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Justice Stewart | 1,980 | 18 | second_dissenting | Brown v. Glines | https://www.courtlistener.com/opinion/110173/brown-v-glines/ | the circulation of those particular petitions; it also necessarily discouraged further collective and individual *378 attempts by those servicemen to communicate with Congress. It seems clear to me that the application of the challenged regulations in this case violated the provisions of 1034. Under that statute only those rules that prohibit "unlawful" communications or that are "necessary to the security of the United States" may be enforced. No claim is made here that the communicative content of any of the respondent's petitions was in any way "unlawful." Moreover, no contention is made that the respondent disclosed anything secret or confidential in the proposed petitions to the Members of Congress.[6] And surely it could not conceivably be argued that, as a general proposition, a regulation requiring the preclearance of the content of all petitions to be circulated by servicemen in time of peace is "necessary to the security of the United States." For these reasons, I believe that the judgment of the Court of Appeals should be affirmed.[7] Accordingly, I respectfully dissent from the opinion and judgment of the Court. MR. JUSTICE STEVENS, dissenting. The question whether 10 U.S. C. 1034 includes a right to circulate petitions is not an easy one for me. I must confess that I think the plain language of the statute and its sparse legislative history slightly favor the Court's reading that it does not. Nevertheless, I agree with MR. JUSTICE STEWART'S *379 construction of the statute for two reasons. First, in a doubtful case I believe a statute enacted to remove impediments to the flow of information to Congress should be liberally construed. Second, the potentially far-reaching consequences of deciding the constitutional issue[1] counsel avoidance of that issue if the "case can be fairly decided on a statutory ground."[2] MR. JUSTICE STEWART has surely demonstrated that that test is met here. I therefore respectfully dissent. |
Justice Harlan | 1,970 | 22 | majority | United States v. WM Webb, Inc. | https://www.courtlistener.com/opinion/108090/united-states-v-wm-webb-inc/ | The respondents in this case, which was consolidated below, own boats that are used in commercial fishing in the Atlantic Ocean and the Gulf of Mexico. Their fishing is carried out through contractual arrangements, shaped by established custom, with boat captains, who man the boats and manage their day-to-day operation. The question before the Court is whether the captains and crewmen of the boats are the "employees" of the respondents within the provisions of the Federal Insurance Contributions Act (FICA)[1] and the Federal Unemployment Tax Act (FUTA),[2] which impose taxes on employers to finance government benefits for employees. I During the taxable periods involved here,[3] the respondents' vessels were engaged in fishing for menhaden, a nonedible fish that is processed and used for various industrial purposes. The owner of each vessel equipped the vessel and secured the services of an experienced fisherman to be captain. The captain then assembled a crew. The captain customarily served on the same vessel for a full season, and occasionally for several consecutive seasons, although the oral arrangements between owners and captains permitted either to terminate the relationship at the end of any fishing trip. The fishing trips lasted from one to several days. *181 The vessels were operated from docking facilities owned by fish-processing plants, and discharged their catch at these plants upon the completion of each trip. The plants paid respondents for the fish according to the volume of the catch, and respondents paid the captains and crews on the same basis, following terms that had been negotiated in advance. Neither captains nor crews were guaranteed any earnings if they failed to catch fish. While respondents determined the plant to which the vessels would report and generally where and when the fishing would take place, the captains managed the details of the operation of the boats and the manner of fishing. Respondents filed tax returns as employers under the FICA and the FUTA, and paid the employer's share of the taxes due on the earnings of the captains and crews. After making the appropriate claims for refunds, they sued for refunds in the District Court for the Eastern District of Louisiana. The District Court, sitting without a jury, determined after trial that the captains and crews were not respondents' employees for the purposes of these tax statutes. The trial court noted that both the FICA and the FUTA define "employee" as any individual who has employee status under "the usual common law rules" applicable to a determination of the master-servant relationship. It found "without merit" the Government's contention "that the common-law governing the |
Justice Harlan | 1,970 | 22 | majority | United States v. WM Webb, Inc. | https://www.courtlistener.com/opinion/108090/united-states-v-wm-webb-inc/ | "without merit" the Government's contention "that the common-law governing the relationship of the taxpayer and the fishermen in pursuing fishing ventures in the Gulf of Mexico and the Atlantic Ocean is the general maritime law." The court found further that the degree of control exercised by respondents over these fishing activities was not sufficient, under the common-law standards governing land-based occupations, *182 to create the relationship of employer and employee between respondents and the captains and crews. Respondents were thus held entitled to their refunds. On appeal, the Court of Appeals for the Fifth Circuit affirmed. It reviewed the facts and observed that "it is clear that under maritime law the captain is the agent of the owner and the crew hands are employees," and that "[i]f we were free to apply maritime law as a test of the employer-employee relationship, we would reverse the decision of the district court."[4] However, the Court of Appeals agreed with the District Court that the statutes' prescription of "common law rules" barred application of maritime standards. This conclusion conflicts with the approach of the Court of Claims in Cape Shore Fish In that decision the court found scallop fishermen, operating under arrangements similar to those here, to be employees of the shipowner for the purposes of these statutes. It reached this conclusion by applying to the facts the standards of maritime law. We granted certiorari in this case, to resolve this conflict, and to clarify the application to maritime workers of these important federal statutes. II The parties agree that both the FICA and the FUTA impose taxes on employers measured by the compensation paid to employees, and that in terms of this case the two statutes define "employee" identically. In the FICA "employee" is defined to include "any individual *183 who, under the usual common law rules applicable in determining the employer-employee relationship, has the status of an employee," and the language of the FUTA is to the same effect.[5] These definitions were not included in the original Social Security Act as it was adopted in 1935, which defined "employee" merely by specifying that it "includes an officer of a corporation,"[6] but were added by amendment in 1948. We must consider the events that prompted the amendment. In 1935 the draftsmen of the Social Security Act apparently thought it unnecessary to elucidate the meaning of "employee" because they assumed that the term, as it was applied to varying factual situations, would be given the "usual" meaning it bore at common law. See S. Rep. 1255, 80th Cong., 2d Sess., 3-4 (1948). However, |
Justice Harlan | 1,970 | 22 | majority | United States v. WM Webb, Inc. | https://www.courtlistener.com/opinion/108090/united-states-v-wm-webb-inc/ | S. Rep. 1255, 80th Cong., 2d Sess., 3-4 (1948). However, over the years of applying the Act to a myriad of work relationships, the lower federal courts developed *184 somewhat varying approaches, certain courts relying more heavily on common-law precedents and others attempting to discern a special meaning for the term from the purposes of the legislation.[7] In addition, the courts tended to look to local precedents to determine the common-law standards, producing different results for similar factual situations in various parts of the country.[8] This divergence of views led this Court, in 1947, to render two decisions in an attempt to clarify the governing standards. United ; In Silk, the Court upheld the lower courts' determination that certain truck drivers were, under the circumstances, independent contractors rather than employees, but it upset a similar ruling with respect to a group of men who unloaded coal from railroad cars. In Bartels the Court, reversing the Court of Appeals, held that the members of certain dance bands were not employees of the owners of the dance halls at which they were engaged, despite contractual provisions characterizing them as employees. While the Court's opinions in these cases stressed many of the factors that had been important in common-law determinations of employee status, they also contained language that could be read to detach the question *185 of statutory coverage from the common-law tests.[9] The Court stated, in Bartels, that "in the application of social legislation employees are those who as a matter of economic reality are dependent upon the business to which they render service." Acting upon this language, the executive agencies set about replacing their original regulation, which had defined the employment relation in terms of the incidents of employment at common law,[10] with a new regulation that would embody the test of "economic reality."[11] However, the proposed new regulation never took effect. *186 Within two months of its announcement, a resolution was introduced in both the House of Representatives and the Senate calling for "a reassertion of congressional intent regarding the application of the act." S. Rep. 1255, This resolution, which was finally passed over the President's veto, added to the statutes the present definitions of "employee."[12] The report of the Senate Finance Committee on the resolution makes clear a congressional purpose to disapprove the proposed regulation and to reaffirm that determinations of employee status were to be based on the traditional legal tests. The Committee seems to have thought that the Silk and Bartels decisions had applied traditional common-law standards, despite the language in the opinions suggesting a less constrictive |
Justice Harlan | 1,970 | 22 | majority | United States v. WM Webb, Inc. | https://www.courtlistener.com/opinion/108090/united-states-v-wm-webb-inc/ | despite the language in the opinions suggesting a less constrictive approach. However, noting that the Treasury Department claimed support in those decisions for its contemplated new departure, the Committee declared: "But if it be contended that the Supreme Court has invented new law for determining an `employee' under the social-security system in these cases, then the purpose of this resolution is to reestablish the usual common-law rules, realistically applied." *187 The causes of congressional dissatisfaction with the proposed regulation were twofold. As a fiscal matter, the Committee cited testimony that the new regulation would extend social security benefits to between 500,000 and 750,000 new workers, who had not been covered previously and had not contributed to the trust fund from which benefits would be paid, thus endangering the integrity of the fund. More generally, the Committee was fearful of the uncertainty that would be created by the new regulation, and the discretion it would give to the executive agencies in determining the applicability of the statutes. The report stated: "In a word, by unbounded and shifting criteria, [the proposed regulation] would confer in those administering the Social Security Act full discretion to include, or to exclude, from the coverage of the act any person whom they might decide to be, or might decide not to be, an `employee'; and like discretion to fasten tax liabilities and the administrative duties and costs of compliance with the act upon any person whom they might decide to be an `employer.' "The proposed regulation discards the common-law rules for distinguishing the employer-employee relationship distilled from many decisions by many courts out of many insights of real situations, for a new rule of nebulous character. "Under the proposed regulation an `employee' is `an individual in a service relationship who is dependent as a matter of economic reality upon the business to which he renders service and not upon his own business as an independent contractor.' "The rule, obviously, will not serve to make the necessary distinctions. Who, in this whole world *188 engaged in any sort of service relationship, is not dependent as a matter of economic reality on some other person? "[T]he proposed regulation concerns itself mainly, as was stated to your committee by a witness at the hearings: `. with making it abundantly clear that on virtually no state of facts may anyone be certain whether or not he has a tax liability until the Commissioner has made up his mind about it.' " 10, 11. The Committee stated that, in contrast to the proposed regulation, whose "basic principle is a dimensionless and |
Justice Harlan | 1,970 | 22 | majority | United States v. WM Webb, Inc. | https://www.courtlistener.com/opinion/108090/united-states-v-wm-webb-inc/ | the proposed regulation, whose "basic principle is a dimensionless and amorphous abstraction," the existing regulation was "not devoid of uncertainty, but its basis is in established standards of law which frame and limit its application." The conclusions stated in the House Report were similar. H. R. Rep. 1319, 80th Cong., 2d Sess. (1948).[13] By the resolution, Congress unequivocally tied the coverage of these tax provisions to the body of decisional law defining the employer-employee relationship in various occupations. *189 In none of the discussions of the 1948 resolution was there any discussion of maritime employees. The respondents argue that, by failing to make specific provision for the application of maritime law to seagoing occupations, Congress impliedly decreed that those occupations should be gauged by the standards of the "common law" applicable to land-based activities. They rely in part on the fact that the phrase "common law" is sometimes used in contradistinction to the "maritime law" traditionally applied in courts of admiralty, and they also point to the fact that the Senate Report stressed the degree of the employer's control over the employee's work as central to the Committee's understanding of the common-law tests of employment. The Senate Report quoted with approval the then-existing regulation, substantially identical to the one now in effect,[14] which stated: "Every individual is an employee if the relationship between him and the person for whom he performs services is the legal relationship of employer and employee. "Generally such relationship exists when the person for whom services are performed has the right to control and direct the individual who performs the services, not only as to the result to be accomplished by the work but also as to the details and means by which that result is accomplished. That is, an employee is subject to the will and control of the employer not only as to what shall be done but how it shall be done." S. Rep. 1255, Respondents argue that this language indicates a congressional intent that, where the maritime nature of a *190 vocation makes impracticable the degree of control generally exercised by land-based employers over their employees, the land-based standards must nevertheless be applied, with the result that no "employment" exists for the purposes of those statutes. III We do not think Congress intended the anomalous result of having maritime activities subject to standards, for social security tax purposes, other than those that are relevant to seafaring enterprises. Such a result is not necessary to accomplish the dual concerns underlying the 1948 amendment. Application of maritime standards to determine the status of members |
Justice Harlan | 1,970 | 22 | majority | United States v. WM Webb, Inc. | https://www.courtlistener.com/opinion/108090/united-states-v-wm-webb-inc/ | Application of maritime standards to determine the status of members of fishing ventures will not open brand new areas of social security coverage. To the contrary, the employee status of captains and crewmen engaged in fishing operations similar to these is supported by a Treasury Department interpretation, applying maritime standards, that was issued in 1940, immediately after maritime employees were first brought within the coverage of the Social Security Act by amendment in S. S. T. 387, 1940-1 Cum. Bull. 192; see Social Security Act Amendments of 606, 614, 1392, as amended, 26 U.S. C. 3121 (b), 3306 (c). This ruling, which the Social Security Administration has accepted for purposes of paying benefits to claimants, had existed for eight years before Congress added the present definitions of "employee" to the statutes. It was not mentioned at the time of the 1948 amendment. Since the ruling represented the accepted view of both the taxing and paying agencies, Congress could have had no concern that payment of benefits to *191 maritime employees would constitute an uncompensated drain on the social security fund.[15] More important, the chief concern behind the 1948 amendmentavoiding the uncertainty of the proposed "economic reality" testis wholly satisfied if seafaring work relationships are tested against the standards of maritime, rather than land-based, decisional law. Congress' fearfulness of the "nebulous" nature of the proposed regulation indicates that it used the phrase "usual common law rules" in a generic sense, to mean the standards developed by the courts through years of adjudication, rather than in a technical sense to mean those standards developed by "common law" courts as opposed to courts of admiralty. Maritime law, the common law of seafaring men, provides an established network of rules and distinctions that are practically suited to the necessities of the sea, just as land-based decisional law provides a body of rules adapted to the various forms of domestic employment. The goal of minimizing uncertainty can be accomplished, in the maritime field, by resort to the "usual" rules of maritime jurisprudence.[16] *192 This conclusion is not weakened by the emphasis given, both in the Senate Report and in the regulation, to the factor of control. Control is probably the most important factor under maritime law,[17] just as it is under the tests of land-based employment. It may be true that, in most maritime relationships, the workers enjoy discretion that is unusually broad if measured by land-based standardsa discretion dictated by the seafaring nature of the activity. However, except where there is nearly total relinquishment of control through a bare-boat, or demise, charter, the owner |
Justice Harlan | 1,970 | 22 | majority | United States v. WM Webb, Inc. | https://www.courtlistener.com/opinion/108090/united-states-v-wm-webb-inc/ | of control through a bare-boat, or demise, charter, the owner may nevertheless be considered, under maritime law, to have sufficient control to be charged with the duties of an employer. See, e. g., The Norland, ; G. Gilmore & C. Black, The Law of Admiralty 4-23 (1957). Congress' stress on the importance of control reflects the primacy of that factor in the rules governing the most common, land-based vocations,[18] which were certainly foremost in the congressional mind at the time of the *193 1948 amendment. It does not preclude the application, in different areas, of decisional rules that vary in the precise degree of control that is required. Cf. Deecy Products ;[19] The guidelines in the regulation also allow for such flexibility, as is attested by the existence, for nearly 30 years, of the Treasury ruling, S. S. T. 387, confirming the employee status of fishermen such as those involved here. Now, as in 1948, the regulation proceeds, after the language already quoted, to elaborate some of the factors other than control that may be important: "The right to discharge is also an important factor indicating that the person possessing that right is an employer. Other factors characteristic of an employer, but not necessarily present in every case, are the furnishing of tools and the furnishing of a place to work, to the individual who performs the services." 26 CFR 31.3121 -1 (c) (2).[20] *194 It is clear that this brief sketch of relevant factors cannot be intended to provide a workable test, complete in itself, displacing the complex of common-law rules Congress so carefully tried to preserve. Rather, the regulation provides a summary of the principles of the common law, intended as an initial guide for the determination, required by the first sentence of the regulation, whether a relationship "is the legal relationship of employer and employee." The thrust of both statute and regulation is that the standards that are to govern in any field are those that the courts customarily apply to define this "legal relationship."[21] We conclude that the Court of Appeals erred in declining to judge the status of the captains and crewmen against the standards of maritime law. Accordingly, the judgment is reversed, and the case is remanded to that court for proceedings consistent with this opinion. It is so ordered. |
Justice Scalia | 2,004 | 9 | second_dissenting | Tennard v. Dretke, Director, Texas Department of Criminal Justice, Correctional Institutions Division | https://www.courtlistener.com/opinion/136994/tennard-v-dretke-director-texas-department-of-criminal-justice/ | 51 Petitioner argues that 's statutory special issues framework unconstitutionally constrained the jury's discretion to give effect to his mitigating evidence of a low Q score, violating the requirement that "`"a sentencer must be allowed to give full consideration and full effect to mitigating circumstances."'" Reply Brief for Petitioner 4 in turn quoting ). This claim relies on a case that applied principles earlier limned in and 52 have previously expressed my view that this "right" to unchanneled sentencer discretion has no basis in the Constitution. See Penry have also said that the Court's decisions establishing this right do not deserve stare decisis effect, because requiring unchanneled discretion to say no to death cannot rationally be reconciled with our prior decisions requiring canalized discretion to say yes. "[T]he practice which in Furman [v. Georgia,] had been described as the discretion to sentence to death and pronounced constitutionally prohibited, was in Woodson [v. North Carolina,] and Lockett renamed the discretion not to sentence to death and pronounced constitutionally required." (SCALA, J., concurring in part and concurring in judgment). 53 The Court returned greater rationality to our Penry jurisprudence by cutting it back in and joined the Court in this pruning effort, noting that "the essence of today's holding (to the effect that discretion may constitutionally be channeled) was set forth in my dissent in Penry." d., As THE CHEF JUSTCE notes, the lower courts' disposition of petitioner's Penry claim in the present case was entirely appropriate under these cases. Ante, at 290-293 (dissenting opinion). Yet the opinion for the Court does not even acknowledge their existence. t finds failings in the Fifth Circuit's framework for analyzing Penry claims as if this Court's own jurisprudence were not the root of the problem. "The simultaneous pursuit of contradictory objectives necessarily produces confusion." Walton, 54 Although the present case involves only a certificate of appealability (COA) ruling, rather than a ruling directly on the merits of petitioner's claim, cannot require the issuance of a COA when the insubstantial right at issue derives from case law in which this Court has long left the Constitution behind and embraced contradiction. respectfully dissent. 55 JUSTCE THOMAS, dissenting. 56 Petitioner must rely on to argue that ' special issues framework unconstitutionally limited the discretion of his sentencing jury. have long maintained, however, that Penry did "so much violence to so many of this Court's settled precedents in an area of fundamental constitutional law, [that] it cannot command the force of stare decisis." therefore agree with JUSTCE SCALA that a certificate of appealability cannot be issued based upon an |
Justice Powell | 1,975 | 17 | majority | Bowen v. United States | https://www.courtlistener.com/opinion/109313/bowen-v-united-states/ | Petitioner was convicted of federal drug offenses based on evidence seized in January 1971 when Border Patrol officers stopped his camper pickup at a traffic checkpoint on California Highway 86, about 36 air miles from the Mexican border. The officers first determined that petitioner was a United States citizen, then asked him to open the camper so that they could search for concealed aliens. When petitioner opened the door, one officer noticed a strong odor of marihuana. He entered the camper and discovered approximately 356 pounds of the drug. A subsequent search of the passenger compartment produced a number of benzedrine tablets. The Court of Appeals for the Ninth Circuit affirmed petitioner's conviction, rejecting his argument that the search was unlawful. A petition for certiorari was pending when we announced our decision in holding that the Fourth Amendment prohibits the use of roving patrols to search vehicles, with neither a warrant nor probable cause, at points removed from the border and its functional equivalents. We vacated the judgment in petitioner's case and remanded for reconsideration in light of Almeida-Sanchez. The Court of Appeals reheard the case en banc and held, in a sharply divided opinion, that the principles of Almeida-Sanchez applied to searches conducted at traffic checkpoints as well as searches conducted by roving patrols. The Court nevertheless affirmed petitioner's conviction, holding that Almeida-Sanchez would not be applied to invalidate searches that occurred prior to the date of that decision. We *918 granted certiorari to resolve an apparent conflict with the Court of Appeals for the Tenth Circuit in United and United We hold today in United States v. Ortiz, ante, p. 891, that the Fourth Amendment, as interpreted in Almeida-Sanchez, forbids searching cars at traffic checkpoints in the absence of consent or probable cause. In this case the Government does not contend that the Highway 86 checkpoint is a functional equivalent of the border, that the officers had probable cause to open the camper, or that petitioner consented to the search. The primary question for decision is whether the principles of Almeida-Sanchez should have been applied retroactively. In United States v. Peltier, ante, p. 531, we refused to apply Almeida-Sanchez to a roving-patrol search conducted before June even though a direct appeal was pending on that date. We think the decision in Peltier is controlling here, as the reasons that dictated a holding of nonretroactivity in that case are equally applicable. At the time of our decision in Almeida-Sanchez, all the Courts of Appeals in Circuits adjacent to the Mexican border had held that immigration officers at traffic checkpoints |
Justice Powell | 1,975 | 17 | majority | Bowen v. United States | https://www.courtlistener.com/opinion/109313/bowen-v-united-states/ | Mexican border had held that immigration officers at traffic checkpoints could search automobiles for concealed aliens. E. g., United ; United ;[1] This Court had *919 not ruled on the question, and no contrary precedent was reported in other Courts of Appeals. The Border Patrol reasonably relied on the decisions of the Court of Appeals in performing the search in this case and others like it, and in these circumstances the purposes of the Fourth Amendment exclusionary rule would not be served by applying the principles of Almeida-Sanchez retroactively. Petitioner further argues that even if Almeida-Sanchez *920 is not to be applied retroactively he is entitled to the benefit of the Court of Appeals' decision that Almeida-Sanchez extended to checkpoint searches. He invokes this Court's practice of applying new constitutional doctrine in the case that establishes the point,[2] and maintains that the Court of Appeals' refusal to apply its extension of Almeida-Sanchez in his case made its discussion of that point mere dictum. We conclude, however, that the only error of the Court of Appeals was its reaching out to decide that Almeida-Sanchez applied to checkpoint searches in a case that did not require decision of the issue. The Government raised two questions in the Court of Appeals: whether Almeida-Sanchez applied retroactively, and if it did, whether it would require probable cause for checkpoint searches. This Court consistently has declined to address unsettled questions regarding the scope of decisions establishing new constitutional doctrine in cases in which it holds those decisions nonretroactive. E. g., ; This practice is rooted in our reluctance to decide constitutional questions unnecessarily. See United ; Because this reluctance in turn is grounded in the constitutional role of the federal courts, United the district courts and courts of appeals should follow our practice, when issues of both retroactivity and application of constitutional doctrine are raised, of deciding the retroactivity issue first. As the *9 Court of Appeals correctly decided in this case that Almeida-Sanchez did not apply to a 1971 search, it should have refrained from considering whether our decision in that case applied to searches at checkpoints. Petitioner contends, nevertheless, that once the Court of Appeals addressed the unnecessary issue it was bound to apply that ruling in his case. Because it refused to do so, petitioner says the court rendered a hypothetical decision forbidden by Art. III of the Constitution. It is true that this Court has suggested that Art. III is the primary impetus for applying new constitutional doctrines in cases that establish them for the first time. But petitioner's case is altogether |
Justice Scalia | 1,990 | 9 | dissenting | Austin v. Michigan Chamber of Commerce | https://www.courtlistener.com/opinion/112398/austin-v-michigan-chamber-of-commerce/ | "Attention all citizens. To assure the fairness of elections by preventing disproportionate expression of the views of any single powerful group, your Government has decided that the following associations of persons shall be prohibited from speaking or writing in support of any candidate:" In permitting Michigan to make private corporations the first object of this Orwellian announcement, the Court today endorses the principle that too much speech is an evil that the democratic majority can proscribe. I dissent because that *680 principle is contrary to our case law and incompatible with the absolutely central truth of the First Amendment: that government cannot be trusted to assure, through censorship, the "fairness" of political debate. I A The Court's opinion says that political speech of corporations can be regulated because "[s]tate law grants [them] special advantages," ante, at 658, and because this "unique state-conferred corporate structure facilitates the amassing of large treasuries," ante, at 660. This analysis seeks to create one good argument by combining two bad ones. Those individuals who form that type of voluntary association known as a corporation are, to be sure, given special advantages notably, the immunization of their personal fortunes from liability for the actions of the association that the State is under no obligation to confer. But so are other associations and private individuals given all sorts of special advantages that the State need not confer, ranging from tax breaks to contract awards to public employment to outright cash subsidies. It is rudimentary that the State cannot exact as the price of those special advantages the forfeiture of First Amendment rights. See ; The categorical suspension of the right of any person, or of any association of persons, to speak out on political matters must be justified by a compelling state need. See That is why the Court puts forward its second bad argument, the fact that corporations "amas[s] large treasuries." But that alone is also not sufficient justification for the suppression of political speech, unless one thinks it would be lawful to prohibit men and women whose net worth is above a certain figure from endorsing political candidates. Neither of these two flawed arguments is *681 improved by combining them and saying, as the Court in effect does, that "since the State gives special advantages to these voluntary associations, and since they thereby amass vast wealth, they may be required to abandon their right of political speech."[*] The Court's extensive reliance upon the fact that the objects of this speech restriction, corporations, receive "special advantages" is in stark contrast to our opinion issued |
Justice Scalia | 1,990 | 9 | dissenting | Austin v. Michigan Chamber of Commerce | https://www.courtlistener.com/opinion/112398/austin-v-michigan-chamber-of-commerce/ | "special advantages" is in stark contrast to our opinion issued just six years ago in In that decision, striking down a congressionally imposed ban upon editorializing by noncommercial broadcasting stations that receive federal funds, the only respect in which we considered the receipt of that "special advantage" relevant was in determining whether the speech limitation could be justified under Congress' spending power, as a means of assuring that the subsidy was devoted only to the purposes Congress intended, which did not include political editorializing. We held it could not be justified on that basis, since "a noncommercial educational station that receives only 1% of its overall income from [federal] grants is barred absolutely from all editorializing. The station has *682 no way of limiting the use of its federal funds to all noneditorializing activities, and, more importantly, it is barred from using even wholly private funds to finance its editorial activity." Of course the same is true here, even assuming that tax exemptions and other benefits accorded to incorporated associations constitute an exercise of the spending power. It is not just that portion of the corporation's assets attributable to the gratuitously conferred "special advantages" that is prohibited from being used for political endorsements, but all of the corporation's assets. I am at a loss to explain the vast difference between the treatment of the present case and League of Women Voters. Commercial corporations may not have a public persona as sympathetic as that of public broadcasters, but they are no less entitled to this Court's concern. As for the second part of the Court's argumentation, the fact that corporations (or at least some of them) possess "massive wealth": Certain uses of "massive wealth" in the electoral process whether or not the wealth is the result of "special advantages" conferred by the State pose a substantial risk of corruption which constitutes a compelling need for the regulation of speech. Such a risk plainly exists when the wealth is given directly to the political candidate, to be used under his direction and control. We held in however, that independent expenditures to express the political views of individuals and associations do not raise a sufficient threat of corruption to justify prohibition. Neither the Court's opinion nor either of the concurrences makes any effort to distinguish that case except, perhaps, by misdescribing the case as involving "federal laws regulating individual donors," ante, at 659, or as involving "individual expenditures," ante, at 678 (STEVENS, J., concurring). Section 608(e)(1) of the Federal Election Campaign Act of 1971, 18 U.S. C. 608(e)(1) (1970 ed., |
Justice Scalia | 1,990 | 9 | dissenting | Austin v. Michigan Chamber of Commerce | https://www.courtlistener.com/opinion/112398/austin-v-michigan-chamber-of-commerce/ | Campaign Act of 1971, 18 U.S. C. 608(e)(1) (1970 ed., Supp. V), which we found unconstitutional in Buckley, was directed, like the Michigan law before us here, to expenditures made for the purpose of advocating the election or defeat *683 of a particular candidate, see It limited to $1,000 (a lesser restriction than the absolute prohibition at issue here) such expenditures not merely by "individuals," but by "persons," specifically defined to include corporations. See (setting forth 591(g) of the statute). The plaintiffs in the case included corporations, see and we specifically discussed 608(e)(1) as a restriction addressed not just to individuals but to "individuals and groups," "persons and groups," "persons and organizations," ib "person[s] [and] association[s]," In support of our determination that the restriction was "wholly at odds with the guarantees of the First Amendment" we cited Miami Herald Publishing which involved limitations upon a 424 U.S., Of course, if 608(e)(1) had been unconstitutional only as applied to individuals and not as applied to corporations, we might nonetheless have invalidated it in toto for substantial overbreadth, see but there is not a hint of that doctrine in our opinion. Our First Amendment law is much less certain than I had thought it to be if we are free to recharacterize each clear holding as a disguised "overbreadth" determination. should not be overruled, because it is entirely correct. The contention that prohibiting overt advocacy for or against a political candidate satisfies a "compelling need" to avoid "corruption" is easily dismissed. As we said in Buckley, "[i]t would naively underestimate the ingenuity and resourcefulness of persons and groups desiring to buy influence to believe that they would have much difficulty devising expenditures that skirted the restriction on express advocacy of election or defeat but nevertheless benefited the candidate's campaign." 424 U.S., Independent advocacy, moreover, unlike contributions, "may well provide little assistance to the candidate's campaign and indeed may prove counterproductive," thus reducing the danger that it will be exchanged "as a quid pro quo for improper commitments *684 from the candidate." The latter point seems even more plainly true with respect to corporate advocates than it is with respect to individuals. I expect I could count on the fingers of one hand the candidates who would generally welcome, much less negotiate for, a formal endorsement by AT&T or General Motors. The advocacy of such entities that have "amassed great wealth" will be effective only to the extent that it brings to the people's attention ideas which despite the invariably self-interested and probably uncongenial source strike them as true. The Court |
Justice Scalia | 1,990 | 9 | dissenting | Austin v. Michigan Chamber of Commerce | https://www.courtlistener.com/opinion/112398/austin-v-michigan-chamber-of-commerce/ | probably uncongenial source strike them as true. The Court does not try to defend the proposition that independent advocacy poses a substantial risk of political "corruption," as English speakers understand that term. Rather, it asserts that that concept (which it defines as " `financial quid pro quo' corruption," ante, at 659) is really just a narrow subspecies of a hitherto unrecognized genus of political corruption. "Michigan's regulation," we are told, "aims at a different type of corruption in the political arena: the corrosive and distorting effects of immense aggregations of wealth that are accumulated with the help of the corporate form and that have little or no correlation to the public's support for the corporations's political ideas." Ante, at 659-660. Under this mode of analysis, virtually anything the Court deems politically undesirable can be turned into political corruption by simply describing its effects as politically "corrosive," which is close enough to "corruptive" to qualify. It is sad to think that the First Amendment will ultimately be brought down not by brute force but by poetic metaphor. The Court's opinion ultimately rests upon that proposition whose violation constitutes the "New Corruption": Expenditures must "reflect actual public support for the political ideas espoused." Ante, at 660. This illiberal free-speech principle of "one man, one minute" was proposed and soundly rejected in Buckley: "It is argued, however, that the ancillary governmental interest in equalizing the relative ability of individuals *685 and groups to influence the outcome of elections serves to justify the limitation on express advocacy of the election or defeat of candidates imposed by 608(e) (1)'s expenditure ceiling. But the concept that government may restrict the speech of some elements of our society in order to enhance the relative voice of others is wholly foreign to the First Amendment, which was designed `to secure "the widest possible dissemination of information from diverse and antagonistic sources," ' and ` "to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people." ' " -49 But it can be said that I have not accurately quoted today's decision. It does not endorse the proposition that government may ensure that expenditures "reflect actual public support for the political ideas espoused," but only the more limited proposition that government may ensure that expenditures "reflect actual public support for the political ideas espoused by corporations." Ante, at 660 (emphasis added). The limitation is of course entirely irrational. Why is it perfectly all right if advocacy by an individual billionaire is out of proportion with "actual public support" for |
Justice Scalia | 1,990 | 9 | dissenting | Austin v. Michigan Chamber of Commerce | https://www.courtlistener.com/opinion/112398/austin-v-michigan-chamber-of-commerce/ | billionaire is out of proportion with "actual public support" for his positions? There is no explanation, except the effort I described at the outset of this discussion to make one valid proposition out of two invalid ones: When the vessel labeled "corruption" begins to founder under weight too great to be logically sustained, the argumentation jumps to the good ship "special privilege"; and when that in turn begins to go down, it returns to "corruption." Thus hopping back and forth between the two, the argumentation may survive but makes no headway towards port, where its conclusion waits in vain. B JUSTICE BRENNAN's concurrence would have us believe that the prohibition adopted by Michigan and approved by the Court is a paternalistic measure to protect the corporate *686 shareholders of America. It is designed, we are told, "to avert [the] danger" that "corporate funds drawn from the general treasury which represents, after all, [the shareholder's] money," might be used on behalf of a political candidate he opposes. Ante, at 670 (BRENNAN, J., concurring). But such solicitude is a most implausible explanation for the Michigan statute, inasmuch as it permits corporations to take as many ideological and political positions as they please, so long as they are not "in assistance of, or in opposition to, the nomination or election of a candidate." Mich. Comp. Laws 169.206(1) (1979). That is indeed the Court's sole basis for distinguishing First National Bank of which invalidated restriction of a corporation's general political speech. The Michigan law appears to be designed, in other words, neither to protect shareholders, nor even (impermissibly) to "balance" general political debate, but to protect political candidates. Given the degree of political sophistication that ought to attend the exercise of our constitutional responsibilities, it is regrettable that this should come as a surprise. But even if the object of the prohibition could plausibly be portrayed as the protection of shareholders (which the Court's opinion, at least, does not even assert), that would not suffice as a "compelling need" to support this blatant restriction upon core political speech. A person becomes a member of that form of association known as a for-profit corporation in order to pursue economic objectives, i. e., to make money. Some corporate charters may specify the line of commerce to which the company is limited, but even that can be amended by shareholder vote. Thus, in joining such an association, the shareholder knows that management may take any action that is ultimately in accord with what the majority (or a specified supermajority) of the shareholders wishes, so long as |
Justice Scalia | 1,990 | 9 | dissenting | Austin v. Michigan Chamber of Commerce | https://www.courtlistener.com/opinion/112398/austin-v-michigan-chamber-of-commerce/ | a specified supermajority) of the shareholders wishes, so long as that action is designed to make a profit. That is the deal. The corporate actions to which the shareholder exposes himself, therefore, include many things that *687 he may find politically or ideologically uncongenial: investment in South Africa, operation of an abortion clinic, publication of a pornographic magazine, or even publication of a newspaper that adopts absurd political views and makes catastrophic political endorsements. His only protections against such assaults upon his ideological commitments are (1) his ability to persuade a majority (or the requisite minority) of his fellow shareholders that the action should not be taken, and ultimately (2) his ability to sell his stock. (The latter course, by the way, does not ordinarily involve the severe psychic trauma or economic disaster that JUSTICE BRENNAN's opinion suggests.) It seems to me entirely fanciful, in other words, to suggest that the Michigan statute makes any significant contribution toward insulating the exclusively profit-motivated shareholder from the rude world of politics and ideology. But even if that were not fanciful, it would be fanciful to think, as JUSTICE BRENNAN's opinion assumes, that there is any difference between for-profit and not-for-profit corporations insofar as the need for protection of the individual member's ideological psyche is concerned. Would it be any more upsetting to a shareholder of General Motors that it endorsed the election of Henry Wallace (to stay comfortably in the past) than it would be to a member of the American Civil Liberties Union that it endorsed the election of George Wallace? I should think much less so. Yet in the one case as in the other, the only protection against association-induced trauma is the will of the majority and, in the last analysis, withdrawal from membership. C In Part V of its opinion, the Court accurately sets forth our longstanding First Amendment law as follows: "Because the right to engage in political expression is fundamental to our constitutional system, statutory classifications impinging upon that right must be narrowly *688 tailored to serve a compelling governmental interest." Ante, at 666. The Court finds this requirement fully met for the following reason: "As we explained in the context of our discussions of whether the statute was or at 665 and this page, the State's decision to regulate only corporations is precisely tailored to serve the compelling state interest of eliminating from the political process the corrosive effect of political `war chests' amassed with the aid of the legal advantages given to corporations." That state interest (assuming it is compelling) does indeed explain why |
Justice Scalia | 1,990 | 9 | dissenting | Austin v. Michigan Chamber of Commerce | https://www.courtlistener.com/opinion/112398/austin-v-michigan-chamber-of-commerce/ | state interest (assuming it is compelling) does indeed explain why the State chose to silence "only corporations" rather than wealthy individuals as well. But it does not explain (what "narrow tailoring" pertains to) why the State chose to silence all corporations, rather than just those that possess great wealth. If narrow tailoring means anything, surely it must mean that action taken to counter the effect of amassed "war chests" must be targeted, if possible, at amassed "war chests." And surely such targeting is possible either in the manner accomplished by the provision that we invalidated in Buckley, i. e., by limiting the prohibition to independent expenditures above a certain amount, or in some other manner, e. g., by limiting the expenditures of only those corporations with more than a certain amount of net worth or annual profit. No more satisfactory explanation for the obvious lack of "narrow tailoring" is to be found in the Court's discussion of ness, to which the above-quoted passage refers. That discussion asserts that we "rejected a similar argument" in where we said that " `we accept Congress' judgment' " that " `the special characteristics of the corporate structure' " create a " `potential for influence that demands *689 regulation.' " Ante, at 661, -210 Today's opinion then continues: "Although some closely held corporations, just as some publicly held ones, may not have accumulated significant amounts of wealth, they receive from the State the special benefits conferred by the corporate structure and present the potential for distorting the political process. This potential for distortion justifies 54(1)'s general applicability to all corporations." Ante, at 661. The Court thus holds, for the first time since Justice Holmes left the bench, that a direct restriction upon speech is narrowly enough tailored if it extends to speech that has the mere potential for producing social harm. NRWC (which in any event involved not a direct restriction upon corporate speech but a restriction upon corporate solicitation of funds for candidates) is no authority for that startling proposition, since it did not purport to be applying the First Amendment narrow-tailoring requirement. The principle the Court abandons today that the mere potential for harm does not justify a restriction upon speech had its origin in the "clear and present danger" test devised by Justice Holmes in 1919, see ; ; The Court finally adopted their view in 1937, see ; ; West Virginia Board of 319 U.S. ; Today's reversal of field will require adjustment of a fairly large number of significant First Amendment holdings. Presumably the State *690 may |
Justice Scalia | 1,990 | 9 | dissenting | Austin v. Michigan Chamber of Commerce | https://www.courtlistener.com/opinion/112398/austin-v-michigan-chamber-of-commerce/ | of significant First Amendment holdings. Presumably the State *690 may now convict individuals for selling books found to have a potentially harmful influence on minors, ban indecent telephone communications that have the potential for reaching minors, Sable Communications of restrain the press from publishing information that has the potential for jeopardizing a criminal defendant's right to a fair trial, Nebraska Press or the potential for damaging the reputation of the subject of an investigation, Landmark Communications, compel publication of the membership lists of organizations that have a potential for illegal activity, see and compel an applicant for bar membership to reveal her political beliefs and affiliations to eliminate the potential for subversive activity, It is perplexing, or perhaps revealing, to compare the Court's cavalier treatment of the narrow-tailoring requirement today with its elaborate discussion of that issue six years ago in League of Women Voters. See -395, 397-398. As my earlier discussion makes clear, it would make no difference if the law were narrowly tailored to serve its goal, since that goal is not compelling. But the fact that, even having made that first error, the Court must make yet a second in order to reach today's judgment suggests what an impregnable fortress our First Amendment jurisprudence has been. The Court's explicit acceptance of "potential danger" as adequate to establish narrow tailoring, even more than its recognition of an insubstantial interests as "compelling," greatly weakens those defenses. D Finally, a few words are in order concerning the Court's approval of the Michigan law's exception for "media corporations." This is all right, we are told, because of "the unique *691 role that the press plays in `informing and educating the public, offering criticism, and providing a forum for discussion and debate.' " Ante, at 667 (citation omitted). But if one believes in the Court's rationale of "compelling state need" to prevent amassed corporate wealth from skewing the political debate, surely that "unique role" of the press does not give Michigan justification for excluding media corporations from coverage, but provides especially strong reason to include them. Amassed corporate wealth that regularly sits astride the ordinary channels of information is much more likely to produce the New Corruption (too much of one point of view) than amassed corporate wealth that is generally busy making money elsewhere. Such media corporations not only have vastly greater power to perpetrate the evil of overinforming, they also have vastly greater opportunity. General Motors, after all, will risk a stockholder suit if it makes a political endorsement that is not plausibly tied to its ability to make money |
Justice Scalia | 1,990 | 9 | dissenting | Austin v. Michigan Chamber of Commerce | https://www.courtlistener.com/opinion/112398/austin-v-michigan-chamber-of-commerce/ | is not plausibly tied to its ability to make money for its shareholders. But media corporations make money by making political commentary, including endorsements. For them, unlike any other corporations, the whole world of politics and ideology is fair game. Yet the Court tells us that it is reasonable to exclude media corporations, rather than target them specially. Members of the institutional press, despite the Court's approval of their illogical exemption from the Michigan law, will find little reason for comfort in today's decision. The theory of New Corruption it espouses is a dagger at their throats. The Court today holds merely that media corporations may be excluded from the Michigan law, not that they must be. We have consistently rejected the proposition that the institutional press has any constitutional privilege beyond that of other speakers. See and cases cited. Thus, the Court's holding on this point must be put in the following unencouraging form: "Although the press' unique societal role may not entitle the press to greater protection under the Constitution, and *692 n. 18, it does provide a compelling reason for the State to exempt media corporations from the scope of political expenditure limitations." Ante, at 668. One must hope, I suppose, that Michigan will continue to provide this generous and voluntary exemption. II I would not do justice to the significance of today's decision to discuss only its lapses from case precedent and logic. Infinitely more important than that is its departure from long-accepted premises of our political system regarding the benevolence that can be expected of government in managing the arena of public debate, and the danger that is to be anticipated from powerful private institutions that compete with government, and with one another, within that arena. Perhaps the Michigan law before us here has an unqualifiedly noble objective to "equalize" the political debate by preventing disproportionate expression of corporations' points of view. But governmental abridgment of liberty is always undertaken with the very best of announced objectives (dictators promise to bring order, not tyranny), and often with the very best of genuinely intended objectives (zealous policemen conduct unlawful searches in order to put dangerous felons behind bars). The premise of our Bill of Rights, however, is that there are some things even some seemingly desirable things that government cannot be trusted to do. The very first of these is establishing the restrictions upon speech that will assure "fair" political debate. The incumbent politician who says he welcomes full and fair debate is no more to be believed than the entrenched monopolist who |
Justice Scalia | 1,990 | 9 | dissenting | Austin v. Michigan Chamber of Commerce | https://www.courtlistener.com/opinion/112398/austin-v-michigan-chamber-of-commerce/ | no more to be believed than the entrenched monopolist who says he welcomes full and fair competition. Perhaps the Michigan Legislature was genuinely trying to assure a "balanced" presentation of political views; on the other hand, perhaps it was trying to give unincorporated unions (a not insubstantial force in Michigan) political advantage over major employers. Or perhaps it was trying to assure a "balanced" presentation because it knows that with evenly balanced *693 speech incumbent officeholders generally win. The fundamental approach of the First Amendment, I had always thought, was to assume the worst, and to rule the regulation of political speech "for fairness' sake" simply out of bounds. I doubt that those who framed and adopted the First Amendment would agree that avoiding the New Corruption, that is, calibrating political speech to the degree of public opinion that supports it, is even a desirable objective, much less one that is important enough to qualify as a compelling state interest. Those Founders designed, of course, a system in which popular ideas would ultimately prevail; but also, through the First Amendment, a system in which true ideas could readily become popular. For the latter purpose, the calibration that the Court today endorses is precisely backwards: To the extent a valid proposition has scant public support, it should have wider rather than narrower public circulation. I am confident, in other words, that Jefferson and Madison would not have sat at these controls; but if they did, they would have turned them in the opposite direction. Ah, but then there is the special element of corporate wealth: What would the Founders have thought of that? They would have endorsed, I think, what Tocqueville wrote in 1835: "When the members of an aristocratic community adopt a new opinion or conceive a new sentiment, they give it a station, as it were, beside themselves, upon the lofty platform where they stand; and opinions or sentiments so conspicuous to the eyes of the multitude are easily introduced into the minds or hearts of all around. In democratic countries the governing power alone is naturally in a condition to act in this manner; but it is easy to see that its action is always inadequate, and often dangerous. No sooner does a government attempt to go beyond its political sphere and to enter upon this new track than it exercises, even unintentionally, an insupportable tyranny Worse still will be the case if the *694 government really believes itself interested in preventing all circulation of ideas; it will then stand motionless and oppressed by the heaviness of voluntary |
Justice Scalia | 1,990 | 9 | dissenting | Austin v. Michigan Chamber of Commerce | https://www.courtlistener.com/opinion/112398/austin-v-michigan-chamber-of-commerce/ | then stand motionless and oppressed by the heaviness of voluntary torpor. Governments, therefore, should not be the only active powers; associations ought, in democratic nations, to stand in lieu of those powerful private individuals whom the equality of conditions has swept away." 2 A. de Tocqueville, Democracy in America 109 (P. Bradley ed. 1948). While Tocqueville was discussing "circulation of ideas" in general, what he wrote is also true of candidate endorsements in particular. To eliminate voluntary associations not only including powerful ones, but especially including powerful ones from the public debate is either to augment the always dominant power of government or to impoverish the public debate. The case at hand is a good enough example. Why should the Michigan voters in the 93d House District be deprived of the information that private associations owning and operating a vast percentage of the industry of the State, and employing a large number of its citizens, believe that the election of a particular candidate is important to their prosperity? Contrary to the Court's suggestion, the same point cannot effectively be made through corporate PACs to which individuals may voluntarily contribute. It is important to the message that it represents the views of Michigan's leading corporations as corporations, occupying the "lofty platform" that they do within the economic life of the State not just the views of some other voluntary associations to which some of the corporations' shareholders belong. Despite all the talk about "corruption and the appearance of corruption" evils that are not significantly implicated and that can be avoided in many other ways it is entirely obvious that the object of the law we have approved today is not to prevent wrongdoing but to prevent speech. Since those *695 private associations known as corporations have so much money, they will speak so much more, and their views will be given inordinate prominence in election campaigns. This is not an argument that our democratic traditions allow neither with respect to individuals associated in corporations nor with respect to other categories of individuals whose speech may be "unduly" extensive (because they are rich) or "unduly" persuasive (because they are movie stars) or "unduly" respected (because they are clergymen). The premise of our system is that there is no such thing as too much speech that the people are not foolish but intelligent, and will separate the wheat from the chaff. As conceded in Lincoln's aphorism about fooling "all of the people some of the time," that premise will not invariably accord with reality; but it |
Justice Marshall | 1,985 | 15 | dissenting | Chemical Manufacturers Assn. v. NRDC | https://www.courtlistener.com/opinion/111358/chemical-manufacturers-assn-v-nrdc/ | In these cases, the Environmental Protection Agency (EPA) maintains that it may issue, on a case-by-case basis, individualized variances from the national standards that limit the discharge of toxic water pollutants. EPA asserts *135 this power in the face of a provision of the Clean Water Act that expressly withdraws from the agency the authority to "modify" the national standards for such pollutants. The Court today defers to EPA's interpretation of the Clean Water Act even though that interpretation is inconsistent with the clear intent of Congress, as evidenced by the statutory language, history, structure, and purpose. I had not read our cases to permit judicial deference to an agency's construction of a statute when that construction is inconsistent with the clear intent of Congress. I The Clean Water Act requires the EPA Administrator to regulate two types of industrial facilities: (1) "direct" dischargers, i. e., facilities that discharge waste water directly into navigable waters; and (2) "indirect" dischargers, i. e., facilities that discharge waste water into publicly owned treatment works prior to discharge into navigable waters. For both types of requirements, EPA conducts rulemaking proceedings and promulgates nationwide, categorical limitations, that is, limitations applicable to categories of dischargers (e. g., iron and steel plants). The Act provides for the phased implementation of progressively more stringent requirements for direct dischargers. By July 1, 177, existing direct dischargers were required to meet effluent limitations based on the "best practicable control technology currently available" (BPT). 301(b)(1)(A), 33 U.S. C. 1311(b)(1)(A). By July 1, 184, such dischargers were obligated to meet limitations based on the "best available technology economically achievable" (BAT). 301(b)(2)(A).[1] Indirect dischargers are subject to "pretreatment" standards applicable to pollutants, including toxic pollutants, that *136 are not susceptible to treatment by or would interfere with the operation of public treatment facilities. 307(b). Pursuant to a consent decree, EPA has set limitations on existing indirect dischargers using the same two-phase scheme used for direct dischargers. See ante, at 11. Thus, pretreatment standards for existing indirect dischargers are set by reference to BPT and BAT levels. In 178, EPA issued pretreatment regulations that contained a variance provision for "fundamentally different factors" (FDF). See (178). An FDF variance is a case-by-case adjustment of the relevant nationwide standard. See 40 CFR 403.13(b)(1) (184). A discharger may obtain such a variance if the factors relating to its discharges are fundamentally different from those taken into account by EPA in setting the nationwide standard. 403.13(c)(ii). In a petition for review filed in the Court of Appeals for the Third Circuit, respondent NRDC challenged the FDF variance provision |
Justice Marshall | 1,985 | 15 | dissenting | Chemical Manufacturers Assn. v. NRDC | https://www.courtlistener.com/opinion/111358/chemical-manufacturers-assn-v-nrdc/ | the Third Circuit, respondent NRDC challenged the FDF variance provision on two grounds. First, it argued that EPA lacked the inherent authority to issue such variances. Second, it argued that even if, in general, EPA had the authority to grant such variances, it could not do so in the case of toxic pollutants, because 301(l), which was enacted as part of the 177 amendments to the Act, bans all "modifications" from the toxic standards. The Third Circuit agreed with the latter argument, holding that 301(l) prohibits FDF variances in the case of toxic pollutants. National of Metal[2] The *137 court remanded the variance provision back to EPA without considering the question of EPA's inherent authority to grant such variances.[3] EPA advances and the Court defers to two independent statutory constructions in support of its position that 301(l) does not ban FDF variances from the toxic standards. First, EPA argues that 301(l) prohibits only modifications otherwise expressly allowed by two other statutory provisions 301(c) and (g) and thus does not apply to FDF variances, which are nonstatutory. The plain meaning of 301(l), the changes made prior to enactment to the bill containing this provision, and the clearly expressed congressional objectives in enacting 301(l) to deal vigorously and comprehensively with the extremely serious environmental problem caused by toxic pollutants establish that this provision's scope was meant to be considerably broader than that attributed to it by EPA. As part of its effort to strengthen the control of toxic pollutants, Congress clearly intended to prohibit all exceptions to the nationwide, categorical standards. Second, in a strained attempt to characterize the challenged variances in a way that would bring them outside the scope of the 301(l) prohibition, EPA contends that the case-by-case FDF variance procedure provides a permissible alternative to the statutory mechanism for "revising" standards. The Court defers to this argument, and in so doing, it ignores the relevance of the central feature of the 1 amendments to the Act that Congress pointedly determined that water pollution control standards should take the form of general rules, to apply uniformly to categories of dischargers. As a result, the Court validates outcomes substantially less protective of the environment than those *138 mandated by Congress. The only view of FDF variances consistent with the scheme of the Clean Water Act is that they are individual exceptions that soften the hardship of general rules. As such, they are undoubtedly disallowed by 301(l). These cases are not about whether exceptions are useful adjuncts to regulatory schemes of general applicability. That is |
Justice Marshall | 1,985 | 15 | dissenting | Chemical Manufacturers Assn. v. NRDC | https://www.courtlistener.com/opinion/111358/chemical-manufacturers-assn-v-nrdc/ | useful adjuncts to regulatory schemes of general applicability. That is a policy choice on which courts should defer to Congress in the first instance, and to the administrative agency in the absence of a clear congressional mandate. Here, Congress has made the policy choice. It has weighed competing goals and determined that, whatever the general merits of exceptions schemes, they are simply inappropriate in the context of the control of toxic water pollution. As a result, an exceptions scheme such as the one challenged here simply cannot stand. II I first consider EPA's argument that 301(l) proscribes only those modifications otherwise authorized by 301(c) and (g). Under these provisions, EPA can "modify" the categorical standard if a discharger makes an adequate showing that such a standard is not within the discharger's economic capability and that a less stringent standard would nonetheless result in reasonable environmental progress, 301(c),[4] or that a less stringent standard adequately protects *13 water quality, 301(g).[5] This limited view of 301(l)'s scope is clearly inconsistent with congressional intent; the plain meaning of the statute and its legislative history show a clear congressional intent to ban all "modifications." A Section 301(l) provides: "The Administrator may not modify any requirement of this section as it applies to any specific pollutant which is on the toxic pollutant list under section 307(a)(1) of this Act." 33 U.S. C. 1311(l). The statute does not define either "modify" or "modification." The phrase "may not modify any requirement," however, expressly proscribes all "modifications" of the standards for toxics. Nothing on the face of the statute suggests that Congress intended that qualifying language be read into this prohibition. On the contrary, the prohibition is unqualified. EPA's argument that 301(l) bans only those modifications otherwise authorized by 301(c) and (g) is therefore inconsistent *140 with the plain meaning of the statute. By its terms, the statutory prohibition has universal scope, not the limited scope attributed to it by EPA. B Moreover, the legislative history demonstrates that Congress meant what it said, and it evidences a clear congressional intent to ban all "modifications." First, the legislative history firmly establishes that 301(l) was enacted as part of a program to deal effectively and comprehensively with the problem of toxic pollutants, and that its prohibition was an integral part of this program. Under any canon of statutory construction, the congressional purposes in enacting a provision would be deemed relevant to the question of the scope of that provision, but the Court simply fails to discuss this issue. In 177, when it enacted the amendments to the Clean Water Act |
Justice Marshall | 1,985 | 15 | dissenting | Chemical Manufacturers Assn. v. NRDC | https://www.courtlistener.com/opinion/111358/chemical-manufacturers-assn-v-nrdc/ | when it enacted the amendments to the Clean Water Act containing 301(l), Congress regarded the problem of toxic pollution as a very serious one. For example, Senator Muskie, the major drafter and Senate manager of the bill containing 301(l), remarked: "The seriousness of the toxics problem is just beginning to be understood. New cases are reported each day of unacceptable concentrations of materials in the aquatic environment, in fish and shellfish, and even in mother's milk. Empirical evidence has shown a statistical correlation between materials in New Orleans' drinking water and cancer mortality rates; Kepone has destroyed the James River, one of America's most productive, and most historic rivers; PCB's are pervasive and have ruined the fishing in the Hudson River and the Great Lakes; carbon tetrachloride is only the most recent material to contaminate the Ohio River; the *141 pesticide endrin has been found in Mississippi; perhaps worst of all, are the ones we do not know yet. "The more we find out, the more cause there is for concern. It is imperative that these materials be controlled." 123 Cong. Rec. 3181 Legislative History of the Clean Water Act of 177, p. 454 (178) (177 Leg. Hist.).[6] Similarly, Representative Roberts, the House manager of the bill, stated: "[Toxics] have not only polluted drinking water and destroyed both commercial and sport fishing, but in many major water bodies they also constitute a hazard to aquatic environment and public health that has yet to be fully recognized." 123 Cong. Rec. 3860 177 Leg. Hist. 327. See also 177 Leg. Hist. 334 (House Subcommittee memorandum). The primary purpose of the 177 amendments was to strengthen the regulation "of the increasingly evident toxic hazard." 123 Cong. Rec. 3860 177 Leg. Hist. 326 (Rep. Roberts). See also 123 Cong. Rec. 321 177 Leg. Hist. 54 (Sen. Moynihan) ("There is no room for compromise here: toxics must be controlled"). The 301(l) ban on "modifications" was an integral part of this effort to make the environment safe from toxics, and through it, Congress sought to prevent any weakening of the categorical standards for the control of toxic pollutants. It is clear that Congress knew full well what effects the rule might have on industry, and that it went forward nonetheless. For example, the legislators were aware that the prohibition against *142 "modifications" of the standards for toxic pollutants could lead to "new regulations more restrictive than any previously contemplated." 123 Cong. Rec. 383 177 Leg. Hist. 411 (Rep. Buchanan). Congress also realized that such regulations would cost industry "millions of dollars and result only in a |
Justice Marshall | 1,985 | 15 | dissenting | Chemical Manufacturers Assn. v. NRDC | https://www.courtlistener.com/opinion/111358/chemical-manufacturers-assn-v-nrdc/ | cost industry "millions of dollars and result only in a little more clean-up of our waters." 123 Cong. Rec. 3852 177 Leg. Hist. 305 (Rep. Roberts). But Congress found that for toxics, unlike for other pollutants, ibid, such high costs of pollution control were justified in view of the serious environmental dangers at stake. Cf. 502(13) (defining "toxic" pollutants as pollutants that "cause death, disease, behavioral abnormalities, cancer, genetic mutations, physiological malfunctions (including malfunctions in reproduction) or physical deformations"). It is readily apparent that a complete ban on modifications would most directly and completely accomplish the congressional goal. EPA offers no evidence in the legislative history to explain why this goal would be promoted by banning the statutory modifications of 301(c) and (g), but would not more effectively be advanced by banning other modifications as well. It points to no evidence that Congress singled out the 301(c) and (g) modifications as more pernicious from the standpoint of an effective toxic control program than modifications based on other factors. In fact, the statutory scheme suggests that the converse is true, as Congress specifically provided for statutory exemptions in these areas but not in other areas. In the case of 301(c), Congress was aware that certain firms would be driven to bankruptcy if they were required to comply strictly with the categorical standards. Congress determined that avoiding bankruptcies was an important social goal, and one that was not automatically outweighed by the goal of protecting the environment. Section 301(c) reflects the tension between these two goals: As long as a firm can make reasonable pollution control progress, it will not be driven to bankruptcy by its inability to meet higher pollution control standards. *143 Similarly, in the case of 301(g) water-quality modifications, Congress decided not to force dischargers to meet standards higher than those that could be justified by legitimate environmental considerations. Thus, as long as a discharge did not interfere with the attainment of adequate water quality, a discharger would not be forced to expend additional resources in pollution control merely because a higher standard was "economically achievable." Cf. 123 Cong. Rec. 3860 177 Leg. Hist. 326 (Rep. Roberts). If these two modifications are the only ones now prohibited, the result is wholly counterintuitive. EPA is in effect contending that economic and water-quality factors present the most compelling case for modification of the standard in the nontoxic context as they are explicitly authorized by statute but the least compelling case for modification in the toxic context as they are the only modifications prohibited by 301(l). As might be |
Justice Marshall | 1,985 | 15 | dissenting | Chemical Manufacturers Assn. v. NRDC | https://www.courtlistener.com/opinion/111358/chemical-manufacturers-assn-v-nrdc/ | are the only modifications prohibited by 301(l). As might be expected, EPA does not present any theory, much less a logical argument, or evidence in the legislative history, to support this extremely inconsistent result. Moreover, if Congress had not intended to prohibit all modifications, it would almost certainly either have defined explicitly the scope of permissible modifications, or given the agency some guidance on how to go about doing so. Only in this way would Congress have had any assurance that modifications would be allowed only when they promoted interests of sufficient importance to outweigh Congress' foremost goal of protecting the environment against toxic pollution. C The changes made in conference to the 177 amendments, which ultimately included 301(l), provide further support for the proposition that Congress did not intend to limit 301(l) in the way suggested by EPA. Of the three provisions that undergird EPA's theory subsections (c), (g), and (l) of 301 only subsection (c) was adopted before the 177 *144 amendments, as part of the 1 amendments. See 33 U.S. C. 1311(c). The 177 Senate bill contained two provisions of interest here. First, the bill proposed amending subsection (c) to prohibit, in the case of toxic pollutants, variances based on economic factors. S. 152, 5th Cong., 1st Sess., 26(c) 177 Leg. Hist. 584. Second, the Senate proposed what ultimately became subsection (g), which authorized modifications that did not interfere with water-quality goals. Like the proposed amendment to subsection (c), subsection (g) prohibited modifications in the case of toxic pollutants. The Senate bill did not contain subsection (l). The Conference Committee changed the Senate bill in three relevant ways. First, it took out of subsection (c) the ban against modifications for toxics. Second, it reworded subsection (g) to prohibit water-quality modifications for conventional pollutants and for all thermal discharges, but it left unaffected the Senate bill's prohibition against modifications for toxic pollutants. Third, it added subsection (l), which creates a ban of general applicability on modifications for toxic pollutants. In explaining these changes, petitioner CMA contends that during the Conference Committee deliberations, "it was decided that, rather than repeating the identical limiting clause [for toxic pollutants] at the end of 301(c) and what had become 301(g) of the Act, the limitation would be put into a separate 301(l)." Brief for Petitioners in No. 83-1013, pp. 2-30. The debates of the Conference bill do not suggest that such a thing was "decided"; in fact, the reasons for the changes are not discussed at all. Moreover, if cleaning up the statutory language was in fact the objective of |
Justice Marshall | 1,985 | 15 | dissenting | Chemical Manufacturers Assn. v. NRDC | https://www.courtlistener.com/opinion/111358/chemical-manufacturers-assn-v-nrdc/ | up the statutory language was in fact the objective of the changes, the Conference Committee was remarkably unsuccessful at doing so. Indeed, while the Committee took the prohibition against toxic modifications out of subsection (c), it left this prohibition undisturbed in subsection (g). Thus, the language of the Act simply belies CMA's explanation. *145 More importantly, the wording of 301(l) strongly suggests that the purpose of the change was not to improve the style of the statute, but to expand the scope of the prohibition against "modifications." Indeed, there is an important difference in the wording of subsections (c), (g), and (l). Subsections (c) and (g), which authorize exceptions, apply by their terms only to modifications of "the requirements of subsection (b)(2)(A)."[7] If the Conference Committee was attempting merely to consolidate the bans on modifications of toxic standards, then it would similarly have limited the applicability of subsection (l) to subsection (b)(2)(A) requirements. Instead, subsection (l) applies to "any requirement of this section," which includes numerous standards in addition to those of subsection (b)(2)(A).[8] In fact, it appears that EPA once agreed that the changes made in conference expanded the scope of the ban on "modifications." In the past, EPA construed 301(l) to prohibit, in the case of toxics, not only subsection (c) and (g) modifications, but also modifications from secondary treatment standards otherwise authorized by subsection (h), Brief for EPA on Petition to Enforce Mandate and Petitions for Review 24 in Appalachian Power Cf. In summary, the Conference changes provide further support for a broad reading of 301(l). See The Court, however, appears to draw the opposite conclusion. But in doing so, it completely ignores the difference in the scope of 301(c) and (g) on the one hand, and 301(l) on the other, and instead rests on an explanation of congressional activity that in fact explains almost nothing. See ante, at 126-127. D The Court and EPA both attach great importance to the congressional silence regarding FDF variances. EPA argues that E. I. du de Nemours & held that FDF variances are "appropriate." According to EPA, if Congress had intended to reverse this result it would have made its intention clear. See Brief for EPA 28-2. This contention, which the Court finds persuasive, see ante, -128, is based on a misunderstanding of what was at stake in Du That case did not authorize the issuance of variance in any context that is relevant here. Du involved a challenge to EPA's authority to issue, to direct dischargers, categorical effluent limitations for BPT and BAT. The Court had little difficulty in |
Justice Marshall | 1,985 | 15 | dissenting | Chemical Manufacturers Assn. v. NRDC | https://www.courtlistener.com/opinion/111358/chemical-manufacturers-assn-v-nrdc/ | for BPT and BAT. The Court had little difficulty in upholding such categorical limitations in the BAT context, as the statute provided that the limitations be set for "categories and classes" of dischargers, 301(b)(1)(B). See Du In contrast, the statute provided that BPT limitations be set for "point sources." 301(b)(1)(A). Several chemical manufacturers argued that, given this language, individualized BPT limitations were necessary, and that regulation by categories and classes of dischargers was inappropriate. This Court rejected the industry's challenge, holding that BPT *147 limitations could be set by industrywide regulation, so long as some allowance such as FDF variances was made for variations in individual In support of its position that the Court broadly endorsed the issuance of FDF variances and that the congressional silence is noteworthy, EPA cites as dispositive one sentence in the opinion, which reads: "We conclude that the statute authorizes the 177 limitations [BPT] as well as the limitations [BAT] to be set by regulation, so long as some allowance is made for variations in individual plants, as EPA has done by including a variance clause in its 177 limitations." Only by taking this sentence out of context can one find support for the proposition that Du requires FDF variances from BAT limitations, just as it does in the case of BPT limitations.[] When read in context, the sentence cited by EPA clearly means that BPT standards, like BAT standards, can be set by regulation, but if EPA does so in the BPT context, it must allow for variances. Indeed, the Court had earlier concluded that " 301 unambiguously provides for the use of regulations to establish the [BAT] effluent limitations." Du The Court did not qualify this conclusion in any way, but instead went on to discuss the BPT problem. The sentence that EPA refers to comes at the end of the discussion of BPT limitations, and is thus logically related to that discussion. *148 Furthermore, the Court upheld the regulations challenged in Du even though they did not contain an FDF variance clause for BAT limitations. See 127.[10] If the sentence in question has the meaning that EPA now ascribes to it, the Court would presumably have had to reverse on that point. In summary, the portion of Du on which EPA relies, has absolutely no bearing on the question of whether FDF variances are "appropriate" to use the language employed by EPA, see n. when the statute calls for limitations for categories or classes of dischargers. See 44 U.S. 64, ("[Du ] indicated that a variance provision was |
Justice Marshall | 1,985 | 15 | dissenting | Chemical Manufacturers Assn. v. NRDC | https://www.courtlistener.com/opinion/111358/chemical-manufacturers-assn-v-nrdc/ | U.S. 64, ("[Du ] indicated that a variance provision was a necessary aspect of BPT limitations applicable by regulation to classes and categories of point sources"); ("[Du ] held that a uniform BPT limitations must contain a variance provision, if it is to be valid"). Both the facts and the rationale of this portion of Du are of relevance only to cases in which EPA issues categorical standards in the face of a statutory scheme that calls for regulation of "point sources." This distinction is of crucial significance because the standards for toxic pollutants, like all BAT and pretreatment standards, are to be set not for "point sources," but instead "for the applicable category or class of point sources." 307(a)(2) (emphasis added) (toxics); see also 301(b)(2)(A) (BAT); 307(b)(3) (pretreatment). Du did not consider whether such standards are necessary, or even appropriate, in this context.[11] We should scarcely attribute any significance *14 to the legislative failure to discuss Du because Du considered a fundamentally different scheme of regulation. It may be that one day the Clean Water Act will be read to permit, for nontoxic pollutants, FDF variances from BAT and pretreatment standards; however, there is no reason why Congress should have said anything in 177, when it enacted 301(l), about a legal development that has not yet taken place, eight years later. There is, moreover, another reason for the legislative silence on FDF variances. The legislative history of the 177 amendments shows that Congress believed correctly, as it turns out that the courts had not yet determined whether FDF variances were permissible in the BAT context. See S. Rep. No. 5-370 177 Leg. Hist. 674.[12] Only by misreading Du and ignoring the relevant legislative history can the Court say that Du "construed the Act to permit the very FDF variance NRDC insists the Conference Committee was silently proposing to abolish." Ante, at 128.[13] *150 E EPA also relies heavily on a statement by Representative Roberts: "Due to the nature of toxic pollutants, those identified for regulation will not be subject to waivers from or modification of the requirements prescribed under this section, specifically, neither section 301(c) waivers based on the economic capability of the discharger nor 301(g) waivers based on water quality considerations shall be available." 123 Cong. Rec. 3860 177 Leg. Hist. 328-32 (emphasis added). However, other statements in the debates fail similarly to restrict the scope of the provision. For example, Senator Muskie stated: "Like toxic pollutants for which there are no waivers or modifications, there are no potential waivers or modifications for conventional pollutants." 123 |
Justice Marshall | 1,985 | 15 | dissenting | Chemical Manufacturers Assn. v. NRDC | https://www.courtlistener.com/opinion/111358/chemical-manufacturers-assn-v-nrdc/ | are no potential waivers or modifications for conventional pollutants." 123 Cong. Rec. 3183 177 Leg. Hist. 458 (emphasis added). See also 123 Cong. Rec. 3852 177 Leg. Hist. 305 ("Strict requirements are still in effect for damaging pollutants, such as toxics. However, for certain other pollutants, industry may get a waiver") (Rep. Roberts); 123 Cong. Rec. 383 177 Leg. Hist. 411 (referring to "denial of any waiver" with respect to toxics) (Rep. Buchanan) (emphasis added). Taken as a whole, the legislative history firmly supports the plain meaning of the statute, namely, that 301(l) bans all *151 "modifications," and not just those otherwise permitted by 301(c) and (g). EPA's strongest argument in support of its position on this score is that, during the course of debates, one of the bill's managers used the word "specifically" instead of "for example." Under any accepted canon of construction, this choice of words is insufficient to overcome the other, more probative indications of congressional intent that emerge from an analysis of the legislative history. And, with the language and the legislative history pointing so definitely in the same direction, there can be no doubt that congressional intent was clear. F The determination that Congress clearly intended that 301(l) do more than just ban modifications otherwise permitted by 301(c) and (g) compels the conclusion that EPA's construction to the contrary cannot stand. As this Court has repeatedly stated: "The interpretation put on the statute by the agency charged with administering it is entitled to deference, but the courts are the final authorities on issues of statutory construction. They must reject administrative constructions of the statute, whether reached by adjudication or by rulemaking, that are inconsistent with the statutory mandate or that frustrate the policy that Congress sought to implement." (181) See also (178); -746; 30 U.S. 261, 2 (8); 21 (5); Social Security 36 (146); (132); 3 U.S. 331, (186). *152 This case is thus unlike U. S. A. v. NRDC, (184), on which the Court and EPA rely. In the Court reviewed an EPA regulation that treated all pollution-emitting devices within the same industrial grouping as though they were encased within a single "bubble." This regulation was challenged on the ground that it was not based on a proper construction of the statutory term "stationary source." Analyzing the statutory language, the Court concluded that "parsing of general terms in the text of the statute" would not reveal the actual intent of Congress. Similarly, it found the legislative history "unilluminating." Given these two conclusions, the Court determined that deference to the Agency's reasonable interpretation was appropriate. |
Justice Marshall | 1,985 | 15 | dissenting | Chemical Manufacturers Assn. v. NRDC | https://www.courtlistener.com/opinion/111358/chemical-manufacturers-assn-v-nrdc/ | determined that deference to the Agency's reasonable interpretation was appropriate. 's deference requirement, however, was explicitly limited to cases in which congressional intent cannot be discerned through the use of the traditional techniques of statutory interpretation. Indeed, reaffirmed the principle that "[t]he judiciary is the final authority on issues of statutory construction and must reject administrative constructions which are contrary to clear congressional intent." at 843, n.[14] My disagreement with the Court does not center on its reading of but instead on its analysis of the congressional purposes behind 301(l). If I agreed with the Court's analysis of the statute and the legislative history, I too would conclude that commands deference to the administrative construction. III EPA's second construction of the statutory scheme is, on the surface, a more plausible one. EPA argues that FDF *153 variances do not excuse compliance with the correct standards, but instead provide a means for setting more appropriate standards. It is clear that, pursuant to 307(b)(2), EPA can "revise" the pretreatment standards, as long as it does so "following the procedure established for the promulgation of such standards." The statute contemplates that the standards will be set and revised through notice-and-comment rulemaking and will be applicable to categories of sources. See 307(b)(2), (3); see also Brief for EPA EPA argues that such a "revision," which is clearly not proscribed by 301(l), would be substantively indistinguishable from an FDF variance. Thus, according to the Agency, NRDC's concern stems not from the result achieved when an FDF variance is granted, but rather from the procedure employed in reaching that result. EPA relies on Vermont Yankee Nuclear Power 435 U.S. 51 (178), for the proposition that an agency is free to choose between two procedures for reaching the same substantive ends. See Brief for EPA 11, 36. To support its argument, EPA points out that the factors that may justify an FDF variance are the same factors that may be taken into account in setting and revising the national pretreatment standards. Compare 304(b)(2) (statutory standard) with 40 CFR 403.13(d) (184) EPA also points out that, in considering whether an FDF variance will be granted, it cannot take into account factors that could not have justified a change in the national standards. See Brief for EPA 31; 40 CFR 403.13(e)(184). EPA acknowledges that the statute requires that the national pretreatment standards be established and therefore revised for "categories" of dischargers, see 307(b)(3) (pretreatment standards); Brief for EPA 11; see also 307(a)(2) (toxic standards), and not on a case-by-case basis. It argues, however, that nothing in the |
Justice Marshall | 1,985 | 15 | dissenting | Chemical Manufacturers Assn. v. NRDC | https://www.courtlistener.com/opinion/111358/chemical-manufacturers-assn-v-nrdc/ | a case-by-case basis. It argues, however, that nothing in the Clean Water Act precludes EPA from defining a subcategory that has only one discharger. See Brief for EPA 31. *154 The logic of EPA's position is superficially powerful. If EPA can, through rulemaking, define a subcategory that includes only one discharger, why should it not be able to do so through a variance procedure? In fact, if rulemaking and the variance procedure were alternative means to the same end, I might have no quarrel with EPA's position, which the Court has accepted. Ante, at 132-133. Indeed, "[a]bsent constitutional constraints or extremely compelling circumstances the administrative agencies should be free to fashion their own rules of procedure and to pursue methods of inquiry capable of permitting them to discharge their multitudinous duties." Vermont Yankee, ; see also 332 U.S. 14, (147). However, the Agency's position does not withstand more than superficial analysis. An examination of the legislative history of the 1 amendments to the Clean Water Act the relevance of which both the Court and EPA ignore reveals that Congress attached great substantive significance to the method used for establishing pollution control requirements. The Conference Committee Report directed EPA to "make the determination of the economic impact of an effluent limitation on the basis of classes and categories of point sources, as distinguished from a plant by plant determination." 1 Leg. Hist. 304 (emphasis added).[15] Representative Dingell, one of the House conferees, described this principle as "very important" and stated that "a plant-by-plant determination of the economic impact of an effluent limitation is neither expected, nor desired, and, in fact, it should be avoided." 118 Cong. Rec. 33758 (1), 1 Leg. Hist. 254-255. *155 Similarly, Senator Muskie stated: "The Conferees intend that the factors described in section 304(b) be considered only within categories and classes of point sources and that such factors not be considered at the time of the application of an effluent limitation to an individual point source within such a category or class." 118 Cong. Rec. 3367 (1), 1 Leg. Hist. 1 (emphasis added). See also Du ; American Iron & Steel (CA3 175) (emphasis added). Moreover, in a letter urging the President to approve the 1 amendments, William Ruckelshaus, EPA's Administrator, observed that the Act's standards should be set "for industrial categories, taking into account processes involved, age of equipment, and cost, considered on a national, industry-wide basis." 118 Cong. Rec. 36775 (1), 1 Leg. Hist. 145 (emphasis added). It is difficult to imagine a legislative history that would make more clear that standards should |
Justice Marshall | 1,985 | 15 | dissenting | Chemical Manufacturers Assn. v. NRDC | https://www.courtlistener.com/opinion/111358/chemical-manufacturers-assn-v-nrdc/ | legislative history that would make more clear that standards should not be set and therefore should not be revised on an individual basis. The legislative history also makes clear why Congress found it so important that the standards be set for "categories" of dischargers, and not for individual dischargers. Congress intended to use the standards as a means to "force" the introduction of more effective pollution control technology. Thus, Congress directed EPA to establish BPT levels by reference to "the average of the best existing performance by plants of various sizes, ages, and unit processes within each industrial category." 118 Cong. Rec. 3366 (1), 1 Leg. Hist. (Sen. Muskie). In establishing BAT levels, it directed EPA to look at "the best performer in an industrial category." 118 Cong. Rec. 3366 (1), 1 Leg. Hist. 170. By requiring that the standards be set by reference to *156 either the "average of the best" or very "best" technology, the Act seeks to foster technological innovation. 118 Cong. Rec. 3366 (1), 1 Leg. Hist. 170. See generally La Pierre, Technology-Forcing and Federal Environmental Protection Statutes, 805-82 ; Note, Forcing-Technology: The Clean Air Act Experience, 88 Yale L. J. 1713 (17). Unlike the statutory revision mechanism of 307(b), FDF variances are set not by reference to a category of dischargers, but instead by reference to a single discharger. In evaluating an application for a variance, EPA does not look at the group of dischargers in the same position as the applicant, but instead focuses solely on the characteristics of the applicant itself. Under the FDF program, there is no mechanism for EPA to ascertain whether there are any other dischargers in that position. Moreover, there is no mechanism for EPA to group together similarly situated dischargers. Quite to the contrary, a scheme in which the initial screening may be done by the individual States, at times determined by when the variance application is filed, is unlikely to lead to the identification of new subcategories. See 40 CFR 403.13(k) (184). The FDF variance procedure leads to substantive results that are different in two fundamental ways from those attained through the rulemaking for categories of dischargers contemplated in 307(b). First, it is less protective of the environment. If, for example, a discharger shows that its production processes and, as a result, its costs of compliance are significantly different from those taken into account in setting the categorical standards, that discharger would be eligible for an FDF variance, and EPA could set a new requirement based on the applicant's peculiar situation. See 40 |
Justice Marshall | 1,985 | 15 | dissenting | Chemical Manufacturers Assn. v. NRDC | https://www.courtlistener.com/opinion/111358/chemical-manufacturers-assn-v-nrdc/ | new requirement based on the applicant's peculiar situation. See 40 CFR 403.13(d)(5), (6) (184); Tr. of Oral Arg. 14. It may turn out, however, that there are many other dischargers in the same situation, and that all of these dischargers use production processes that make pollution control possible *157 at a much lower cost. If EPA took into account the production processes of these more efficient dischargers as it presumably would have to do if it proceeded through rulemaking on a categorical scale it would set a requirement far more stringent than that adopted as part of the FDF variance mechanism. In the aggregate, if EPA defines a new pretreatment subcategory through rulemaking, the BAT-level pollution control requirement of each discharger would be determined by reference to the capability of the "best" performer. In contrast, if EPA provides individual variances to each plant in this group, only one discharger would have a requirement based on the capability of the best performer the best performer itself. The others would necessarily be subject to less stringent standards.[] The second important difference is that FDF variances do not spur technological innovation to the same extent as 307(b) revisions. In the preceding example, the discharger with environmentally unsound production processes would probably be compelled to purchase new technology if it were subjected to a pollution control requirement set by reference to the characteristics of the "best" discharger. Under the less stringent requirement adopted through the FDF variance procedure, it might not need to do so. The additional demand for new technology that results from the 307(b) procedures creates incentives for technological innovation. In the long run, such innovation would lead to even better technology and to the possibility of further tightening of the pollution control requirements, as such technology became cheaper. In fact, Congress envisioned that this iterative procedure would ultimately lead to an elimination of harmful discharges. See 118 Cong. Rec. 3366 (1), 1 Leg. Hist. 170 (Sen. Muskie). *158 It is true, of course, that even the statutory revision procedure might identify a subcategory with only one discharger. That procedure, however, will have established that this discharger is indeed uniquely situated. In contrast, an FDF variance sets an individual requirement even where there may be similarly situated dischargers. In summary, whatever else FDF variances might do, they do not further the same congressional goals as the notice-and-comment rulemaking required for 307(b) revisions.[17]Vermont Yankee is simply inapposite; Congress intended, for substantive reasons, that the pretreatment standards be set and revised through rulemaking for categories of dischargers.[18] The Court's conclusion to |
Justice Marshall | 1,985 | 15 | dissenting | Chemical Manufacturers Assn. v. NRDC | https://www.courtlistener.com/opinion/111358/chemical-manufacturers-assn-v-nrdc/ | through rulemaking for categories of dischargers.[18] The Court's conclusion to the contrary stems exclusively from its failure to consider why Congress chose to require categorical standards. IV The analysis of Parts II and III compels the conclusion that neither of the alternative arguments advanced to support EPA's construction of the statute can stand. That analysis *15 also leads directly to the conclusion that 301(l) in fact disallows FDF variances from the standards for toxic pollutants. Congress clearly intended that 301(l) ban variances such as those at issue here, and the language and legislative history permit no other interpretation. A Part II shows that the language of 301(l), the purposes that led to the adoption of the provision, and the changes made by the Conference Committee, indicate a clear congressional intent to ban all "modifications" to the standards for toxics, not merely those otherwise authorized by 301(c) and (g). The legislative history also establishes that Congress banned "modifications" because it wanted to ensure that the serious problem of toxic pollution not be exacerbated by the granting of exceptions to the general rulemaking standards. See Part It is true, of course, that in many cases exceptions serve the important purpose of softening the impact of rules of general applicability. They mediate between demands for comprehensive solutions on the one hand, and individualized application of law on the other. See generally Diver, Policymaking Paradigms in Administrative Law, 5 Harv. L. Rev. 33 (181). Exceptions, however, are not without costs. For example, they are inappropriate where small errors could lead to irreversible or catastrophic results.[1] In such cases, individual *0 equity should give way to comprehensive rationality. See ; Note, Regulatory Values and the Exceptions Process, 3 Yale L. J. 38, 55, and n. 85 (184). The decision of when exceptions are required, when they are permissible, and when they are prohibited is, in the first instance, one for Congress to make. It is an administrative decision only where Congress has left a gap for the agency to fill. See -844. In this case, Congress determined that the flexibility resulting from exceptions would interfere with the furtherance of the more important goal of controlling toxic pollution. There is no question that courts should defer to this congressional judgment. In fact, when Congress has attached great importance to certain environmental goals, we have disallowed exceptions even in the absence of an explicit statutory ban. For example, in (178), we reviewed a provision of the Endangered Species Act that required federal agencies "to insure that actions authorized, funded, or carried out by them do not jeopardize |
Justice Marshall | 1,985 | 15 | dissenting | Chemical Manufacturers Assn. v. NRDC | https://www.courtlistener.com/opinion/111358/chemical-manufacturers-assn-v-nrdc/ | authorized, funded, or carried out by them do not jeopardize the continued existence" of an endangered species or "result in the destruction or modification of habitat of such species" U.S. C. 1536 (176 ed.). Even though Congress had not expressly banned exceptions from the statutory requirements, the Court focused on the quoted language and found that it "admits of no exception." It further found that both the language and the legislative history "clearly" showed that Congress viewed the preservation of endangered species as a goal of great importance. In light of this statutory construction, the Court concluded that any exemption from the statute's requirements other than exemptions specifically approved by Congress would be inappropriate.[20] *1 Similarly, in Du itself, the Court disallowed FDF variances from the Clean Water Act's standards of performance for new sources, reasoning that such variances would be inconsistent with the environmental goals expressed in the statute and the legislative history. There, the Court stated that FDF variances "would be inappropriate in a standard that was intended to insure national uniformity and `maximum feasible control of new sources.' " In this case, of course, Congress has not only indicated that the environmental goal at stake is extremely important, but it has also explicitly disallowed exceptions. Under such circumstances, it would be especially inappropriate to defer to the Agency's decision to create exceptions. B Part III establishes that FDF variances are not an alternative way of complying with the statutory command to set rules of general applicability. They do not implement the Clean Water Act's technology-based requirements; instead, like 301(c) and (g) modifications, they are case-by-case departures from such requirements. In fact, in the past, EPA itself has referred to FDF variances as "exception[s] to [a] general rule of applicability." Brief for EPA 47 in (CA2 176). FDF variances not only take the same form as 301(c) and (g) modifications, but they also serve closely analogous functions. As I have discussed, the purpose of exceptions is to soften the harshness of general rules. See at 15. A 301(c) modification, for example, relieves a firm of its obligation to meet an applicable rule when compliance with *2 that rule would place the firm in a serious hardship. See 44 U. S., at 78; S. Rep. No. 5-370, p. 41 177 Leg. Hist. 674 (Sen. Muskie); Brief for EPA 32-33. FDF variances also temper albeit in a slightly different way the effects of the nationwide, categorical standards. They relieve a firm of its obligation to comply with a rule that would impose on that firm a |
Justice Marshall | 1,985 | 15 | dissenting | Chemical Manufacturers Assn. v. NRDC | https://www.courtlistener.com/opinion/111358/chemical-manufacturers-assn-v-nrdc/ | with a rule that would impose on that firm a disproportionate share of the regulatory burden. See Tr. of Oral Arg. 14.[21] In fact, EPA itself has characterized FDF variances as " `safety valves' in regulatory schemes of general applicability." Brief for EPA 44 in (CA2 176); see also Hearings on Possible Amendments to the Federal Water Pollution Control Act *3 before the Subcommittee on Water Resources of the House Committee on Public Works and Transportation, 8th Cong., 1st Sess., 2706, 2741 (EPA Administrator Ruckelshaus describing FDF variances as "safety valves"); 537 F. 2d, at 646 ("[T]he `variance' clause was assertedly adopted as an administrative safety valve"). Thus, FDF variances are exceptions that provide the type of flexibility that 301(l) sought to ban.[22] The Court accepts EPA's present characterization that FDF variances are a hybrid: "more like" a revision permitted *4 by 307 than like a 301(c) and (g) modification. Ante, at 126. But a requirement that, by definition, applies to only one discharger cannot be considered "more like" a rule of general applicability than like an exception to such a rule. Clearly, it is an exception.[23] The Court's error is to overlook the distinction between general rules and exceptions. Instead, it focuses on the differences between the grounds for exceptions provided by 301(c) and (g) on the one hand, and by the FDF provisions on the other. Thus, the Court makes its cuts along an entirely different and irrelevant axis. For EPA to prevail, the Court must show that Congress found that exceptions based on economic capability or water-quality factors were especially undesirable. If this were true, then exceptions based on other factors would be less undesirable, and it would make sense to decide the cases on the basis of the extent to which the factors taken into account in granting FDF variances differ from 301(c) and (g) factors. The Court's position, however, is inconsistent with the clear purpose of 301(l). As I have shown, there is absolutely no reason to believe that this provision was designed to ban 301(c) and (g) modifications because there was something particularly pernicious about such exceptions. See Rather, the congressional concern was that exceptions would weaken the standards for the control of toxic pollutants. This concern defines the relevant criterion: whether something is a general rule or an exception to such a rule. Sections 301(c) and (g) modifications are at one end of the axis not because they are based on economic or water-quality *5 factors, but because they are exceptions to general rules. Section 307(b) revisions are at the other |
Justice Scalia | 1,987 | 9 | concurring | Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Foundation, Inc. | https://www.courtlistener.com/opinion/111966/gwaltney-of-smithfield-ltd-v-chesapeake-bay-foundation-inc/ | I join Parts I and II of the Court's opinion. I cannot join Part III because I believe it misreads the statute to create a peculiar new form of subject-matter jurisdiction. I The Court concludes that subject-matter jurisdiction exists under 505 if there is a good-faith allegation that the defendant is "in violation." Thereafter, according to the Court's interpretation, *68 the plaintiff can never be called on to prove that jurisdictional allegation. Ante, at 65. This creates a regime that is not only extraordinary, but to my knowledge unique. I can think of no other context in which, in order to carry a lawsuit to judgment, allegations are necessary but proof of those allegations (if they are contested) is not. The Court thinks it necessary to find that Congress produced this jurisprudential anomaly because any other conclusion, in its view, would read the word "alleged" out of 505. It seems to me that, quite to the contrary, it is the Court's interpretation that ignores the words of the statute. Section 505(a) states that "any citizen may commence a civil action on his own behalf against any person who is alleged to be in violation" (emphasis added). There is of course nothing unusual in the proposition that only an allegation is required to commence a lawsuit. Proof is never required, and could not practicably be required, at that stage. From this clear and unexceptionable language of the statute, one of two further inferences can be made: (1) The inference the Court chooses, that the requirement for commencing a suit is the same as the requirement for maintaining it, or (2) the inference that, in order to maintain a suit the allegations that are required to commence it must, if contested, be proved. It seems to me that to favor the first inference over the second is to prefer the eccentric to the routine. It is well ingrained in the law that subject-matter jurisdiction can be called into question either by challenging the sufficiency of the allegation or by challenging the accuracy of the jurisdictional facts alleged. See, e. g., ; ; KVOS, ; Had Congress intended us to eliminate the second form of challenge, and to create an extraordinary regime in which the jurisdictional fact consists of a good-faith belief, it seems to me it would have delivered those *69 instructions in more clear fashion than merely specifying how a lawsuit can be commenced. In my view, therefore, the issue to be resolved by the Court of Appeals on remand of this suit is not whether the allegation of a continuing |
Justice Scalia | 1,987 | 9 | concurring | Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Foundation, Inc. | https://www.courtlistener.com/opinion/111966/gwaltney-of-smithfield-ltd-v-chesapeake-bay-foundation-inc/ | this suit is not whether the allegation of a continuing violation on the day suit was brought was made in good faith after reasonable inquiry, but whether petitioner was in fact "in violation" on the date suit was brought. The phrase in 505(a), "to be in violation," unlike the phrase "to be violating" or "to have committed a violation," suggests a state rather than an act the opposite of a state of compliance. A good or lucky day is not a state of compliance. Nor is the dubious state in which a past effluent problem is not recurring at the moment but the cause of that problem has not been completely and clearly eradicated. When a company has violated an effluent standard or limitation, it remains, for purposes of 505(a), "in violation" of that standard or limitation so long as it has not put in place remedial measures that clearly eliminate the cause of the violation. It does not suffice to defeat subject-matter jurisdiction that the success of the attempted remedies becomes clear months or even weeks after the suit is filed. Subject-matter jurisdiction "depends on the state of things at the time of the action brought"; if it existed when the suit was brought, "subsequent events" cannot "ous[t]" the court of jurisdiction. ; see, e. g., ; St. Paul Mercury Indemnity It is this requirement of clarity of cure for a past violation, contained in the phrase "to be in violation," rather than a novel theory of subject-matter jurisdiction by goodfaith allegation, that meets the Court's concern for " `the practical difficulties of detecting and proving chronic episodic violations,' " ante, at 65, quoting Brief for United States as Amicus Curiae 18. Thus, I think the question on remand should be whether petitioner had taken remedial steps that had clearly achieved *70 the effect of curing all past violations by the time suit was brought. I cannot claim that the Court's standard and mine would differ greatly in their practical application. They would, for example, almost certainly produce identical results in this lawsuit. See This practical insignificance, however, makes all the more puzzling the Court's willingness to impute to Congress creation of an unprecedented scheme where that which must be alleged need not be proved. II Even if the Court were correct that no evidence of a state of noncompliance has to be produced to survive a motion for dismissal on grounds of subject-matter jurisdiction, such evidence would still be required in order to establish the plaintiff's standing. While Gwaltney did not seek certiorari (or even appeal to |
Justice Scalia | 1,987 | 9 | concurring | Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Foundation, Inc. | https://www.courtlistener.com/opinion/111966/gwaltney-of-smithfield-ltd-v-chesapeake-bay-foundation-inc/ | While Gwaltney did not seek certiorari (or even appeal to the Court of Appeals) on the denial of its motion to dismiss for lack of standing, it did raise the standing issue before us here, see Reply Brief for Petitioner 17-18, and we in any event have an independent obligation to inquire into standing where it is doubtful, see If it is undisputed that the defendant was in a state of compliance when this suit was filed, the plaintiffs would have been suffering no remediable injury in fact that could support suit. The constitutional requirement for such injury is reflected in the statute itself, which defines "citizen" as one who has "an interest which is or may be adversely affected." 33 U.S. C. 1365(g). See Middlesex County Sewerage Accordingly, even on the Court's theory of this case it seems to me that the remand should require the lower court to consider not just good-faith allegation of a state of violation *71 but its actual existence. To be sure, nothing in the Court's opinion precludes such consideration of standing, but under sound practice the remand should require it. See, e. g., Havens Realty ; Of course that disposition would call attention to the fact that we have interpreted the statute to confer subject-matter jurisdiction over a class of cases in which, by the terms of the statute itself, there cannot possibly be standing to sue. |
Justice Powell | 1,985 | 17 | concurring | Marek v. Chesny | https://www.courtlistener.com/opinion/111495/marek-v-chesny/ | In Delta Airlines, the offer under Rule 68 stated that it was "in the amount of $450, which shall include attorney's fees, together with costs accrued to date." In a brief concurring opinion, I expressed the view that this offer did not comport with the Rule's requirements. It seemed to me that an offer of judgment should consist of two identified components: (i) the substantive relief proposed, and (ii) costs, including a reasonable attorney's fee. The amount of the fee ultimately should be within the discretion of the court if the offer is accepted. In questioning the form of the offer in Delta, I was influenced in part by the fact that it was a Title VII case. I concluded that the " `costs' component of a Rule 68 offer of judgment in a Title VII case must include reasonable attorney's fees accrued to the date of the offer." My view, however, as to the specificity of the "substantive relief" component of the offer did not depend solely on the fact that Delta was a Title VII case. No other Justice joined my Delta concurrence. The Court's decision was upon a different ground. Although I think it the better practice for the offer of judgment expressly to identify the components, it is important to have a Court for a clear interpretation of Rule 68. I noted in Delta that "parties to litigation and the public as a whole have an interest often an overriding one in settlement rather than exhaustion of protracted court proceedings." The purpose of Rule 68 is to "facilitat[e] the early resolution of marginal suits in which the defendant perceives the claim to *13A be without merit, and the plaintiff recognizes its speculative nature." See also n. 1. We have now agreed as to what specifically is required by Rule 68. Accordingly, I join the opinion of the Court. |
Justice Scalia | 2,009 | 9 | concurring | Flores-Figueroa v. United States | https://www.courtlistener.com/opinion/145876/flores-figueroa-v-united-states/ | I agree with the Court that to convict petitioner for “knowingly transfer[ring], possess[ing], or us[ing], without lawful authority, a means of identification of another person,” 18 U.S. C. the Government must prove that he “knew that the ‘means of identification’ he unlawfully transferred, possessed, or used, in fact, belonged to ‘another person.’ ” Ante, at 1. “Knowingly” is not limited to the statute’s verbs, ante, at 4. Even the Government must concede that. See United States v. Villanueva-Sotelo, (“According to the government, this text is unambiguous: the statute’s knowledge requirement extends only so far as ‘means of identification’ ”). But once it is understood to modify the object of those verbs, there is no reason to believe it does not extend to the phrase which limits that object (“of another person”). Ordinary English usage supports this reading, as the Court’s numerous sample sentences amply demonstrate. See ante, at 4–5. But the Court is not content to stop at the statute’s text, and I do not join that further portion of the Court’s opin ion. First, the Court relies in part on the principle that “courts ordinarily read a phrase in a criminal statute that introduces the elements of a crime with the word ‘know 2 FLORES-FIGUEROA v. UNITED STATES Opinion of SCALIA, J. ingly’ as applying that word to each element.” Ante, at 6. If that is meant purely as a description of what most cases do, it is perhaps true, and perhaps not. I have not can vassed all the cases and am hence agnostic. If it is meant, however, as a normative description of what courts should ordinarily do when interpreting such statutes—and the reference to JUSTICE STEVENS’ concurring opinion in United suggests as much—then I surely do not agree. The structure of the text in X-Citement Video plainly separated the “use of a minor” element from the “knowingly” re quirement, wherefore I thought (and think) that case was wrongly decided. See at 80–81 (SCALIA, J., dissenting). It is one thing to infer the common-law tradition of a mens rea requirement where Congress has not addressed the mental element of a crime. See ; United It is some thing else to expand a mens rea requirement that the statutory text has carefully limited. I likewise cannot join the Court’s discussion of the (as usual, inconclusive) legislative history. Ante, at 9. Rely ing on the statement of a single Member of Congress or an unvoted-upon (and for all we know unread) Committee Report to expand a statute beyond the limits its text sug gests is always a dubious enterprise. |
Justice Scalia | 2,009 | 9 | concurring | Flores-Figueroa v. United States | https://www.courtlistener.com/opinion/145876/flores-figueroa-v-united-states/ | limits its text sug gests is always a dubious enterprise. And consulting those incunabula with an eye to making criminal what the text would otherwise permit is even more suspect. See United (SCALIA, J., concurring in part and concurring in judgment). In deed, it is not unlike the practice of Caligula, who report edly “wrote his laws in a very small character, and hung them up upon high pillars, the more effectually to ensnare the people,” 1 W. Blackstone, Commentaries on the Laws of England 46 (1765). The statute’s text is clear, and I would reverse the judgment of the Court of Appeals on that ground alone. Cite as: 556 U. S. (2009) 1 Opinion of ALITO, J. SUPREME COURT OF THE UNITED STATES No. 08–108 IGNACIO CARLOS FLORES-FIGUEROA, PETITIONER v. UNITED STATES ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT [May 4, 2009] JUSTICE ALITO, concurring in part and concurring in the judgment. While I am in general agreement with the opinion of the Court, I write separately because I am concerned that the Court’s opinion may be read by some as adopting an overly rigid rule of statutory construction. The Court says that “[i]n ordinary English, where a transitive verb has an object, listeners in most contexts assume that an adverb (such as knowingly) that modifies the transitive verb tells the listener how the subject performed the entire action, including the object as set forth in the sentence.” Ante, at 4. The Court adds that counterexamples are “not easy to find,” ante, at 5, and I suspect that the Court’s opinion will be cited for the proposition that the mens rea of a federal criminal statute nearly always applies to every element of the offense. I think that the Court’s point about ordinary English usage is overstated. Examples of sentences that do not conform to the Court’s rule are not hard to imagine. For example: “The mugger knowingly assaulted two people in the park—an employee of company X and a jogger from town Y.” A person hearing this sentence would not likely assume that the mugger knew about the first victim’s employer or the second victim’s home town. What matters in this example, and the Court’s, is context. 2 FLORES-FIGUEROA v. UNITED STATES Opinion of ALITO, J. More to the point, ordinary writers do not often con struct the particular kind of sentence at issue here, i.e., a complex sentence in which it is important to determine from the sentence itself whether the adverb denoting the actor’s intent applies to every |
Justice Scalia | 2,009 | 9 | concurring | Flores-Figueroa v. United States | https://www.courtlistener.com/opinion/145876/flores-figueroa-v-united-states/ | whether the adverb denoting the actor’s intent applies to every characteristic of the sen tence’s direct object. Such sentences are a staple of crimi nal codes, but in ordinary speech, a different formulation is almost always used when the speaker wants to be clear on the point. For example, a speaker might say: “Flores- Figueroa used a Social Security number that he knew belonged to someone else” or “Flores-Figueroa used a Social Security number that just happened to belong to a real person.” But it is difficult to say with the confidence the Court conveys that there is an “ordinary” understand ing of the usage of the phrase at issue in this case. In interpreting a criminal statute such as the one before us, I think it is fair to begin with a general presumption that the specified mens rea applies to all the elements of an offense, but it must be recognized that there are in stances in which context may well rebut that presumption. For example, 18 U.S. C. makes it unlawful to “knowingly transpor[t] an individual who has not attained the age of 18 years in interstate or foreign commerce with intent that the individual engage in prostitution, or in any sexual activity for which any person can be charged with a criminal offense.” The Courts of Appeals have uniformly held that a defendant need not know the vic tim’s age to be guilty under this statute. See, e.g., United ; United ; cf. United (Ginsburg, J.) (holding that 21 U.S. C. which makes it unlawful to “knowingly and intentionally employ, hire, use, persuade, induce, entice, or coerce, a person under eighteen years of age to violate” drug laws, does not require the defendant to have knowledge of the Cite as: 556 U. S. (2009) 3 Opinion of ALITO, J. minor’s age). Similarly, 8 U.S. C. makes it unlaw ful to “knowingly ai[d] or assis[t] any alien inadmissible under section 1182(a)(2) (insofar as an alien inadmissible under such section has been convicted of an aggravated felony) to enter the United States.” The Courts of Appeals have held that the term “knowingly” in this con text does not require the defendant to know that the alien had been convicted of an aggravated felony. See, e.g., United 1121–1123 (CA9 2000); United 118– 119 (CA2 1998). In the present case, however, the Government has not pointed to contextual features that warrant interpreting 18 U.S. C. in a similar way. Indeed, the Government’s interpretation leads to exceedingly odd results. Under that interpretation, if a defendant uses a made-up Social Security number |
Justice Breyer | 2,006 | 2 | dissenting | Laboratory Corp. of America Holdings v. Metabolite Laboratories, Inc. | https://www.courtlistener.com/opinion/145634/laboratory-corp-of-america-holdings-v-metabolite-laboratories-inc/ | This case involves a patent that claims a process for helping to diagnose deficiencies of two vitamins, folate and cobalamin. The process consists of using any test (whether patented or unpatented) to measure the level in a body fluid of an amino acid called homocysteine and then noticing whether its level is elevated above the norm; if so, a vitamin deficiency is likely. The lower courts held that the patent claim is valid. They also found the petitioner, Laboratory Corporation of America Holdings (LabCorp), liable for inducing infringe- ment of the claim when it encouraged doctors to order diagnostic tests for measuring homocysteine. The courts assessed damages. And they enjoined LabCorp from using any tests that would lead the doctors it serves to find a vitamin deficiency by taking account of elevated homocys- teine levels. We granted certiorari in this case to determine whether the patent claim is invalid on the ground that it improp- erly seeks to "claim a monopoly over a basic scientific relationship," Pet. for Cert. i, namely, the relationship between homocysteine and vitamin deficiency. The Court has dismissed the writ as improvidently granted. In my view, we should not dismiss the writ. The question pre- sented is not unusually difficult. We have the authority to decide it. We said that we would do so. The parties and amici have fully briefed the question. And those who en- gage in medical research, who practice medicine, and who as patients depend upon proper health care, might well benefit from this Court's authoritative answer. I A The relevant principle of law "[e]xclude[s] from patent protection laws of nature, natural phenomena, and abstract ideas." This principle finds its roots in both English and American law. See, e.g., Neilson v. Harford, Webster's Patent Cases 295, 371 (1841); Le (3); (4); The Telephone Cases, The principle means that Einstein could not have "patent[ed] his celebrated law that E=mc2; nor could Newton have patented the law of gravity." Neither can one patent "a novel and useful mathematical formula," the motive power of electromagnetism or steam, "the heat of the sun, electric- ity, or the qualities of metals," Funk Brothers Seed The justification for the principle does not lie in any claim that "laws of nature" are obvious, or that their dis- covery is easy, or that they are not useful. To the con- trary, research into such matters may be costly and time- consuming; monetary incentives may matter; and the fruits of those incentives and that research may prove of great benefit to the human race. Rather, the reason for the exclusion is |
Justice Breyer | 2,006 | 2 | dissenting | Laboratory Corp. of America Holdings v. Metabolite Laboratories, Inc. | https://www.courtlistener.com/opinion/145634/laboratory-corp-of-america-holdings-v-metabolite-laboratories-inc/ | the human race. Rather, the reason for the exclusion is that sometimes too much patent protec- tion can impede rather than "promote the Progress of Science and useful Arts," the constitutional objective of patent and copyright protection. U. S. Const., Art. I, cl. 8. The problem arises from the fact that patents do not only encourage research by providing monetary incentives for invention. Sometimes their presence can discourage research by impeding the free exchange of information, for example by forcing researchers to avoid the use of poten- tially patented ideas, by leading them to conduct costly and time-consuming searches of existing or pending pat- ents, by requiring complex licensing arrangements, and by raising the costs of using the patented information, some- times prohibitively so. Patent law seeks to avoid the dangers of overprotection just as surely as it seeks to avoid the diminished incentive to invent that underprotection can threaten. One way in which patent law seeks to sail between these opposing and risky shoals is through rules that bring certain types of invention and discovery within the scope of patentability while excluding others. And scholars have noted that "patent law['s] exclu[sion of] fundamental scientific (in- cluding mathematical) and technological principles," (like copyright's exclusion of "ideas") is a rule of the latter variety. W. Landes & R. Posner, The Economic Structure of Intellectual Property Law 305 That rule reflects "both the enormous potential for rent seeking that would be created if property rights could be obtained in [those basic principles] and the enormous transaction costs that would be imposed on would-be users." ; cf. Thus, the Court has recognized that "[p]henomena of nature, though just discovered, mental processes, and abstract intellectual concepts are the basic tools of scientific and technological work." It has treated fundamental scien- tific principles as "part of the storehouse of knowledge" and manifestations of laws of nature as "free to all men and reserved exclusively to none." Funk at And its doing so reflects a basic judgment that pro- tection in such cases, despite its potentially positive incen- tive effects, would too often severely interfere with, or discourage, development and the further spread of useful knowledge itself. B In the 1980s three university doctors, after conducting research into vitamin deficiencies, found a correlation between high levels of homocysteine in the blood and deficiencies of two essential vitamins, folate (folic acid) and cobalamin (vitamin B12). They also developed more accurate methods for testing body fluids for homocysteine, using gas chromatography and mass spectrometry. They published their findings in 1985. They obtained a patent. And that patent eventually |
Justice Breyer | 2,006 | 2 | dissenting | Laboratory Corp. of America Holdings v. Metabolite Laboratories, Inc. | https://www.courtlistener.com/opinion/145634/laboratory-corp-of-america-holdings-v-metabolite-laboratories-inc/ | in 1985. They obtained a patent. And that patent eventually found its commercial way into the hands of Competitive Technologies, Inc. (CTI), and its licensee Metabolite Laboratories, Inc. (Metabolite), the respondents here. The patent contains several claims that cover the re- searchers' new methods for testing homocysteine levels using gas chromatography and mass spectrometry. Supp. App. 30. In 1991, LabCorp (in fact, a corporate predeces- sor) took a license from Metabolite permitting it to use the tests described in the patent in return for 27.5% of related revenues. Their agreement permitted LabCorp to termi- nate the arrangement if "a more cost effective commercial alternative is available that does not infringe a valid and enforceable claim of" the patent. App. 305 (emphasis added). Until LabCorp used the patented tests and paid royalties. By that time, however, growing recognition that elevated homocysteine levels might predict risk of heart disease led to increased testing demand. Other companies began to produce alternative testing procedures. And LabCorp decided to use one of these other proceduresa test devised by Abbott Laboratories that LabCorp con- cluded was "far superior." at 1 LabCorp continued to pay royalties to respondents whenever it used the patented tests. But it concluded that Abbott's test did not fall within the patent's protective scope. And LabCorp consequently refused to pay royalties when it used the Abbott test. In response, respondents brought this suit against LabCorp for patent infringement and breach of the license agreement. They did not claim that LabCorp's use of the Abbott test infringed the patent's claims describing meth- ods for testing for homocysteine. Instead, respondents relied on a broader claim not limited to those tests, namely claim 13, the sole claim at issue here. That claimset forth below in its entiretyseeks patent protection for: "A method for detecting a deficiency of cobalamin or folate in warm-blooded animals comprising the steps of: "assaying a body fluid for an elevated level of total homocysteine; and "correlating an elevated level of total homocysteine in said body fluid with a deficiency of cobalamin or folate." Supp. App. 30. Claim 13, respondents argued, created a protected monopoly over the process of "correlating" test results and potential vitamin deficiencies. The parties agreed that the words "assaying a body fluid" refer to the use of any test at all, whether patented or not patented, that determines whether a body fluid has an "elevated level of total homo- cysteine." And at trial, the inventors testified that claim 13's "correlating" step consists simply of a physician's recognizing that a test that shows an elevated homocys- teine levelby that very |
Justice Breyer | 2,006 | 2 | dissenting | Laboratory Corp. of America Holdings v. Metabolite Laboratories, Inc. | https://www.courtlistener.com/opinion/145634/laboratory-corp-of-america-holdings-v-metabolite-laboratories-inc/ | test that shows an elevated homocys- teine levelby that very factshows the patient likely has a cobalamin or folate deficiency. App. 108-111 (testi- mony of Dr. Sally Stabler); They added that, because the natural relationship between homocysteine and vitamin deficiency was now well known, such "correlating" would occur automatically in the mind of any competent physician. On this understanding of the claim, respondents argued, LabCorp was liable for inducing doctors to infringe. More specifically, LabCorp would conduct homocysteine tests and report the results measured in micromoles (millionths of a mole) per liter (symbolized µmol/L). Doctors, because of their training, would know that a normal homocysteine range in blood is between 7 and 22 µmol/L (and in urine between 1 and 20 µmol/L), Supp. App. 14, and would know that an elevated homocysteine level is correlated with a vitamin deficiency. Hence, in reviewing the test results, doctors would look at the µmol/L measure and automati- cally reach a conclusion about whether or not a person was suffering from a vitamin deficiency. Claim 13 therefore covered every homocysteine test that a doctor reviewed. And since LabCorp had advertised its tests and educated doctors about the correlation, LabCorp should be liable for actively inducing the doctors' infringing acts. See 35 U.S. C. The jury found LabCorp liable on this theory. The District Court calculated damages based on unpaid royal- ties for some 350,000 homocysteine tests performed by LabCorp using the Abbott method. The court also en- joined LabCorp from performing "any homocysteine-only test, including, without limitation homocysteine-only tests via the Abbott method." App. to Pet. for Cert. 36a-37a (internal quotation marks omitted). LabCorp appealed. It argued to the Federal Circuit that the trial court was wrong to construe claim 13 so broadly that infringement took place "every time a physician does nothing more than look at a patient's homocysteine level." Corrected Brief for Appellant in No. 03-1120 (CA Fed.), p. 28 (hereinafter Brief for Appellant). Indeed, if so con- strued (rather than construed, say, to cover only patented tests), then claim 13 was "invalid for indefiniteness, lack of written description, non-enablement, anticipation, and obviousness." LabCorp told the Federal Circuit: "If the Court were to uphold this vague claim, anyone could obtain a patent on any scientific correlation that there is a link between fact A and fact Bmerely by drafting a patent claiming no more than 'test for fact A and correlate with fact B' Claim 13 does no more than that. If it is upheld, CTI would improp- erly gain a monopoly over a basic scientific fact rather than any novel invention |
Justice Breyer | 2,006 | 2 | dissenting | Laboratory Corp. of America Holdings v. Metabolite Laboratories, Inc. | https://www.courtlistener.com/opinion/145634/laboratory-corp-of-america-holdings-v-metabolite-laboratories-inc/ | over a basic scientific fact rather than any novel invention of its own. The law is set- tled that no such claim should be allowed. See, e.g., ; Chisum on Patents The Federal Circuit rejected LabCorp's arguments. It agreed with the District Court that claim 13's "correlating" step simply means "relating total homocysteine levels to cobalamin or folate deficiency, a deficiency in both, or a deficiency in neither." That meaning, it said, is "discernable and clear"; it is definite, it is described in writing, and it would enable virtually anyone to follow the instruction it gives. And that is sufficient. at 1366-13. The Court did not address LabCorp's argument that, if so construed, claim 13 must be struck down as an improper effort to obtain patent protection for a law of nature. Moreover, the Circuit concluded, because any competent doctor reviewing test results would automatically correlate those results with the presence or absence of a vitamin deficiency, virtually every doctor who ordered and read the tests was a direct infringer. And because LabCorp "pub- lishes Continuing Medical Education articles" and other pieces, which urge doctors to conduct the relevant tests and to reach a conclusion about whether a patient is suffering from a vitamin deficiency based upon the test results, LabCorp induces infringement. Finally, the court rejected LabCorp's challenge to the injunction. LabCorp filed a petition for certiorari. Question Three of the petition asks "[w]hether a method patent direct- ing a party simply to 'correlate' test results can validly claim a monopoly over a basic scientific relationship such that any doctor necessarily infringes the patent merely by thinking about the relationship after looking at a test result." Pet. for Cert. i. After calling for and receiv- ing the views of the Solicitor General, 543 U.S. 1 we granted the petition, limited to Question Three. II The question before us is whether claim 13, as construed and applied in the way I have described in Part IB, is invalid in light of the "law of nature" principle, described in Part IA. I believe that we should answer that ques- tion. There is a technical procedural reason for not doing so, namely, that LabCorp did not refer in the lower courts to of the Patent Act, which sets forth subject matter that is patentable, and within the bounds of which the "law of nature" principle most comfortably fits. See 35 U.S. C. (patent may be obtained for "any new and useful process, machine, manufacture, or composition of matter"); -589. There is also a practical reason for not doing so, namely, that we |
Justice Breyer | 2,006 | 2 | dissenting | Laboratory Corp. of America Holdings v. Metabolite Laboratories, Inc. | https://www.courtlistener.com/opinion/145634/laboratory-corp-of-america-holdings-v-metabolite-laboratories-inc/ | a practical reason for not doing so, namely, that we might benefit from the views of the Federal Circuit, which did not directly consider the question. See, e.g., United Nonetheless, stronger considerations argue for our reaching a decision. For one thing, the technical proce- dural objection is tenuous. LabCorp argued the essence of its present claim below. It told the Federal Circuit that claim 13 as construed by the District Court was too "vague" because that construction would allow "anyone" to "obtain a patent on any scientific correlation;" it would permit the respondents "improperly [to] gain a monopoly over a basic scientific fact" despite "settled" law "that no such claim should be allowed." Brief for Appellant 41 (citing 450 U. S., at 1; 1 D. Chisum, Patents (2006 ed.) (hereinafter Chisum). LabCorp explic- itly stated in its petition for certiorari that, "if the Court allows the Federal Circuit opinion to stand [respon- dents] would improperly gain monopolies over basic scien- tific facts rather than any novel inventions of their own." Pet. for Cert. 25 ). And after considering the Solicitor General's advice not to hear the case (primarily based upon LabCorp's failure to refer to 35 U.S. C. ), we rejected that advice, thereby "nec- essarily consider[ing] and reject[ing] that contention as a basis for denying review." United For another thing, I can find no good practical reason for refusing to decide the case. The relevant issue has been fully briefed and argued by the parties, the Government, and 20 amici. The record is comprehensive, allowing us to learn the precise nature of the patent claim, to consider the commercial and medical context (which the parties and amici have described in detail), and to become famil- iar with the arguments made in all courts. Neither the factual record nor the briefing suffers from any significant gap. No party has identified any prejudice due to our answering the question. And there is no indication that LabCorp's failure to cite reflected unfair gamesmanship. Of course, further consideration by the Federal Circuit might help us reach a better decision. Lower court consid- eration almost always helps. But the thoroughness of the briefing leads me to conclude that the extra time, cost, and uncertainty that further proceedings would engender are not worth the potential benefit. Finally, I believe that important considerations of the public interestincluding that of clarifying the law in this area sooner rather than laterargue strongly for our deciding the question presented now. See Part IV, infra. III I turn to the merits. The researchers who obtained the present patent found that |
Justice Breyer | 2,006 | 2 | dissenting | Laboratory Corp. of America Holdings v. Metabolite Laboratories, Inc. | https://www.courtlistener.com/opinion/145634/laboratory-corp-of-america-holdings-v-metabolite-laboratories-inc/ | merits. The researchers who obtained the present patent found that an elevated level of homocys- teine in a warm-blooded animal is correlated with folate and cobalamin deficiencies. As construed by the Federal Circuit, claim 13 provides those researchers with control over doctors' efforts to use that correlation to diagnose vitamin deficiencies in a patient. Does the law permit such protection or does claim 13, in the circumstances, amount to an invalid effort to patent a "phenomenon of nature"? I concede that the category of non-patentable "phenom- ena of nature," like the categories of "mental processes," and "abstract intellectual concepts," is not easy to define. See ; cf. Nichols, 45 F. 2d, at ("[W]e are as aware as anyone that the line [between copyrighted material and non-copyrightable ideas], wherever it is drawn, will seem arbitrary"). After all, many a patentable invention rests upon its inventor's knowledge of natural phenomena; many "process" patents seek to make abstract intellectual concepts workably concrete; and all conscious human action involves a mental process. See generally 1 Chisum at 78-295. Nor can one easily use such abstract categories directly to distinguish instances of likely benefi- cial, from likely harmful, forms of protection. Cf. FTC, To Promote Innovation: The Proper Balance of Competition and Patent Law and Policy, ch. 3, p. 1 (herein- after FTC) (collecting evidence that "issues of fixed cost recovery, alternative appropriability mechanisms, and relationships between initial and follow-on innovation" vary by industry); Burk & Lemley, Policy Levers in Patent Law, But this case is not at the boundary. It does not require us to consider the precise scope of the "natural phenome- non" doctrine or any other difficult issue. In my view, claim 13 is invalid no matter how narrowly one reasonably interprets that doctrine. There can be little doubt that the correlation between homocysteine and vitamin deficiency set forth in claim 13 is a "natural phenomenon." That is what the petitioners argue. It is what the Solicitor General has told us. Brief for United States as Amicus Curiae 19 ("The natural relationship between elevated homocysteine and deficiencies in the B vitamins is an unpatentable 'principle in natural philosophy or physical science'") (quoting 15 How., )). Indeed, it is close to what the respondents concede. Brief for Respondents 31 ("The correlation between total homocysteine and deficien- cies in cobalamin and folate that the Inventors discovered could be considered, standing alone, a 'natural phenome- non' in the literal sense: It is an observable aspect of bio- chemistry in at least some human populations"). The respondents argue, however, that the correlation is nonetheless patentable because |
Justice Breyer | 2,006 | 2 | dissenting | Laboratory Corp. of America Holdings v. Metabolite Laboratories, Inc. | https://www.courtlistener.com/opinion/145634/laboratory-corp-of-america-holdings-v-metabolite-laboratories-inc/ | respondents argue, however, that the correlation is nonetheless patentable because claim 13 packages it in the form of a "process" for detecting vitamin deficiency, with discrete testing and correlating steps. They point to this Court's statements that a "process is not unpatentable simply because it contains a law of nature," ; see also 9 U. S., at and that "an application of a law of nature to a known process may well be deserving of patent protection." They add that claim 13 is a patentable "application of a law of nature" because, con- sidered as a whole, it (1) "entails a physical transforma- tion of matter," namely, the alteration of a blood sample during whatever test is used, Brief for Respondents 33 ; ), and because it (2) "produces a 'useful, concrete, and tangible result,'" namely, detection of a vitamin deficiency, Brief for Respondents 36 ). In my view, however, the cases to which respondents refer do not support their claim. Neither nor can help them because the process described in claim 13 is not a process for transforming blood or any other matter. Claim 13's process instructs the user to (1) obtain test results and (2) think about them. Why should it matter if the test results themselves were obtained through an unpatented procedure that involved the trans- formation of blood? Claim 13 is indifferent to that fact, for it tells the user to use any test at all. Indeed, to use virtu- ally any natural phenomenon for virtually any useful purpose could well involve the use of empirical informa- tion obtained through an unpatented means that might have involved transforming matter. Neither nor suggests that that fact renders the phenome- non patentable. See ; Neither does the Federal Circuit's decision in State Street Bank help respondents. That case does say that a process is patentable if it produces a "useful, concrete, and tangible result." 149 F.3d, at But this Court has never made such a statement and, if taken literally, the statement would cover instances where this Court has held the contrary. The Court, for example, has invalidated a claim to the use of electromagnetic current for transmit- ting messages over long distances even though it produces a result that seems "useful, concrete, and tangible." Similarly the Court has invalidated a patent setting forth a system for triggering alarm limits in connection with catalytic conversion despite a similar utility, concreteness, and tangibility. And the Court has invalidated a patent setting forth a process that transforms, for computer-programming purposes, decimal figures into binary figureseven though the result would seem |
Justice Breyer | 2,006 | 2 | dissenting | Laboratory Corp. of America Holdings v. Metabolite Laboratories, Inc. | https://www.courtlistener.com/opinion/145634/laboratory-corp-of-america-holdings-v-metabolite-laboratories-inc/ | decimal figures into binary figureseven though the result would seem useful, concrete, and at least arguably (within the computer's wiring system) tangible. Even were I to assume (purely for argument's sake) that claim 13 meets certain general definitions of process pat- entability, however, it still fails the one at issue here: the requirement that it not amount to a simple natural corre- lation, i.e., a "natural phenomenon." See ; - At most, respondents have simply described the natural law at issue in the abstract patent language of a "process." But they cannot avoid the fact that the process is no more than an instruction to read some numbers in light of medical knowledge. Cf. One might, of course, reduce the "process" to a series of steps, e.g., Step 1: gather data; Step 2: read a number; Step 3: compare the number with the norm; Step 4: act accordingly. But one can reduce any process to a series of steps. The question is what those steps embody. And here, aside from the unpatented test, they embody only the correlation between homocysteine and vitamin deficiency that the researchers uncovered. In my view, that correlation is an unpatentable "natural phenomenon," and I can find nothing in claim 13 that adds anything more of significance. IV If I am correct in my conclusion in Part III that the patent is invalid, then special public interest considera- tions reinforce my view that we should decide this case. To fail to do so threatens to leave the medical profession subject to the restrictions imposed by this individual patent and others of its kind. Those restrictions may inhibit doctors from using their best medical judgment; they may force doctors to spend unnecessary time and energy to enter into license agreements; they may divert resources from the medical task of health care to the legal task of searching patent files for similar simple correla- tions; they may raise the cost of healthcare while inhibit- ing its effective delivery. See Brief for American Clinical Laboratory Association as Amicus Curiae 8-13. Even if Part III is wrong, however, it still would be valu- able to decide this case. Our doing so would help diminish legal uncertainty in the area, affecting a "substantial number of patent claims." See Brief for United States as Amicus Curiae 12-14 It would per- mit those in the medical profession better to understand the nature of their legal obligations. It would help Con- gress determine whether legislation is needed. Cf. 35 U.S. C. (limiting liability of medical practitioners for performance of certain medical and surgical proce- |
Justice Powell | 1,972 | 17 | majority | Zicarelli v. New Jersey Comm'n of Investigation | https://www.courtlistener.com/opinion/108542/zicarelli-v-new-jersey-commn-of-investigation/ | This case, like Kastigar v. United States, ante, p. 441, raises questions concerning the conditions under which testimony can be compelled from an unwilling witness who invokes the Fifth Amendment privilege against compulsory self-incrimination. The New Jersey State Commission of Investigation[1] subpoenaed appellant to appear on July 8, 1969, to testify concerning organized crime, racketeering, and *474 political corruption in Long Branch, New Jersey.[2] In the course of several appearances before the Commission, he invoked his privilege against self-incrimination and refused to answer a series of 100 questions. The Commission granted him immunity pursuant to N. J. Rev. Stat. 52:9M-17 (a) and ordered him to answer the questions. Notwithstanding the grant of immunity, he persisted in his refusal to answer. The Commission then petitioned the Superior Court of Mercer County for an order directing appellant to show cause why he should not be adjudged in contempt of the Commission and committed to jail until such time as he purged himself of contempt by testifying as ordered. At the hearing on the order to show cause, appellant challenged the order to testify on several grounds, one of which was that the statutory immunity was insufficient in several respects to compel testimony over a claim of the privilege. The Superior Court rejected this contention, and ordered appellant incarcerated until such time as he testified as ordered. The Supreme Court of New Jersey certified appellant's appeal before argument in the Appellate Division, and affirmed the judgment of the Superior Court. In re Zicarelli, 55 N. J. 249, This Court noted probable jurisdiction and set the case for argument to consider appellant's challenges to the sufficiency of the immunity authorized by the statute. (1971.) I A majority of the members of the Commission have authority to confer immunity on a witness who invokes *475 the privilege against self-incrimination.[3] After the witness testifies under the grant of immunity, the statute provides that: "he shall be immune from having such responsive answer given by him or such responsive evidence produced by him, or evidence derived therefrom used to expose him to criminal prosecution or penalty or to a forfeiture of his estate, except that such person may nevertheless be prosecuted for any perjury committed in such answer or in producing such evidence, or for contempt for failing to give an answer or produce evidence in accordance with the order of the commission" N. J. Rev. Stat. 52:9M-17 (b) This is a comprehensive prohibition on the use and derivative use of testimony compelled under a grant of immunity.[4] Appellant contends that only full transactional immunity affords protection |
Justice Powell | 1,972 | 17 | majority | Zicarelli v. New Jersey Comm'n of Investigation | https://www.courtlistener.com/opinion/108542/zicarelli-v-new-jersey-commn-of-investigation/ | immunity.[4] Appellant contends that only full transactional immunity affords protection commensurate with that afforded by the privilege and suffices to compel testimony over a claim of the privilege. We rejected this argument today in Kastigar, where we held that immunity from use and derivative use is coextensive with the scope of the privilege, and is therefore sufficient to compel testimony. We perceive no difference between the degree of protection afforded by the New Jersey statute and that afforded by the federal statute sustained in Kastigar. Appellant also contends that while immunity from use and derivative use may suffice to secure the protection of the privilege from invasion by jurisdictions other than the jurisdiction seeking to compel testimony, that jurisdiction must grant the greater protection afforded by transactional immunity. In Kastigar, we held that *476 immunity from use and derivative use is commensurate with the protection afforded by the privilege, and rejected the notion that in our federal system a jurisdiction seeking to compel testimony must grant protection greater than that afforded by the privilege in order to supplant the privilege and compel testimony. Our holding in Kastigar is controlling here. II Appellant contends that the immunity provided by the New Jersey statute is unconstitutionally vague because it immunizes a witness only against the use and derivative use of "responsive" answers and evidence, without providing statutory guidelines for determining what is a "responsive" answer. The statute does not come to us devoid of interpretation, for the Supreme Court of New Jersey construed the responsiveness limitation as follows: "The limitation is intended to prevent a witness from seeking undue protection by volunteering what the State already knows or will likely come upon without the witness's aid. The purpose is not to trap. Fairly construed, the statue protects the witness against answers and evidence he in good faith believed were demanded." 55 N. J., at 270-271, This is not the technical construction of "responsive" in the legal evidentiary sense that appellant fears,[5] but, rather, is a construction cast in terms of ordinary English usage[6] and the good-faith understanding of the average man. The term "responsive" in ordinary English usage has a well-recognized meaning. It is not, *477 as appellant argues, "so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application." Moreover, the contention that ambiguity in the term "responsive" poses undue hazards for a witness testifying under a grant of immunity must be considered in the context in which the statute operates. This is not a penal statute that requires an uncounselled decision by |
Justice Powell | 1,972 | 17 | majority | Zicarelli v. New Jersey Comm'n of Investigation | https://www.courtlistener.com/opinion/108542/zicarelli-v-new-jersey-commn-of-investigation/ | not a penal statute that requires an uncounselled decision by a layman as to what course of action is lawful to pursue. A witness before the Commission is entitled to have in advance of his testimony a statement of the subject matter on which the Commission intends to examine him.[7] This advance notice of the subject of the inquiry will provide a background and context that will aid a witness in determining what information the questions seek. The New Jersey statute further provides that a witness before the Commission is entitled to have counsel present during the course of the hearing,[8] and counsel may secure clarification of vague or ambiguous questions in advance of a response by the witness.[9] The responsiveness limitation is not a trap for the unwary; rather it is a barrier to those who would intentionally tender information not sought in an effort to frustrate and prevent criminal prosecution.[10] The context *478 in which the statute operates[11] reaffirms our conclusion that the responsiveness limitation does not violate the Due Process Clause of the Fourteenth Amendment. III Appellant further asserts that he cannot be compelled to testify before the Commission because his testimony would expose him to danger of foreign prosecution. He argues that he has a real and substantial fear of foreign prosecution, and that he cannot be compelled to incriminate himself under foreign law. It follows, he insists, that he cannot be compelled to testify, irrespective of the scope of the immunity he receives, because neither the New Jersey statute nor the Fifth Amendment privilege can prevent either prosecution or use of his testimony by a foreign sovereign. This Court noted probable jurisdiction to consider appellant's claim that a grant of immunity cannot supplant the Fifth Amendment privilege with respect to an individual who has a real and substantial fear of foreign prosecution. We have concluded, however, that it is unnecessary to reach the constitutional question in this case. It is well established that the privilege protects against real dangers, not remote and speculative possibilities.[12] At the hearing before the Superior Court of Mercer County, appellant introduced numerous newspaper and magazine articles bearing upon his self-incrimination claim. He called a number of these articles to the court's attention in an effort to demonstrate the basis of a fear *479 of foreign prosecution.[13] These articles labeled appellant the "foremost internationalist" in organized crime,[14] and detailed his alleged participation in unlawful ventures growing out of alleged interests and activities in Canada[15] and the Dominican Republic.[16] While these articles would lend support to a claim of fear of foreign |
Justice Powell | 1,972 | 17 | majority | Zicarelli v. New Jersey Comm'n of Investigation | https://www.courtlistener.com/opinion/108542/zicarelli-v-new-jersey-commn-of-investigation/ | would lend support to a claim of fear of foreign prosecution in the abstract, they do not support such a claim in the context of the questions asked by the Commission. Of the 100 questions he refused to answer, appellant cites only one specific question[17] as posing a substantial risk of incrimination *480 under foreign law. That question is: "In what geographical area do you have Cosa Nostra responsibilities?" We think it plain from the context in which the question was asked that it sought an answer concerning geographical areas in New Jersey. The subject of the hearing was law enforcement, organized crime, racketeering, and political corruption in the city of Long Branch, which is located in Monmouth County, New Jersey. Eleven of the 13 questions preceding the question under consideration related specifically to the city of Long Branch and Monmouth County.[18] Of course, neither the fact that the Commission was not seeking information concerning appellant's activities outside the United States, nor the fact that the question was not designed to elicit such information, is dispositive of appellant's claim that an answer to the question would incriminate him under foreign law. When considering whether a claim of the privilege should be sustained, the court focuses inquiry on what a truthful answer might disclose, rather than on what information is expected by the questioner.[19] But the context in which a question is asked imparts additional meaning to the question, and clarifies what information is sought. A question to which a claim of the privilege is interposed must be considered "in the setting in which it is asked." Considering this question in light of the circumstances in which it was asked, we agree with the conclusion of the Supreme Court of New Jersey that appellant was never in real danger of being compelled to disclose information that might incriminate him under foreign law. Even if appellant has international Cosa Nostra responsibilities, he could have answered this question truthfully *481 without disclosing them. Should he have found it necessary to qualify his answer by confining it to domestic responsibilities in order to avoid incrimination under foreign law, he could have done so. To have divulged international responsibilities would have been to volunteer information not sought, and apparently not relevant to the Commission's investigation. We think that in the circumstances of the questioning this was clear to appellant and his counsel. Appellant is of course free to purge himself of contempt by answering the Commission's questions. Should the Commission inquire into matters that might incriminate him under foreign law and pose a substantial risk |
Justice Powell | 1,972 | 17 | majority | Weber v. Aetna Casualty & Surety Co. | https://www.courtlistener.com/opinion/108527/weber-v-aetna-casualty-surety-co/ | The question before us, on writ of certiorari to the Supreme Court of[1] concerns the right of dependent unacknowledged, illegitimate children to recover under workmen's compensation laws benefits for the death of their natural father on an equal footing with his dependent legitimate children. We hold that 's denial of equal recovery rights to dependent unacknowledged illegitimate violates the Equal Protection Clause of the Fourteenth Amendment. ; On June 22, 1967, Henry Clyde Stokes died in of injuries received during the course of his employment the previous day. At the time of his death Stokes resided and maintained a household with one Willie Mae Weber, to whom he was not married. Living in the household were four legitimate minor children, born of the marriage between Stokes and Adlay Jones Stokes who was at the time committed to a mental hospital. Also living in the home was one unacknowledged illegitimate child born of the relationship between Stokes and Willie Mae Weber. A second illegitimate child of Stokes and Weber was born posthumously. On June 29, 1967, Stokes' four legitimate children, through their maternal grandmother as guardian, filed a claim for their father's death under 's workmen's *166 compensation law.[2] The defendant employer and its insurer impleaded Willie Mae Weber who appeared and claimed compensation benefits for the two illegitimate children. Meanwhile, the four legitimate children had brought another suit for their father's death against a third-party tortfeasor, which was settled for an amount in excess of the maximum benefits allowable under workmen's compensation. The illegitimate children did not share in this settlement. Subsequently, the employer *167 in the initial action requested the extinguishment of all parties' workmen's compensation claims by reason of the tort settlement. The trial judge awarded the four legitimate children the maximum allowable amount of compensation and declared their entitlement had been satisfied from the tort suit settlement. Consequently, the four legitimate children dismissed their workmen's compensation claim. Judgment was also awarded to Stokes' two illegitimate offspring to the extent that maximum compensation benefits were not exhausted by the four legitimate children. Since such benefits had been entirely exhausted by the amount of the tort settlement, in which only the four dependent legitimate offspring participated, the two dependent illegitimate children received nothing. I For purposes of recovery under workmen's compensation, law defines children to include "only legitimate children, stepchildren, posthumous children, adopted children, and illegitimate children acknowledged under the provisions of Civil Code Articles 203, 204, and 205."[3] Thus, legitimate children and acknowledged illegitimates *168 may recover on an equal basis. Unacknowledged illegitimate children, however, are relegated to |
Justice Powell | 1,972 | 17 | majority | Weber v. Aetna Casualty & Surety Co. | https://www.courtlistener.com/opinion/108527/weber-v-aetna-casualty-surety-co/ | an equal basis. Unacknowledged illegitimate children, however, are relegated to the lesser status of "other dependents" under 1232 (8) of the workmen's compensation statute[4] and may recover only if there are not enough surviving dependents in the preceding classifications to exhaust the maximum allowable benefits. Both the Court of Appeal[5] and a divided Supreme Court[6] sustained these statutes over petitioner's constitutional objections, holding that our decision in Levy, was not controlling. We disagree. In Levy, the Court held invalid as denying equal protection of the laws, a statute which barred an illegitimate child from recovering for the wrongful death of its mother when such recoveries by legitimate children were authorized. The Court there decided that the fact of a child's birth out of wedlock bore no reasonable relation to the purpose of wrongful-death statutes which compensate children for the death of a mother. As the Court said in Levy: "Legitimacy or illegitimacy of birth has no relation to the nature of the wrong allegedly inflicted on the mother. These children, though illegitimate, were dependent on her; she cared for them and nurtured them; they were indeed hers in the biological and in the spiritual sense; in her death they suffered wrong in the sense that any dependent would." *169 The court below sought to distinguish Levy as involving a statute which absolutely excluded all illegitimates from recovery, whereas in the compensation statute in the instant case acknowledged illegitimates may recover equally with legitimate children and "the unacknowledged illegitimate child is not denied a right to recover compensation, he being merely relegated to a less favorable position as are other dependent relatives such as parents " The Supreme Court likewise characterized Levy as a tort action where the tortfeasor escaped liability on the fortuity of the potential claimant's illegitimacy, whereas in the present action full compensation was rendered, and "no tort feasor goes free because of the law." 242 So. 2d, at We do not think Levy can be disposed of by such finely carved distinctions. The Court in Levy was not so much concerned with the tortfeasor going free as with the equality of treatment under the statutory recovery scheme. Here, as in Levy, there is impermissible discrimination. An unacknowledged illegitimate child may suffer as much from the loss of a parent as a child born within wedlock or an illegitimate later acknowledged. So far as this record shows, the dependency and natural affinity of the unacknowledged illegitimate children for their father were as great as those of the four legitimate children whom law has allowed to recover.[7] The legitimate |
Justice Powell | 1,972 | 17 | majority | Weber v. Aetna Casualty & Surety Co. | https://www.courtlistener.com/opinion/108527/weber-v-aetna-casualty-surety-co/ | legitimate children whom law has allowed to recover.[7] The legitimate children and the illegitimate children all lived in the home of the deceased and were *170 equally dependent upon him for maintenance and support. It is inappropriate, therefore, for the court below to talk of relegating the unacknowledged illegitimates "to a less favorable position as are other dependent relatives such as parents." The unacknowledged illegitimates are not a parent or some "other dependent relative"; in this case they are dependent children, and as such are entitled to rights granted other dependent children. Respondents contend that our recent ruling in controls this case. In Labine, the Court upheld, against constitutional objections, intestacy laws which had barred an acknowledged illegitimate child from sharing equally with legitimate children in her father's estate. That decision reflected, in major part, the traditional deference to a State's prerogative to regulate the disposition at death of property within its borders. The Court has long afforded broad scope to state discretion in this area.[8] Yet the substantial state interest in providing for "the stability of land titles and in the prompt and definitive determination of the valid ownership of property left by decedents," is absent in the case at hand. Moreover, in Labine the intestate, unlike deceased in the present action, might easily have modified his daughter's disfavored position. As the Court there remarked: "Ezra Vincent could have left one-third of his property to his illegitimate daughter had he bothered *171 to follow the simple formalities of executing a will. He could, of course, have legitimated the child by marrying her mother in which case the child could have inherited his property either by intestate succession or by will as any other legitimate child." Labine, Such options, however, were not realistically open to Henry Stokes. Under law he could not have acknowledged his illegitimate children even had he desired to do so.[9] The burdens of illegitimacy, already weighty, become doubly so when neither parent nor child can legally lighten them. Both the statute in Levy and the statute in the present case involve state-created compensation schemes, designed to provide close relatives and dependents of a deceased a means of recovery for his often abrupt and accidental death. Both wrongful-death statutes and workmen's compensation codes represent outgrowths and modifications of our basic tort law. The former alleviated the harsh common-law rule under which "no person could inherit the personal right of another to recover for *172 tortious injuries to his body";[10] the latter removed difficult obstacles to recovery in work-related injuries by offering a more certain, though generally less |
Justice Powell | 1,972 | 17 | majority | Weber v. Aetna Casualty & Surety Co. | https://www.courtlistener.com/opinion/108527/weber-v-aetna-casualty-surety-co/ | work-related injuries by offering a more certain, though generally less remunerative, compensation. In the instant case, the recovery sought under the workmen's compensation statute was in lieu of an action under the identical death statute which was at issue in Levy.[11] Given the similarities in the origins and purposes of these two statutes, and the similarity of 's pattern of discrimination in recovery rights, it would require a disregard of precedent and the principles of stare decisis to hold that Levy did not control the facts of the case before us. It makes no difference that illegitimates are not so absolutely or broadly barred here as in Levy; the discrimination remains apparent. II Having determined that Levy is the applicable precedent, we briefly reaffirm here the reasoning which produced that result. The tests to determine the validity of state statutes under the Equal Protection Clause have been variously expressed, but this Court requires, at a minimum, that a statutory classification bear some rational relationship to a legitimate state purpose. ; ; Gulf, Colorado & Santa Fé R. ; Yick Though the latitude given state economic and social regulation is necessarily broad, when state statutory classifications approach sensitive and fundamental personal rights, this Court exercises a stricter scrutiny, ; Harper v. Virginia Board of Elections, 383 U. S. *173 663 (1966). The essential inquiry in all the foregoing cases is, however, inevitably a dual one: What legitimate state interest does the classification promote? What fundamental personal rights might the classification endanger? The Supreme Court emphasized strongly the State's interest in protecting "legitimate family relationships," 242 So. 2d, at and the regulation and protection of the family unit have indeed been a venerable state concern. We do not question the importance of that interest; what we do question is how the challenged statute will promote it. As was said in Glona: "[W]e see no possible rational basis for assuming that if the natural mother is allowed recovery for the wrongful death of her illegitimate child, the cause of illegitimacy will be served. It would, indeed, be farfetched to assume that women have illegitimate children so that they can be compensated in damages for their death." Nor can it be thought here that persons will shun illicit relations because the offspring may not one day reap the benefits of workmen's compensation. It may perhaps be said that statutory distinctions between the legitimate and illegitimate reflect closer family relationships in that the illegitimate is more often not under care in the home of the father nor even supported by him. The illegitimate, so this |
Justice Powell | 1,972 | 17 | majority | Weber v. Aetna Casualty & Surety Co. | https://www.courtlistener.com/opinion/108527/weber-v-aetna-casualty-surety-co/ | father nor even supported by him. The illegitimate, so this argument runs, may thus be made less eligible for the statutory recoveries and inheritances reserved for those more likely to be within the ambit of familial care and affection. Whatever the merits elsewhere of this contention, it is not compelling in a statutory compensation scheme where dependency on the deceased is a prerequisite to anyone's recovery, *174 and where the acknowledgment so necessary to equal recovery rights may be unlikely to occur or legally impossible to effectuate even where the illegitimate child may be nourished and loved. Finally, we are mindful that States have frequently drawn arbitrary lines in workmen's compensation and wrongful-death statutes to facilitate potentially difficult problems of proof. Nothing in our decision would impose on state court systems a greater burden in this regard. By limiting recovery to dependents of the deceased, substantially lessens the possible problems of locating illegitimate children and of determining uncertain claims of parenthood.[12] Our decision fully *175 respects 's choice on this matter. It will not expand claimants for workmen's compensation beyond those in a direct blood and dependency relationship with the deceased and it avoids altogether diffuse questions of affection and affinity which pose difficult probative problems. Our ruling requires equality of treatment between two classes of persons the genuineness of whose claims the State might in any event be required to determine. The state interest in legitimate family relationships is not served by the statute; the state interest in minimizing problems of proof is not significantly disturbed by our decision. The inferior classification of dependent unacknowledged illegitimates bears, in this instance, no significant relationship to those recognized purposes of recovery which workmen's compensation statutes commendably serve. The status of illegitimacy has expressed through the ages society's condemnation of irresponsible liaisons beyond the bonds of marriage. But visiting this condemnation on the head of an infant is illogical and unjust.[13] Moreover, imposing disabilities on the illegitimate child is contrary to the basic concept of our system that legal burdens should bear some relationship to individual responsibility or wrongdoing. Obviously, no child is responsible for his birth and penalizing the illegitimate child is an ineffectualas well as an unjustway of deterring the parent. Courts are powerless to prevent *176 the social opprobrium suffered by these hapless children, but the Equal Protection Clause does enable us to strike down discriminatory laws relating to status of birth[14] whereas in this casethe classification is justified by no legitimate state interest, compelling or otherwise. Reversed and remanded. MR. JUSTICE BLACKMUN, concurring in the result. For me, |
Justice Powell | 1,972 | 17 | majority | Weber v. Aetna Casualty & Surety Co. | https://www.courtlistener.com/opinion/108527/weber-v-aetna-casualty-surety-co/ | remanded. MR. JUSTICE BLACKMUN, concurring in the result. For me, La. Civ. Code, Art. 204, is the provision in the State's statutory structure that proves fatal for this workmen's compensation case under the focus of constitutional measurement. The Article operated to deny Henry Stokes the ability even to acknowledge his illegitimates so that they might qualify as children within the definition provided by La. Rev. Stat. 23:1021 (3). This is so because the decedent (inasmuch as he was then married to Adlay Jones Stokes and remained married to her the rest of his life) and the mother were incapable of contracting marriage at the time of conception and thereafter. This bar, indeed, under the Court's decided cases, denied equal protection to the illegitimates. Cf. I thus give primary emphasis to the presence of Art. 204 and, I believe, far more emphasis than does the Court. If that statute did not exist or were inapplicable, the case might be a different one. While the Court refers to Art. 204, and to a degree relies upon it, ante, at 171 n. 9, it seems to me that it does so only secondarily. I read the opinion as flatly granting dependent unacknowledged illegitimate children full equality with dependent legitimate children and therefore as striking down the *177 statutory scheme even for the situation where the father has the power to acknowledge his illegitimates but refrains from doing so. In other words, the Court holds the system unconstitutional with respect to illegitimate dependent children wholly apart from the barrier of Art. 204. Certainly, the first paragraph of the opinion is to this effect. In deciding this case, I need not, and would not, go that far. I would let the resolution of that issue await its appropriate presentation. MR. |
Justice O'Connor | 1,984 | 14 | majority | Secretary of Interior v. California | https://www.courtlistener.com/opinion/111058/secretary-of-interior-v-california/ | These cases arise out of the Department of the Interior's sale of oil and gas leases on the Outer Continental Shelf (OCS) off the coast of California. We must determine whether the sale is an activity "directly affecting" the coastal zone under 307(c)(1) of the Coastal Zone Management Act (CZMA). That section provides in its entirety: "Each Federal agency conducting or supporting activities directly affecting the coastal zone shall conduct or support those activities in a manner which is, to the maximum extent practicable, consistent with approved state management programs." 16 U.S. C. 1456(c)(1) ( ed.). We conclude that the Secretary of the Interior's sale of Outer Continental Shelf oil and gas leases is not an activity "directly affecting" the coastal zone within the meaning of the statute. I CZMA defines the "coastal zone" to include state but not federal land near the shorelines of the several coastal States, as well as coastal waters extending "seaward to the outer limit of the United States territorial sea." 16 U.S. C. 1453(1) ( ed.). The territorial sea for States bordering on the Pacific Ocean or Atlantic Ocean extends three geographical miles seaward from the coastline. See 43 U.S. C. 1301; United Submerged lands subject to the jurisdiction of the United *316 States that lie beyond the territorial sea constitute the "outer Continental Shelf." See 43 U.S. C. 1331(a). By virtue of the Submerged Lands Act, passed in 1953, the coastal zone belongs to the States, while the OCS belongs to the Federal Government. 43 U.S. C. 1302, 1311. CZMA was enacted in 1972 to encourage the prudent management and conservation of natural resources in the coastal zone. Congress found that the "increasing and competing demands upon the lands and waters of our coastal zone" had "resulted in the loss of living marine resources, wildlife, nutrient-rich areas, permanent and adverse changes to ecological systems, decreasing open space for public use, and shoreline erosion." 16 U.S. C. 1451(c) ( ed.). Accordingly, Congress declared a national policy to protect the coastal zone, to encourage the States to develop coastal zone management programs, to promote cooperation between federal and state agencies engaged in programs affecting the coastal zone, and to encourage broad participation in the development of coastal zone management programs. 16 U.S. C. 1452 ( ed.). Through a system of grants and other incentives, CZMA encourages each coastal State to develop a coastal management plan. Further grants and other benefits are made available to a coastal State after its management plan receives federal approval from the Secretary of Commerce. To obtain such approval a state |
Justice O'Connor | 1,984 | 14 | majority | Secretary of Interior v. California | https://www.courtlistener.com/opinion/111058/secretary-of-interior-v-california/ | the Secretary of Commerce. To obtain such approval a state plan must adequately consider the "national interest" and "the views of Federal agencies principally affected by such program." 16 U.S. C. 1455(c)(8), 1456(b) ( ed.). Once a state plan has been approved, CZMA 307(c)(1) requires federal agencies "conducting or supporting activities directly affecting the coastal zone" to do so "consistent" with the state plan "to the maximum extent practicable." 16 U.S. C. 1456(c)(1) ( ed.). The Commerce Department has promulgated regulations implementing that provision. Those regulations require federal agencies to prepare a "consistency *317 determination" document in support of any activity that will "directly affect" the coastal zone of a State with an approved management plan. The document must identify the "direct effects" of the activity and inform state agencies how the activity has been tailored to achieve consistency with the state program. 15 CFR 930.34, 930.39 II OCS lease sales are conducted by the Department of the Interior (Interior). Oil and gas companies submit bids, and the high bidders receive priority in the eventual exploration for and development of oil and gas resources situated in the submerged lands on the OCS. A lessee does not, however, acquire an immediate or absolute right to explore for, develop, or produce oil or gas on the OCS; those activities require separate, subsequent federal authorization. In 1977, the Department of Commerce approved the California Coastal Management Plan. The same year, Interior began preparing Lease Sale No. 53 a sale of OCS leases off the California coast near Santa Barbara. Interior first asked several state and federal agencies to report on potential oil and gas resources in this area. The agency then requested bidders, federal and state agencies, environmental organizations, and the public to identify which of 2,036 tracts in the area should be offered for lease. In October 1978, Interior announced the tentative selection of 243 tracts, including 115 tracts situated in the Santa Maria Basin located off western Santa Barbara. Various meetings were then held with state agencies. Consultations with other federal agencies were also initiated. Interior issued a Draft Environmental Impact Statement in April 1980. On July 8, 1980, the California Coastal Commission informed Interior that it had determined Lease Sale No. 53 to be an activity "directly affecting" the California coastal zone. The State Commission therefore demanded a consistency determination a showing by Interior that the lease sale *318 would be "consistent" to the "maximum extent practicable" with the state coastal zone management program. Interior responded that the lease sale would not "directly affect" the California coastal zone. |
Justice O'Connor | 1,984 | 14 | majority | Secretary of Interior v. California | https://www.courtlistener.com/opinion/111058/secretary-of-interior-v-california/ | lease sale would not "directly affect" the California coastal zone. Nevertheless, Interior decided to remove 128 tracts, located in four northern basins, from the proposed lease sale, leaving only the 115 tracts in the Santa Maria Basin. In September 1980, Interior issued a final Environmental Impact Statement. On October 27, 1980, it published a proposed notice of sale, limiting bidding to the remaining 115 blocks in the Santa Maria Basin. (1980). On December 16, 1980, the State Commission reiterated its view that the sale of the remaining tracts in the Santa Maria Basin "directly affected" the California coastal zone. The Commission expressed its concern that oil spills on the OCS could threaten the southern sea otter, whose range was within 12 miles of the 31 challenged tracts. The Commission explained that it "has been consistent in objecting to proposed offshore oil development within specific buffer zones around special sensitive marine mammal and seabird breeding areas" App. 77. The Commission concluded that 31 more tracts should be removed from the sale because "leasing within 12 miles of the Sea Otter Range in the Santa Maria Basin would not be consistent" with the California Coastal Management Program.[1] California Governor Brown later took a similar position, urging that 34 more tracts be removed.[2] Interior rejected the State's demands. In the Secretary's view, no consistency review was required because the lease sale did not engage CZMA 307(c)(1), and the Governor's request was not binding because it failed to strike a reasonable *319 balance between the national and local interests. On April 10, 1981, Interior announced that the lease sale of the 115 tracts would go forward, and on April 27 issued a final notice of sale. (1981). California and other interested parties (hereafter respondents) filed two substantially similar suits in Federal District Court to enjoin the sale of 29 tracts situated within 12 miles of the Sea Otter Range.[3] Both complaints alleged, inter alia, Interior's violation of 307(c)(1) of CZMA.[4] They argued that leasing sets in motion a chain of events that culminates in oil and gas development, and that leasing therefore "directly affects" the coastal zone within the meaning of 307(c)(1). The District Court entered a summary judgment for respondents on the CZMA claim. California v. Watt, 520 F. *320 Supp. 1359 (CD Cal. 1981). The Court of Appeals for the Ninth Circuit affirmed that portion of the District Court judgment that required a consistency determination before the We granted certiorari, and we now reverse. III Whether the sale of leases on the OCS is an activity "directly affecting" the coastal zone is |
Justice O'Connor | 1,984 | 14 | majority | Secretary of Interior v. California | https://www.courtlistener.com/opinion/111058/secretary-of-interior-v-california/ | OCS is an activity "directly affecting" the coastal zone is not self-evident.[6] As *321 already noted, OCS leases involve submerged lands outside the coastal zone, and as we shall discuss, an OCS lease authorizes the holder to engage only in preliminary exploration; further administrative approval is required before full exploration or development may begin. Both sides concede that the preliminary exploration itself has no significant effect on the coastal zone. Both also agree that a lease sale is one (not the first, see infra, at 337) in a series of decisions that may culminate in activities directly affecting that zone. A We are urged to focus first on the plain language of 307(c)(1). Interior contends that "directly affecting" means "[h]av[ing] a [d]irect, [i]dentifiable [i]mpact on [t]he [c]oastal [z]one." Brief for Federal Petitioners 20. Respondents insist that the phrase means "[i]nitiat[ing] a [s]eries of [e]vents of [c]oastal [m]anagement [c]onsequence." Brief for Respondent State of California et al. 10.[7] But CZMA nowhere defines or explains which federal activities should be viewed as "directly affecting" the coastal zone, and the alternative verbal formulations proposed by the parties, both of which are superficially plausible, find no support in the Act itself. We turn therefore to the legislative history.[8] A fairly detailed review is necessary, but that review persuades us that *322 Congress did not intend OCS lease sales to fall within the ambit of CZMA 307(c)(1). In the CZMA bills first passed by the House and Senate, 307(c)(1)'s consistency requirements extended only to federal activities "in" the coastal zone. The "directly affecting" standard appeared nowhere in 307(c)(1)'s immediate antecedents. It was the House-Senate Conference Committee that replaced "in the coastal zone" with "directly affecting the coastal zone." Both Chambers then passed the Conference bill without discussing or even mentioning the change. At first sight, the Conference's adoption of "directly affecting" appears to be a surprising, unexplained, and subsequently unnoticed expansion in the scope of 307(c)(1), going beyond what was required by either of the versions of 307(c)(1) sent to the Conference. But a much more plausible explanation for the change is available. The explanation lies in the two different definitions of the "coastal zone." The bill the Senate sent to the Conference defined the coastal zone to exclude "lands the use of which is by law subject solely to the discretion of or which is held in trust by the Federal Government, its officers or agents."[9]*323 This exclusion would reach federal parks, military installations, Indian reservations, and other federal lands that would lie within the coastal zone but for the fact of federal ownership. |
Justice O'Connor | 1,984 | 14 | majority | Secretary of Interior v. California | https://www.courtlistener.com/opinion/111058/secretary-of-interior-v-california/ | the coastal zone but for the fact of federal ownership. Under the Senate bill, activities on these lands would thus have been entirely exempt from compliance with state management plans. By contrast, the House bill's definition of "coastal zone" included lands under federal jurisdiction; thus federal activities on those lands were to be fully subject to 307(c)(1)'s consistency requirement. Under both bills, however, submerged lands on the OCS were entirely excluded from the coastal zone, and federal agency activities in those areas thus were exempt from 307(c)(1)'s consistency requirement. Against this background, the Conference Committee's change in 307(c)(1) has all the markings of a simple compromise. The Conference accepted the Senate's narrower definition of the "coastal zone," but then expanded 307(c)(1) to cover activities on federal lands not "in" but nevertheless "directly affecting" the zone. By all appearances, the intent was to reach at least some activities conducted in those federal enclaves excluded from the Senate's definition of the "coastal zone." Though cryptic, the Conference Report's reference to the change in 307(c)(1) fully supports this explanation. "The Conferees adopted the Senate language which made it clear that Federal lands are not included within a state's coastal zone. As to the use of such lands which would affect a state's coastal zone, the provisions of section 307(c) would apply." H. R. Conf. Rep. No. 92-1544, p. 12 (1972) (emphasis added). In the entire Conference Report, this is the only mention of the definition of the coastal zone chosen by the Conference, and the only hint of an explanation for the change in 307(c)(1). The "directly affecting" language was not deemed worthy of note by any Member of Congress in the subsequent floor debates.[10] The implication seems clear: *324 "directly affecting" was used to strike a balance between two definitions of the "coastal zone." The legislative history thus strongly suggests that OCS leasing, covered by neither the House nor the Senate version of 307(c)(1), was also intended to be outside the coverage of the Conference's compromise. Nonetheless, the literal language of 307(c)(1), read without reference to its history, is sufficiently imprecise to leave open the possibility that some types of federal activities conducted on the OCS could fall within 307(c)(1)'s ambit. We need not, however, decide whether any OCS activities other than oil and gas leasing might be covered by 307(c)(1), because further investigation reveals that in any event Congress expressly intended to remove the control of OCS resources from CZMA's scope. B If 307(c)(1) and its history standing alone are less than crystalline, the history of other sections of the original |
Justice O'Connor | 1,984 | 14 | majority | Secretary of Interior v. California | https://www.courtlistener.com/opinion/111058/secretary-of-interior-v-california/ | than crystalline, the history of other sections of the original CZMA bills impels a narrow reading of that clause. Every time it faced the issue in the CZMA debates, Congress deliberately and systematically insisted that no part of CZMA was to reach beyond the 3-mile territorial limit. There are, first, repeated statements in the House and Senate floor debates that CZMA is concerned only with activities on land or in the territorial sea, not on the OCS, and that the allocation of state and federal jurisdiction over the coastal zone and the OCS was not to be changed in any way.[11] But *325 Congress took more substantial and significant action as well. Congress debated and firmly rejected at least four proposals to extend parts of CZMA to reach OCS activities. Section 313 of the House CZMA bill, as reported by Committee and passed by the House, embodied the most specific of these proposals. That section would have achieved explicitly what respondents now contend 307(c)(1) achieves implicitly. It provided: "(a) The Secretary shall develop a program for the management of the area outside the coastal zone and within twelve miles of the [coast] "(b) To the extent that any part of the management program shall apply to any high seas area, the subjacent seabed and subsoil of which lies within the seaward boundary of a coastal state, the program shall be coordinated with the coastal state involved. "(c) The Secretary shall, to the maximum extent practicable, apply the program to waters which are adjacent to specific areas in the coastal zone which have been designated by the states for the purpose of preserving or restoring such areas for their conservation, recreational, *326 ecological, or esthetic values." H. R. 14146, 92d Cong., 2d Sess., 313 (1972), reprinted in H. R. Rep. No. 92-1049, p. 7 (1972). Congressman Anderson of California, the drafter of this section and coauthor of the House CZMA bill, explained the section's purpose on the floor of the House. In light of the instant litigation, his comments were remarkably prescient. By 1972, Congressman Anderson pointed out, California had established seven marine sanctuaries, including one located near Santa Barbara, Cal., in the area allegedly threatened by the leases here in dispute. "These State-established sanctuaries, which extend from the coastline seaward to 3 miles, account for nearly a fourth of the entire California coast. "However, the Federal Government has jurisdiction outside the State area, from 3 miles to 12 miles at sea. All too often, the Federal Government has allowed development and drilling to the detriment of the State program. "A |
Justice O'Connor | 1,984 | 14 | majority | Secretary of Interior v. California | https://www.courtlistener.com/opinion/111058/secretary-of-interior-v-california/ | and drilling to the detriment of the State program. "A case in point is Santa Barbara where California established a marine sanctuary banning the drilling of oil in the area under State authority. "Yet, outside the sanctuary in the federally controlled area the Federal Government authorized drilling which resulted in the January 1969 blowout. This dramatically illustrated the point that oil spills do not respect legal jurisdictional lines." 118 Cong. Rec. 26484 (1972).[12] House 313, Congressman Anderson went on to explain, would play the crucial role of encouraging federal OCS oil *327 and gas leasing to be conducted in a manner consistent with state management programs. Ibid.; see also Since House 313 would have provided respondents with precisely the protection they now seek here, it is significant that the Conference Committee, and ultimately the Congress as a whole, flatly rejected the provision. And the reason for the rejection, as explained in the Conference Report, was to forestall conflicts of the type before us now. "The Conferees. excluded [House 313] authorizing a Federal management program for the contiguous zone of the United States, because the provisions relating thereto did not prescribe sufficient standards or criteria and would create potential conflicts with legislation already in existence concerning Continental Shelf resources." H. R. Conf. Rep. No. 92-1544, p. 15 (1972) (emphasis added). The House bill included another similar provision that would have been almost equally favorable to respondents here had it not been rejected by the Conference and subsequently by Congress as a whole. Sections 312(b), (c), of the House bill invited the Secretary of Commerce to extend coastal zone marine sanctuaries established by the States into the OCS region.[13] But the Conference Committee rejected House 312 as well. The Conference Report explained: "The Conferees agreed to delete the provisions of the House *328 version relating to extension of estuarine sanctuaries, in view of the fact that the need for such provisions appears to be rather remote and could cause problems since they would extend beyond the territorial limits of the United States." H. R. Conf. Rep. No. 92-1544, pp. 14-15 (1972). When the Conference bill returned to the House, with House 312 and 313 deleted, Congressman Anderson expressed his dismay: "I am deeply disappointed that the Senate conferees would not accept the position of the House of Representatives regarding the extension of State-established marine sanctuaries to areas under Federal jurisdiction. ". [W]e were successful, in committee, in adding a provision which I authored designed to protect State-established sanctuaries, such as exis[t] off Santa Barbara, Calif., from federally authorized development. |
Justice O'Connor | 1,984 | 14 | majority | Secretary of Interior v. California | https://www.courtlistener.com/opinion/111058/secretary-of-interior-v-california/ | as exis[t] off Santa Barbara, Calif., from federally authorized development. "This provision would have required the Secretary to apply the coastal zone program to waters immediately adjacent to the coastal waters of a State, which that State has designated for specific preservation purposes. "It was accepted overwhelmingly by the House of Representatives despite the efforts of the oil and petroleum industry to defeat it. "But what they failed to accomplish in the House, they accomplished in the conference committee" 118 Cong. Rec. 35549-35550 (1972). In light of these comments by Congressman Anderson, and the express statement in the Conference Report that House 313 was removed to avoid "conflicts with legislation already in existence concerning Continental Shelf resources," see it is fanciful to suggest that the Conferees intended the "directly affecting" language of 307(c)(1) to substitute for the House 313's specific and considerably more detailed language. Certainly the author of House 313 recognized that the amended 307(c)(1) could not serve that purpose. *329 Two similar attempts to extend CZMA's reach beyond the coastal zone were made in the Senate. These, as well, were firmly rejected on the Senate floor or in Conference.[14] *330 C To recapitulate, the "directly affecting" language in 307(c)(1) was, by all appearances, only a modest compromise, designed to offset in part the narrower definition of the coastal zone favored by the Senate and adopted by the Conference Committee. Section 307(c)(1)'s "directly affecting" language was aimed at activities conducted or supported by federal agencies on federal lands physically situated in the coastal zone but excluded from the zone as formally defined by the Act. Consistent with this view, the same Conference Committee that wrote the "directly affecting" language rejected two provisions in the House bill that would have required precisely what respondents seek here coordination of federally sponsored OCS activities with state coastal management and conservation programs. In light of the Conference Committee's further, systematic rejection of every other attempt to extend the reach of CZMA to the OCS, we are impelled to conclude that the 1972 Congress did not intend 307(c)(1) to reach OCS lease sales.[15] *331 IV A A broader reading of 307(c)(1) is not compelled by the thrust of other CZMA provisions. First, it is clear beyond *332 peradventure that Congress believed that CZMA's purposes could be adequately effectuated without reaching federal activities conducted outside the coastal zone. Both the Senate and House bills were originally drafted, debated, and passed, with 307(c)(1) expressly limited to federal activities in the coastal zone. Broad arguments about CZMA's structure, the Act's incentives for the development of state |
Justice O'Connor | 1,984 | 14 | majority | Secretary of Interior v. California | https://www.courtlistener.com/opinion/111058/secretary-of-interior-v-california/ | CZMA's structure, the Act's incentives for the development of state management programs, and the Act's general aspirations for statefederal cooperation thus cannot support the expansive reading of 307(c)(1) urged by respondents. Moreover, a careful examination of the structure of CZMA 307 suggests that lease sales are a type of federal agency activity not intended to be covered by 307(c)(1) at all. Section 307(c) contains three coordinated parts. Paragraph (1) refers to activities "conduct[ed] or support[ed]" by a federal agency. Paragraph (2) covers "development project[s]" "undertake[n]" by a federal agency. Paragraph (3) deals with activities by private parties authorized by a federal agency's issuance of licenses and permits. The first two paragraphs thus reach activities in which the federal agency is itself the principal actor, the third reaches the federally approved activities of third parties. Plainly, Interior's OCS lease sales fall in the third category. Section 307(c)(1) should therefore be irrelevant to OCS lease sales, if only because drilling for oil or gas on the OCS is neither "conduct[ed]" nor "support[ed]" by a federal agency. Section *333 307(c)(3), not 307(c)(1), is the more pertinent provision. Respondents' suggestion that the consistency review requirement of 307(c)(3) is focused only on the private applicants for permits or licenses, not federal agencies, is squarely contradicted by abundant legislative history and the language of 307(c)(3) itself.[16] CZMA 307(c)(3) definitely does not require consistency review of OCS lease sales. As enacted in 1972, that section addressed the requirements to be imposed on federal licensees whose activities might affect the coastal zone. A federal *334 agency may not issue a "license or permit" for any activity "affecting land or water uses in the coastal zone" without ascertaining that the activity is consistent with the state program or otherwise in the national interest.[17] Each affected State with an approved management program must concur in the issuance of the license or permit; a State's refusal to do so may be overridden only if the Secretary of Commerce finds that the proposed activity is consistent with CZMA's objectives or otherwise in the interest of national security. Significantly, 307(c)(3) contained no mention of consistency requirements in connection with the sale of a lease. In 1976, Congress expressly addressed and preserved that omission. Specific House and Senate Committee proposals to add the word "lease" to 307(c)(3) were rejected by the House and ultimately by the Congress as a whole.[18] It is *335 surely not for us to add to the statute what Congress twice decided to omit. Instead of inserting the word "lease" in 307(c)(3), the House-Senate Conference Committee renumbered the |
Justice O'Connor | 1,984 | 14 | majority | Secretary of Interior v. California | https://www.courtlistener.com/opinion/111058/secretary-of-interior-v-california/ | word "lease" in 307(c)(3), the House-Senate Conference Committee renumbered the existing 307(c)(3) as 307(c)(3)(A), and added a second subparagraph, 307(c)(3)(B). Respondents apparently concede that of these two subparagraphs, only the latter is now relevant to oil and gas activities on the OCS. Brief for Respondent State of California et al. 44, and n. 76; Brief for Respondent Natural Resources Defense Council, Inc., et al. 7, n. 6. The new subparagraph 307(c)(3)(B), however, provides only that applicants for federal licenses or permits to explore for, produce, or develop oil or gas on the OCS must first certify consistency with affected state plans.[19] Again, there is no suggestion that a lease sale by Interior requires any review of consistency with state management plans. B If the distinction between a sale of a "lease" and the issuance of a permit to "explore for," "produce," or "develop" oil *336 or gas seems excessively fine, it is a distinction that Congress has codified with great care. CZMA 307(c)(3)(B) expressly refers to the Outer Continental Shelf Lands Act of 1953, as amended, 43 U.S. C. 1331 et seq. (1976 ed., Supp. V) (OCSLA), so it is appropriate to turn to that Act for a clarification of the differences between a lease sale and the approval of a plan for "exploration," "development," or "production." OCSLA was enacted in 1953 to authorize federal leasing of the OCS for oil and gas development. The Act was amended in 1978 to provide for the "expeditious and orderly development, subject to environmental safeguards," of resources on the OCS. 43 U.S. C. 1332(3) (1976 ed., Supp. V). As amended, OCSLA confirms that at least since 1978 the sale of a lease has been a distinct stage of the OCS administrative process, carefully separated from the issuance of a federal license or permit to explore for, develop, or produce gas or oil on the OCS. Before 1978, OCSLA did not define the terms "exploration," "development," or "production." But it did define a "mineral lease" to be "any form of authorization for the exploration for, or development or removal of deposits of, oil, gas, or other minerals." 43 U.S. C. 1331(c). The pre-1978 OCSLA did not specify what, if any, rights to explore, develop, or produce were transferred to the purchaser of a lease; the Act simply stated that a lease should "contain such rental provisions and such other terms and provisions as the Secretary may prescribe at the time of offering the area for lease." 43 U.S. C. 1337(b)(4). Thus before 1978 the sale by Interior of an OCS lease might well have |
Justice O'Connor | 1,984 | 14 | majority | Secretary of Interior v. California | https://www.courtlistener.com/opinion/111058/secretary-of-interior-v-california/ | sale by Interior of an OCS lease might well have engaged CZMA 307(c)(3)(B) by including express or implied federal approval of a "plan for the exploration or development of, or production from" the leased tract.[20] *337 The leases in dispute here, however, were sold in 1981. By then it was quite clear that a lease sale by Interior did not involve the submission or approval of "any plan for the exploration or development of, or production from" the leased tract. Under the amended OCSLA, the purchase of a lease entitles the purchaser only to priority over other interested parties in submitting for federal approval a plan for exploration, production, or development. Actual submission and approval or disapproval of such plans occur separately and later. Since 1978 there have been four distinct statutory stages to developing an offshore oil well: (1) formulation of a 5-year leasing plan by the Department of the Interior; (2) lease sales; (3) exploration by the lessees; (4) development and production. Each stage involves separate regulatory review that may, but need not, conclude in the transfer to lease purchasers of rights to conduct additional activities on the OCS. And each stage includes specific requirements for consultation with Congress, between federal agencies, or with the States. Formal review of consistency with state coastal management plans is expressly reserved for the last two stages. (1) Preparation of a leasing program. The first stage of OCS planning is the creation of a leasing program. Interior is required to prepare a 5-year schedule of proposed OCS lease sales. 43 U.S. C. 1344 (1976 ed., Supp. V). During the preparation of that program Interior must solicit comments from interested federal agencies and the Governors of affected States, and must respond in writing to all comments *338 or requests received from the State Governors. 43 U.S. C. 1344(c) (1976 ed., Supp. V). The proposed leasing program is then submitted to the President and Congress, together with comments received by the Secretary from the Governor of the affected State. 43 U.S. C. 1344(d)(2) (1976 ed., Supp. V). Plainly, prospective lease purchasers acquire no rights to explore, produce, or develop at this first stage of OCSLA planning, and consistency review provisions of CZMA 307(c)(3)(B) are therefore not engaged. There is also no suggestion that CZMA 307(c)(1) consistency requirements operate here, though we note that preparation and submission to Congress of the leasing program could readily be characterized as "initiat[ing] a [s]eries of [e]vents of [c]oastal [m]anagement [c]onsequence." Brief for Respondent State of California et al. 10. (2) Lease sales. The second stage of OCS planning |
Justice O'Connor | 1,984 | 14 | majority | Secretary of Interior v. California | https://www.courtlistener.com/opinion/111058/secretary-of-interior-v-california/ | 10. (2) Lease sales. The second stage of OCS planning the stage in dispute here involves the solicitation of bids and the issuance of offshore leases. 43 U.S. C. 1337(a) (1976 ed., Supp. V). Requirements of the National Environmental Policy Act and the Endangered Species Act must be met first. The Governor of any affected State is given a formal opportunity to submit recommendations regarding the "size, timing, or location" of a proposed lease sale. 43 U.S. C. 1345(a) (1976 ed., Supp. V). Interior is required to accept these recommendations if it determines they strike a reasonable balance between the national interest and the well-being of the citizens of the affected State. 43 U.S. C. 1345 (c) (1976 ed., Supp. V). Local governments are also permitted to submit recommendations, and the Secretary "may" accept these. 43 U.S. C. 1345(a), (c) (1976 ed., Supp. V). The Secretary may then proceed with the actual lease sale. Lease purchasers acquire the right to conduct only limited "preliminary" activities on the OCS geophysical and other surveys that do not involve seabed penetrations *339 greater than 300 feet and that do not result in any significant environmental impacts. 30 CFR 250.34-1 Again, there is no suggestion that these activities in themselves "directly affect" the coastal zone. But by purchasing a lease, lessees acquire no right to do anything more. Under the plain language of OCSLA, the purchase of a lease entails no right to proceed with full exploration, development, or production that might trigger CZMA 307(c)(3)(B); the lessee acquires only a priority in submitting plans to conduct those activities. If these plans, when ultimately submitted, are disapproved, no further exploration or development is permitted. (3) Exploration. The third stage of OCS planning involves review of more extensive exploration plans submitted to Interior by lessees. 43 U.S. C. 1340 (1976 ed., Supp. V). Exploration may not proceed until an exploration plan has been approved. A lessee's plan must include a certification that the proposed activities comply with any applicable state management program developed under CZMA. OCSLA expressly provides for federal disapproval of a plan that is not consistent with an applicable state management plan unless the Secretary of Commerce finds that the plan is consistent with CZMA goals or in the interest of national security. 43 U.S. C. 1340(c)(2) (1976 ed., Supp. V). The plan must also be disapproved if it would "probably cause serious harm or damage to the marine, coastal, or human environment" 43 U.S. C. 1334(a)(2)(A)(i), 1340(c)(1) (1976 ed., Supp. V). If a plan is disapproved for the latter reason, |
Justice O'Connor | 1,984 | 14 | majority | Secretary of Interior v. California | https://www.courtlistener.com/opinion/111058/secretary-of-interior-v-california/ | V). If a plan is disapproved for the latter reason, the Secretary may "cancel such lease and the lessee shall be entitled to compensation" 43 U.S. C. 1340(c)(1) (1976 ed., Supp. V). There is, of course, no question that CZMA consistency review requirements operate here. CZMA 307(c)(3)(B) expressly applies, and as noted, OCSLA itself refers to the applicable CZMA provision. *340 (4) Development and production. The fourth and final stage is development and production. 43 U.S. C. 1351 (1976 ed., Supp. V). The lessee must submit another plan to Interior. The Secretary must forward the plan to the Governor of any affected State and, on request, to the local governments of affected States, for comment and review. 43 U.S. C. 1345(a), 1351(a)(3) (1976 ed., Supp. V). Again, the Governor's recommendations must be accepted, and the local governments' may be accepted, if they strike a reasonable balance between local and national interests. Reasons for accepting or rejecting a Governor's recommendations must be communicated in writing to the Governor. 43 U.S. C. 1345(c) (1976 ed., Supp. V). In addition, the development and production plan must be consistent with the applicable state coastal management program. The State can veto the plan as "inconsistent," and the veto can be overridden only by the Secretary of Commerce. 43 U.S. C. 1351(d) (1976 ed., Supp. V). A plan may also be disapproved if it would "probably cause serious harm or damage. to the marine, coastal or human environments." 43 U.S. C. 1351(h)(1)(D)(i) (1976 ed., Supp. V). If a plan is disapproved for the latter reason, the lease may again be canceled and the lessee is entitled to compensation. 43 U.S. C. 1351(h)(2)(C) (1976 ed., Supp. V). Once again, the applicability of CZMA to this fourth stage of OCS planning is not in doubt. CZMA 307(c)(3)(B) applies by its own terms, and is also expressly invoked by OCSLA. Congress has thus taken pains to separate the various federal decisions involved in formulating a leasing program, conducting lease sales, authorizing exploration, and allowing development and production. Since 1978, the purchase of an OCS lease, standing alone, entails no right to explore for, develop, or produce oil and gas resources on the OCS. The first two stages are not subject to consistency review; instead, *341 input from State Governors and local governments is solicited by the Secretary of the Interior. The last two stages invite further input for Governors or local governments, but also require formal consistency review. States with approved CZMA plans retain considerable authority to veto inconsistent exploration or development and production plans put forward in those |
Justice O'Connor | 1,984 | 14 | majority | Secretary of Interior v. California | https://www.courtlistener.com/opinion/111058/secretary-of-interior-v-california/ | exploration or development and production plans put forward in those latter stages.[21] The stated reason for this four-part division was to forestall premature litigation regarding adverse environmental effects that all agree will flow, if at all, only from the latter stages of OCS exploration and production.[22] *342 C Having examined the coordinated provisions of CZMA 307(c)(3) and OCSLA we return to CZMA 307(c)(1). As we have noted, the logical paragraph to examine in connection with a lease sale is not 307(c)(1), but 307(c)(3). Nevertheless, even if OCS lease sales are viewed as involving an OCS activity "conduct[ed]" or "support[ed]" by a federal agency, lease sales can no longer aptly be characterized as "directly affecting" the coastal zone. Since 1978 the sale of a lease grants the lessee the right to conduct only very limited, "preliminary activities" on the OCS. It does not authorize full-scale exploration, development, or production. Those activities may not begin until separate federal approval has been obtained, and approval may be denied on several grounds. If approval is denied, the lease may then be canceled, with or without the payment of compensation to the lessee. In these circumstances, the possible effects on the coastal zone that may eventually result from the sale of a lease cannot be termed "direct." It is argued, nonetheless, that a lease sale is a crucial step. Large sums of money change hands, and the sale may therefore generate momentum that makes eventual exploration, development, and production inevitable. On the other side, it is argued that consistency review at the lease sale stage is at best inefficient, and at worst impossible: Leases are sold before it is certain if, where, or how exploration will actually occur. The choice between these two policy arguments is not ours to make; it has already been made by Congress. In the 1978 OCSLA amendments Congress decided that the better course is to postpone consistency review until the two later *343 stages of OCS planning, and to rely on less formal input from State Governors and local governments in the two earlier ones. It is not for us to negate the lengthy, detailed, and coordinated provisions of CZMA 307(c)(3)(B), and OCSLA, 43 U.S. C. 1344-1346 and 1351 (1976 ed., Supp. V), by a superficially plausible but ultimately unsupportable construction of two words in CZMA 307(c)(1). V Collaboration among state and federal agencies is certainly preferable to confrontation in or out of the courts. In view of the substantial consistency requirements imposed at the exploration, development, and production stages of OCS planning, Interior, as well as private bidders on |
Justice Sotomayor | 2,018 | 24 | concurring | Hughes v. United States | https://www.courtlistener.com/opinion/4504244/hughes-v-united-states/ | In this Court confronted the same question it definitively resolves today: whether criminal defendants who enter into plea agreements under Federal Rule of Criminal Procedure 11(c)(1)(C) are eligible for sentencing reduc- tions under 18 U.S. C. ended in a 4–1–4 decision that left lower courts confused as to whether the plurality or the concurring opinion controlled. The plurality of four Justices in concluded that defendants who plead guilty pursuant to a so-called “Type-C agreement” may be eligible for a sentence re- duction under because Type-C sentences are “based on the Guidelines” “to whatever extent the sen- tencing range in question was a relevant part of the an- alytic framework the judge used to determine the sen- tence or to approve the agreement.” Four Justices dissented. at 544–551 (opinion of ROBERTS, C. J.). They would have held that a defendant who pleads guilty pursuant to a Type-C agreement is categorically ineligible for a sentence reduction under because such a sentence is always “based on” the plea agreement, and not on the Guidelines. at 544–548. 2 HUGHES v. UNITED STATES SOTOMAYOR, J., concurring Parting ways with all eight of my colleagues, I con- curred only in the judgment. at 534–544. I held the view that sentences imposed under Type-C agreements are typically “based on” the agreements themselves, not on the Guidelines. at 535–536. “In the (C) agree- ment context,” I explained, “it is the binding plea agreement that is the foundation for the term of impris- onment to which the defendant is sentenced.” at 535. But, in my view, that general rule was not abso- lute. Rejecting the categorical rule adopted by the dis- sent, I instead concluded that some Type-C sentences were “based on” the Guidelines and thus eligible for sen- tencing reductions under at 538–539. Specifically, I clarified that relief was avail- able in cases where the Type-C agreement “call[s] for the defendant to be sentenced within a particular Guidelines sentencing range,” or in cases where the “plea agreement provide[s] for a specific term of im- prisonment but also make[s] clear that the basis for the specified term is a Guidelines sentencing range.” at 538–539. Because ’s agreement presented one such case, I agreed with the plurality that he was eligible for a sentence reduction under See at 542–544. I continue to believe that my concurrence sets forth the most convincing interpretation of ’s statutory text. But I also acknowledge that my concurrence precipitated a 4–1–4 decision that left significant confusion in its wake. Because ’s fractured disposition provided insufficient guidance, courts of appeals have struggled over whether they should |
Justice Sotomayor | 2,018 | 24 | concurring | Hughes v. United States | https://www.courtlistener.com/opinion/4504244/hughes-v-united-states/ | guidance, courts of appeals have struggled over whether they should follow the plurality or my separate con- currence. See ante, at 2–3. As a result, “in the after- math of a defendant’s eligibility for a reduced sentence under turns on the Circuit in which the case arises.” Ante, at 8. And, “even within Circuits Cite as: 584 U. S. (2018) 3 SOTOMAYOR, J., concurring that follow the concurrence, unwarranted dis- parities have resulted depending on the fortuity of whether a defendant’s Type-C agreement includes a specific-enough reference to a Guidelines range.” The integrity and legitimacy of our criminal justice system depend upon consistency, predictability, and evenhandedness. Regrettably, the divided decisions in and my concurrence in particular, have done little to foster those foundational principles. Quite the opposite, my individual views, which “[n]o other Justice shares,” have contributed to ongoing discord among the lower courts, sown confusion among litigants, and left “the governing rule uncertain.” ; see Brief for National Association of Criminal Defense Law- yers et al. as Amici Curiae 3–27 (arguing that the Free- man concurrence leads to unpredictable and incon- sistent results). I therefore join the majority in full because doing so helps to ensure clarity and stability in the law and pro- motes “uniformity in sentencing imposed by different federal courts for similar criminal conduct.” Molina- Martinez v. United States, 578 U. S. (2016) (slip op., at 2) (internal quotation marks and alteration omit- ted; emphasis deleted). Today’s majority opinion charts a clear path forward: It mitigates the inconsistencies and disparities occasioned (at least in part) by my con- currence. It ensures that similarly situated defendants are subject to a uniform legal rule. It studiously ad- heres to “this Court’s precedents since” which firmly establish “that the Guidelines remain the founda- tion of federal sentencing decisions.” Ante, at 8; see ante, at 12 ). And it aligns more closely than the dissent does with the view I 4 HUGHES v. UNITED STATES SOTOMAYOR, J., concurring articulated in1 For all these reasons, I now lend my vote to the majority and accede in its holding “that a sentence imposed pursuant to a Type-C agree- ment is ‘based on’ the defendant’s Guidelines range so long as that range was part of the framework the dis- trict court relied on in imposing the sentence or accept- ing the agreement.” Ante, at 9.2 —————— 1 Unlike the majority, the dissent’s position is incompatible with my view in (and in this case) that criminal defendants who plead guilty under Type-C agreements are not categorically ineligible for relief under See –540 (SOTOMAYOR, J., |
Justice Sotomayor | 2,018 | 24 | concurring | Hughes v. United States | https://www.courtlistener.com/opinion/4504244/hughes-v-united-states/ | not categorically ineligible for relief under See –540 (SOTOMAYOR, J., concurring in judgment). Accordingly, I continue to “reject the categori- cal rule advanced by the Government and endorsed by the dissent.” 2 I am sensitive to the Government’s contention that allowing crimi- nal defendants to obtain reductions of Type-C sentences under might deprive the Government of the benefit of its bargain. Brief for United States 52. But, as the majority persuasively explains, that argument “has nothing to do with whether a defendant’s sentence was based on the Sentencing Guidelines under ” and there- fore has no bearing on whether a defendant who has entered into a Type-C agreement is eligible for a sentence reduction. Ante, at 12; see (“What is at stake is a defendant’s eligibility for relief, not the extent of that relief ”). All that said, there may be circumstances in which the Government makes substantial concessions in entering into a Type-C agreement with a defendant—e.g., by declining to pursue easily proved and weighty sentencing enhancements—such that there is a compelling case that the agreed-upon sentence in the Type-C agreement would not have been affected if the subsequently lowered Guidelines range had been in place at the relevant time. If such circumstances exist, I expect that district courts will take that into account when deciding whether, and to what extent, a Type-C sentence should be reduced under See ante, at 12–13. Cite as: 584 U. S. (2018) 1 ROBERTS, C. J., dissenting SUPREME COURT OF THE UNITED STATES No. 17–155 ERIK LINDSEY HUGHES, PETITIONER v. |
Justice Stevens | 2,000 | 16 | dissenting | Geier v. American Honda Motor Co. | https://www.courtlistener.com/opinion/118371/geier-v-american-honda-motor-co/ | Airbag technology has been available to automobile manufacturers for over 30 years. There is now general agreement on the proposition "that, to be safe, a car must have an airbag." Ante this page. Indeed, current federal law imposes that requirement on all automobile manufacturers. See 49 U.S. C. 30127; 49 CFR 71.208, S4.1.3 (1998). The question raised by petitioners' common-law tort action is whether that proposition was sufficiently obvious when Honda's 1987 Accord was manufactured to make the failure to install such a safety feature actionable under theories of negligence or defective design. The Court holds that an interim regulation motivated by the Secretary of Transportation's desire to foster gradual development of a variety of passive restraint devices deprives state courts of jurisdiction to answer that question. I respectfully dissent from that holding, and especially from the Court's unprecedented extension of the doctrine of pre-emption. As a preface to an explanation of my understanding of the statute and the regulation, these preliminary observations seem appropriate. *887 "This is a case about federalism," that is, about respect for "the constitutional role of the States as sovereign entities." It raises important questions concerning the way in which the Federal Government may exercise its undoubted power to oust state courts of their traditional jurisdiction over common-law tort actions. The rule the Court enforces today was not enacted by Congress and is not to be found in the text of any Executive Order or regulation. It has a unique origin: It is the product of the Court's interpretation of the final commentary accompanying an interim administrative regulation and the history of airbag regulation generally. Like many other judge-made rules, its contours are not precisely defined. I believe, however, that it is fair to state that if it had been expressly adopted by the Secretary of Transportation, it would have read as follows: "No state court shall entertain a common-law tort action based on a claim that an automobile was negligently or defectively designed because it was not equipped with an airbag; "Provided, however, that this rule shall not apply to cars manufactured before September 1, 1986, or after such time as the Secretary may require the installation of airbags in all new cars; and "Provided further, that this rule shall not preclude a claim by a driver who was not wearing her seatbelt that an automobile was negligently or defectively designed because it was not equipped with any passive restraint whatsoever, or a claim that an automobile with particular design features was negligently or defectively designed because it was equipped with one type of |
Justice Stevens | 2,000 | 16 | dissenting | Geier v. American Honda Motor Co. | https://www.courtlistener.com/opinion/118371/geier-v-american-honda-motor-co/ | defectively designed because it was equipped with one type of passive restraint instead of another." Perhaps such a rule would be a wise component of a legislative reform of our tort system. I express no opinion about *888 that possibility. It is, however, quite clear to me that Congress neither enacted any such rule itself nor authorized the Secretary of Transportation to do so. It is equally clear to me that the objectives that the Secretary intended to achieve through the adoption of Federal Motor Vehicle Safety Standard 208 would not be frustrated one whit by allowing state courts to determine whether in 1987 the life saving advantages of airbags had become sufficiently obvious that their omission might constitute a design defect in some new cars. Finally, I submit that the Court is quite wrong to characterize its rejection of the presumption against pre-emption, and its reliance on history and regulatory commentary rather than either statutory or regulatory text, as "ordinary experience-proved principles of conflict pre-emption." Ante, at 874. I The question presented is whether either the National Traffic and Motor Vehicle Safety Act of 1966 (Safety Act or Act), 1 U.S. C. 1381 et seq. (1988 ed.),[1] or the version of Standard 208 promulgated by the Secretary of Transportation in 1984, 49 CFR 71.208, S4.1.3S4.1.4 (1998), pre-empts common-law tort claims that an automobile manufactured in 1987 was negligently and defectively designed because it lacked "an effective and safe passive restraint system, including, but not limited to, airbags." App. 3. In Motor Vehicle Mfrs. of United States, we reviewed the first chapters of the "complex and convoluted history" of Standard 208. It was the "unacceptably high" rate of deaths and injuries caused by automobile accidents that led to the enactment of the Safety Act in 1966. The purpose of the Act, as stated by Congress, *889 was "to reduce traffic accidents and deaths and injuries to persons resulting from traffic accidents." 1 U.S. C. 1381. The Act directed the Secretary of Transportation or his delegate to issue motor vehicle safety standards that "shall be practicable, shall meet the need for motor vehicle safety, and shall be stated in objective terms." 1392(a). The Act defines the term "safety standard" as a "minimum standard for motor vehicle performance, or motor vehicle equipment performance." 1391(2). Standard 208 covers "[o]ccupant crash protection." Its purpose "is to reduce the number of deaths of vehicle occupants, and the severity of injuries, by specifying vehicle crash worthiness requirements [and] equipment requirements for active and passive restraint systems." 49 CFR 71.208, S2 (1998). The first version of that |
Justice Stevens | 2,000 | 16 | dissenting | Geier v. American Honda Motor Co. | https://www.courtlistener.com/opinion/118371/geier-v-american-honda-motor-co/ | 49 CFR 71.208, S2 (1998). The first version of that standard, issued in 19, simply required the installation of manual seatbelts in all automobiles. Two years later the Secretary formally proposed a revision that would require the installation of "passive occupant restraint systems," that is to say, devices that do not depend for their effectiveness on any action by the vehicle occupant. The airbag is one such system.[2] The Secretary's proposal led to a series of amendments to Standard 208 that imposed various passive restraint requirements, culminating in a 1977 regulation that mandated such restraints in all cars by the model year 1984. The two commercially available restraints that could satisfy this mandate *890 were airbags and automatic seatbelts; the regulation allowed each vehicle manufacturer to choose which restraint to install. In 1981, however, following a change of administration, the new Secretary first extended the deadline for compliance and then rescinded the passive restraint requirement altogether. In Motor Vehicle Mfrs. we affirmed a decision by the Court of Appeals holding that this rescission was arbitrary. On remand, Secretary Elizabeth Dole promulgated the version of Standard 208 that is at issue in this case. The 1984 standard provided for a phase-in of passive restraint requirements beginning with the 1987 model year. In that year, vehicle manufacturers were required to equip a minimum of 10% of their new passenger cars with such restraints. While the 1987 Honda Accord driven by Ms. Geier was not so equipped, it is undisputed that Honda complied with the 10% minimum by installing passive restraints in certain other 1987 models. This minimum passive restraint requirement increased to 2% of 1988 models and 40% of 1989 models; the standard also mandated that "after September 1, 1989, all new cars must have automatic occupant crash protection." ; see 49 CFR 71.208, S4.1.3S4.1.4 (1998). In response to a amendment to the Safety Act, the Secretary amended the standard to require that, beginning in the 1998 model year, all new cars have an airbag at both the driver's and right front passenger's positions.[3] Given that Secretary Dole promulgated the 1984 standard in response to our opinion invalidating her predecessor's rescission of the 1977 passive restraint requirement, she provided a full explanation for her decision not to require airbags *891 in all cars and to phase in the new requirements. The initial 3-year delay was designed to give vehicle manufacturers adequate time for compliance. The decision to give manufacturers a choice between airbags and a different form of passive restraint, such as an automatic seatbelt, was motivated in part by safety concerns |
Justice Stevens | 2,000 | 16 | dissenting | Geier v. American Honda Motor Co. | https://www.courtlistener.com/opinion/118371/geier-v-american-honda-motor-co/ | an automatic seatbelt, was motivated in part by safety concerns and in part by a desire not to retard the development of more effective systems. -29001 An important safety concern was the fear of a "public backlash" to an airbag mandate that consumers might not fully understand. The Secretary believed, however, that the use of airbags would avoid possible public objections to automatic seatbelts and that many of the public concerns regarding airbags were unfounded. Although the standard did not require airbags in all cars, it is clear that the Secretary did intend to encourage wider use of airbags. One of her basic conclusions was that "[a]utomatic occupant protection systems that do not totally rely upon belts, such as airbags offer significant additional potential for preventing fatalities and injuries, at least in part because the American public is likely to find them less intrusive; their development and availability should be encouraged through appropriate incentives." ; see also The Secretary therefore included a phase-in period in order to encourage manufacturers to comply with the standard by installing airbags and other (perhaps more effective) nonbelt technologies that they might develop, rather than by installing less expensive automatic seatbelts.[4] As a further incentive *892 for the use of such technologies, the standard provided that a vehicle equipped with an airbag or other nonbelt system would count as 1. vehicles for the purpose of determining compliance with the required 10, 2, or 40% minimum passive restraint requirement during the phase-in period. 49 CFR 71.208, S4.1.3.4(a)(1) (1998). With one oblique exception,[] there is no mention, either in the text of the final standard or in the accompanying comments, of the possibility that the risk of potential tort liability would provide an incentive for manufacturers to install airbags. Nor is there any other specific evidence of an intent to preclude commonlaw tort actions. Before discussing the pre-emption issue, it is appropriate to note that there is a vast difference between a rejection of Honda's threshold arguments in favor of federal pre-emption and a conclusion that petitioners ultimately would prevail on their common-law tort claims. I express no opinion on the possible merit, or lack of merit, of those claims. I do observe, however, that even though good-faith compliance with the minimum requirements of Standard 208 would not provide Honda with a complete defense on the merits,[6] I assume *893 that such compliance would be admissible evidence tending to negate charges of negligent and defective design.[7] In addition, if Honda were ultimately found liable, such compliance would presumably weigh against an award of punitive damages. (concluding that |
Justice Stevens | 2,000 | 16 | dissenting | Geier v. American Honda Motor Co. | https://www.courtlistener.com/opinion/118371/geier-v-american-honda-motor-co/ | presumably weigh against an award of punitive damages. (concluding that substantial compliance with regulatory scheme did not bar award of punitive damages, but noting that "[g]ood faith belief in, and efforts to comply with, all government regulations would be evidence of conduct inconsistent with the mental state requisite for punitive damages" under state law).[8] The parties have not called our attention to any appellate court opinions discussing the merits of similar no-airbag claims despite the fact that airbag technology was available for many years before the promulgation of the 1984 standarda standard that is not applicable to any automobiles manufactured before September 1, 1986. Given that an arguable basis for a pre-emption defense did not exist until that standard was promulgated, it is reasonable to infer that the manufacturers' assessment of their potential liability for compensatory and punitive damages on such claimseven *894 without any pre-emption defensedid not provide them with a sufficient incentive to engage in widespread installation of airbags. Turning to the subject of pre-emption, Honda contends that the Safety Act's pre-emption provision, 1 U.S. C. 1392(d), expressly pre-empts petitioners' common-law noairbag claims. It also argues that the claims are in any event impliedly pre-empted because the imposition of liability in cases such as this would frustrate the purposes of Standard 208. I discuss these alternative arguments in turn. I When a state statute, administrative rule, or common-law cause of action conflicts with a federal statute, it is axiomatic that the state law is without effect. U. S. Const., Art. VI, cl. 2; Cipollone v.Liggett Group, On the other hand, it is equally clear that the Supremacy Clause does not give unelected federal judges carte blanche to use federal law as a means of imposing their own ideas of tort reform on the States.[9] Because of the role of States as separate sovereigns in our federal system, we have long presumed that state lawsparticularly those, such as the provision of tort remedies to compensate for personal injuries, that are within the scope of the States' historic police powersare not to be pre-empted by a federal statute unless it is the clear and manifest purpose of Congress to do so. Medtronic, ; ("If the [federal] statute's terms can be read sensibly not to have a pre-emptive effect, the presumption controls and no pre-emption may be inferred"). *89 When a federal statute contains an express pre-emption provision, "the task of statutory construction must in the first instance focus on the plain wording of [that provision], which necessarily contains the best evidence of Congress' pre-emptive intent." CSX Transp., The Safety Act |
Justice Stevens | 2,000 | 16 | dissenting | Geier v. American Honda Motor Co. | https://www.courtlistener.com/opinion/118371/geier-v-american-honda-motor-co/ | evidence of Congress' pre-emptive intent." CSX Transp., The Safety Act contains both an express pre-emption provision, 1 U.S. C. 1392(d), and a saving clause that expressly preserves common-law claims, 1397(k). The relevant part of the former provides: "Whenever a Federal motor vehicle safety standard established under this subchapter is in effect, no State or political subdivision of a State shall have any authority either to establish, or to continue in effect, with respect to any motor vehicle or item of motor vehicle equipment[,] any safety standard applicable to the same aspect of performance of such vehicle or item of equipment which is not identical to the Federal standard."[10] The latter states: "Compliance with any Federal motor vehicle safety standard issued under this subchapter does not exempt any person from any liability under common law."[11] *896 Relying on 1392(d) and legislative history discussing Congress' desire for uniform national safety standards,[12] Honda argues that petitioners' common-law no-airbag claims are expressly pre-empted because success on those claims would necessarily establish a state "safety standard" not identical to Standard 208. It is perfectly clear, however, that the term "safety standard" as used in these two sections refers to an objective rule prescribed by a legislature or an administrative agency and does not encompass case-specific decisions by judges and juries that resolve common-law claims. That term is used three times in these sections; presumably it is used consistently. The two references to a federal safety standard are necessarily describing an objective administrative rule. 1 U.S. C. 1392(a). When the pre-emption provision refers to a safety standard established by a "State or political subdivision of a State," therefore, it is most naturally read to convey a similar meaning. In addition, when the two sections are read together, they provide compelling evidence of an intent to distinguish between legislative and administrative rulemaking, on the one hand, and commonlaw liability, on the other. This distinction was certainly a rational one for Congress to draw in the Safety Act given that common-law liabilityunlike most legislative or administrative rulemakingnecessarily performs an important remedial role in compensating accident victims. Cf. It is true that in three recent cases we concluded that broadly phrased pre-emptive commands encompassed common-law claims. In Cipollone v. Liggett Group, while we thought it clear that the pre-emption provision in the 196 Federal Cigarette Labeling and Advertising Act applied only to "rulemaking bodies," we concluded that the broad command in the subsequent 1969 *897 amendment that "[n]o requirement or prohibition shall be imposed under State law" did include certain common-law claims.[13] In CSX Transp., where the pre-emption clause |
Justice Stevens | 2,000 | 16 | dissenting | Geier v. American Honda Motor Co. | https://www.courtlistener.com/opinion/118371/geier-v-american-honda-motor-co/ | certain common-law claims.[13] In CSX Transp., where the pre-emption clause of the Federal Railroad Safety Act of 1970 expressly provided that federal railroad safety regulations would pre-empt any incompatible state "`law, rule, regulation, order, or standard relating to railroad safety,' "[14] we held that a federal regulation governing maximum train speed pre-empted a negligence claim that a speed under the federal maximum was excessive. And in Medtronic, we recognized that the statutory reference to "any requirement" imposed by a State or its political subdivisions may include common-law -03 ; ; The statutes construed in those cases differed from the Safety Act in two significant respects. First, the language in each of those pre-emption provisions was significantly broader than the text of 1392(d). Unlike the broader language of those provisions, the ordinary meaning of the term "safety standard" includes positive enactments, but does not include judicial decisions in common-law tort cases. Second, the statutes at issue in Cipollone, CSX, and Medtronic did not contain a saving clause expressly preserving common-law remedies. The saving clause in the Safety Act *898 unambiguously expresses a decision by Congress that compliance with a federal safety standard does not exempt a manufacturer from any common-law liability. In light of this reference to common-law liability in the saving clause, Congress surely would have included a similar reference in 1392(d) if it had intended to pre-empt such liability. The Court does not disagree with this interpretation of the term "safety standard" in 1392(d). Because the meaning of that term as used by Congress in this statute is clear, the text of 1392(d) is itself sufficient to establish that the Safety Act does not expressly pre-empt common-law claims. In order to avoid the conclusion that the saving clause is superfluous, therefore, it must follow that it has a different purpose: to limit, or possibly to foreclose entirely, the possible pre-emptive effect of safety standards promulgated by the Secretary. The Court's approach to the case has the practical effect of reading the saving clause out of the statute altogether.[1] Given the cumulative force of the fact that 1392(d) does not expressly pre-empt common-law claims and the fact that 1397(k) was obviously intended to limit the pre-emptive effect of the Secretary's safety standards, it is quite wrong for the Court to assume that a possible implicit conflict with the purposes to be achieved by such a standard should have the same pre-emptive effect "`as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.' " Ante, at 873. Properly construed, the Safety Act imposes a special |
Justice Stevens | 2,000 | 16 | dissenting | Geier v. American Honda Motor Co. | https://www.courtlistener.com/opinion/118371/geier-v-american-honda-motor-co/ | at 873. Properly construed, the Safety Act imposes a special burden on a party relying on an arguable, implicit conflict with a temporary regulatory policy *899 rather than a conflict with congressional policy or with the text of any regulationto demonstrate that a common-law claim has been pre-empted. IV Even though the Safety Act does not expressly pre-empt common-law claims, Honda contends that Standard 208of its own forceimplicitly pre-empts the claims in this case. "We have recognized that a federal statute implicitly overrides state law either when the scope of a statute indicates that Congress intended federal law to occupy a field exclusively, or when state law is in actual conflict with federal law. We have found implied conflict preemption where it is `impossible for a private party to comply with both state and federal requirements,' or where state law `stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.'" Freightliner In addition, we have concluded that regulations "intended to pre-empt state law" that are promulgated by an agency acting nonarbitrarily and within its congressionally delegated authority may also have pre-emptive force. Fidelity Fed. Sav. & Loan In this case, Honda relies on the last of the implied pre-emption principles stated in Freightliner, arguing that the imposition of common-law liability for failure to install an airbag would frustrate the purposes and objectives of Standard 208. Both the text of the statute and the text of the standard provide persuasive reasons for rejecting this argument. The saving clause of the Safety Act arguably denies the Secretary the authority to promulgate standards that would *900 pre-empt common-law remedies.[16] Moreover, the text of Standard 208 says nothing about pre-emption, and I am not persuaded that Honda has overcome our traditional presumption that it lacks any implicit pre-emptive effect. Honda argues, and the Court now agrees, that the risk of liability presented by common-law claims that vehicles without airbags are negligently and defectively designed would frustrate the policy decision that the Secretary made in promulgating Standard 208. This decision, in their view, was that safetyincluding a desire to encourage "public acceptance of the airbag technology and experimentation with better passive restraint systems"[17]would best be promoted *901 through gradual implementation of a passive restraint requirement making airbags only one of a variety of systems that a manufacturer could install in order to comply, rather than through a requirement mandating the use of one particular system in every vehicle. In its brief supporting Honda, the United States agreed with this submission. It argued that if the manufacturers had known |
Justice Stevens | 2,000 | 16 | dissenting | Geier v. American Honda Motor Co. | https://www.courtlistener.com/opinion/118371/geier-v-american-honda-motor-co/ | this submission. It argued that if the manufacturers had known in 1984 that they might later be held liable for failure to install airbags, that risk "would likely have led them to install airbags in all cars," thereby frustrating the Secretary's safety goals and interfering with the methods designed to achieve them. Brief for United States as Amicus Curiae 2. There are at least three flaws in this argument that provide sufficient grounds for rejecting it. First, the entire argument is based on an unrealistic factual predicate. Whatever the risk of liability on a no-airbag claim may have been prior to the promulgation of the 1984 version of Standard 208, that risk did not lead any manufacturer to install airbags in even a substantial portion of its cars. If there had been a realistic likelihood that the risk of tort liability would have that consequence, there would have been no need for Standard 208. The promulgation of that standard certainly did not increase the pre-existing risk of liability. Even if the standard did not create a previously unavailable pre-emption defense, it likely reduced the manufacturers' risk of liability by enabling them to point to the regulation and their compliance therewith as evidence tending to negate charges of negligent and defective design. See Part Given that the pre-1984 risk of liability did not lead to widespread airbag installation, this reduced risk of liability was hardly likely to compel manufacturers to install airbags in all cars or even to compel them to comply with Standard 208 during the phase-in period by installing airbags exclusively. Second, even if the manufacturers' assessment of their risk of liability ultimately proved to be wrong, the purposes of Standard 208 would not be frustrated. In light of the inevitable *902 time interval between the eventual filing of a tort action alleging that the failure to install an airbag is a design defect and the possible resolution of such a claim against a manufacturer, as well as the additional interval between such a resolution (if any) and manufacturers' "compliance with the state-law duty in question," ante, at 882, by modifying their designs to avoid such liability in the future, it is obvious that the phase-in period would have ended long before its purposes could have been frustrated by the specter of tort liability. Thus, even without pre-emption, the public would have been given the time that the Secretary deemed necessary to gradually adjust to the increasing use of airbag technology and allay their unfounded concerns about it. Moreover, even if any no-airbag suits were ultimately resolved against manufacturers, |
Justice Stevens | 2,000 | 16 | dissenting | Geier v. American Honda Motor Co. | https://www.courtlistener.com/opinion/118371/geier-v-american-honda-motor-co/ | even if any no-airbag suits were ultimately resolved against manufacturers, the resulting incentive to modify their designs would have been quite different from a decision by the Secretary to mandate the use of airbags in every vehicle. For example, if the extra credit provided for the use of nonbelt passive restraint technologies during the phase-in period had (as the Secretary hoped) ultimately encouraged manufacturers to develop a nonbelt system more effective than the airbag, manufacturers held liable for failing to install passive restraints would have been free to respond by modifying their designs to include such a system instead of an airbag.[18] It seems clear, therefore, that any *903 potential tort liability would not frustrate the Secretary's desire to encourage both experimentation with better passive restraint systems and public acceptance of airbags. Third, despite its acknowledgment that the saving clause "preserves those actions that seek to establish greater safety than the minimum safety achieved by a federal regulation intended to provide a floor," ante, at 870, the Court completely ignores the important fact that by definition all of the standards established under the Safety Actlike the British regulations that governed the number and capacity of lifeboats aboard the Titanic[19]impose minimum, rather than fixed or maximum, requirements. 1 U.S. C. 1391(2); see Norfolk Southern R. Co. v. Shanklin, ante, at 39 (Breyer, J., concurring) ("[F]ederal minimum safety standards should not pre-empt a state tort action"); Hillsborough The phase-in program authorized by Standard 208 thus set minimum percentage requirements for the installation of passive restraints, increasing in annual stages of 10, 2, 40, and 100%. Those requirements were not ceilings, and it is obvious that the Secretary favored a more rapid increase. The possibility that exposure to potential tort liability *904 might accelerate the rate of increase would actually further the only goal explicitly mentioned in the standard itself: reducing the number of deaths and severity of injuries of vehicle occupants. Had gradualism been independently important as a method of achieving the Secretary's safety goals, presumably the Secretary would have put a ceiling as well as a floor on each annual increase in the required percentage of new passive restraint installations. For similar reasons, it is evident that variety was not a matter of independent importance to the Secretary. Although the standard allowed manufacturers to comply with the minimum percentage requirements by installing passive restraint systems other than airbags (such as automatic seatbelts), it encouraged them to install airbags and other nonbelt systems that might be developed in the future. The Secretary did not act to ensure the use of a variety |
Justice Stevens | 2,000 | 16 | dissenting | Geier v. American Honda Motor Co. | https://www.courtlistener.com/opinion/118371/geier-v-american-honda-motor-co/ | did not act to ensure the use of a variety of passive restraints by placing ceilings on the number of airbags that could be used in complying with the minimum requirements.[20] Moreover, even if variety and gradualism had been independently important to the Secretary, there is nothing in the standard, the accompanying commentary, or the history of airbag regulation to support the notion that the Secretary intended to advance those purposes at all costs, without regard to the detrimental consequences that pre-emption of tort liability could have for the achievement of her avowed purpose of reducing vehicular injuries. See My disagreement with Honda and the Government runs deeper than these flaws, however. In its brief, the Government concedes that "[a] claim that a manufacturer should have chosen to install airbags rather than another type of *90 passive restraint in a certain model of car because of other design features particular to that car would not necessarily frustrate Standard 208's purposes." Brief for United States as Amicus Curiae 26, n. 23.[21] Petitioners' claims here are quite similar to the claim described by the Government: their complaint discusses other design features particular to the 1987 Accord (such as the driver's seat) that allegedly rendered it unreasonably dangerous to operate without an airbag. App. 4-. The only distinction is that in this case, the particular 1987 Accord driven by Ms. Geier included no passive restraint of any kind because Honda chose to comply with Standard 208's 10% minimum requirement by installing passive restraints in other 1987 models. I fail to see how this distinction makes a difference to the purposes of Standard 208, however. If anything, the type of claim favored by the Governmente. g., that a particular model of car should have contained an airbag instead of an automatic seatbeltwould seem to trench even more severely upon the purposes that the Government and Honda contend were behind the promulgation of Standard 208: that having a variety of passive restraints, rather than only airbags, was necessary to promote safety. Thus, I conclude that the Government, on the Secretary's behalf, has failed to articulate a coherent view of the policies behind Standard 208 that would be frustrated by petitioners' claims. V For these reasons, it is evident that Honda has not crossed the high threshold established by our decisions regarding *906 pre-emption of state laws that allegedly frustrate federal purposes: it has not demonstrated that allowing a commonlaw no-airbag claim to go forward would impose an obligation on manufacturers that directly and irreconcilably contradicts any primary objective that the Secretary set forth with clarity |
Justice Stevens | 2,000 | 16 | dissenting | Geier v. American Honda Motor Co. | https://www.courtlistener.com/opinion/118371/geier-v-american-honda-motor-co/ | any primary objective that the Secretary set forth with clarity in Standard 208. ; Furthermore, it is important to note that the text of Standard 208 (which the Court does not even bother to quote in its opinion), unlike the regulation we reviewed in Fidelity Fed. Sav. & Loan does not contain any expression of an intent to displace state law. Given our repeated emphasis on the importance of the presumption against pre-emption, see, e. g., CSX Transp., -; Rice v. Santa Fe Elevator this silence lends additional support to the conclusion that the continuation of whatever common-law liability may exist in a case like this poses no danger of frustrating any of the Secretary's primary purposes in promulgating Standard 208. See Hillsborough 471 U. S., at ; The Court apparently views the question of pre-emption in this case as a close one. Ante, at 883 (relying on Secretary's interpretation of Standard 208's objectives to bolster its finding of pre-emption). Under "ordinary experienceproved principles of conflict pre-emption," ante, at 874, therefore, the presumption against pre-emption should control. Instead, the Court simply ignores the presumption, *907 preferring instead to put the burden on petitioners to show that their tort claim would not frustrate the Secretary's purposes. Ante, at 882 (noting that petitioners' arguments "cannot, by themselves, change the legal result"). In view of the important principles upon which the presumption is founded, however, rejecting it in this manner is profoundly unwise. Our presumption against pre-emption is rooted in the concept of federalism. It recognizes that when Congress legislates "in a field which the States have traditionally occupied [,] we start with the assumption that the historic police powers of the States were not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress." Rice v. Santa Fe Elevator 331 U. S., at ; see The signal virtues of this presumption are its placement of the power of pre-emption squarely in the hands of Congress, which is far more suited than the Judiciary to strike the appropriate state/federal balance (particularly in areas of traditional state regulation), and its requirement that Congress speak clearly when exercising that power. In this way, the structural safeguards inherent in the normal operation of the legislative process operate to defend state interests from undue infringement. ; see United States v. Morrison, ante, at 660-663 (Breyer, J., dissenting); ; Allied-Bruce Terminix ; In addition, the presumption serves as a limiting principle that prevents federal judges from running amok with our potentially boundless (and perhaps inadequately considered) doctrine of implied conflict pre-emption |
Justice Stevens | 2,000 | 16 | dissenting | Geier v. American Honda Motor Co. | https://www.courtlistener.com/opinion/118371/geier-v-american-honda-motor-co/ | boundless (and perhaps inadequately considered) doctrine of implied conflict pre-emption based on frustration of purposesi. e., that state law is pre-empted if it "stands as an obstacle to the accomplishment and execution *908 of the full purposes and objectives of Congress."[22] While the presumption is important in assessing the preemptive reach of federal statutes, it becomes crucial when the pre-emptive effect of an administrative regulation is at issue. Unlike Congress, administrative agencies are clearly not designed to represent the interests of States, yet with relative ease they can promulgate comprehensive and detailed regulations that have broad pre-emption ramifications for state law. We have addressed the heightened federalism and nondelegation concerns that agency pre-emption raises by using the presumption to build a procedural bridge across the political accountability gap between States and administrative agencies. Thus, even in cases where implied regulatory pre-emption is at issue, we generally "expect an administrative regulation to declare any intention to pre-empt state law with some specificity."[23]California Coastal *909 ; see Hillsborough -718 (noting that too easily implying pre-emption "would be inconsistent with the federal-state balance embodied in our Supremacy Clause jurisprudence," and stating that "because agencies normally address problems in a detailed manner and can speak through a variety of means, including regulations, preambles, interpretive statements, and responses to comments, we can expect that they will make their intentions clear if they intend for their regulations to be exclusive"); Fidelity Fed. Sav. & Loan This expectation, which is shared by the Executive Branch,[24] serves to ensure that States will be able to have a dialog *910 with agencies regarding pre-emption decisions ex ante through the normal notice-and-comment procedures of the Administrative Procedure Act (APA), U.S. C. 3. When the presumption and its underpinnings are properly understood, it is plain that Honda has not overcome the presumption in this case. Neither Standard 208 nor its accompanying commentary includes the slightest specific indication of an intent to pre-empt common-law no-airbag suits. Indeed, the only mention of such suits in the commentary tends to suggest that they would not be pre-empted. See n. In the Court's view, however, "[t]he failure of the Federal Register to address pre-emption explicitly is not determinative," ante, at 884, because the Secretary's consistent litigating position since 1989, the history of airbag regulation, and the commentary accompanying the final version of Standard 208 reveal purposes and objectives of the Secretary that would be frustrated by no-airbag suits. Preempting on these three bases blatantly contradicts the presumption against pre-emption. When the 1984 version of Standard 208 was under consideration, the States obviously were not afforded |
Justice Stevens | 2,000 | 16 | dissenting | Geier v. American Honda Motor Co. | https://www.courtlistener.com/opinion/118371/geier-v-american-honda-motor-co/ | 208 was under consideration, the States obviously were not afforded any notice that purposes might someday be discerned in the history of airbag regulation that would support pre-emption. Nor does the Court claim that the notice of proposed rulemaking that led to Standard 208 provided the States with notice either that the final version of the standard might contain an express pre-emption provision or that the commentary accompanying it might contain a statement of purposes with arguable pre-emptive effect. Finally, the States plainly had no opportunity to comment upon either the commentary accompanying the final version of the standard or the Secretary's ex post litigating position that the standard had implicit pre-emptive effect. Furthermore, the Court identifies no case in which we have upheld a regulatory claim of frustration-of-purposes implied conflict pre-emption based on nothing more than an ex post administrative litigating position and inferences from *911 regulatory history and final commentary. The latter two sources are even more malleable than legislative history. Thus, when snippets from them are combined with the Court's broad conception of a doctrine of frustration-ofpurposes pre-emption untempered by the presumption, a vast, undefined area of state law becomes vulnerable to preemption by any related federal law or regulation. In my view, however, "preemption analysis is, or at least should be, a matter of precise statutory [or regulatory] construction rather than an exercise in free-form judicial policymaking." 1 L. Tribe, American Constitutional Law 6-28, p. 1177 As to the Secretary's litigating position, it is clear that "an interpretation contained in a [legal brief], not one arrived at after, for example, a formal adjudication or notice-andcomment rulemaking[,] do[es] not warrant Chevron -style deference." Christensen v. Harris County, ante, at 87. Moreover, our pre-emption precedents and the APA establish that even if the Secretary's litigating position were coherent, the lesser deference paid to it by the Court today would be inappropriate. Given the Secretary's contention that he has the authority to promulgate safety standards that pre-empt state law and the fact that he could promulgate a standard such as the one quoted with relative ease, we should be quite reluctant to find preemption based only on the Secretary's informal effort to recast the 1984 version of Standard 208 into a pre-emptive mold.[2] See Hillsborough County v. Automated Medical *912 Laboratories, 471 U. S., at ; cf. Medtronic, 18 U. S., at 12 ("It is not certain that an agency regulation determining the pre-emptive effect of any federal statute is entitled to deference"); 17 U.S. 73, Requiring the Secretary to put his pre-emptive position through formal notice-and-comment rulemakingwhether contemporaneously |
Justice Stevens | 2,000 | 16 | dissenting | Geier v. American Honda Motor Co. | https://www.courtlistener.com/opinion/118371/geier-v-american-honda-motor-co/ | to put his pre-emptive position through formal notice-and-comment rulemakingwhether contemporaneously with the promulgation of the allegedly pre-emptive regulation or at any later time that the need for pre-emption becomes apparent[26]respects both the federalism and nondelegation principles that underlie the presumption against pre-emption in the regulatory context and the APA's requirement of new rulemaking when an agency substantially modifies its interpretation of a regulation. U.S. C. 1(); Paralyzed Veterans of 117 F.3d 79, 86 ; National Family Planning & Reproductive Health v. Sullivan, * * * Because neither the text of the statute nor the text of the regulation contains any indication of an intent to pre-empt *913 petitioners' cause of action, and because I cannot agree with the Court's unprecedented use of inferences from regulatory history and commentary as a basis for implied pre-emption, I am convinced that Honda has not overcome the presumption against pre-emption in this case. I therefore respectfully dissent. |
Justice White | 1,983 | 6 | concurring | Bell v. New Jersey | https://www.courtlistener.com/opinion/110945/bell-v-new-jersey/ | The Court holds that the "plain language" of 207(a)(1) of the Elementary and Secondary Education Act of 1965, Stat. 32, and its successor provision, 415 of the General Education Provisions Act, 20 U.S. C. 1226a-1 (1976 ed., Supp. V), expressly grants the Secretary of Education (1) the right to require States to repay misspent Title I funds, and (2) the right to make an administrative adjudication of the question whether funds have in fact been misspent, with the result that such adjudication is subject to judicial review only on a limited, "substantial evidence" basis. Ante, at 782-792. The Secretary will no doubt be pleased with today's holding, but I note that he must have thought the authorizing language of this provision was not so "plain," since his lawyers deemed it worthy of no more than passing mention in his brief. See Brief for Petitioner 7, 20. I join the Court's opinion, although I would have preferred to decide the case on a different basis, one that has been thoroughly briefed. Specifically, I would have held that the 1978 Amendments, see 20 U.S. C. 1234, 2835(b) (1976 ed., Supp. V), which unequivocally state that the Secretary may administratively recoup misspent Title I funds, should be applied retroactively. A federal court or administrative agency must "apply the law in effect at the the time it renders its decision, unless doing so would result in manifest injustice or there is statutory direction or legislative history to the contrary." Accord, Gulf Offshore Here, nothing in the 1978 Amendments or the legislative history suggests that the Amendments were not intended to be applied retroactively, *794 and their application to this case would not result in manifest injustice. The States entered into contractual-type agreements with the United States to disburse the moneys in accordance with specified conditions. The States had no legitimate claim to a right to be able to breach these agreements with impunity. In the absence of any contrary congressional intent, agreements such as these are surely enforceable in a court of law. Therefore, at most, the 1978 Amendments merely changed the appropriate forum for litigating the Federal Government's claims that the agreements had been breached from a court of competent jurisdiction to an administrative tribunal. Because there is no manifest injustice in a simple change of forum, see ante, at 777-778, n. 3; there is no bar to the retroactive application of the 1978 Amendments, and this case more preferably should have been decided on this basis. In closing, I also note that this case does not involve any question as to the |
Justice Scalia | 2,002 | 9 | dissenting | Devlin v. Scardelletti | https://www.courtlistener.com/opinion/121145/devlin-v-scardelletti/ | "The rule that only parties to a lawsuit, or those that properly become parties, may appeal an adverse judgment, is well settled." ; Fed. Rule App. Proc. 3(c)(1) ("The notice of appeal must specify the party or parties taking the appeal"). This is one well-settled rule that, thankfully, the Court leaves intact. Other chapters in the hornbooks are not so lucky. I The Court holds that petitioner, a nonnamed member of the class in a class action litigated by a representative member of the class, is a "party" to the judgment approving the class settlement. This is contrary to well-established law. The "parties" to a judgment are those named as such whether as the original plaintiff or defendant in the complaint giving rise to the judgment, or as "[o]ne who [though] not an original party become[s] a party by intervention, substitution, or third-party practice," As the Restatement puts it, "[a] person who is named as a party to an action and subjected to the jurisdiction of the court is a party to the action," Restatement (Second) of Judgments 34(1), p. 345 (1980) (hereinafter Restatement); "[t]he designation of persons as parties is usually made in the caption of the summons or complaint but additional parties may be named in such pleadings as a counterclaim, a complaint against a third party filed by a defendant, or a complaint in intervention," 34, Comment a, Reporter's Note, at 347. As was the case here, the only members of a class who are typically named in the complaint are the class representatives; thus, it is only these members of the class, and those who intervene or otherwise enter through third-party practice, who are parties to the class judgment. This is confirmed by the application of those Federal Rules of Civil Procedure that confer upon *16 "parties" to the the rights to take such actions as conducting discovery and moving for summary judgment, e. g., Fed. Rules Civ. Proc. 30(a)(1), 31(a)(1), 33(a), 34(a), 36(a), 45(a)(3), 56(a), 56(b), 56(e). It is undisputed that the class representatives are the only members of the class who have such rights. Petitioner was offered the opportunity to be named the class representative, but he declined; nor did he successfully intervene. Ante, at 4, 5. Accordingly, he is not a party to the class judgment. A The Court does not deny that, at least as a general matter, only those persons named as such are the "parties." Rather, it contends that persons "may be parties for some purposes and not for others," ante, at 10, and that petitioner is a party to |
Justice Scalia | 2,002 | 9 | dissenting | Devlin v. Scardelletti | https://www.courtlistener.com/opinion/121145/devlin-v-scardelletti/ | ante, at 10, and that petitioner is a party to the class judgment at least for the "purposes of appealing," ante, at 7.[1] The Court bases these contentions on three of our precedents, which it says stand for the proposition that "[w]e have never restricted the right to appeal to named parties to the" These precedents stand for nothing of the sort. All of these precedents are perfectly consistent with the rule that only named parties to a judgment can appeal the judgment because they involved appeals not from judgments but from collateral orders. The appellants were allowed to appeal from the collateral orders to which they were parties, *17 even though they were not named parties to (and hence would not have been able to appeal from) the underlying judgments. We made this distinction between appealing the judgment and appealing a collateral order quite explicit in In that case, the appellant was not a named party to the underlying foreclosure decree, from which it was therefore "certainly true that he [could not] appeal," yet he was a party (obviously, as the movant) to the motion he filed asking the court to complete the foreclosure sale, and therefore could appeal from the order denying that motion. Our decisions in (18), and United States Catholic are to the same effect. In the former, the appellant was not a named party to the underlying foreclosure decree, from which we said he "cannot and does not attempt to appeal," but he was obviously a party to the collateral order directing him by name to transfer funds to the court, from which we said he could appeal. In the latter, witnesses who had been dismissed as named parties to the underlying were allowed to appeal from a collateral order holding them in contempt for their failure to comply with a subpoena addressed to them (and to which they were therefore obviously parties), These cases demonstrate why, even though petitioner should not be able to appeal the District Court's judgment approving the class settlement, there is no dispute that petitioner could (and did) appeal the District Court's collateral order denying his motion to intervene; as the movant, he was a party to the latter. See 484 U. S., at[2] *18 B The Court's other grounds for holding that petitioner is a party to the class judgment are equally weak. First, it contends that petitioner should be considered a party to the judgment because, as a member of the class, he is bound by it. Ante, at 10 ("What is most important to this case is |
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