is the very presumption that the doctrine forbidding unbridled discretion disallows. E. g., The doctrine requires that the limits the city claims are implicit in its law be made explicit by textual incorporation, binding judicial or administrative construction, or well-established practice. ; This Court will not write nonbinding limits into a silent state statute.[11] *771 Although the dissent disclaims a desire to pass upon the actual ordinance at issue, it apparently cannot resist making a few comments in this regard. Post, at 793, n. 13. First, it asserts that the ordinance's requirement that the mayor state his reasons for denying a permit distinguishes this case from other licensing cases. However, the mayor's statement need not be made with any degree of specificity, nor are there any limits as to what reasons he may give. Such a minimal requirement cannot provide the stards necessary to insure constitutional decisionmaking, nor will it, of necessity, provide |
Justice Brennan | 1,988 | 13 | majority | City of Lakewood v. Plain Dealer Publishing Co. | https://www.courtlistener.com/opinion/112103/city-of-lakewood-v-plain-dealer-publishing-co/ | to insure constitutional decisionmaking, nor will it, of necessity, provide a solid foundation for eventual judicial review. The dissent is also comforted by the availability of judicial review. However, that review comes only after the mayor the City Council have denied the permit. Nowhere in the ordinance is either body required to act with reasonable dispatch. Rather, an application could languish indefinitely before the Council, with the Newspaper's only judicial remedy being a petition for mamus. Cf. Even if judicial review were relatively speedy, such review cannot substitute for concrete stards to guide the decisionmaker's discretion. E. g., 334 U. S., at 0, Finally, the dissent attempts to distinguish newsrack permits from parade permits in that the latter are often given for a particular event or time, whereas the former supposedly have no urgency. This overstates the proposition. We agree that in some cases there is exceptional force to the argument that a permit delayed is a permit denied. However, we cannot agree that newspaper publishers can wait indefinitely for a permit only because there will always be news to report. News is not fungible. Some stories may be particularly well covered by certain publications, providing that newspaper with a unique opportunity to develop readership. In order to benefit from that event, a paper needs public *772A access at a particular time; eventual access would come "too little too late." The Plain Dealer has been willing to forgo this benefit for four years in order to bring litigate this lawsuit. However, smaller publications may not be willing or able to make the same sacrifice. IV We hold those portions of the Lakewood ordinance giving the mayor unfettered discretion to deny a permit application unbounded authority to condition the permit on any additional terms he deems "necessary reasonable," to be unconstitutional. We need not resolve the remaining questions presented for review, as our conclusion regarding mayoral discretion will alone sustain the Court of Appeals' judgment if these portions of the ordinance are not severable from the remainder. Severability of a local ordinance is a question of state law, is therefore best resolved below. See Mayflower Farms, 2 U.S. 266, Accordingly, we rem this cause to the Court of Appeals to decide whether the provisions of the ordinance we have declared unconstitutional are severable, to take further action consistent with this opinion. It is so ordered. THE CHIEF JUSTICE JUSTICE KENNEDY took no part in the consideration or decision of this case. |
Justice Stevens | 1,989 | 16 | concurring | Arizona v. Youngblood | https://www.courtlistener.com/opinion/112156/arizona-v-youngblood/ | Three factors are of critical importance to my evaluation of this case. First, at the time the police failed to refrigerate the victim's clothing, and thus negligently lost potentially valuable evidence, they had at least as great an interest in preserving the evidence as did the person later accused of the crime. Indeed, at that time it was more likely that the evidence would have been useful to the police who were still conducting an investigation and to the prosecutor who would later bear the burden of establishing guilt beyond a reasonable doubt than to the defendant. In cases such as this, even without a prophylactic sanction such as dismissal of the indictment, the State has a strong incentive to preserve the evidence. Second, although it is not possible to know whether the lost evidence would have revealed any relevant information, it is unlikely that the defendant was prejudiced by the State's omission. In examining witnesses and in her summation, defense counsel impressed upon the jury the fact that the State failed to preserve the evidence and that the State could have conducted tests that might well have exonerated the defendant. See App. to Pet. for Cert. C21-C38, C42-C45; 9 Tr. 183-202, 207-208; 10 Tr. 58-61, 69-70. More significantly, the trial judge instructed the jury: "If you find that the State has allowed to be destroyed or lost any evidence whose *60 content or quality are in issue, you may infer that the true fact is against the State's interest." 10 Tr. 90. As a result, the uncertainty as to what the evidence might have proved was turned to the defendant's advantage. Third, the fact that no juror chose to draw the permissive inference that proper preservation of the evidence would have demonstrated that the defendant was not the assailant suggests that the lost evidence was "immaterial." Our cases make clear that "[t]he proper standard of materiality must reflect our overriding concern with the justice of the finding of guilt," and that a State's failure to turn over (or preserve) potentially exculpatory evidence therefore "must be evaluated in the context of the entire record." United ; see also In declining defense counsel's and the court's invitations to draw the permissive inference, the jurors in effect indicated that, in their view, the other evidence at trial was so overwhelming that it was highly improbable that the lost evidence was exculpatory. In Trombetta, this Court found no due process violation because "the chances [were] extremely low that preserved [breath] samples would have been exculpatory." In this case, the |
Justice Stevens | 1,989 | 16 | concurring | Arizona v. Youngblood | https://www.courtlistener.com/opinion/112156/arizona-v-youngblood/ | [breath] samples would have been exculpatory." In this case, the jury has already performed this calculus based on its understanding of the evidence introduced at trial. Presumably, in a case involving a closer question as to guilt or innocence, the jurors would have been more ready to infer that the lost evidence was exculpatory. With these factors in mind, I concur in the Court's judgment. I do not, however, join the Court's opinion because it announces a proposition of law that is much broader than necessary to decide this case. It states that "unless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a *61 denial of due process of law." Ante, at 58. In my opinion, there may well be cases in which the defendant is unable to prove that the State acted in bad faith but in which the loss or destruction of evidence is nonetheless so critical to the defense as to make a criminal trial fundamentally unfair. This, however, is not such a case. Accordingly, I concur in the judgment. |
Justice Scalia | 1,994 | 9 | concurring | Reed v. Farley | https://www.courtlistener.com/opinion/117860/reed-v-farley/ | I join all the Court's opinion except Part II, and the last paragraph of Part IV (which incorporates some of the analysis of Part II). I thus agree that the "fundamental defect" test of is the *356 appropriate standard for evaluating alleged statutory violations under both 2254 and 2255, see ante, at 352-354, but I disagree with what seems to me (in Part II) too parsimonious an application of that standard. I This Court has long applied equitable limitations to narrow the broad sweep of federal habeas jurisdiction. See One class of those limitations consists of substantive restrictions upon the type of claim that will be entertained. Hill, for example, holds that the claim of a federal statutory violation will not be reviewed unless it alleges "a fundamental defect which inherently results in a complete miscarriage of justice [o]r an omission inconsistent with the rudimentary demands of fair procedure." 368 U.S., at Most statutory violations, at least when they do not occur "in the context of other aggravating circumstances," are simply not important enough to invoke the extraordinary habeas jurisdiction. at 429. See also United Although Justice Ginsburg concludes that an unobjected-to violation of the Interstate Agreement on Detainers Act (IAD), 18 U.S. C. App. 2, is not "`a fundamental defect which inherently results in a complete miscarriage of justice [or] an omission inconsistent with the rudimentary demands of fair procedure,' " she declines to decide whether that judgment would be altered "if a state court, presented with a timely request to set a trial date within the IAD's 120-day period, nonetheless refused to comply with Article IV(c)," ante, at 348, 349. To avoid the latter question, she conducts an analysis of how petitioner waived his IAD rights. See ante, at 350-351. The issue thus avoided is not a constitutional one, and the avoiding of it (when the answer is so obvious) may invite a misunderstanding of the Hill test. *357 The class of procedural rights that are not guaranteed by the Constitution (which includes the Due Process Clauses), but that nonetheless are inherently necessary to avoid "a complete miscarriage of justice," or numbered among "the rudimentary demands of fair procedure," is no doubt a small one, if it is indeed not a null set. The guarantee of trial within 120 days of interjurisdictional transfer unless good cause is showna provision with no application to prisoners involved with only a single jurisdiction or incarcerated in one of the two States that do not participate in the voluntary IAD compactsimply cannot be among that select class of statutory rights. As for |
Justice Scalia | 1,994 | 9 | concurring | Reed v. Farley | https://www.courtlistener.com/opinion/117860/reed-v-farley/ | be among that select class of statutory rights. As for Hill and Timmreck `s reservation of the question whether habeas would be available "in the context of other aggravating circumstances," that seems to me clearly a reference to circumstances that cause additional prejudice to the defendant, thereby elevating the error to a fundamental defect or a denial of rudimentary procedural requirements not a reference to circumstances that make the trial judge's behavior more willful or egregious. I thus think it wrong to suggest that if only petitioner had not waived his IAD speedy trial rights by failing to assert them in a timely fashion, "aggravating circumstances" might exist. See ante, at 349, 350-351. That says, in effect, that "aggravating circumstances" which can entitle a mere statutory violation to habeas review may consist of the mere fact that the statutory violation was not waived. Surely that sucks the life out of Hill.[*] Nor do I accept Justice Ginsburg's suggestion that an interest in uniform interpretation of the IAD might *358 counsel in favor of habeas review in a nonwaiver situation. See ante, at 348-349. I see no reason why this Court's direct review of state and federal decisions will not suffice for that purpose, as it does in most other contexts. Cf. More importantly, however, federal habeas jurisdiction was not created with the intent, nor should we seek to give it the effect, of altering the fundamental disposition that this Court, and not individual federal district judges, has appellate jurisdiction, as to federal questions, over the supreme courts of the States. If there was ever a technical rule, the IAD's 120-day limit is one. I think we produce confusion by declining to state the obvious: that violation of that technicality, intentional or unintentional, neither produces nor is analogous to (1) lack of jurisdiction of the convicting court, (2) constitutional violation, or (3) miscarriage of justice or denial of rudimentary procedures. It is no basis for federal habeas relief. II In addition to substantive limitations on the equitable exercise of habeas jurisdiction, the Court has imposed procedural restrictions. For example, a habeas claim cognizable under 2255 (the correlative of 2254 for federal prisoners), such as a constitutional claim, will not be heard if it was procedurally defaulted below, absent a showing of cause and actual prejudice. See United And claims will ordinarily not be entertained under 2255 that have already been rejected on direct review. See ; see also -721 (collecting cases showing that lower courts have uniformly followed the Kaufman dictum). Together, these two rules mean that "a prior opportunity for |
Justice Scalia | 1,994 | 9 | concurring | Reed v. Farley | https://www.courtlistener.com/opinion/117860/reed-v-farley/ | Together, these two rules mean that "a prior opportunity for full and fair litigation is normally dispositive of a federal prisoner's habeas claim." *359 Although this procedural limitation has not been raised as a defense in the present case, I note my view that, at least where mere statutory violations are at issue, a prior opportunity for full and fair litigation precludes a state-prisoner petition no less than a federal-prisoner petition. As the Court today reaffirms, "` 2255 was intended to mirror 2254 in operative effect.' " Ante, at 353, quoting Cf. Otherwise a prisoner, like petitioner, transferred from federal to state prison under the IAD would have three chances to raise his claim (state direct, state habeas, and 2254) while a prisoner transferred from state to federal prison under the IAD would have only one. Since the present petitioner raised his IAD claim on direct appeal in the Indiana courts and on state habeas review, his federal habeas claim could have been rejected on the ground that the writ ordinarily will not be used to readjudicate fully litigated statutory claims. |
Justice Scalia | 2,000 | 9 | second_dissenting | Shalala v. Illinois Council on Long Term Care, Inc. | https://www.courtlistener.com/opinion/118342/shalala-v-illinois-council-on-long-term-care-inc/ | I join the opinion of Justice Thomas except for Part III, and think it necessary to add a few words in explanation *32 of that vote: I am doubtful whether was correctly decided, but that case being on the books, and involving as it does a question of statutory interpretation, I believe it requires affirmance here. There is in my view neither any basis for holding that 42 U.S. C. 1395ii has a different meaning with regard to Part A than with regard to Part B, nor (since repeals by implication are disfavored) any basis for holding that the subsequent addition of a judicial- provision distantly related to 1395ii altered the meaning we had authoritatively pronounced. See post, n. 7 (Thomas, J., dissenting). I do not join Part III of Justice Thomas's opinion because its reliance upon what it calls the presumption of preenforcement suggests that Michigan was (a fortiori) correctly decided. I might have thought, as an original matter, that the categorical language of 1395ii and 405(h) overcame even what Justice Thomas acknowledges is the stronger presumption of some judicial See post, With regard to the timing of I would not even use the word "presumption" applies only to the preference for judicial at some point, see ), since that suggests that some unusually clear statement is required by way of negation. In my view, preenforcement is better described as the background rule, which can be displaced by any reasonable implication ("persuasive reason to believe," as Abbott put it, ) from the statute. Justice Thomas, with whom Justice Stevens and Justice Kennedy join, and with whom Justice Scalia joins except as to Part III, dissenting. Unlike the majority, I take no position on how 42 U.S. C. 405(h) applies to respondent's suit. That section is beside the point in this case because it does not apply of its own *33 force to the Medicare Act, but only by virtue of 42 U.S. C. 1395ii, the Medicare Act's incorporating reference to 405(h).[1] I read to hold that this incorporating reference is triggered when a particular fact-bound determination is in dispute, but not in the case, as here, of a "challeng[e] to the validity of the Secretary's instructions and regulations." Though this (or any) interpretation of 1395ii is not entirely free from doubt in light of the arguable tension between Michigan and our earlier decision in I would resolve such doubt by following our longstanding presumption in favor of preenforcement judicial Accordingly, I would hold that 405(h) does not apply to respondent's challenge, and therefore does not preclude respondent from bringing |
Justice Scalia | 2,000 | 9 | second_dissenting | Shalala v. Illinois Council on Long Term Care, Inc. | https://www.courtlistener.com/opinion/118342/shalala-v-illinois-council-on-long-term-care-inc/ | respondent's challenge, and therefore does not preclude respondent from bringing suit under general federal-question jurisdiction, 28 U.S. C. 1331. I A Michigan was the first time we discussed the meaning of 1395ii. In earlier Medicare Act cases where the plaintiffs had sought to proceed under general federalquestion jurisdiction, we either had no need to address 1395ii, or assumed in passing (and without discussion) that 1395ii always incorporates 405(h). Our decision in United involved the former situation. We dealt there with a Part B dispute over the appropriate amount of reimbursement for certain medical supplies.[2] The statute provided *34 for the determination of benefit amounts to be made by a private insurance carrier designated by the Secretary, and authorized de novo of the initial determination by another officer designated by the carrier. at 203 (citing 42 U.S. C. 1395u (1982 ed.)). But the statutory scheme did not mention the possibility of judicial of Part B benefit amount determinations, much less by the Secretary. By contrast, the statute did expressly provide for administrative by the Secretary and judicial in two instances: disputes concerning the claimant's eligibility for benefits under Part A or Part B, and disputes over benefit amount determinations under Part (citing 42 U.S. C. 1395ff (1982 ed.)). We found this contrast illuminating: "In the context of the statute's precisely drawn provisions, this omission provides persuasive evidence that Congress deliberately intended to foreclose further of [Part B benefit amount determinations]."[3] The inference was strong enough that we had no need to discuss the Government's alternative contention that 405(h) expressly precluded a claim under general jurisdictional provisions. See We therefore had no occasion to decide whether 1395ii even incorporates 405(h) into the Medicare Act. we did not need to interpret 1395ii, but for a different and more obvious reason: was a Social Security case, not a Medicare case, so 405(h) was directly applicable.) *35 Our opinion in was equally silent on the meaning of 1395ii, this time assuming in passing that it operates as a garden variety incorporating reference of 405(h),[4] an assumption shared by the parties to the case, see Brief for Petitioners 18, 22, and Brief for Respondents 26-29, in O. T. 1983, No. 82-1772. involved a dispute over reimbursement for a surgical procedure under Part A of the Act, see -609, n. 4, so, unlike in Erika (which involved Part B), it was clear that the individual plaintiffs could seek judicial under 1395ff (via 405(g)) after they had presented a claim for benefits to the Secretary and suffered an unfavorable final decision. But the plaintiffs chose not to follow |
Justice Scalia | 2,000 | 9 | second_dissenting | Shalala v. Illinois Council on Long Term Care, Inc. | https://www.courtlistener.com/opinion/118342/shalala-v-illinois-council-on-long-term-care-inc/ | unfavorable final decision. But the plaintiffs chose not to follow this route to Instead, they attempted to challenge the Secretary's policy prohibiting reimbursement for the surgery as violating constitutional due process and several statutory provisions, invoking general federal-question jurisdiction.[5] As we assumed that 1395ii incorporates 405(h) in the situation of a preenforcement challenge to the Secretary's Medicare Act regulations and policies, and held that 405(h)'s third sentence"No action against the United States, the [Secretary], or any officer or employee thereof shall be brought under section 1331 or 1346 of title 28 to recover on any claim arising under this subchapter"expressly precluded 's suit. -616. *36 B We squarely addressed 1395ii for the first time in our 1986 decision in The Secretary had adopted a regulation that authorized the payment of Part B benefits in different amounts for similar physicians' services. An association of family physicians and several individual doctors filed suit to challenge this regulation. These plaintiffs asserted no concrete claim to Part B benefits, for judicial of such a claim was clearly foreclosed by the statute as interpreted in Erika; they instead invoked federal-question jurisdiction. Our unanimous opinion[6] in their favor began by rejecting the Secretary's contention that the provisions construed in Erika impliedly precluded not only of benefit amount determinations under Part B, but also of challenges against the Secretary's methodologies for determining such The "precisely drawn" provisions on which we had focused in Erika did not support the Secretary's proposed inference, as they "simply d[id] not speak to challenges mounted against the method by which such amounts are to be determined." We then turned to the Secretary's argument that 405(h), incorporated by 1395ii into the Medicare Act, expressly precludes a claimant from resorting to general federalquestion jurisdiction under 28 U.S. C. 1331. The Secretary contended that under and "the third sentence of 405(h) by its terms prevents any resort to the grant of general federal-question jurisdiction contained in 28 U.S. C. 1331." The plaintiffs responded that 405(h)'s third sentence precludes use of 1331 only when Congress has provided specific procedures for judicial of final *37 agency action. We declined, however, to enter that debate: "Whichever may be the better reading of and we need not pass on the meaning of 405(h) in the abstract to resolve this case. Section 405(h) does not apply on its own terms to Part B of the Medicare program, but is instead incorporated mutatis mutandis by 1395ii. The legislative history of both the statute establishing the Medicare program and the 1972 amendments thereto provides specific evidence of Congress' intent to foreclose only |
Justice Scalia | 2,000 | 9 | second_dissenting | Shalala v. Illinois Council on Long Term Care, Inc. | https://www.courtlistener.com/opinion/118342/shalala-v-illinois-council-on-long-term-care-inc/ | thereto provides specific evidence of Congress' intent to foreclose only of `amount determinations'i. e., those `quite minor matters,' 118 Cong. Rec. 33992 (1972) (remarks of Sen. Bennett), remitted finally and exclusively to adjudication by private insurance carriers in a `fair hearing.' By the same token, matters which Congress did not delegate to private carriers, such as challenges to the validity of the Secretary's instructions and regulations, are cognizable in courts of law. In the face of this persuasive evidence of legislative intent, we will not indulge the Government's assumption that Congress contemplated by carriers of `trivial' monetary claims, ib but intended no at all of substantial statutory and constitutional challenges to the Secretary's administration of Part B of the Medicare program." We accordingly held that the physicians' challenge to the Secretary's regulation could proceed under general federalquestion jurisdiction. C In light of the quoted passage, it is beyond dispute that our holding in Michigan rested squarely on the meaning of 1395ii. Accord, ante, at 17. Under Michigan a case involving an "amount determinatio[n]" would trigger 1395ii's incorporation of 405(h), and thus bar federal-question jurisdiction; a "challeng[e] to the validity * of the Secretary's instructions and regulations" would 476 U.S., This dichotomy does not translate exactly to the instant case, the majority tells us, because the Secretary's determination to terminate a nursing home's provider agreement, see 42 U.S. C. 1395cc(b) (1994 ed. and Supp. III), in no sense resembles the determination of an "amount" of an individual's benefits under Part A or B, see 1395ff. Therefore, the majority concludes, Michigan `s interpretation of 1395ii simply does not bear on respondent's challenge to the Secretary's regulations here. See ante, at 20. But 1395ii applies to more than just 1395ff, the provision concerning benefit amounts; it applies, rather, to the entire Medicare Act, including 1395cc, the provision concerning provider agreements that is directly at issue here. And we have "stron[g] cause to construe a single formulation the same way each time it is called into play." Accordingly, the interpretation of 1395ii that we announced in Michigan must have a more general import than a distinction between Part B benefits determinations, on the one hand, and Part B methods guiding such determinations, on the other. Michigan must have established a distinction between, on the one hand, a dispute over any particularized determination and, on the other hand, a "challeng[e] to the validity of the Secretary's instructions and regulations," 476 U.S.,[7] The former triggers 1395ii's incorporation of 405(h); the latter does This case obviously falls into the latter category. Respondent in no way disputes any |
Justice Scalia | 2,000 | 9 | second_dissenting | Shalala v. Illinois Council on Long Term Care, Inc. | https://www.courtlistener.com/opinion/118342/shalala-v-illinois-council-on-long-term-care-inc/ | into the latter category. Respondent in no way disputes any particularized determinations, *39 but instead mounts a general challenge to the Secretary's regulations (and manual) prescribing inspection and enforcement procedures for the teams that survey participating nursing homes, claiming that these were promulgated without notice and comment, are unconstitutionally vague, contravene the Medicare Act's requirement of enforcement consistency, and violate due process by affording insufficient administrative Like the Michigan plaintiffs, who challenged the Secretary's regulation concerning the payment of benefits for physicians' services, 476 U.S., respondent may proceed in District Court under general federal-question jurisdiction. Perhaps recognizing that this result follows straightforwardly from what our Michigan opinion actually says, the majority creatively recasts that decision as having established an exception to 1395ii's incorporation of 405(h): Section 1395ii will not apply "where its application to a particular category of cases, such as Medicare Part B `methodology' challenges, would not lead to a channeling of through the agency, but would mean no at all." Ante, at 17. In doing so, the Court confuses the reasoning (more precisely, one half of the reasoning) of Michigan with the holding in that case. In Michigan we undoubtedly relied on the reality that, if the challenge to the Secretary's regulations were not allowed to proceed under general federal-question jurisdiction, the Secretary's administration of Part B benefit amount determinations would be entirely insulated from judicial a result in tension with the "`strong presumption that Congress did not mean to prohibit all judicial ' of executive action."[8] ). But we placed at least equal reliance on the legislative history of the 1972 amendments to the Medicare Act, see 476 U.S., and our holding was that challenges to particular determinations would trigger 1395ii, whereas challenges to the Secretary's instructions and regulations governing particular determinations would not, ; see Indeed, in setting aside the physicians' argument that 405(h) bars general federalquestion jurisdiction only when Congress has provided "specific procedures for judicial of final action by the Secretary," Michigan we expressly declined to decide the case by announcing the "exception" suggested by the majority. While we might have done so, cf. (describing limited exception to 405(g)'s requirement that Secretary's decision be "final" before judicial may be sought), we simply did not phrase our holding in those terms. II To be sure, the reading of Michigan that I would adopt ), dictates a different result in the earlier case. In recall, the respondents were individual Medicare claimants who brought a challenge to the Secretary's policy regarding payment of Medicare benefits for a specific surgical procedure. As we (and the parties) simply assumed |
Justice Scalia | 2,000 | 9 | second_dissenting | Shalala v. Illinois Council on Long Term Care, Inc. | https://www.courtlistener.com/opinion/118342/shalala-v-illinois-council-on-long-term-care-inc/ | specific surgical procedure. As we (and the parties) simply assumed that 1395ii's incorporating reference to 405(h) was triggered by such a challenge, and proceeded directly to decide the case based on 405(h). And yet, under Michigan `s gloss on 1395ii, we would never have reached 405(h) because 1395ii would not have *41 been activated by such a "challeng[e] to the validity of the Secretary's regulatio[n]." 476 U.S.,[9] But it is one thing to conclude that the result in would have been different had we applied Michigan `s 1395ii analysis to that case; it is quite another to declare that Michigan effected a sub silentio overruling of Contrary to the majority's representation, ante, at 18, my approach entails only the former, and therefore does not offend stare decisis principles as a sub silentio overruling would. As our opinion in did not expressly decide the meaning of 1395ii, assuming instead (as the parties had done) that 1395ii functions as a garden variety incorporating reference, i. e., that 1395ii incorporates 405(h) in every case involving the Medicare Act. Accordingly, "[t]he most that can be said is that the point was in the cas[e] if anyone had seen fit to raise it. Questions which merely lurk in the record, neither brought to the attention of the court nor ruled upon, are not to be considered as having been so decided as to constitute precedents." See also, e. g., ; United States v. L. Tucker Truck Lines, Inc., In other words, Michigan could not have overruled (sub silentio or otherwise) on a *42 point that did not decide. The majority opinion can therefore claim no support from its asserted "consistency with the holdings of earlier cases such as " Ante, at 19. simply does not constitute a holding on the meaning of 1395ii; or if it does, the majority has engaged in the very practice it condemnsa sub silentio overruling (of ). Moreover, the majority's criticism of my approach as declaring a sub silentio overruling is just as well directed at itself, for is no less overruled by the majority's view of Michigan than by my own. According to the majority, the Michigan "exception" to 1395ii applies where the aggrieved party "can obtain no at all unless it can obtain judicial in a 1331 action." Ante, at 20. Consider how this test would apply to Freeman one of the four plaintiffs in sought to challenge the Secretary's policy proscribing reimbursement for a certain type of surgery (a Part A benefits issue), invoking general federal-question jurisdiction. He had no concrete reimbursement claim to present, for he |
Justice Scalia | 2,000 | 9 | second_dissenting | Shalala v. Illinois Council on Long Term Care, Inc. | https://www.courtlistener.com/opinion/118342/shalala-v-illinois-council-on-long-term-care-inc/ | He had no concrete reimbursement claim to present, for he did not possess the financial means to pay for the surgery up front and await reimbursement. Nor, apparently, could he obtain private financing for the surgery. See ; (" would like nothing more than to give the Secretary [the] opportunity [to rule on a concrete claim for reimbursement]"); Brief for Petitioners 42-43, n. 23. It seems to me that is the paradigmatic example of a party who "can obtain no at all unless [he] can obtain judicial in a 1331 action," ante, at 20, such that he plainly would qualify for the Michigan exception to 1395ii as described by the majority. The majority purports to reaffirm in toto, but it does so only by revising that case to hold that notwithstanding his own inability to obtain judicial without *43 an anticipatory challenge, did not qualify for the Michigan exception to 1395ii because others in his class could afford to pursue by undergoing the surgery and presenting a concrete claim for reimbursement. See ante, at 12. Setting aside the peculiarity of interpreting a statute to deny judicial to the poor with the promise that the rich will obtain in their stead,[10] the majority's gloss on ignores the Court's own description of its holding. In rejecting plaintiff 's attempt to use 1331, the Court did not rely on some notion that or those similarly situated to him could as a practical matter seek judicial through some means other than 1331; the Court instead reasoned that 's claim was "essentially one requesting the payment of benefits for [a particular] surgery, a claim cognizable only under 405(g)." III It would overstate matters to say that the foregoing analysis demonstrates beyond question that respondent may invoke general federal-question jurisdiction. Any remaining doubt is resolved, however, by the longstanding canon that "judicial of executive action `will not be cut off unless there is persuasive reason to believe that such was the purpose of Congress.' " Gutierrez de ). See also, e. g., ; *44 ; Michigan ; ; The rationale for this "presumption," Abbott is straightforward enough: Our constitutional structure contemplates judicial as a check on administrative action that is in disregard of legislative mandates or constitutional rights. As Chief Justice Marshall explained: "`It would excite some surprise if, in a government of laws and of principle, furnished with a department whose appropriate duty it is to decide questions of right, not only between individuals, but between the government and individuals; a ministerial officer might, at his discretion, issue this powerful process leaving to [the claimant] |
Justice Scalia | 2,000 | 9 | second_dissenting | Shalala v. Illinois Council on Long Term Care, Inc. | https://www.courtlistener.com/opinion/118342/shalala-v-illinois-council-on-long-term-care-inc/ | his discretion, issue this powerful process leaving to [the claimant] no remedy, no appeal to the laws of his country, if he should believe the claim to be unjust. But this anomaly does not exist; this imputation cannot be cast on the legislature of the United States.' " United (as quoted in Gutierrez de at ). See also S. R. Stewart, C. Sunstein, & M. Spitzer, Administrative Law and Regulatory Policy 832 (suggesting that "the presumption of owes its source to considerations of accountability and legislative supremacy, ideas embodied in article I, and also to rule of law considerations, embodied in the due process clause"); Michigan[11] *45 Contrary to the Secretary's representation, Brief for Petitioners 31-32, the presumption favors not merely judicial "at some point," but preenforcement judicial While it is true that the presumption may not be quite as strong when the question is now-or-later instead of now-ornever, see Thunder Basin our cases clearly establish that the presumption applies in the former context. Indeed, Abbott the "important case which marks the recent era of increased access to judicial" itself involved a preenforcement challenge to a regulation. Although the Food, Drug, and Cosmetic Act (FDCA) did not authorize a preenforcement challenge to the type of regulation the Secretary had issued, and indeed expressly enumerated certain other kinds of regulations for which preenforcement was available, we explained that these indicia of congressional intent must be viewed through the lens of the presumption: "The first question we consider is whether Congress by the [FDCA] intended to forbid pre-enforcement of this sort of regulation promulgated by the Commissioner. The question is phrased in terms of `prohibition' rather than `authorization' because a survey of our cases shows that judicial of a final agency action by an aggrieved person will not be cut off unless there is persuasive reason to believe that such was the purpose of Congress." Abbott 7 U. S., at 139-. We thus held that the suit could proceed. More recently, in Haitian Refugee we reaffirmed the applicability of the presumption in the context of a preenforcement challenge. At issue in that case was the constitutionality of the Immigration and Naturalization Service's *46 (INS) procedures for administering an amnesty program for illegal aliens. Despite the availability of judicial of these procedures in the context of statutorily authorized of orders of exclusion or deportation, and notwithstanding the statute's express prohibition of judicial of an INS "determination respecting an application for adjustment of status [under the amnesty program]," 8 U.S. C. 1(e)(1), we held that these factors did not suffice to trump the "strong |
Justice Scalia | 2,000 | 9 | second_dissenting | Shalala v. Illinois Council on Long Term Care, Inc. | https://www.courtlistener.com/opinion/118342/shalala-v-illinois-council-on-long-term-care-inc/ | that these factors did not suffice to trump the "strong presumption in favor of judicial of administrative action." Haitian Refugee The majority declines to employ the presumption in favor of preenforcement to resolve the ambiguity in 1395ii; instead, it concocts a presumption against preenforcement stating that its holding is "consisten[t] with the distinction that this Court has often drawn between a total preclusion of and postponement of" Ante, at 19 (citing ; Thunder Basin ; Haitian Refugee at -499). But Thunder Basin as teaches only that the presumption is not as strong when the problem is one of delayed judicial rather than complete denial of judicial it does not establish that the presumption lacks any force in the former context. And Haitian Refugee directly supports the applicability of the presumption in favor of preenforcement ; we there invoked the presumption even though the plaintiffs had a post enforcement optionvoluntarily surrendering themselves for deportation and availing themselves of the statutorily authorized judicial of an order of exclusion or deportation. 498 U.S., at Only provides the majority with modest support insofar as it acknowledged (and distinguished) just the presumption against the complete denial of judicial omitting mention of the presumption against delayed judicial But this omission is readily explained: Presentment of a Social *47 Security benefits claim for purposes of 42 U.S. C. 405(g) is accomplished by the near-costless act of filing an application for benefits, to be contrasted with the extremely burdensome presentment requirement facing the aliens in Haitian Refugee or the named plaintiff in The only significant hardship facing the claimants in arose from the possibility that a lengthy administrative process would postpone a judicial decision ordering the Secretary to pay the disputed benefits; but the Court took care of that problem by leniently construing 405(g)'s requirement of a "final" agency decision and by allowing the Secretary to waive entirely 405(g)'s requirement that decision be made "after a hearing." At bottom, then, the majority cannot demonstrate why the presumption in favor of preenforcement which dates at least from Abbott should not be invoked to resolve the debate between our conflicting readings of 1395ii. There is a practical reason why we employ the presumption not only to questions of whether judicial is available, but also to questions of when judicial is available. Delayed that is, a requirement that a regulated entity disobey the regulation, suffer an enforcement proceeding by the agency, and only then seek judicial may mean no at all. For when the costs of "presenting" a claim via the delayed route exceed the costs of simply complying with the |
Justice Scalia | 2,000 | 9 | second_dissenting | Shalala v. Illinois Council on Long Term Care, Inc. | https://www.courtlistener.com/opinion/118342/shalala-v-illinois-council-on-long-term-care-inc/ | delayed route exceed the costs of simply complying with the regulation, the regulated entity will buckle under and comply, even when the regulation is plainly invalid. See Seidenfeld, Playing Games with the Timing of Judicial Review, 58 Ohio St. L. J. 85, 104 (1997). And we can expect that this consequence will often flow from an interpretation of an ambiguous statute to bar preenforcement In Haitian Refugee for example, the aliens' "post enforcement" option for asserting their challenge to the agency's procedures required the aliens to voluntarily surrender themselves for deportation, suffer an order of deportation, *48 and seek judicial of that order in the court of appeals. These costs of presentment, we explained, were "[q]uite obviously tantamount to a complete denial of judicial for most undocumented aliens." 498 U.S., at -497. A similar predicament faces the nursing homes represented by respondent in the instant case, who contend that the Secretary's regulations (and manual) governing enforcement of substantive standards are unlawful in various respects. The nursing homes' "post enforcement" route is delineated by 42 U.S. C. 1395cc(h)(1), which provides that "an institution or agency dissatisfied with a determination described in subsection (b)(2) of this section shall be entitled to a hearing thereon by the Secretary (after reasonable notice) to the same extent as is provided in section 405(b) of this title, and to judicial of the Secretary's final decision after such hearing as is provided in section 405(g) of this title." While the meaning of "determination" in the referenced 42 U.S. C. 1395cc(b)(2) (1994 ed., Supp. III) is not entirely free from doubt, the Secretary has interpreted these provisions to mean that administrative and judicial is afforded for "any determination that a provider has failed to comply substantially with the statute, agreements, or regulations, whether termination or `some other remedy is imposed.' " Ante, at 21 (quoting Reply Brief for Petitioners 14 (emphasis in original)). Still, even under the Secretary's reading, an inspection team's assessment of a deficiency (for noncompliance) against the nursing home does not suffice to trigger administrative and judicial under 1395cc(h). Presentment of a claim via 1395cc(h) requires the nursing home not merely to expose itself to an assessment of a deficiency by an inspection team, but also to forbear correction of the deficiency until the Secretary (or her state designees) impose a remedy. Respondent and its amici advance several plausible reasons why such forbearance will prove costlyindeed, costly *49 enough that compliance with the challenged regulations and manual is the more rational option. For one, nursing homes face the prospect of terminationthe most severe of remediessimply |
Justice Scalia | 2,000 | 9 | second_dissenting | Shalala v. Illinois Council on Long Term Care, Inc. | https://www.courtlistener.com/opinion/118342/shalala-v-illinois-council-on-long-term-care-inc/ | homes face the prospect of terminationthe most severe of remediessimply by virtue of failing to submit a voluntary plan of correction and correct the deficiencies. See 42 CFR 488.456(b)(1) The Secretary's only response is that terminations are rarely imposed in fact, and certainly are not imposed where the provider has postponed correction of its deficiencies in order to preserve its appeal rights. But any such leniency is solely a matter of grace by the Secretary, see Tr. of Oral Arg. 31, and provides little comfort to a nursing facility pondering the 1395cc(h) route to judicial And exposure to the termination remedy is not the only consequence faced by a nursing home that forestalls correction of its deficiencies. The Secretary also may impose civil monetary penalties, which accrue for each day of noncompliance, 42 CFR 488.430, 488.440(b) and thus quite plainly stand as a calibrated deterrent to the forbearance strategy. Cf. Ex parte Young,[12] Other costs of the forbearance strategy are less tangible, but potentially as significant. For example, a finding of a deficiency at a nursing facilitywhich may well rest on unbalanced or inaccurate datais posted in a place easily accessible to residents, 42 CFR 483.10(g)(1) disclosed *50 to the public, 42 U.S. C. 1395i3(g)(5)(A), and posted on the Health Care Finance Authority's Internet website, Reply Brief for Petitioners 20, n. 20.[13] Such negative publicity, which occurs before the nursing home may avail itself of administrative or judicial via 1395cc(h), is likely to result in substantial reputational harm. See 7 U.S. 167, I recount these allegations of hardship to respondent's members not because they inform any case-by-case application of the presumption in favor of preenforcement but rather because such concerns motivate the presumption in a general sense. A case-by-case inquiry into hardship is accommodated instead by ripeness doctrine, which "evaluate[s] both the fitness of the issues for judicial decision and the hardship to the parties of withholding court consideration. " Abbott 7 U. S., at 149 I read our cases to establish just this sort of analysis: (1) in light of the presumption, construe an ambiguous statute in favor of preenforcement ; (2) apply ripeness doctrine to determine whether the suit should be entertained. Thus, in Abbott and its two companion cases, we construed an ambiguous statute to permit preenforcement see ; v. Toilet Goods ; Toilet Goods 7 U.S. 158, but we then proceeded to hold that only the suits in the first two of these cases were *51 ripe, Abbott ; v. Toilet Goods ; Toilet Goods v. at -161. See also In line with this mode of |
Justice Scalia | 2,000 | 9 | second_dissenting | Shalala v. Illinois Council on Long Term Care, Inc. | https://www.courtlistener.com/opinion/118342/shalala-v-illinois-council-on-long-term-care-inc/ | at -161. See also In line with this mode of analysis, the court below, after concluding that the Medicare Act does not preclude general federalquestion jurisdiction over a preenforcement challenge to the Secretary's regulations, held that respondent's APA notice-and-comment challenge was ripe but that its constitutional vagueness claim was F.3d, at 1076-1077. While I express no view on the proper application of ripeness doctrine to respondent's claims,[14] I am confident that this method of analysis enjoys substantially more support in our cases than does the majority's approach, which prescribes a case-by-case hardship inquiry at the threshold stage of determining whether preenforcement has been precluded by statute. See ante, at 20 (holding that 1395ii does not incorporate 405(h) where the aggrieved party "can obtain no at all unless it can obtain judicial in a 1331 action"). While the majority's variation would be harmless if its hardship test were no more stringent than the hardship prong of ordinary ripeness doctrine, I presume its test is more exactingotherwise the majority opinion is no more than a well-disguised application of ripeness doctrine to the facts of this case.[15] At bottom, then, the majority superimposes a more burdensome hardship test on ordinary ripeness doctrine for aggrieved persons who *52 seek to bring a preenforcement challenge to the Secretary's regulations under the Medicare Act.[16] * * * Instead, I would hold that 1395ii, as interpreted by Michigan does not in this case incorporate 405(h)'s preclusion of federal-question jurisdiction, especially in light of the presumption in favor of preenforcement I respectfully dissent. |
Justice Breyer | 2,013 | 2 | dissenting | Mutual Pharmaceutical Co. v. Bartlett | https://www.courtlistener.com/opinion/931124/mutual-pharmaceutical-co-v-bartlett/ | It is not literally impossible here for a company like petitioner to comply with conflicting state and federal law. A company can comply with both either by not doing busi- ness in the relevant State or by paying the state pen- alty, say damages, for failing to comply with, as here, a state-law tort standard. See post, at 16–18 (SOTOMAYOR, J., dissenting). But conflicting state law that requires a company to withdraw from the State or pay a sizable damages remedy in order to avoid the conflict between state and federal law may nonetheless “ ‘stan[d] as an obstacle to the accomplishment’ of ” the federal law’s ob- jective, in which case the relevant state law is pre-empted. Post, at 17 ). Normally, for the reasons I set forth in Medtronic, Inc. v. Lohr, (opinion concurring in part and concurring in judgment), in deciding whether there is such a conflict I would pay particular attention to the views of the relevant agency, here the Food and Drug Administration (FDA). Where the statute contains no clear pre-emption command, courts may infer that the administrative agency has a degree of leeway to determine the extent to which governing statutes, rules, regulations, 2 MUTUAL PHARMACEUTICAL CO. v. BARTLETT BREYER, J., dissenting or other administrative actions have pre-emptive effect. See at 505–506 ; Lawrence 261–262 ; Chevron U. S. A. ). See also Cf. Skid- The FDA is responsible for administering the relevant federal stat- utes. And the question of pre-emption may call for consid- erable drug-related expertise. Indeed, one might infer that, the more medically valuable the drug, the less likely Congress intended to permit a State to drive it from the marketplace. At the same time, the agency can develop an informed position on the pre-emption question by providing inter- ested parties with an opportunity to present their views. It can translate its understandings into particular pre- emptive intentions accompanying its various rules and regulations. And “[i]t can communicate those intentions thr statements in ‘regulations, preambles, inter- pretive statements, and responses to comments.’” Medtronic, (quoting Hillsbor- ). Here, however, I cannot give special weight to the FDA’s views. For one thing, as far as the briefing reveals, the FDA, in developing its views, has held no hearings on the matter or solicited the opinions, arguments, and views of the public in other ways. For another thing, the FDA has set forth its positions only in briefs filed in litigation, not in regulations, interpretations, or similar agency work product. See Bowen v. Georgetown Univ. Hospital, 488 U.S. 204, 212–213 (1988) (“[A]gency litigating positions |
Justice Breyer | 2,013 | 2 | dissenting | Mutual Pharmaceutical Co. v. Bartlett | https://www.courtlistener.com/opinion/931124/mutual-pharmaceutical-co-v-bartlett/ | Univ. Hospital, 488 U.S. 204, 212–213 (1988) (“[A]gency litigating positions that are wholly unsupported by regulations, rulings, or Cite as: 570 U. S. (2013) 3 BREYER, J., dissenting administrative practice” are entitled to less than ordinary weight). Cf. 587 Finally, the FDA has set forth conflicting views on this general matter in different briefs filed at different times. Compare (noting that the FDA had previously found no pre-emption, that the United States now argued for pre-emption, and that this new position was not entitled to deference), with PLIVA, Inc. v. Mensing, 564 U.S. n. 3, (2011) (slip op., at 6–7, n. 3, 8–11) (declining to defer to the United States’ argument against pre-emption and, instead, finding pre-emption), and with Brief for United States as Amicus Curiae 12–13 (now arguing, again, for pre- emption). See National Cable & Telecommunications (2005) (agency views that vary over time are accorded less weight); Motor Vehicle Mfrs. Assn. of United States, Inc. v. State Farm Mut. Automobile Ins. Co., 41–42 (1983) (same); Verizon Communications Inc. v. FCC, 535 U.S. 467, 502, n. 20 (2002) (same). Without giving the agency’s views special weight, I would conclude that it is not impossible for petitioner to comply with both state and federal regulatory schemes and that the federal regulatory scheme does not pre-empt state common law (read as potentially requiring petitioner to pay damages or leave the market). As two former FDA Commissioners tell us, the FDA has long believed that state tort litigation can “supplemen[t] the agency’s regula- tory and enforcement activities.” Brief for Donald Ken- nedy et al. as Amici Curiae 5. See also (“In keeping with Congress’ decision not to pre-empt common-law tort suits, it appears that the FDA tradition- ally regarded state law as a complementary form of drug regulation”). Moreover, unlike the federal statute at issue in Med- 4 MUTUAL PHARMACEUTICAL CO. v. BARTLETT BREYER, J., dissenting tronic, the statute before us contains no general pre- emption clause. See –482. Cf. (presence of pre-emption clause could show that “Congress tht state-law suits posed an obstacle to its objectives”). Furthermore, I have found no con- vincing reason to believe that removing this particular drug from New Hampshire’s market, or requiring damage payments for it there, would be so harmful that it would seriously undercut the purposes of the federal statutory scheme. Cf. post, at 21–22. Finally, similarly situated defendants in other cases remain free to argue for “obstacle pre-emption” in respect to damage payments or market withdrawal, and demon- strate the impossibility-of-compliance type of conflict that, in their particular cases, might create true incompatibility |
Justice Douglas | 1,973 | 10 | dissenting | United States v. Jim | https://www.courtlistener.com/opinion/108632/united-states-v-jim/ | Plaintiffs below are a class of Indians with a membership of 1,500. They are a mixture of Navajo and Piute and live in an area of the Navajo Reservation called the Aneth Extension, made part of that reservation in a 1933 Act of Congress. In 1968 Congress amended that Act, and the District Court for the District of Utah declared the amendment unconstitutional. Prior to 1933 the Extension was part of the public lands of the United States. The area was occupied by the direct ancestors of the appellees. *84 The Indians in the Aneth Extension number about 1,500 people who are primitive Navajos with some mixture of Piute blood. See They live in a remote and relatively inaccessible area with an average annual income per family of $240. The Aneth Extension is in San Juan County and the 1933 Act stated: "[N]o further allotments of lands to Indians on the public domain shall be made in San Juan County, Utah, nor shall further Indian homesteads be made in said county." The white man was unconcerned about this domain until oil was discovered; and then he became quite active. By June 30, 1970, the royalties owing the Aneth Extension Indians had increased to $7,039,022.32. Of this, $78,000 was used to pipe water from the Aneth Extension to the adjoining lands of a white man, an "improvement" that only incidentally aided the resident Indians. Another $27,000 of Indian funds was spent for the construction of an airport and connecting road, which substantially benefited a white man's private dude ranch operation. Some $10,000 or more was expended for administrative purposes by Utah. When this suit was started, additional expenditures were about to be made: $175,000 to a federal agency to locate isolated water springs on the Aneth Extension and $500,000 to build a hard-surfaced road outside the boundaries of the Extension. These primitive Navajos wanted the money used to purchase high-elevation ranges where they might have summer grazing for the livestock and thus realize a round-the-year livestock operation. Judge Christensen found that members of the Aneth Extension were the sole beneficiaries of the fund and that it should be administered with their wishes in mind. *85 But there are tensions and conflicts between these primitive Navajos who live on the Aneth Extension and other members of the tribe who live The State Commission did not comply with the District Court's order but sponsored legislation to extend the benefits of the fund to other Indians.[1] Judge Christensen ruled again that the fund was solely for the benefit of members of the Aneth Extension. |
Justice Douglas | 1,973 | 10 | dissenting | United States v. Jim | https://www.courtlistener.com/opinion/108632/united-states-v-jim/ | solely for the benefit of members of the Aneth Extension. Neither opinion was appealed. But the State Commission promoted legislation to extend the benefits of the 1933 Act to other Indians. The problems the Commission had in administering the fund reached Congress and in 1968 the contested amendment was passed. This amendment indicates that money must be used by the State of Utah "for the health, education, and general welfare of the Navajo Indians residing in San Juan County" and that "Contribution may be made to projects and facilities within said area that are not exclusively for the benefits of the beneficiaries hereunder in proportion to the benefits to be received therefrom by said beneficiaries, as may be determined by the State of Utah" The 1933 Act gave title to the land and right to the fund, not to the tribe of the Navajo, but to the Aneth *86 community.[2] I do not believe that under the circumstances of this case Congress had the power to expand the class of beneficiaries to include the whole tribe. The occupants of the Extension have been a separate community for many generations. Their claim of right by continuous possession precedes the transfer of title by the United States Government. Congress made provision for the Secretary of the Interior to place other tribes on the land and, if he did, their claim would be based on territory, not membership. Since the rights were vested in those who lived on the Aneth Extension, I do not see how they can be extended to outsiders. In the Court upheld the power of Congress to expand the beneficiaries of certain Indian land to the children of those who already enjoyed those rights. Here the expansion is not limited to those of the same blood line. But, more important, Congress had a different legal relation to the Cherokees than it does to the appellees. "[T]he members of this tribe were wards of the United States, which was fully empowered, whenever it seemed wise to do so, to assume full control *87 over them and their affairs, to determine who were such members, to allot and distribute the tribal lands and funds" The 1933 Act states that the lands "are hereby, permanently withdrawn from all forms of entry or disposal for the benefit of the Navajo and such other Indians as the Secretary of the Interior may see fit to settle thereon." That would seem to freeze the existing legal rights in that area of the Aneth Extension to the inhabitants. The legal effect seems like a disclaimer on |
Justice Douglas | 1,973 | 10 | dissenting | United States v. Jim | https://www.courtlistener.com/opinion/108632/united-states-v-jim/ | the inhabitants. The legal effect seems like a disclaimer on the part of the United States of any right in either the land or the minerals. It is difficult for me to see how Congress has power to change the scheme without payment of just compensation. After all, Indians are beneficiaries of the Due Process Clause of the Fifth Amendment. United ; Shoshone Tribe of They too are people, not sheep or cattle that can be given or denied whatever their overseer decrees. Indians are also beneficiaries of the Just Compensation Clause of the Fifth Amendment. Chippewa Indians of ; United ; Sioux Tribe of When there is a taking of Indian lands, the compensation must take into account the mineral rights which are part of the lands. United What then constitutes a taking? The majority finds no taking because ownership already existed in the Navajo tribe. The 1933 Act states, however, that all lands are "permanently withdrawn from all forms of entry or disposal for the benefit of the Navajo and such other Indians as the Secretary of the Interior may see fit to settle thereon," That Act plainly indicates that only those residing on that tract, not the tribe as a whole, were the beneficiaries. *88 If the royalty granted by the 1933 Act had been to the Standard Oil Co. or any other producer of oil, no one would dare say that the royalty could be assigned by a subsequent Congress to an oil consortium without payment of just compensation. Whenever we have made grants of public lands or interests therein to Indians the Court has held that the fact that Indians are wards and the United States a guardian does not make the Indian title defeasible. The Court in held that if the United States were allowed to take lands from Indians, "[t]hat would not be an exercise of guardianship, but an act of confiscation." In United -110, the Court said: "The tribe was a dependent Indian community under the guardianship of the United States, and therefore its property and affairs were subject to the control and management of that government. But this power to control and manage was not absolute. While extending to all appropriate measures for protecting and advancing the tribe, it was subject to limitations inhering in such a guardianship and to pertinent constitutional restrictions. It did not enable the United States to give the tribal lands to others, or to appropriate them to its own purposes, without rendering, or assuming an obligation to render, just compensation for them" The present cases are |
Justice Douglas | 1,973 | 10 | dissenting | United States v. Jim | https://www.courtlistener.com/opinion/108632/united-states-v-jim/ | to render, just compensation for them" The present cases are close to Shoshone Tribe of where Congress repeatedly put Arapahoes on Shoshone lands acquired under a treaty. This Court, speaking through Mr. Justice Cardozo, allowed damages to the Shoshones: "Confusion is likely to result from speaking of the wrong to the Shoshones as a destruction of their *89 title. Title in the strict sense was always in the United States, though the Shoshones had the treaty right of occupancy with all its beneficial incidents. What those incidents are, it is needless to consider now The right of occupancy is the primary one to which the incidents attach, and division of the right with strangers is an appropriation of the land pro tanto, in substance, if not in form." And quoting from United Mr. Justice Cardozo added, "The right of the Indians to the occupancy of the lands pledged to them, may be one of occupancy only, but it is `as sacred as that of the United States to the fee.' " What power remains in Congress after the express purpose of the Act "permanently [to] withdraw" the lands from disposal? Public lands are usually subject to disposition by patent and upon its issuance, control over the transaction ceases and the patent can only be set aside by judicial proceedings in the courts. Michigan Land & Lumber ; Thus, when Congress passed legislation giving public lands to the railroads, it was considered a contract which could not be broken by Congress when it sought to use the lands as a water-power site, ; nor could the Secretary reclaim the property. United ; Santa Fe Pacific R. An entryman on a homestead claim does not achieve title until certain time and work conditions are met. 43 U.S. C. 161-165. Yet, during this period he has the right to exclusive possession and use, unless the patent was secured by fraud. Patents *90 are not issued in oil and gas exploration but leases are. 30 U.S. C. 226. But that fact does not affect the power to cancel the leases. That can only be done by a failure of the lessee to comply with the lease, the statute, and regulations. 30 U.S. C. 188. Pan American Petroleum Until lands are patented, title remains in the United States. Yet even before a patent issues the claims are "valid against the United States if there has been a discovery of mineral within the limits of the claim, if the lands are still mineral, and if other statutory requirements have been met." The devices for doing the |
Justice Stevens | 1,987 | 16 | dissenting | Anderson v. Creighton | https://www.courtlistener.com/opinion/111953/anderson-v-creighton/ | This case is beguiling in its apparent simplicity. The Court accordingly represents its task as the clarification of the settled principles of qualified immunity that apply in damages suits brought against federal officials. Its opinion, however, announces a new rule of law that protects federal agents who make forcible nighttime entries into the homes of innocent citizens without probable cause, without a warrant, and without any valid emergency justification for their warrantless search. The Court stunningly restricts the constitutional accountability of the police by creating a false dichotomy between police entitlement to summary judgment on immunity grounds and damages liability for every police misstep, by responding to this dichotomy with an uncritical application of the precedents of qualified immunity that we have developed for a quite different group of high public office holders, and by displaying remarkably little fidelity to the countervailing principles of individual liberty and privacy that infuse the Fourth Amendment.[1] Before I turn to the Court's opinion, it is appropriate to identify the issue confronted by the Court of Appeals. It is now apparent that it was correct in vacating the District Court's award of summary judgment to petitioner in advance of discovery. I The Court of Appeals understood the principle of qualified immunity as implemented in v. Fitzgerald, 457 U. S. *648 800 to shield government officials performing discretionary functions from exposure to damages liability unless their conduct violated clearly established statutory or constitutional rights of which a reasonable person would have known. Applying this principle, the Court of Appeals held that respondents' Fourth Amendment rights and the "exigent circumstances" doctrine were "clearly established" at the time of the search. Moreover, apparently referring to the "extraordinary circumstances" defense left open in for a defendant who "can prove that he neither knew nor should have known of the relevant legal standard," the Court determined that petitioner could not reasonably have been unaware of these clearly established principles of law. Thus, in reviewing the Court of Appeals' judgment rejecting petitioner Anderson's claim to immunity, the first question to be decided is whether v. Fitzgerald requires immunity for a federal law enforcement agent who advances the fact-specific claim that a reasonable person in his position could have believed that his particular conduct would not violate rights that he concedes are clearly established. A negative answer to that question is required, both because provides an inappropriate measure of immunity when police acts that violate the Fourth Amendment are challenged, and also because petitioner cannot make the showing required for immunity. Second, apart from the particular requirements of the doctrine, a |
Justice Stevens | 1,987 | 16 | dissenting | Anderson v. Creighton | https://www.courtlistener.com/opinion/111953/anderson-v-creighton/ | Second, apart from the particular requirements of the doctrine, a full review of the Court of Appeals' judgment raises the question whether this Court should approve a double standard of reasonableness the constitutional standard already embodied in the Fourth Amendment and an even more generous standard that protects any officer who reasonably could have believed that his conduct was constitutionally reasonable. Because a careful analysis of the -related set of questions will be helpful in assessing the Court's continuing embrace of a double standard of reasonableness, I begin with *649 a discussion of petitioner's claim of entitlement to immunity. II Accepting for the moment the Court's double standard of reasonableness, I would affirm the judgment of the Court of Appeals because it correctly concluded that petitioner has not satisfied the standard for immunity. The inquiry upon which the immunity determination hinges in this case illustrates an important limitation on the reach of the Court's opinion in The defendants' claims to immunity at the summary judgment stage in and in were bolstered by two policy concerns that are attenuated in suits against law enforcement agents in the field based on the Fourth Amendment. One was the substantial public interest in allowing government officials to devote their time and energy to the press of public business without the burden and distractions that invariably accompany the defense of a lawsuit. -817; The second underpinning of was the special unfairness associated with charging government officials with knowledge of a rule of law that had not yet been clearly recognized. ;[2] Thus, if the *650 plaintiff's claim was predicated on a principle of law that was not clearly established at the time of the alleged wrong, both of those concerns would favor a determination of immunity not only in advance of trial, but of equal importance, before the time-consuming pretrial discovery process commenced. Concern for the depletion and diversion of public officials' energies led the Court in to abolish the doctrine that an official would be deprived of immunity on summary judgment if the plaintiff alleged that the official had acted with malicious intent to deprive his constitutional rights. See, e. g., The Court's decision today, however, fails to recognize that 's removal of one arrow from the plaintiff's arsenal at *651 the summary judgment stage did not also preclude the official from advancing a good-faith reasonableness claim at trial if the character of his conduct as established by the evidence warranted this strategy. The rule of the case, in contrast, focuses on the character of the plaintiff's legal claim and, when properly invoked, |
Justice Stevens | 1,987 | 16 | dissenting | Anderson v. Creighton | https://www.courtlistener.com/opinion/111953/anderson-v-creighton/ | character of the plaintiff's legal claim and, when properly invoked, protects the government executive from spending his time in depositions, document review, and conferences about litigation strategy. Consistently with this overriding concern to avoid "the litigation of the subjective good faith of government officials," does not allow discovery until the issue whether the official's alleged conduct violated a clearly established constitutional right has been determined on a motion for summary judgment. implicitly assumed that many immunity issues could be determined as a matter of law before the parties had exchanged depositions, answers to interrogatories, and admissions.[3] The considerations underlying the formulation of the immunity rule in for Executive Branch officials, however, are quite distinct from those that led the Court to its prior recognition of immunity for federal law enforcement officials in suits against them founded on the Constitution. This observation is hardly surprising, for the question of immunity only acquires importance once a cause of action is created; the "practical consequences of a holding that no remedy has been authorized against a public official are essentially the same as those flowing from a conclusion that the official has absolute immunity." Probing the *652 question of immunity raised in this case therefore must begin, not with a rote recitation of the standard, but with an examination of the cause of action that brought the immunity question now before us into play in the first instance. As every student of federal jurisdiction quickly learns, the Court in held that Bivens had a cause of action against federal agents "to recover money damages for any injuries he has suffered as a result of the agents' violation of the [Fourth] Amendment." In addition to finding that no cause of action was available, the District Court in that case had relied on the alternative holding that respondents were immune from liability because of their official position. Because the Court of Appeals for the Second Circuit had not passed on this immunity ruling, we did not consider it. at -398. On remand, in the Court of Appeals articulated a dual standard of reasonableness. As an initial matter, the Court rejected the agents' claim under which had recognized immunity for an official who performs "discretionary acts at those levels of government where the concept of duty encompasses the sound exercise of discretionary authority." The Second Circuit wisely noted that it "would be a sorry state of affairs if an officer had the `discretion' to enter a dwelling at 6:30 A.M., without a warrant or probable cause" That court nevertheless recognized the need to balance protection of |
Justice Stevens | 1,987 | 16 | dissenting | Anderson v. Creighton | https://www.courtlistener.com/opinion/111953/anderson-v-creighton/ | That court nevertheless recognized the need to balance protection of the police from "the demands of every person who manages to escape from the toils of the criminal law" against the "right of citizens to be free from unlawful arrests and searches." According to the Second Circuit, the officer "must not be held to act at his peril"; to obtain immunity he "need not allege and prove probable cause in the constitutional sense." at Instead, an agent *653 should prevail if he could prove "not only that he believed, in good faith, that his conduct was lawful, but also that his belief was reasonable." Thus, an affirmative defense of reasonable good faith was available at trial.[4] In contrast, an immunity claim of the type[5] that would foreclose any trial at all was not available and, in my view, was not appropriate. The strength of the reasonable good-faith defense in any specific case would, of course, vary with the trial evidence about the facts upon which the officer had relied when he made the challenged search or arrest.[6] As the Court of Appeals recognized, assuring police officers the discretion to act in illegal ways would not be advantageous *654 to society. While executives such as the Attorney General of the United States or a senior assistant to the President of the United States must have the latitude to take action in legally uncharted areas without constant exposure to damages suits, and are therefore entitled to a rule of qualified immunity from many pretrial and trial proceedings, quite different considerations led the Second Circuit to recognize the affirmative defense of reasonable good faith in the Bivens case. Today this Court nevertheless makes the fundamental error of simply assuming that immunity is just as appropriate for federal law enforcement officers such as petitioner[7] as it is for high government officials.[8] The doctrinal reach and precedential sweep of this moment of forgetfulness are multiplied because of the interchangeability of immunity precedents between 1983 suits against state officials and Bivens actions against federal officials. Moreover, for the moment restricting my criticism of the Court's analysis to the four corners of the framework, the Court errs by treating a denial of immunity for failure to satisfy the *655 standard as necessarily tantamount to a ruling that the defendants are exposed to damages liability for their every violation of the Fourth Amendment.[9] Such a denial would not necessarily foreclose an affirmative defense based on the Second Circuit's thesis in Bivens that an officer may not be liable if his conduct complied with a lesser standard of reasonableness |
Justice Stevens | 1,987 | 16 | dissenting | Anderson v. Creighton | https://www.courtlistener.com/opinion/111953/anderson-v-creighton/ | if his conduct complied with a lesser standard of reasonableness than the constitutional standard which it violated. The Court's failure to recognize that federal agents may retain a partial shield from damages liability, although not necessarily from pretrial and trial proceedings, leads it to the erroneous conclusion that petitioner must have immunity or else none at all save the Fourth Amendment itself.[10] In Part III, I explain why the latter alternative is appropriate. For now, I assert the more limited proposition that the Court of Appeals quite correctly rejected Anderson's claim that he is entitled to immunity under does not speak to the extent, if any, of an official's insulation from monetary liability when the official concedes that the constitutional right he is charged with violating was deeply etched in our jurisprudence, but argues that he reasonably believed that his particular actions comported with the constitutional command. In this case the District Judge granted Anderson's motion for summary judgment because she was convinced that the agent had probable cause to enter the Creightons' home and that the absence of a search warrant was justified by exigent circumstances. In other words, the *656 District Judge concluded as a matter of law that there was no substantive constitutional violation. When respondents appealed, petitioner argued that even if the Constitution was violated, he was entitled to immunity because the law defining exigent circumstances was not clearly established when he searched the Creightons' home.[11] In setting aside the order granting summary judgment, the Court of Appeals concluded that many essential factual matters were sharply disputed and that if the Creightons' version of the incident were accepted, there was neither probable cause nor an exigent-circumstances justification for the search. It was therefore necessary to try the case to find out whether the Fourth Amendment had been violated. 766 F. 2d, at The Court of Appeals' conclusion that summary judgment on the probable-cause and exigent-circumstances issues was not appropriate in advance of discovery was unquestionably correct. The Court of Appeals also was correct in rejecting petitioner's argument based on the holding in that the qualified-immunity issue ought to be resolved on a motion for summary judgment before any discovery has taken 457 U.S., -819.[12] The Court of Appeals rejected this *657 argument because it was convinced that the rule of law was clear. It also could have rejected the argument on an equally persuasive ground namely, that the requirement concerning clearly established law applies to the rule on which the plaintiff relies, and that there was no doubt about the proposition that a warrantless entry |
Justice Stevens | 1,987 | 16 | dissenting | Anderson v. Creighton | https://www.courtlistener.com/opinion/111953/anderson-v-creighton/ | was no doubt about the proposition that a warrantless entry into a home without probable cause is always unlawful.[13] The court does not even reach the exigent-circumstances inquiry unless and until the defendant has shown probable cause and is trying to establish that the search was legal notwithstanding the failure of the police to obtain a warrant. Thus, if we assume that the Court of Appeals was correct in its conclusion that probable cause had not been established, it was also correct in rejecting petitioner's claim to immunity, either because the exigent-circumstances exception to the warrant requirement was clearly established, or because a warrantless entry into a home without probable cause is always unlawful whether or not exigent circumstances are present. In this Court, Anderson has not argued that any relevant rule of law whether the probable-cause requirement *658 or the exigent-circumstances exception to the warrant requirement was not "clearly established" in November 1983. Rather, he argues that a competent officer might have concluded that the particular set of facts he faced did constitute "probable cause" and "exigent circumstances," and that his own reasonable belief that the conduct engaged in was within the law suffices to establish immunity. But the factual predicate for Anderson's argument is not found in the Creightons' complaint, but rather in the affidavits that he has filed in support of his motion for summary judgment. Obviously, the respondents must be given an opportunity to have discovery to test the accuracy and completeness of the factual basis for the immunity claim. Neither this Court,[14] nor petitioner,[15] disagrees with this proposition. It is therefore pellucidly clear that the Court of Appeals was correct in its conclusion that the record before it did not support the summary judgment. The Court's decision today represents a departure from the view we expressed two years ago in We held that petitioner was entitled to qualified immunity for authorizing an unconstitutional wire-tap because it was not clearly established that warrantless domestic security wiretapping violated the Fourth Amendment. We added in a footnote: "We do not intend to suggest that an official is always immune from liability or suit for a warrantless search merely because the warrant requirement has never explicitly been held to apply to a search conducted in identical circumstances. But in cases where there is a legitimate question whether an exception to the warrant requirement exists, it cannot be said that a warrantless search violates clearly established law." *659 Of course, the probable-cause requirement for an officer who faces the situation petitioner did was clearly established. In addition, an |
Justice Stevens | 1,987 | 16 | dissenting | Anderson v. Creighton | https://www.courtlistener.com/opinion/111953/anderson-v-creighton/ | the situation petitioner did was clearly established. In addition, an officer's belief that his particular warrantless search was justified (by exigent circumstances, in this case) is analytically no different from a situation in which the warrant requirement has not been explicitly held to apply to the particular search undertaken by the officer the precise situation in which, as the Court recognized in there would certainly be no immunity. The good-faith argument advanced by petitioner might support a judgment in his favor after there has been a full examination of the facts, but it is not the kind of claim to immunity, based on the tentativeness or nonexistence of the constitutional rule allegedly violated by the officer, that we accepted in or in III Although the question does not appear to have been argued in, or decided by, the Court of Appeals, this Court has decided to apply a double standard of reasonableness in damages actions against federal agents who are alleged to have violated an innocent citizen's Fourth Amendment rights. By double standard I mean a standard that affords a law enforcement official two layers of insulation from liability or other adverse consequence, such as suppression of evidence. Having already adopted such a double standard in applying the exclusionary rule to searches authorized by an invalid warrant, United the Court seems prepared and even anxious in this case to remove any requirement that the officer must obey the Fourth Amendment when entering a private home. I remain convinced that in a suit for damages as well as in a hearing on a motion to suppress evidence, "an official search and seizure cannot be both `unreasonable' and `reasonable' at the same time." A "federal official may not with impunity ignore the limitations which the controlling law has placed on his powers." *660 The effect of the Court's (literally unwarranted) extension of qualified immunity, I fear, is that it allows federal agents to ignore the limitations of the probable-cause and warrant requirements with impunity. The Court does so in the name of avoiding interference with legitimate law enforcement activities even though the probable-cause requirement, which limits the police's exercise of coercive authority, is itself a form of immunity that frees them to exercise that power without fear of strict liability. See The Court advances four arguments in support of the position that even though an entry into a private home is constitutionally unreasonable, it will not give rise to monetary liability if a reasonable officer could have believed it was reasonable: First, the probable-cause standard is so vague that it is |
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