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Justice Thomas | 2,020 | 1 | concurring | Financial Oversight and Management Bd. for Puerto Rico v. Aurelius Investment, LLC | https://www.courtlistener.com/opinion/4759389/financial-oversight-and-management-bd-for-puerto-rico-v-aurelius/ | it “shall become effective” only when Puerto Rico “declare[s] in a formal res- olution its acceptance.” –32. Finally, the con- stitutional convention approved the modified Constitution, and the people of Puerto Rico subsequently ratified modifi- cations in another referendum. Thus, although the terms of the compact provided for Congress’ approval, “when such constitution did go into effect pursuant to the resolution of approval by the Congress, it became what the Congress called it, a ‘constitution’ under which the people of Puerto Rico organized a government of their own adoption.” (ci- tation omitted). “The Commonwealth’s power, the [Puerto Rico] Constitution proclaims, ‘emanates from the people and shall be exercised in accordance with their will, within the terms of the compact agreed upon between the people of Puerto Rico and the United States.’ ” Sánchez Valle, 579 U. S., at (slip op., at 4). With the passage of Public Law 600 and the adoption and recognition of the Puerto Rico Constitution, “the United States and Puerto Rico forged a unique political rela- tionship, built on the island’s evolution into a constitutional democracy exercising local self-rule.” at (slip op., at 2); cf. )). Of critical import here, the Federal Government “relin- quished its control over [Puerto Rico’s] local affairs[,] Cite as: 590 U. S. (2020) 5 SOTOMAYOR, J., concurring in judgment grant[ing] Puerto Rico a measure of auomy comparable to that possessed by the States.” Examining Bd. of Engi- neers, Architects and Surveyors v. Flores de 426 U.S. 572, 597 (1976). Indeed, the very “purpose of Congress in the 1950 and 1952 legislation was to accord Puerto Rico the degree of auomy and independence normally associated with States of the Union.” ; see S. Rep. No. 1779, 1st Cong., 2d Sess., 2 (1950) (Public Law 600 was “designed to complete the full measure of local self-govern- ment in” Puerto Rico); H. R. Rep. No. 2275, 1st Cong., 2d Sess., 6 (1950) (Public Law 600 was a “reaffirmation by the Congress of the self-government principle”).1 The upshot is that “Puerto Rico, like a State, is an auomous political entity, ‘ “sovereign over matters not ruled by the [Federal] Constitution.” ’ ” (quoting 416 U.S., at 673). And only by holding out that guarantee to the United Nations has the Federal Government been able to disclaim certain continuing obligations it previously owed with re- spect to Puerto Rico under the United Nations Charter. See infra, at 11–12. B In the decades that followed, Puerto Rico underwent fur- ther changes as a Commonwealth. For many years, the is- land experienced dynamic growth, increasing its gross na- |
Justice Thomas | 2,020 | 1 | concurring | Financial Oversight and Management Bd. for Puerto Rico v. Aurelius Investment, LLC | https://www.courtlistener.com/opinion/4759389/financial-oversight-and-management-bd-for-puerto-rico-v-aurelius/ | the is- land experienced dynamic growth, increasing its gross na- tional product more than fourfold from 1950 to 1971. Cheatham, Council on Foreign Relations, Puerto Rico: A U. S. Territory in Crisis (Feb. 13, 2020). In 1976, after the —————— 1 To be sure, Public Law 600 reserved certain limited powers to Con- gress (some of which were soon repealed). See ante, at 12–13. But those narrow reservations of federal control did not purport to diminish the full measure of territorial self-governance conferred upon the people of Puerto Rico through Public Law 600 and the Puerto Rico Constitution. See Stat. 953; –320. 6 FINANCIAL OVERSIGHT AND MANAGEMENT BD. FOR PUERTO RICO v. AURELIUS INVESTMENT, LLC SOTOMAYOR, J., concurring in judgment revised Federal Tax Code conferred preferential tax treat- ment on productive industries in Puerto Rico, Puerto Rico developed robust pharmaceutical and manufacturing sec- tors. Issacharoff, Bursak, Rennie, & Webley, What Is Puerto Rico? 94 Ind. L. J. 1, 27 (2019). Eventually, however, the island and its people confronted several economic setbacks. Congress repealed Puerto Rico’s favorable tax credits, and manufacturing growth deflated, precipitating a prolonged recession. Steady outmigration correlated with persistently high unemployment rates greater than percent. Dept. of Labor, Bureau of Labor Statistics, Databases, Tables & Calculators by Subject (May 2, 2020). Deprived of its primary sources of income, the Commonwealth began borrowing heavily. The island’s outstanding debts rose to approximately $70 billion, a sum greater than its annual economic output. Puerto Rico’s credit ratings were downgraded to junk levels, D. Austin, Congressional Research Service, Puerto Rico’s Current Fis- cal Challenges 4, 13 (June 3, 2016), rendering borrowing practically impossible. Without any realistic ability to set its finances on the right course, the island declared bank- ruptcy in 2016. Months later, Hurricane Maria made landfall, causing immense devastation and a humanitarian emergency the likes of which had not been seen in over a century. The island suffered thousands of casualties and an estimated $90 billion in damages. Most recently, significant earth- quakes have further rattled an already shaken population and economy still recovering from the impact of Hurricane Maria. Robles, Months After Puerto Rico Earthquakes, Thousands Are Still Living Outside, N. Y. Times, Mar. 1, 2020. C Congress passed the Puerto Rico Oversight, Manage- ment, and Economic Stability Act (PROMESA), 130 Stat. Cite as: 590 U. S. (2020) 7 SOTOMAYOR, J., concurring in judgment 549, 4 U.S. C. et seq., in the midst of Puerto Rico’s dramatic reversal of fortune, with the aim of mitigating the island’s “severe economic decline,” see 4 U.S. C. To that end, the statute |
Justice Thomas | 2,020 | 1 | concurring | Financial Oversight and Management Bd. for Puerto Rico v. Aurelius Investment, LLC | https://www.courtlistener.com/opinion/4759389/financial-oversight-and-management-bd-for-puerto-rico-v-aurelius/ | decline,” see 4 U.S. C. To that end, the statute establishes a Finan- cial Oversight and Management Board to oversee the is- land’s finances and restructure its debts. See ante, at 3–4; Issacharoff, 94 Ind. L. J., at 30–31. The Board’s decisions have affected the island’s entire population, particularly many of its most vulnerable citi- zens. The Board has ordered pensions to be reduced by as much as5 percent, a measure that threatens the sole source of income for thousands of Puerto Rico’s poor and el- derly. Walsh & Russell, $129 Billion Puerto Rico Bank- ruptcy Plan Could Be Model for States, N. Y. Times, Sept. 29, 2019. Other proposed cuts take aim at already depleted healthcare and educational services. It is under the yoke of such austerity measures that the island’s 3.2 million citi- zens now chafe. PROMESA does not provide for the appointment of Board members according to the straightforward methods set out in the Appointments U. S. Const., Art. II, cl. 2 (requiring principal “Officers of the United States” to be nominated by the President, with Senate advice and con- sent). Instead, the statute prescribes a labyrinthine proce- dure by which the Speaker of the House, majority leader of the Senate, minority leader of the House, and minority leader of the Senate each submit to the President separate lists with any number of candidates; and the President, in turn, selects individuals from each of those lists, plus an individual in his sole discretion. See – 555.2 With only one exception, then, the President is not —————— 2 Specifically, PROMESA provides that “[t]he Board shall be comprised of one Category A member, one Category B member, two Category C members, one Category D member, one Category E member, and one Category F member.” The Speaker of the House submits “separate, non-overlapping list[s]” for the Category A and FINANCIAL OVERSIGHT AND MANAGEMENT BD. FOR PUERTO RICO v. AURELIUS INVESTMENT, LLC SOTOMAYOR, J., concurring in judgment “singly and absolutely” responsible for any members of the Board. The Federalist No. 77, p. (C. Rossiter ed. 1961) (A. Hamil) (Appointments Clause ensures that “[t]he blame of a bad nomination fall[s] upon the President singly and absolutely”). And with no exceptions, the Senate fails to advise or consent to the President’s selections. Despite the Board’s wide-ranging, veto-free authority over Puerto Rico, the solitary role PROMESA contemplates for Puerto Rican-selected officials is this: The Governor of Puerto Rico sits as an ex officio Board member without any voting rights. No individual within Puerto Rico’s government plays any part in deter- mining which seven members |
Justice Thomas | 2,020 | 1 | concurring | Financial Oversight and Management Bd. for Puerto Rico v. Aurelius Investment, LLC | https://www.courtlistener.com/opinion/4759389/financial-oversight-and-management-bd-for-puerto-rico-v-aurelius/ | government plays any part in deter- mining which seven members now decide matters critical to the island’s financial fate. II A In concluding that the Board members are territorial of- ficers not subject to the strictures of the Appointment Clause, the Court does not meaningfully address Puerto Rico’s history or status. Nor need it, as the parties do not discuss the potential consequences that Congress’ recogni- tion of complete self-government decades ago may have on the Appointments Clause analysis. But in my view, how- ever one distinguishes territorial officers from federal offic- ers (whether under the Court’s “primarily local” test, ante, at 14, or some other standard), the longstanding compact between the Federal Government and Puerto Rico raises —————— Category B members, the majority leader for the Senate submits a list for the two Category C members, the majority leader of the House sub- mits a list for the Category D member, and the minority leader of the Senate submits a list for the Category E member. at 554–555. Finally, “the Category F member may be selected in the Pres- ident’s sole discretion.” Many other condi- tions apply to the lists submitted and the individuals who may appear on them. See generally ), at 554–556. Cite as: 590 U. S. (2020) 9 SOTOMAYOR, J., concurring in judgment grave doubts as to whether the Board members are territo- rial officers not subject to the Appointments When Puerto Rico and Congress entered into a compact and rati- fied a constitution of Puerto Rico’s adoption, Congress ex- plicitly left the authority to choose Puerto Rico’s govern- mental officers to the people of Puerto Rico. That turn of events seems to give to Puerto Rico, through a voluntary concession by the Federal Government, the exclusive right to establish Puerto Rico’s own territorial officers. No less than the bedrock principles of government upon which this Nation was founded ground this proposition. When the Framers resolved to build this Nation on a repub- lican form of government, they understood that the Ameri- can people would have the authority to select their own gov- ernmental officers. See, e.g., The Federalist No. at 251 (J. Madison) (“[W]e may define a republic to be a gov- ernment which derives all its powers directly or indirectly from the great body of the people”); A. Amar, America’s Constitution: A Biography 27–279 (2005) (“[T]he general understanding of republicanism across America” at the founding embraced a concept of government “in which ‘the people are sovereign’; in which ‘the people are consequently the fountain of all power’; in which ‘all authority should flow from |
Justice Thomas | 2,020 | 1 | concurring | Financial Oversight and Management Bd. for Puerto Rico v. Aurelius Investment, LLC | https://www.courtlistener.com/opinion/4759389/financial-oversight-and-management-bd-for-puerto-rico-v-aurelius/ | of all power’; in which ‘all authority should flow from the people’ ”). Core to the 1950s “compact” be- tween the Federal Government and Puerto Rico was that Puerto Rico’s eventual constitution “shall provide a repub- lican form of government.” (codified in 4 U.S. C. Thus, “resonant of American founding prin- ciples,” the Puerto Rico Constitution set forth a tripartite government “ ‘republican in form’ and ‘subordinate to the sovereignty of the people of Puerto Rico.’ ” Sánchez Valle, 579 U. S., at (slip op., at 4) “[T]he distinguishing feature” of such “republican form of government,” this Court has recognized over and again, “is 10 FINANCIAL OVERSIGHT AND MANAGEMENT BD. FOR PUERTO RICO v. AURELIUS INVESTMENT, LLC SOTOMAYOR, J., concurring in judgment the right of the people to choose their own officers for gov- ernmental administration, and pass their own laws in vir- tue of the legislative power reposed in representative bod- ies, whose legitimate acts may be said to be those of the people themselves.” In re 1 U.S. 449, (191) (discussing the republican governments of the States); see Pacific States Telephone & Telegraph 223 U.S. 11, Thus, whatever authority the Federal Government exer- cised to select territorial officers for Puerto Rico before Con- gress recognized Puerto Rico’s republican form of govern- ment, the authority “to choose [Puerto Rico’s] own officers for governmental administration” now seems to belong to the people of Puerto Rico. 1 U.S., at In- deed, however directly responsible the Federal Government was for Puerto Rico’s local affairs before Public Law 600, those matters might be said to “now procee[d]” in the first instance “from the Puerto Rico Constitution as ‘ordain[ed] and establish[ed]’ by ‘the people.’ ” Cf. Sánchez Valle, 579 U. S., at (slip op., at 15) (quoting P. R. Const., Preamble) (acknowledging “that the Commonwealth’s power to enact and enforce criminal law now proceeds from the Puerto Rico Constitution,” “mak[ing] the Puerto Rican populace the most immediate source of such authority”). The developments of the early 1950s were not merely symbolic either; this Court has recognized that the para- digm shift in relations between Puerto Rico and the Federal Government carried legal consequences. In for instance, this Court held that the “enactments of the Commonwealth of Puerto Rico” were “ ‘State statute[s]’ ” within the meaning of a federal law requiring a three-judge court panel to consider any action seeking to enjoin a “‘State statute.’ ” –676. The Court reasoned that Puerto Rico was entitled to similar treatment as the States under the federal law, due to “significant changes in Puerto Rico’s governmental structure” |
Justice Thomas | 2,020 | 1 | concurring | Financial Oversight and Management Bd. for Puerto Rico v. Aurelius Investment, LLC | https://www.courtlistener.com/opinion/4759389/financial-oversight-and-management-bd-for-puerto-rico-v-aurelius/ | law, due to “significant changes in Puerto Rico’s governmental structure” in the early 1950s. See Cite as: 590 U. S. (2020) 11 SOTOMAYOR, J., concurring in judgment at 670–674. For similar reasons, this Court has recognized on multiple other occasions that Puerto Rico is akin to a State in key respects. See, e.g., Flores de 426 U.S., at 597 (Congress granted Puerto Rico “a measure of au- omy comparable to that possessed by the States”); Rodri- 457 U.S., at (“Puerto Rico, like a state, is an au- omous political entity”); see Sánchez Valle, 579 U. S., at (BREYER, J., dissenting) (slip op., at 3) (“[T]he paral- lels between admission of new States and the creation of the Commonwealth [of Puerto Rico] are significant”). The compact had international ramifications, as the Federal Government repeatedly represented at the time. Shortly after the ratification and approval of the Puerto Rico Constitution, federal officials certified to the United Nations that, for Puerto Rico, the United States no longer needed to comply with certain reporting obligations under the United Nations Charter regarding territories “whose peoples have not yet attained a full measure of self-govern- ment.” Charter of the United Nations, 59 Stat. 104, Art. 73, June 26, 1945, T. S. No. 993 (U. N. Charter). According to federal officials, that was because the people of Puerto Rico now had “complete auomy in internal economic matters and in cultural and social affairs under a Constitu- tion adopted by them and approved by the Congress.” Mem- orandum by the Government of the United States of Amer- ica Concerning the Cessation of Transmission of Information Under Article 73(e) of the Charter With Regard to the Commonwealth of Puerto Rico, in A. Fernós-Isern, Original Intent in the Constitution of Puerto Rico 153 (2d ed. 2002). To the extent federal law had previously “di- rected or authorized interference with matters of local gov- ernment by the Federal Government,” federal officials elab- orated, “[t]hose laws ha[d] been repealed.” ; see (“Congress has agreed that Puerto Rico shall have, under [the Puerto Rico] Constitution, freedom from 12 FINANCIAL OVERSIGHT AND MANAGEMENT BD. FOR PUERTO RICO v. AURELIUS INVESTMENT, LLC SOTOMAYOR, J., concurring in judgment control or interference by the Congress in respect of inter- nal government and administration”). Based on those explicit representations, the United Na- tions General Assembly declared that the people of Puerto Rico “ha[d] been invested with attributes of political sover- eignty which clearly identify the status of self-government attained as that of an auomous political entity.” G. A. Res. 74, U. N. GAOR, th Sess., Supp. No. 17, |
Justice Thomas | 2,020 | 1 | concurring | Financial Oversight and Management Bd. for Puerto Rico v. Aurelius Investment, LLC | https://www.courtlistener.com/opinion/4759389/financial-oversight-and-management-bd-for-puerto-rico-v-aurelius/ | Res. 74, U. N. GAOR, th Sess., Supp. No. 17, U. N. Doc. A/2630 And consistent with that dec- laration, the Federal Government promptly stopped com- plying with the Charter’s reporting obligations with respect to Puerto Rico (and has never since recommenced). Thus, in the eyes of the international community looking in, as well as of the Federal Government looking out, Puerto Rico has long enjoyed auomous reign over its internal affairs. Indeed, were the Federal Government’s representations to the United Nations merely aspirational, the United States’ compliance with its international legal obligations would be in substantial doubt. See Lawson & Sloane, The Constitu- tionality of Decolonization by Associated Statehood: Puerto Rico’s Legal Status Reconsidered, 50 Bos College L. Rev. 1123, 1127 (2009) (arguing that if Puerto Rico remains “just another territory subject to Congress’ plenary power under the Territories Clause,” “the United States is in viola- tion of its international legal obligations vis-à-vis Puerto Rico”). There can be little question, then, that the compact al- tered the relationship between the Federal Government and Puerto Rico. At a minimum, the post-compact develop- ments, including this Court’s precedents, indicate that Con- gress placed in the hands of the Puerto Rican people the authority to establish their own government, replete with officers of their own choosing, and that this grant of self- government was not an empty promise. That history prompts serious questions as to whether the Board mem- bers may be territorial officers of Puerto Rico when they are Cite as: 590 U. S. (2020) 13 SOTOMAYOR, J., concurring in judgment not elected or approved, directly or indirectly, by the people of Puerto Rico. B Of course, it might be argued that Congress is neverthe- less free to repeal its grant of self-rule, including the grant of authority to the island to select its own governmental of- ficers. And perhaps, it might further be said, that is exactly what Congress has done in PROMESA by declaring the Board “an entity within the territorial government” of Puerto Rico. But that is not so certain. This Court has “ ‘repeatedly stated that absent “a clearly expressed congressional intention” ’ ” to repeal, “ ‘[a]n implied repeal will only be found where provisions in two statutes are in “irreconcilable conflict,” or where the latter Act covers the whole subject of the earlier one and “is clearly intended as a substitute.” ’ ” Carcieri v. Salazar, 555 U.S. 379, 5 (2009) (quoting Branch v. Smith, 53 U.S. 254, 273 (2003) (plurality opinion)). Not so, it seems, with PROMESA on the one hand, and Congress’ 1950 |
Justice Thomas | 2,020 | 1 | concurring | Financial Oversight and Management Bd. for Puerto Rico v. Aurelius Investment, LLC | https://www.courtlistener.com/opinion/4759389/financial-oversight-and-management-bd-for-puerto-rico-v-aurelius/ | seems, with PROMESA on the one hand, and Congress’ 1950 and 1952 legislations on the other. As written, PROMESA is a tem- porary bankruptcy measure intended to assist in restoring Puerto Rico to fiscal security. It is not an organic statute clearly or expressly purporting to renege on Congress’ prior “gran[t to] Puerto Rico [of] a measure of auomy compa- rable to that possessed by the States,” Flores de 426 U.S., at 597, nor on the concomitant grant of authority to select officers of its own choosing. It would seem curious to interpret PROMESA as having done so indirectly, simply through its characterization of the Board “as an entity within the territorial government.” 130 Stat. 553. Further, there is a legitimate question whether Congress could validly repeal any element of its earlier compact with 14 FINANCIAL OVERSIGHT AND MANAGEMENT BD. FOR PUERTO RICO v. AURELIUS INVESTMENT, LLC SOTOMAYOR, J., concurring in judgment Puerto Rico on its own initiative, even if it had been abun- dantly explicit in its intention to do so. The truism that “one Congress cannot bind a later Congress,” Dorsey v. United States, appears to have its limits: As scholars have noted, certain congressional ac- tions are not subject to recantation. See, e.g., Magruder, The Commonwealth Status of Puerto Rico, 15 U. Pitt. L. Rev. 1, 14 (listing as examples the congressional grant of independence to the Philippine Islands and con- gressional grant of private title to public lands under home- stead laws); Issacharoff, 94 Ind. L. J., at 14 (“Once a Con- gress has disposed of a territory, of necessity it binds future Congresses to the consequences of that decision”); T. Aleini- koff, Semblances of Sovereignty: The Constitution, the State, and American Citizenship 90 (2002) (“The granting of neither statehood nor independence may be revoked, nor may land grants or other ‘vested interests’ be called back by a subsequent Congress”). Plausible reasons may exist to treat Public Law 600 and the Federal Government’s recognition of Puerto Rico’s sov- ereignty as similarly irrevocable, at least in the absence of mutual consent. Congress made clear in Public Law 600 that the agreement between the Federal Government and Puerto Rico was “in the nature of a compact.” That “solemn undertaking, based upon mutual consent, of such profound character between the Federal Govern- ment and a community of U. S. citizens,” has struck many as “incompatible with the concept of unilateral revocation.” E.g., Report of the United States-Puerto Rico Commission on the Status of Puerto Rico 12–13 (1966); see A. Leibowitz, Defining Status: A Comprehensive Analysis of United States Territorial |
Justice Thomas | 2,020 | 1 | concurring | Financial Oversight and Management Bd. for Puerto Rico v. Aurelius Investment, LLC | https://www.courtlistener.com/opinion/4759389/financial-oversight-and-management-bd-for-puerto-rico-v-aurelius/ | Leibowitz, Defining Status: A Comprehensive Analysis of United States Territorial Relations 172–173 (199) (de- scribing how “many in the Congress” understood Public Law 600 to constitute “an irrevocable grant of authority in local affairs with an understanding of mutual consent being required before Congress would resolve the ultimate status Cite as: 590 U. S. (2020) 15 SOTOMAYOR, J., concurring in judgment question or change the status of the Commonwealth”). In- deed, shortly after Congress approved the Puerto Rico Con- stitution, federal officials expressly represented to the United Nations that the compact was of a “bilateral na- ture,” such that its “terms [could] be changed only by com- mon consent.” F. Bol, U. S. Rep. to the Gen. Assembly, Statement to U. N. Committee IV (Trusteeship) reprinted in 29 Dept. State Bull. 02, 04 ; see Press Release No. 1741, U. S. Mission to the United Nations, Statement by M. Sears, U. S. Rep. in the Comm. on Information From Non-Self Governing Territories 2 (“[A] compact is far stronger than a treaty” because it “cannot be denounced by either party un- less it has the permission of the other”).3 All of this presses up against broader questions about Congress’ power under the Territories Clause of Article IV, —————— 3 In opting to proceed with Puerto Rico’s Commonwealth endeavor by way of compact, Public Law 600 was not entirely without precedent. When Congress enacted the Northwest Ordinance prior to Ratification to govern the newly acquired Northwest Territory, it provided for a cat- alog of fundamental rights, styled as “articles of compact between the original States and the people and States in the said territory” that would “forever remain unalterable, unless by common consent.” Act of Aug. 7, 179, n. (a) (reproducing the Northwest Ordinance of 177). That understanding of a compact between the Federal Govern- ment and the Territories was the only extant precedent for the compact language in Public Law 600, and proponents of Public Law 600 were vo- cal in their reliance on the Northwest Ordinance as a model. See Lawson & Sloane, The Constitutionality of Decolonization by Associated State- hood: Puerto Rico’s Legal Status Reconsidered, 50 Bos College L. Rev. 1123, 1, n. 142 (2009) (prior to Public Law 600, “[t]he term ‘compact’ had seldom appeared in U. S. law,” with the exception of the North- west Ordinance and subsequent organic statutes modeled after the Northwest Ordinance); J. Trías Monge, Puerto Rico: The Trials of the Oldest Colony in the World 111 (1997) (discussing debate among the drafters of Public Law 600 about whether to adopt the precise compact |
Justice Thomas | 2,020 | 1 | concurring | Financial Oversight and Management Bd. for Puerto Rico v. Aurelius Investment, LLC | https://www.courtlistener.com/opinion/4759389/financial-oversight-and-management-bd-for-puerto-rico-v-aurelius/ | Public Law 600 about whether to adopt the precise compact language in the Northwest Ordinance). 16 FINANCIAL OVERSIGHT AND MANAGEMENT BD. FOR PUERTO RICO v. AURELIUS INVESTMENT, LLC SOTOMAYOR, J., concurring in judgment U. S. Const., Art. IV, cl. 2, the purported source of legis- lative authority for enacting PROMESA, see 130 Stat. 553; ante, at 5. May Congress ever simply cede its power under that Clause to legislate for the Territories, and did it do so nearly 60 years ago with respect to Puerto Rico? If so, is PROMESA itself invalid, at least insofar as it holds itself out as an exercise of Territories Clause authority? This Court has never squarely addressed such questions, except perhaps to acknowledge that Congress’ authority un- der the Territories Clause may “continu[e] until granted away.” National 133 (10); cf. Cincinnati Soap Co. v. United States, 301 U.S. 30, 319 (recognizing that a statute preparing the Philippine Islands for independence from the United States “brought about a profound change in the status of the islands and in their relations to the United States,” such that “the power of the United States has been modified,” even while “it has not been abolished”). After all, the Territories Clause provides Congress not only the power to “make all needful Rules and Regulations respecting the Territor[ies],” but the power to “dispose of ” them, which necessarily encompasses the power to re- linquish authority to legislate for them. U. S. Const., Art. IV, cl. 2. And some have insisted that the power to cede authority exists no less in the absence of full “dispos[al]” through independence or Statehood. See Aleinikoff, Sem- blances of Sovereignty, at 77 (“It has been strongly argued that” with “the establishment of commonwealth status,” “Congress lost general power to regulate the internal affairs of Puerto Rico”). Still, the parties here do not dispute Congress’ ability to enact PROMESA under the Territories Clause in the first place; nor does it seem strictly necessary to call that matter into question to resolve the Appointments Clause concern pre- sented here. Despite the “full measure of self-government” the island supposedly enjoys, U. N. Charter, Art. 73; see Cite as: 590 U. S. (2020) 17 SOTOMAYOR, J., concurring in judgment at 4–5, 9–12, Puerto Rico can well remain a “Territory” subject to some measure of Congress’ Territories Clause authority. But even assuming that the Territories Clause thus enables Congress to enact federal laws “re- specting” Puerto Rico, U. S. Const., Art. IV, cl. 2, still some things the Clause does not necessarily do: It does not necessarily allow Congress to |
Justice Thomas | 2,020 | 1 | concurring | Financial Oversight and Management Bd. for Puerto Rico v. Aurelius Investment, LLC | https://www.courtlistener.com/opinion/4759389/financial-oversight-and-management-bd-for-puerto-rico-v-aurelius/ | not necessarily do: It does not necessarily allow Congress to repeal by mere implication its prior grant of authority to the people of Puerto Rico to choose their own governmental officers. It does not neces- sarily give Congress license to revoke unilaterally an in- strument that may be altered only with mutual consent. And it does not necessarily permit Congress to declare by fiat that the law must treat its exercise of authority under the Territories Clause as territorial rather than federal, ir- respective of the compact it entered with the people of Puerto Rico leaving complete territorial authority to them. Cf. Hernández Colón, The Evolution of Democratic Govern- ance Under the Territorial Clause of the U. S. Constitution, 50 Suffolk U. L. Rev. 57, (after 1952, “Congress partially relinquished its territorial powers over Puerto Rico’s internal affairs, as recognized in Sanchez Valle,” even while “Congress continues to retain territorial powers in federal affairs” (emphasis added)). III Nor is it significant that Congress has historically pro- vided for the appointment of officers who perform duties re- lated to the Territories through methods other than those prescribed by the Appointments Those methods may be permissible up to a point in a Territory’s develop- ment. But that historical practice does not, in my view, re- solve the far more complex question whether Congress can continue to act in that manner indefinitely or long after granting Territories complete self-government. Essentially none (if any) of the allegedly nonconforming 1 FINANCIAL OVERSIGHT AND MANAGEMENT BD. FOR PUERTO RICO v. AURELIUS INVESTMENT, LLC SOTOMAYOR, J., concurring in judgment appointments referenced by the parties occurred in circum- stances where, as in the case of Puerto Rico, Congress pre- viously granted the Territories complete home rule. See in- fra, at 19–21, and nn. 4–5. Instead, they largely occurred during the initial or transitional stages of a Territory’s ex- istence, when often the terms of the organic statute estab- lishing the Territory expressly provided for the Federal Government to act on behalf of the Territory. (After all, in newly established Territories, no recognized territorial gov- ernment existed until the organic statute established one.) Because in that state of affairs, an organic statute plainly contemplated that Congress had authority to establish of- fices for the Territory, such congressionally established of- fices could fairly—indeed, necessarily—be treated as “terri- torial” to the extent they were tasked with territorial duties. Does that necessarily remain the case if Congress later grants or establishes complete territorial self-government? As Puerto Rico’s history may demonstrate, it is seemingly at that point that Congress purports to recognize that |
Justice Thomas | 2,020 | 1 | concurring | Financial Oversight and Management Bd. for Puerto Rico v. Aurelius Investment, LLC | https://www.courtlistener.com/opinion/4759389/financial-oversight-and-management-bd-for-puerto-rico-v-aurelius/ | seemingly at that point that Congress purports to recognize that the Territory itself (not the Federal Government) wields au- thority over matters of the Territory, including the ability to select its own territorial officers. Perhaps it is at that point that a distinction between territorial officers and federal officers crystallizes: Territorial officers are those who derive their authority from the people of the Territory; federal officers are those who derive their authority from the Federal Government. And here, the Board members in- disputably are selected by the Federal Government, under a statute passed by Congress that specifies not just their governance responsibilities but the priorities of their decisionmaking. See ante, at 3–4. The scores of historical vignettes highlighted by petition- ers, see, e.g., Brief for Petitioner Financial Oversight and Management Board for Puerto Rico 2–33; Brief for Peti- Cite as: 590 U. S. (2020) 19 SOTOMAYOR, J., concurring in judgment tioner Official Committee of Retired Employees of the Com- monwealth of Puerto Rico 10–17, do not appear to foreclose this possibility or even address the question. Rather, they seem consistent with a broader historical narrative about early territorial development: that Congress has tradition- ally exercised its power under the Territories Clause with the aim of promptly preparing newly established Territo- ries to transition gradually to territorial self-government. To the extent Congress deviated from the requirements of the Appointments Clause in establishing territorial govern- ments, it generally did so either to facilitate temporary gov- ernments in the Territories before self-government was practically possible or to begin transferring appointment authority directly into the hands of the territorial popula- tion. For example, Congress has often provided for territorial officials to be appointed by a (Presidentially nominated and Senate confirmed) territorial Governor, a method that the Appointments Clause does not appear to contemplate. See, e.g., Brief for Petitioner Financial Oversight and Manage- ment Board for Puerto Rico 31, and n. 13. But those ar- rangements arose from the organic statutes establishing the Territories (and thus their initial territorial govern- ments) in the first place.4 The same is generally true of in- stances where Congress provided for Presidential appoint- ment (without Senate confirmation) of territorial officials whose duties might otherwise make them principal officers under the Appointments Clause (requiring Senate confir- mation). See, e.g., Brief for Petitioner Official Committee of Retired Employees of the Commonwealth of Puerto Rico —————— 4 See, e.g., –52, and n. (a) (179) (Northwest Territory); Act of Feb. 3, 109, ch. 13, § 2, –515 (Illinois); Act of June 4, 112, (Missouri); Act of Feb. 161, ch. 59, § 7, 174 |
Justice Thomas | 2,020 | 1 | concurring | Financial Oversight and Management Bd. for Puerto Rico v. Aurelius Investment, LLC | https://www.courtlistener.com/opinion/4759389/financial-oversight-and-management-bd-for-puerto-rico-v-aurelius/ | (Missouri); Act of Feb. 161, ch. 59, § 7, 174 (Colorado); Act of May 26, 164, ch. 95, § 7, 13 Stat. 5, (Mon- tana); Act of July 25, 16, ch. 235, § 7, 15 Stat. 17, 10 (Wyoming); Act of May 2, 190, ch. 12, § 7, 26 Stat. 1, 5 (Oklahoma). 20 FINANCIAL OVERSIGHT AND MANAGEMENT BD. FOR PUERTO RICO v. AURELIUS INVESTMENT, LLC SOTOMAYOR, J., concurring in judgment 11. Those scenarios broadly conformed with the template of the organic statute establishing the Louisiana Territory, which Congress passed as an “emergency pro- visio[n]” shortly after territorial acquisition in order “to pre- serve order until a proper government could be put in place,” D. Currie, The Constitution in Congress, The Jeffer- sonians: 101–129, p. 1125 As for the numerous instances where officers with terri- torial responsibilities were popularly elected or appointed by territorial officials, see ante, at 11, Congress typically transitioned to these arrangements after establishing an initial territorial government. The Northwest Ordinance, for example, allowed the Governor to appoint “magistrates and other civil officers” “during the continuance of [a] tem- porary government” established at the outset of the North- west Territory’s existence, as “necessary for the preserva- tion of the peace and good order.” Act of Aug. 7, 179, ch. n. (a). As soon as the Territory met a certain population threshold, however, the territorial population was to directly elect members of the lower house of the ter- ritorial legislature, which would in turn play a role in se- lecting the civil officers of the territorial government. Following the Northwest Ordinance’s lead, the organic stat- utes for many subsequent territories contemplated similar —————— 5 See (103) (authorizing the President to “take possession of, and occupy the territory,” to “employ any part of the army and navy of the United States” in doing so, and to establish a “temporary government” “until provision for the temporary government be sooner made by Congress”); cf. (119) (similar); 31 Stat. 910 (1901) (Philippines) (authorizing the establishment of a “tem- porary government” pending “the establishment of a permanent civil government”); (1904) (authorizing the President “[t]o provide for the temporary government” of the Territory “until provision for the temporary government be sooner made by Congress”). Cite as: 590 U. S. (2020) 21 SOTOMAYOR, J., concurring in judgment arrangements for “transition[ing]” quickly to forms of “rep- resentative government.” J. Eblen, The First and Second United States Empires: Governors and Territorial Govern- ment 174–1912, pp. 54, 59 (196); see Leibowitz, De- fining Status, at 6–7. Congress’ provision of limited or incremental home-rule measures, moreover, seems to reveal |
Justice Thomas | 2,020 | 1 | concurring | Financial Oversight and Management Bd. for Puerto Rico v. Aurelius Investment, LLC | https://www.courtlistener.com/opinion/4759389/financial-oversight-and-management-bd-for-puerto-rico-v-aurelius/ | of limited or incremental home-rule measures, moreover, seems to reveal little about the re- strictions the Appointments Clause imposes on officers se- lected by the Federal Government. By definition, selection by home rule does not track the methods outlined in the Appointments But perhaps that is because home- rule measures give to the Territory the ability to select its own governing officers, which by necessity are territorial rather than federal. That the Territory selects its own gov- erning officers, and that these officers are necessarily terri- torial, does not obviously imply that Congress may disre- gard the Appointments Clause when it later provides for the Federal Government to select officers carrying out ter- ritorial responsibilities.6 In all, then, it is not particularly surprising that many officers who acted for the Territories historically were ap- pointed in a manner other than that set out in the Appoint- ments Viewed in proper historical context, those officers’ appointments may reflect nothing more than the necessary incidents of the transition to and establishment of full territorial self-government. For the overwhelming majority of Territories in this Nation’s history, of course, that turning point coincided with Statehood. See Leibowitz, Defining Status, at 6– (describing the “transitory nature” of the early Territories’ “evolutionary process culminat[ing] —————— 6 For that reason, no unavoidable tension seems to exist between re- quiring compliance with the Appointments Clause for the Board mem- bers and preserving complete home rule in Puerto Rico (or, for that mat- ter, any of the other Territories). 22 FINANCIAL OVERSIGHT AND MANAGEMENT BD. FOR PUERTO RICO v. AURELIUS INVESTMENT, LLC SOTOMAYOR, J., concurring in judgment in Statehood” and “the establishment of popular self-gov- ernment”); District of 409 U.S. 41, 431–432 )). But critically, the transitional phase was never intended to last indefi- nitely. See Amar, America’s Constitution, at 273 (describ- ing the Founders’ understanding that “[t]he older states would help their younger siblings grow up and would there- after regard them as equals, rather than as permanent ad- olescents—the status to which Mother England had wrongly relegated her own New World wards”). The histor- ical examples thus reveal little, if anything, about Congress’ ability to establish territorial officers in Territories that (much like Puerto Rico) have long operated under the full measure of self-government. This Court’s precedents do not speak to that circum- stance either. No doubt the Court has said that the Terri- tories Clause gives Congress “full and complete legislative authority over the people of the Territories and all the de- partments of the territorial governments.” County of Yank- –133; see (“Congress may not only |
Justice Thomas | 2,020 | 1 | concurring | Financial Oversight and Management Bd. for Puerto Rico v. Aurelius Investment, LLC | https://www.courtlistener.com/opinion/4759389/financial-oversight-and-management-bd-for-puerto-rico-v-aurelius/ | governments.” County of Yank- –133; see (“Congress may not only abrogate laws of the territorial legislatures, but it may itself legislate directly for the local govern- ment”); ; ante, at 3–4 (THOMAS, J., concurring in judgment). But none of those cases had to do with the Appointments More im- portant, none of them addressed the scope of Congress’ au- thority with respect to a fully self-governing Territory. See Leibowitz, Defining Status, at 15 (observing that “the broad statements of Congressional power” in those cases “were Cite as: 590 U. S. (2020) 23 SOTOMAYOR, J., concurring in judgment made in the context of a territory’s evolution toward state- hood,” and that “[t]his context was the ‘restriction nec- essarily implied in its terms’ ”). Much less do those cases inform whether and how Congress may validly act on behalf of a Territory like Puerto Rico, as to which Congress has expressly (and perhaps irrevocably in the absence of com- mon consent) “relinquished control over [territorial] affairs.” Flores de ; see Rodri- 457 U.S., at (describing Puerto Rico as “an auo- mous political entity, ‘sovereign over matters not ruled by the [Federal] Constitution’ ” (quoting 416 U.S., at 673)). Indeed, as the same cases expressly acknowledged, Congress’ authority under the Territories Clause may “continu[e]” only “until granted away.” County of Yank, 101 U.S., ; see at 15–16. * * * These cases raise serious questions about when, if ever, the Federal Government may constitutionally exercise au- thority to establish territorial officers in a Territory like Puerto Rico, where Congress seemingly ceded that author- ity long ago to Puerto Rico itself. The 1950s compact be- tween the Federal Government and Puerto Rico undoubt- edly carried ramifications for Puerto Rico’s status under federal and international law; the same may be true of the Appointments Clause analysis here. After all, the long- awaited promise of Public Law 600’s compact between Puerto Rico and the Federal Government seemed to be that the people of Puerto Rico may choose their own territorial officers, rather than have such officers foisted on the Terri- tory by the Federal Government. Viewed against that backdrop, the result of these cases seems anomalous. The Board members, tasked with deter- mining the financial fate of a self-governing Territory, exist in a twilight zone of accountability, neither selected by 24 FINANCIAL OVERSIGHT AND MANAGEMENT BD. FOR PUERTO RICO v. AURELIUS INVESTMENT, LLC SOTOMAYOR, J., concurring in judgment Puerto Rico itself nor subject to the strictures of the Ap- pointments I am skeptical that the Constitution countenances this freewheeling exercise of control over a population that |
Justice Thomas | 2,003 | 1 | dissenting | Archer v. Warner | https://www.courtlistener.com/opinion/127906/archer-v-warner/ | Section 523(a)(2) of the Bankruptcy Code excepts from discharge "any debt for money, property, [or] services, to the extent obtained by false pretenses, a false representation, or actual fraud." 11 U.S. C. 523(a)(2)(A) (emphasis added). The Court holds that a debt owed under a settlement agreement was "obtained by" fraud even though the debt resulted from a contractual arrangement pursuant to which the parties agreed, using the broadest language possible, to release one another from "any and every right, claim, or demand arising out of" a fraud action filed by petitioners in North Carolina state court. App. 6. Because the Court's conclusion is supported neither by the text of the Bankruptcy Code nor by any of the agreements executed by the parties, I respectfully dissent. The Court begins its description of this case with the observation that "the settlement agreement does not resolve the issue of fraud, but provides that B will pay A a fixed sum." Ante, at 31 (emphasis added). Based on that erroneous premise, the Court goes on to find that there is "no significant difference between Brown [v. Felsen,] and [this case]." Ante, at 322. The only distinction, the Court explains, is that "the relevant debt here is embodied in a settlement, not in a stipulation and consent judgment" as in Ante, at 321. Remarkably, however, the Court fails to address the critical difference between this case and Brown: The parties here executed a blanket release, rather than entered into a consent judgment. And, in my view, "if it is shown that [a] note was given and received as payment or waiver of the original debt and the parties agreed that the note was to substitute a new obligation for the old, the note fully discharges the original debt, and the nondischargeability of the original debt does not affect the dischargeability of the obligation under the note." In re West, That is the case before us, and, accordingly, Brown does not control our disposition of this matter. In Brown, Brown sued Felsen in state court, alleging that Felsen had fraudulently induced him to act as guarantor on a bank The suit was settled by stipulation, which was incorporated by the court into a consent judgment, but "[n]either the stipulation nor the resulting judgment indicated the cause of action on which respondent's liability to petitioner was based." The Court held that principles of res judicata did not bar the Bankruptcy Court from looking behind the consent judgment and stipulation to determine the extent to which the debt was "obtained by" fraud. The Court concluded that it would |
Justice Thomas | 2,003 | 1 | dissenting | Archer v. Warner | https://www.courtlistener.com/opinion/127906/archer-v-warner/ | was "obtained by" fraud. The Court concluded that it would upset the policy of the Bankruptcy Code for "state courts to decide [questions of nondischargeability] at a stage when they are not directly in issue and neither party has a full incentive to litigate them." Brown did not, however, address the question presented in this case whether a creditor may, without the participation of the state court, completely release a debtor from "any and every right, claim, or demand relating to" a state-court fraud action. App. 6. *325 Based on the sweeping language of the general release, it is inaccurate for the Court to say that the parties did not "resolve the issue of fraud." Ante, at 31. To be sure, as in Brown, there is no legally controlling document stating that respondent did (or did not) commit fraud. But, unlike in Brown, where it was not clear which claims were being resolved by the consent judgment, the release in this case clearly demonstrates that the parties intended to resolve conclusively not only the issue of fraud, but also any other "right[s], claim[s], or demand[s]" related to the state-court litigation, "excepting only obligations under [the] Note and deeds of trust."[1] App. 6. See )). The fact that the parties intended, by the language of the general release, to replace an "old" fraud debt with a "new" contract debt is an important distinction from Brown, for the text of the Bankruptcy Code prohibits discharge of any debt "to the extent obtained by" fraud. 11 U.S. C. 523(a)(2) (emphasis added). In interpreting this provision, the Court has recognized that, in order for a creditor to establish that a debt is not dischargeable, he must demonstrate that there is a causal nexus between the fraud and the debt. See (describing 523(a)(2)(A) as barring discharge of debts "`resulting from'" or "`traceable to'" fraud )). Indeed, petitioners conceded at oral argument that the "obtained by" language of 523(a)(2) requires a creditor to prove that a debtor's fraud is the proximate cause of the debt. Tr. of Oral Arg. 10, 12; see also 1 Am. Jur. 2d, Actions 5, p. 60 ("What is essential is that the wrongful act charged be the proximate cause of the *326 damage; the loss must be the direct result of, or proximately traceable to, the breach of an obligation owing to the plaintiff" (emphasis added)). This Court has been less than clear with respect to the requirements for establishing proximate cause. In the past, the Court has applied the term "`proximate cause' to label generically the judicial tools used |
Justice Thomas | 2,003 | 1 | dissenting | Archer v. Warner | https://www.courtlistener.com/opinion/127906/archer-v-warner/ | term "`proximate cause' to label generically the judicial tools used to limit a person's responsibility for the consequences of that person's own acts." The Court has explained that, "[a]t bottom, the notion of proximate cause reflects `ideas of what justice demands, or of what is administratively possible and convenient.'" (quoting W. Keeton, D. Dobbs, R. Keeton, & D. Owen, Prosser and Keeton on Law of Torts 41, p. 264 (5th ed. 1984) (hereinafter Keeton)); see also ("What we do mean by the word `proximate' is, that because of convenience, of public policy, of a rough sense of justice, the law arbitrarily declines to trace a series of events beyond a certain point"). While the concept of proximate cause is somewhat amorphous, see Keeton 29, the common law is clear that certain intervening events otherwise called "superseding causes" are sufficient to sever the causal nexus and cut off all liability. See Exxon Co., U. S. 51 U.S. 830, 83 )); 5A Am. Jur. 2d, Negligence 90, p. 01 (1989) ("The intervention, between the negligence of the defendant and the occurrence of an injury to the plaintiff, of a new, independent, and efficient cause, or of a superseding cause, of the injury renders the negligence of the defendant a remote cause of *32 the injury, and he cannot be held liable, notwithstanding the existence of some connection between his negligence and the injury"). In this case, we are faced with the novel situation where the parties have, by agreement, attempted to sever the causal relationship between the debtor's fraudulent conduct and the debt.[2] In my view, the "intervening" settlement and release create the equivalent of a superseding cause, no different from the intervening negligent acts of a third party in a negligence action. In this case, the parties have made clear their intent to replace the old "fraud" debt with a new "contract" debt. Accordingly, the only debt that remains intact for bankruptcy purposes is the one "obtained by" voluntary agreement of the parties, not by fraud. Petitioners' own actions in the course of this litigation support this conclusion. Throughout the proceedings below and continuing in this Court, petitioners have sought to recover only the amount of the debt set forth in the settlement agreement, which is lower than the total damages they allegedly suffered as a result of respondent's alleged fraud. See Brief for Petitioners 21 ("[T]he nondischargeability action was brought solely in order to enforce the agreement to pay [the amount in the settlement agreement]"). This crucial fact demonstrates that petitioners seek to recover a debt based only |
Justice Blackmun | 1,992 | 11 | dissenting | Estate of Cowart v. Nicklos Drilling Co. | https://www.courtlistener.com/opinion/112776/estate-of-cowart-v-nicklos-drilling-co/ | For more than 14 years, the Director of the Office of Workers' Compensation Programs interpreted the Longshore and Harbor Workers' Compensation Act (LHWCA or Act), as amended, 33 U.S. C. 901 et seq. in the very same way that petitioner Floyd Cowart's estate now urges. Indeed, the Director advocated Cowart's position in the Court of Appeals, both before the panel and before that court en banc. After certiorari was granted, however, and after Cowart's opening brief was filed, the federal respondent informed this Court: "In light of the en banc decision in this case, the Department of Labor reexamined its views on the issue." Brief for Federal Respondent 8, n. 6. The federal respondent now assures us that the interpretation the Director advanced and defended for 14 years is inconsistent with the statute's "plain meaning." The Court today accepts that improbable contention, and in so doing rules that perhaps thousands of employees and their families must be denied death and disability benefits. I cannot agree with the federal respondent's newly discovered interpretation, and still less do I find it to be compelled by the "plain meaning" of the statute. The Court needlessly inflicts additional injury upon these workers and their families. I dissent. *485 I Ever since the LHWCA was adopted in 1927, it has included some version of the present 33(g), 33 U.S. C. 933(g), the provision at issue in this case. Because that provision cannot be considered in isolation from the broader context of 33, or indeed, the LHWCA as a whole, some background on the structure of the Act and the history of 33's interpretation is essential. A The LHWCA requires employers to provide compensation, "irrespective of fault," for injuries and deaths arising out of covered workers' employment. 3(a) and 4(b), 33 U.S. C. 903(a) and 904(b). In return for requiring the employer to pay statutory compensation without proof of negligence, the Act grants the employer immunity from tort liability, regardless of how serious its fault may have been. See 5(a) and 33(i). Benefits under the LHWCA are strictly limited, generally to medical expenses and two-thirds of lost earnings, and are set out in detailed schedules contained in the Act itself. See 7-9. A fundamental assumption of the Act is that employers liable for benefits will pay compensation "promptly," "directly," and "without an award" having to be issued. See 14(a). In a case where a third party may be liable, the LHWCA does not require a claimant to elect between statutory compensation and tort recovery. 33(a). Where a claimant has accepted compensation under a formal award, then, |
Justice Blackmun | 1,992 | 11 | dissenting | Estate of Cowart v. Nicklos Drilling Co. | https://www.courtlistener.com/opinion/112776/estate-of-cowart-v-nicklos-drilling-co/ | a claimant has accepted compensation under a formal award, then, within a specified time, he may file a civil action against the third party. 33(b). If a claimant recovers in that action, his compensation under the LHWCA is limited to the excess, if any, of his statutory compensation over the net amount of his recovery. 33(f). Section 33(f) thus operates as a setoff provision, allowing an employer to reduce its LHWCA liability by the net amount a claimant obtains from a third party. Where the claimant nets as much or more from the third *486 party as he would have received from his employer under the LHWCA, the employer owes him no benefits. Section 33(g) of the LHWCA, 33 U.S. C. 933(g), addresses the situation in which a claimant-plaintiff settles an action against a third party for less than he would have received under the Act. Under 33(f), considered alone, the claimant in this situation would always be able to collect the remainder of his statutory benefits from the employer. To protect the employer from having to pay excessive 33(f) compensation because of an employee's "lowball" settlement, 33(g) conditions LHWCA compensation, in specified circumstances, upon the employer's written approval of the third-party settlement. See Before the LHWCA's 1984 amendments, 33(g) provided that if a "person entitled to compensation" settled for less than the compensation to which he was entitled under the Act, then the employer would be liable for compensation, as determined in 33(f), only if the person obtained and duly filed with the Department of Labor the employer's written approval of the settlement. The meaning of the term "person entitled to compensation" has proved to be a difficult issue, both in the pre-1984 version of the Act andas this case demonstratesin the Act's current form. B This issue apparently was considered first in O'Leary v. Southeast Stevedoring Co., 7 BRBS 144 aff'd, In that case, the employer denied liability for the death of the claimant's husband, contending that the decedent was not an employee covered by the LHWCA and that the injury did not arise out of his employment. 7 BRBS, at 145. The employer persisted in denying liability even after its position was rejected by the Benefits *487 Review Board (BRB or Board).[1] See at 146-147. Eventually, more than 28 months after her husband's accident, the claimant settled a third-party suit for $37,500. About one month thereafter, an Administrative Law Judge (ALJ), on remand from the BRB, entered an award for the claimant. The value of the death benefits awarded, assuming that the claimant would live out her |
Justice Blackmun | 1,992 | 11 | dissenting | Estate of Cowart v. Nicklos Drilling Co. | https://www.courtlistener.com/opinion/112776/estate-of-cowart-v-nicklos-drilling-co/ | benefits awarded, assuming that the claimant would live out her normal life expectancy without remarrying, amounted to more than $150,000. See In re O'Leary, 5 BRBS 16, 20 At that point, the employer contested liability for any compensation on the ground that, under 33(g), the claimant had forfeited that compensation by failing to obtain the employer's written approval of the settlement. The ALJ rejected the employer's position, reasoning that the claimant was not a "person entitled to compensation" at the time of the settlement. The BRB affirmed. The Board pointed out that the "underlying concept" of the LHWCA is that "the employer upon being informed of an injury will voluntarily begin to pay compensation." O'Leary, 7 BRBS, at 147 (citing 14(a)). Further, the Board observed, 33(g) refers to the conditions under which an employer will be "liable" for compensation under 33(f); the reference to "liability," the Board reasoned, "contemplat[es] that [the] employer either be making voluntary payments under the Act or that it ha[s] been found liable for benefits by a judicial determination." Moreover, the Board continued, 33(b) gives the employer the right to pursue third parties only if the employer is paying compensation under an award. Thus, the premise of employer rights under 33, the Board concluded, is that the employer is "making either voluntary payments under the Act or pursuant to an award." Ib *488 The BRB observed that the employer in O'Leary had not paid compensation either voluntarily or pursuant to an award, but, instead, consistently had denied liability. It could hardly have been clear to the claimant at the time she settled her third-party suit that the BRB would ultimately decide in her favor. Indeed, only after that settlement and after the ALJ award did the employer concede that the claimant represented a "person entitled to compensation," and then only to argue that, for that reason, she had forfeited her right to compensation under 33(g). The Board emphasized that the employer's interpretation would place claimants in a severe bind: "If a claimant was injured through the negligence of a third party and the employer denied coverage under the Act, a claimant would be forced to sue the third party. However, even if the claimant obtained a reasonable settlement offer, an employer could refuse to give its consent to the third party settlement for any number of reasons, e. g., it does not wish to approve the settlement on a form provided under the Act since its consent to jurisdiction under the Act might be inferred. This could result in a claimant not being paid any compensation, |
Justice Blackmun | 1,992 | 11 | dissenting | Estate of Cowart v. Nicklos Drilling Co. | https://www.courtlistener.com/opinion/112776/estate-of-cowart-v-nicklos-drilling-co/ | could result in a claimant not being paid any compensation, yet the claimant would be afraid to make a third party settlement for in so doing he might waive his rights to compensation under the Act. Ultimately, a claimant going without income for a long enough time could be forced into a third party settlement without employer's consent to obtain money" And under the employer's interpretation of 33(g), the employee would thereby forfeit all right to compensation under the Act. Surely, the Board concluded, "Congress by requiring written consent could not have contemplated such a result." Ib The Court of Appeals for the Ninth Circuit affirmed in an unpublished opinion, App. 113, stating: "The Board's ruling *489 is reasonable and furthers the underlying purpose of the Act." The Court of Appeals for the Fifth Circuit, in an unpublished opinion, upheld a similar BRB decision in 1984, finding the O'Leary approach "fully consistent with the language, legislative history, and rationale of" 33(g). See (table) and App. 96, 108. No other courts had occasion to examine the O'Leary interpretation before the LHWCA was next amended. C The Longshore and Harbor Workers' Compensation Act Amendments of 1984, revisited 33(g). The former 33(g) was carried over, with minor changes not relevant here, as 33(g)(1), and a new subsection (g)(2) was added. Section 33(g) now reads as follows: "(1) If the person entitled to compensation (or the person's representative) enters into a settlement with a third person referred to in subsection (a) for an amount less than the compensation to which the person (or the person's representative) would be entitled under this Act, the employer shall be liable for compensation as determined under subsection (f) only if written approval of the settlement is obtained from the employer and the employer's carrier, before the settlement is executed, and by the person entitled to compensation (or the person's representative). The approval shall be made on a form provided by the Secretary and shall be filed in the office of the deputy commissioner within thirty days after the settlement is entered into. "(2) If no written approval of the settlement is obtained and filed as required by paragraph (1), or if the employee fails to notify the employer of any settlement obtained from or judgment rendered against a third person, all rights to compensation and medical benefits under this Act shall be terminated, regardless *490 of whether the employer or the employer's insurer has made payments or acknowledged entitlement to benefits under this Act." In Dorsey v. Cooper Stevedoring Co., 18 BRBS 25 (1986), appeal dism'd sub nom. |
Justice Blackmun | 1,992 | 11 | dissenting | Estate of Cowart v. Nicklos Drilling Co. | https://www.courtlistener.com/opinion/112776/estate-of-cowart-v-nicklos-drilling-co/ | Stevedoring Co., 18 BRBS 25 (1986), appeal dism'd sub nom. Cooper Stevedoring the Board rejected an employer's argument that the final clause of the new 33(g)(2) should be understood as overturning the O'Leary rule that no duty to obtain approval arises until the employer begins to pay compensation. Subsection (g)(1), the Board stated, reenacted the prior version of 33(g) as it was interpreted in O'Leary; the new subsection, (g)(2), was intended to apply to situations not covered by (g)(1) or O'Leary. In these situationswhere the employer has neither paid compensation nor acknowledged liabilitynotice, but not written approval, is required. 18 BRBS, at 29-30. The Board interpreted the final clause of (g)(2)language that echoes the Board's words in O'Leary to make clear that the notification requirement, described in (g)(2), was not subject to the O'Leary limitation that is incorporated in (g)(1). 18 BRBS, at 29. This interpretation is reinforced, the Board continued, by two other considerations. First, although in a number of instances the 1984 legislative history indicates a congressional intention to override other BRB and judicial decisions, that history "indicates no congressional intent to overrule O'Leary. " Second, the Board observed, this Court has held that the LHWCA "should be construed in order to further its purpose of compensating longshoremen and harbor workers `and in a way which avoids harsh and incongruous results.' " quoting and citing Northeast Marine Terminal As O'Leary made clear, allowing employers to escape all LHWCA liability by withholding approval from any settlement, while refusing to *491 pay benefits or acknowledge liability, could hardly be thought consistent with the purpose of encouraging prompt, voluntary payment of LHWCA compensation. D Such was the legal background against which Cowart's claim was considered. In the administrative proceedings, the BRB relied on O'Leary and Dorsey to reject the argument, offered by respondent Nicklos Drilling Company, that by failing to obtain prior written approval of his third-party settlement Cowart had forfeited his LHWCA benefits. Because Nicklos was not paying Cowart benefits, either voluntarily or under an award, the Board reasoned, Cowart was not a "person entitled to compensation" within the meaning of 33(g)(1), and he therefore was not required to obtain Nicklos' approval of his settlement. 23 BRBS 42, 46 (1989). Instead, the Board held, Cowart was required only to give Nicklos notice of the settlement, as provided in 33(g)(2). Because Nicklos indisputably had notice of the settlement indeed, it had notice three months before the settlement was consummatedthe Board ruled Cowart was eligible for LHWCA benefits. On Nicklos' petition for review, the Director of the Office of Workers' Compensation Programs |
Justice Blackmun | 1,992 | 11 | dissenting | Estate of Cowart v. Nicklos Drilling Co. | https://www.courtlistener.com/opinion/112776/estate-of-cowart-v-nicklos-drilling-co/ | review, the Director of the Office of Workers' Compensation Programs (OWCP)head of the agency charged with administering the Actdefended the Board's interpretation before the Court of Appeals for the Fifth Circuit. First a panel of the Court of Appeals, and then the full court, by a divided vote sitting en banc, however, rejected the Director's position, ruling that Cowart was a "person entitled to compensation" and was required by 33(g)(1) to obtain Nicklos' written approval. See and We are told that after this Court granted certiorari, and after Cowart filed his opening brief, the Director "reexamined" his position and argued that the interpretation of 33(g) he had maintained for 14 years, and defended in the *492 Court of Appeals, was inconsistent with the Act's plain meaning. II This Court today agrees with the Director's postcertiorari position that Cowart's claim for compensation is barred by the "clear meaning" of the statute "as written." Ante, at 476. According to the Court, Cowart is plainly a "person entitled to compensation" within the meaning of 33(g)(1), and his failure to obtain Nicklos' written approval of his third-party settlement requires, by the "plain language" of 33(g), that he be deemed to have forfeited his statutory benefits. Although the Court does not identify any plausible statutory purpose whatsoever advanced by its reading, and althoughto its creditit acknowledges the "harsh effects" of its interpretation, ante, at 483, the Court ultimately concludes that the language of 33 compels it to reject Cowart's position. In my view, the language of 33 in no way compels the Court to deny Cowart's claim. In fact, the Court's reliance on the Act's "plain language," ante, at 475, is selective: as discussed below, analysis of 33(b) and (f) of the Act shows that, even leaving aside the question whether Cowart is a "person entitled to compensation," a consistently literal interpretation of the Act's language would not require Cowart to have obtained Nicklos' written approval of the settlement. Indeed, under a thoroughgoing "plain meaning" approach, Cowart would be entitled to receive full LHWCA benefits in addition to his third-party settlement, not just the excess of his statutory benefits over the settlement. At the same time, a consistently literal interpretation of the Act would commit the Court to positions it might be unwilling to take. The conclusion I draw is not that the Court should adopt a purely literal interpretation of the Act, but instead that the Court should recognize, as it has until today, that the LHWCA must be read in light of the purposes and policies it would serve. Once that point is |
Justice Blackmun | 1,992 | 11 | dissenting | Estate of Cowart v. Nicklos Drilling Co. | https://www.courtlistener.com/opinion/112776/estate-of-cowart-v-nicklos-drilling-co/ | purposes and policies it would serve. Once that point is recognized, *493 then, as suggested by the Court's closing remarks on the "stark and troubling" implications of its interpretation, ante, at 483, it follows that recognition of Cowart's claim is fully consistent with the Act. A Were the Court truly to interpret the Act "as written," it would not conclude that Cowart is barred from receiving compensation. Section 33(g)(1) of the LHWCA, on which the Court's "plain meaning" argument relies, provides that if a "person entitled to compensation" settles with a third party for an amount less than his statutory benefits, his employer will be "liable for compensation as determined under subsection (f) " only if the "person entitled to compensation" obtains and files the employer's written approval. The "plain language" of subsection (g)(1) does not establish any general written-approval requirement binding either all "persons entitled to compensation," or the subset of those persons who settle for less than their statutory benefits. Instead, it requires written approval only as a condition of receiving compensation "as determined under subsection (f)." Where the "person entitled to compensation" is not eligible for compensation "as determined under subsection (f)," subsection (g)(1) does not require him to obtain written approval. The "plain language" of subsection (f) in turn suggests that the provision does not apply to Cowart's situation. Subsection (f), by its terms, applies only "[i]f the person entitled to compensation institutes proceedings within the period prescribed in subsection (b)." And the "period prescribed in subsection (b)" begins, by the terms of that subsection, upon the person's "[a]cceptance of compensation under an award in a compensation order filed by the deputy commissioner, an administrative law judge, or the Board." Cowart's third-party suit was clearly not instituted within this period: He filed suit before any award of LHWCA benefits, and he still has not accepted (or been offered) compensation *494 under any award. Thus, he does not come within the "plain meaning" of subsection (f), and, accordingly, for the reasons given above, he would not be bound by the subsection (g)(1) written-approval requirement. It would also follow that, because Nicklos indisputably received the notice required by subsection (g)(2), that provision would not bar Cowart from receiving LHWCA compensation and medical benefits. Indeed, if Cowart is not covered by subsection (f), he would appear to have been eligible for a larger award than he sought. Subsection (f) does not authorize compensation otherwise unavailable; instead, it operates as a limit, in the specified circumstances, on the employer's LHWCA liability. If read literally, subsection (f) would not bar Cowart |
Justice Blackmun | 1,992 | 11 | dissenting | Estate of Cowart v. Nicklos Drilling Co. | https://www.courtlistener.com/opinion/112776/estate-of-cowart-v-nicklos-drilling-co/ | liability. If read literally, subsection (f) would not bar Cowart from receiving full LHWCA benefits, in addition to the amount he received in settlement of the third-party claim. It is true that 33(f) has not always been read literally. Subsection (f) has been assumed to be applicable where, for example, the claimant's third-party suit was filed after an employer voluntarily began paying LHWCA compensation, not just where compensation was paid pursuant to an award. See, e. g., I. T. O. Corp. of ; cert. denied, That interpretation is eminently sensible and consistent with the statutory purpose of encouraging employers to make payments "promptly," directly," and "without an award." See 14(a). A contrary interpretation would penalize employers who acknowledge liability and commence payments without seeking an award, and it would reward employers who, whether in good faith or bad, contest their liability until faced with a formal award. See Shellman, 528 F. 2d, at 679, n. 2 ("The purpose of this Act would be frustrated if a different result could be reached merely because *495 the employer pays compensation without entry of a formal award"). It is not obvious, however, that a similar argument from statutory purpose should be available to employers such as Nicklos who refuse to pay benefits and then seek shelter under 33(f) (and by extension, 33(g)(1)). And the fact remains that the Court professes to interpret the "clear meaning" of the statute "as written." The Court's interpretation today, however, is no more compelled by the language of the LHWCA than the interpretation Cowart defends: The Court is simply insensible to the fact that it implicitly has relied upon presumed statutory purposes and policy considerations to bring Nicklos and Cowart under the setoff provisions of 33(f), thus absolving Nicklos of the first $29,000 in LHWCA liability. Only at that point does the Court invoke the plain meaning rule and insist on a "literal" interpretation of 33(g)(1). This selective insistence on "plain meaning" deprives Cowart's estate of the last $6,242.17 Nicklos would otherwise have been bound to pay. B For these reasons, I think it clear that a purely textual approach to the LHWCA cannot justify the Court's holding. In my view, a more sensible approach is to consider 33(g) as courts always have considered the other parts of 33in relation to the history, structure, and policies of the Act. 1 Looking first to 33's history, for present purposes the most relevant aspect is the 1984 amendment to 33(g) through which that provision assumed its present form. The amended provision clearly bears the impress of the Board's O'Leary decision. |
Justice Blackmun | 1,992 | 11 | dissenting | Estate of Cowart v. Nicklos Drilling Co. | https://www.courtlistener.com/opinion/112776/estate-of-cowart-v-nicklos-drilling-co/ | provision clearly bears the impress of the Board's O'Leary decision. The reference in 33(g)(2) to that subsection's applicability, "regardless of whether the employer or the employer's insurer has made payments or acknowledged entitlement to benefits," tracks the limitation *496 recognized in O'Leary a limitation that had been unanimously approved by panels of two Federal Courts of Appeals. The question, then, is whether Congress sought to incorporate that holding or to repudiate it in the 1984 amendments to 33(g). The critical fact in this inquiry is Congress' use of the term "employee," rather than "person entitled to compensation," in connection with the notification requirement. The use of this term is in marked contrast to the other clauses of 33(g). Section 33(g)(1) conditions 33(f) compensation of a settling "person entitled to compensation" on securing the employer's written approval, and 33(g)(2) provides, somewhat redundantly, that a "person entitled to compensation" forfeits all rights to compensation and medical benefits if the written approval mentioned in 33(g)(1) is not obtained. The notification clause of 33(g)(2), however, provides that "if the employee fails to notify the employer of any settlement obtained from or judgment rendered against a third person, all rights to compensation and medical benefits shall be terminated, regardless of whether the employer or the employer's insurer has made payments or acknowledged entitlement to benefits" (emphasis added). The use of the term "employee" in 33(g)(2) strongly suggests that Congress intended to incorporate the BRB's holding in O'Leary. As mentioned, the language Congress chose for the last clause of 33(g)(2) indicates that it was aware the Board had adopted a restrictive interpretation of the term "person entitled to compensation." Congress retained that term in connection with the written-approval requirement of subsection (g)(1). Yet Congress chose the broad term, "employee," for the notification clause of subsection (g)(2), and "employee," unlike "person entitled to compensation," is a term expressly defined in the statute. See 2(3).[2] The *497 Court cannot explain why Congress would have chosen two different terms to apply to the different requirements. Indeed, on the Court's interpretation, the two terms are identical in their extension. On the Court's reading, the term "person entitled to compensation" denotes only a statutory employee who has a claim that, aside from the requirements of 33(g), would be recognized as val And that is exactly the denotation of the term "employee" in connection with the notification requirement. The fact that Congress chose to use different terms in connection with the different 33(g) requirementsusing, with respect to the written-approval requirement, a term that it knew had been narrowly interpreted, and using, with |
Justice Blackmun | 1,992 | 11 | dissenting | Estate of Cowart v. Nicklos Drilling Co. | https://www.courtlistener.com/opinion/112776/estate-of-cowart-v-nicklos-drilling-co/ | that it knew had been narrowly interpreted, and using, with respect to the notification requirement, a term broadly defined in the statute itselfsurely indicates that Congress intended the two terms to have different meanings. Had Congress intended the meaning the Court attributes to it, it would have used the same term in both contexts.[3] 2 The inference that Congress intended to adopt the O'Leary rule in the amended language of 33(g) is only strengthened *498 by consideration of the factual context to which the provision was designed to apply. As the Board noted in O'Leary, and as the Director argued to the Court of Appeals, the Act presumes that employers, as a rule, will promptly recognize their LHWCA obligations and commence payments immediately, without the need for a formal award. See 14(a). In that situation, the claimant generally knows the value of the benefits to be received, and can accurately compare that figure to any settlement offer. The claimant in this situation has no strong interest in the precise amount of any settlement that nets less than the statutory benefits, so long as the costs of suit are covered, because by operation of 33(f), he would not be allowed to retain any of the proceeds. On the other hand, the employer who has acknowledged liability has a strong interest in recovering from the third party any benefits already paid to the claimant and in reducing or eliminating any future benefits it has committed itself to pay. For the employer in this situation, the precise amount of a settlement for less than the claimant's statutory benefits is vitally important: any net dollar the claimant recovers in a third-party action is a dollar less the employer will have to pay in LHWCA benefits. Given the parties' different incentives in the situation where the employer already is paying benefits, it makes sense to require the claimant to protect the employer's interest, by requiring settlements to be reasonable in the employer's judgment. At the same time, giving the employer this power of approval does not generally threaten the claimant's interests, since, as mentioned, only the employer has an interest in settlements above the threshold of the claimantplaintiff's expenses and below the amount of promised or delivered LHWCA benefits. Matters are quite different, however, when (as in the present case) the employer has refused to make statutory payments and is not subject to an enforceable award at the time of settlement. First, the claimant generally will not be able *499 to estimate with certainty whether he will receive any LHWCA benefits, let alone how much. |
Justice Blackmun | 1,992 | 11 | dissenting | Estate of Cowart v. Nicklos Drilling Co. | https://www.courtlistener.com/opinion/112776/estate-of-cowart-v-nicklos-drilling-co/ | he will receive any LHWCA benefits, let alone how much. Accordingly, the calculation required by 33(g)a comparison between LHWCA benefits and settlement amountwill be far more difficult. Second, the claimant who is not receiving LHWCA payments, and who cannot be certain that he ever will receive payments, will have a much more powerful interest in negotiating a third-party settlement that is as favorable as possible. This claimant, unlike its counterpart who is receiving payments, therefore will have a strong incentiveindependent of the 33(g) requirementsto protect any interest the employer might have in reducing potential LHWCA liability. Finally, disabled longshore employees, or the families of a longshoreman killed on the job, are likely to be in a highly vulnerable position, subject to financial pressure that may lead them to overvalue a present lump-sum payment and undervalue future periodic payments that might eventually be available under an LHWCA award. The employer who refuses to pay, by contrast, has taken the position that it owes no LHWCA benefits that may be reduced through a third-party settlement, and thus that it has no real interest in the amount for which the third party settles. Moreover, as has been noted, the claimant who is not receiving benefits has a strong incentive to protect the employer's interest in reducing or eliminating any LHWCA liability that might eventually be imposed. Under the Court's interpretation of 33(g)(1), however, such an employer in many cases can ensure that it will never be required to pay LHWCA benefits, even if it might otherwise ultimately be determined to be liable, simply by withholding approval of any settlement offer, regardless of amount. In practice, recalcitrant employers will seek to exempt themselves from statutory liability by withholding approval of settlements, hoping that their employees' need for present funds will force them to settle without approval. I cannot believe that Congress intended to require LHWCA claimants *500 to bet their statutory benefits on the possibility that future administrative and perhaps judicial proceedings, years later, might vindicate their position that the employer should have been paying benefitsparticularly when the employer's asserted interest is already adequately protected independently of 33(g)(1). 3 The Court recognizes the patent unfairness of this situation, and it as much as admits that its interpretation is out of line with the policies of the Act. See ante, at 483. Nevertheless, the Court holds that the plain meaning of the term "person entitled to compensation" clearly applies to both categories of claimantsthose whose employers have denied liability, as well as those whose employers have acknowledged that they must pay statutory benefits. See ante, |
Justice Blackmun | 1,992 | 11 | dissenting | Estate of Cowart v. Nicklos Drilling Co. | https://www.courtlistener.com/opinion/112776/estate-of-cowart-v-nicklos-drilling-co/ | have acknowledged that they must pay statutory benefits. See ante, at 477. For that reason, the Court implies, regardless of what Congress may have thought it was accomplishing in the 1984 amendments, the words "person entitled to compensation" simply will not bear the construction O'Leary gave them. See ante, at 478-479. Even setting aside my doubts, expressed above, about the plain meaning rule's application to this statute, I am not persuaded by the Court's contention. In my view, it does not strain ordinary language to describe claimants whose employers have acknowledged LHWCA liability as "persons entitled to compensation," but to withhold that description from claimants whose employers have denied liability for compensation. This is particularly so, given the context in which the term appears in the statute. Section 33(g)(1) requires the "person entitled to compensation" to compare two figuresthe amount of a settlement offer, on the one hand, and the amount of compensation to which the person is entitled, on the other. But what is that latter figure in a situation in which the employer denies liability in full or in part? Doubtless, the claimant could hazard a guess by consulting the Act's jurisdictional provisions concerning who is covered *501 for which kind of accident, the compensation schedules included in the Act, and, in the case of a disability claim, the opinion of the claimant's doctor that the claimant, in fact, is disabled. The very nature of the situation, however, is that it is not clear that such a person is indeed "entitled to compensation"that question, after all, is exactly the issue that the employer's position requires to be determined in administrative and perhaps subsequent judicial proceedings. The O'Leary limitation of the term "person entitled to compensation" to the situation in which the claimant's employer has acknowledged liability and commenced payments seems to me fully consistent with the requirements of ordinary language. It is true, as the Court observes, that under the O'Leary interpretation, the term "person entitled to compensation" would take on different meanings in different contexts. See ante, at 478. This Court, however, has not inflexibly required the same term to be interpreted in the same way for all purposes. Compare with (noting that the maxim is "not inexorable," but arguing that because "nothing in the [statute's] structure or purpose" counsels otherwise, the Court should have applied it). This Court has recognized: "Most words have different shades of meaning and consequently may be variously construed, not only when they occur in different statutes, but when used more than once in the same statute or even in the same |
Justice Blackmun | 1,992 | 11 | dissenting | Estate of Cowart v. Nicklos Drilling Co. | https://www.courtlistener.com/opinion/112776/estate-of-cowart-v-nicklos-drilling-co/ | once in the same statute or even in the same section. "It is not unusual for the same word to be used with different meanings in the same act, and there is no rule of statutory construction which precludes the courts from giving to the word the meaning which the legislature intended it should have in each instance." Atlan- tic Cleaners & Dyers, *502 This case is one in which the statutory term in question should be read contextually, rather than under the assumption that the term necessarily has the same meaning in all contexts. The phrase "person entitled to compensation" is not defined in the statute, and it is susceptible of at least two interpretationsa "formalist" interpretation, according to which one may be entitled to compensation whether or not anyone ever acknowledges that fact, and a "positivist" or "legal realist" interpretation, according to which one is entitled to compensation only if the relevant decision maker has so declared. Which of these two senses is "correct" will depend upon context. The latter sense, I have suggested, is appropriate to a context in which liability for compensation is disputed and the employee is called upon to predict the future course of administrative and perhaps judicial proceedingsnot just as to liability, but as to the precise amount of liability. And, in any event, I think, the text and circumstances of the 1984 amendment to 33(g) indicate that Congress intended to adopt the "realist" interpretation found in O'Leary. Moreover, the Court simply has failed to apply, or even mention, a maxim of interpretation, specifically applicable to the LHWCA, that strongly supports Cowart's position. This Court long has held that "`[t]his Act must be liberally construed in conformance with its purpose, and in a way which avoids harsh and incongruous results.' " Director, quoting 346 U. S., at The only point at which the Court in this case consults the purposes of the Act is at the end of its opinion, when it assures the reader that its interpretation of the notification requirement of 33(g)(2)as opposed to its interpretation of the written-approval requirement stated in 33(g)(1)is consistent with the statute's purposes. See ante, at 482. Finally, underscoring its refusal to apply the maxim of liberal construction to this case, the Court ultimately acknowledges *503 that the interpretation of 33(g) it has adopted has "harsh effects" and "creates a trap for the unwary." Ante, at 483. For my part, I can imagine no more appropriate occasion on which the maxim should be applied. 4 Once it is recognized that a claimant whose employer denies LHWCA |
Justice Blackmun | 1,992 | 11 | dissenting | Estate of Cowart v. Nicklos Drilling Co. | https://www.courtlistener.com/opinion/112776/estate-of-cowart-v-nicklos-drilling-co/ | it is recognized that a claimant whose employer denies LHWCA liability is not a "person entitled to compensation" for purposes of 33(g)(1), the proper resolution of this case is clear. Cowart was just such a claimant, and, accordingly, he was not bound by 33(g)(1)'s written-approval requirement. It is undisputed that he satisfied the notice requirement of 33(g)(2). It follows that 33(g) is no bar to Cowart's eligibility for benefits. III The Court recognizes "the stark and troubling possibility that significant numbers of injured workers or their families may be stripped of their LHWCA benefits by this statute." Ib It attempts to justify the "harsh effects" of its decision on the ground that it is but the faithful agent of the Legislature, and "Congress has spoken with great clarity to the precise question raised by this case." Ib In my view, Congress did not answer the question in the way the Court suggests, let alone did it do so "with great clarity." The responsibility for today's unfortunate decision rests not with Congress, but with this very Court. I dissent. |
Justice Marshall | 1,986 | 15 | majority | United States v. City of Fulton | https://www.courtlistener.com/opinion/111624/united-states-v-city-of-fulton/ | This case presents the question whether the Secretary of Energy violated 5 of the Flood Control Act of 1944, 16 U.S. C. 825s, or his contractual obligations by putting rates for hydroelectric power generated at federally owned dams into effect on an interim basis pending further review by the Federal Energy Regulatory Commission. The Court of Claims held that the Secretary's actions exceeded his contractual and statutory authority, and granted summary *659 judgment to respondents. After further proceedings, the Court of Appeals for the Federal Circuit affirmed, finding that the Court of Claims' decision was the law of the case and correct on the merits. We granted certiorari, and we now reverse. I A In the Flood Control Act, Congress authorized the construction of a number of dam and reservoir projects, operated by the Army Corps of Engineers and producing large blocks of hydroelectric power. Congress had granted authority for several such projects before 1944, but had enacted no "general law governing the sale and distribution of power" so generated. S. Rep. No. 1030, 78th Cong., 2d Sess., 3 (1944). Intending "to place by law the responsibility for disposal of such power in an existing Federal agency," Congress provided: "Electric power and energy generated at reservoir projects under the control of the War Department and in the opinion of the Secretary of War not required in the operation of such projects shall be delivered to the Secretary of the Interior, who shall transmit and dispose of such power and energy in such manner as to encourage the most widespread use thereof at the lowest possible rates to consumers consistent with sound business principles, the rate schedules to become effective upon confirmation and approval by the Federal Power Commission. Rate schedules shall be drawn having regard to the recovery (upon the basis of the application of such rate schedules to the capacity of the electric facilities of the projects) of the cost of producing and transmitting such electric energy, including the amortization of the capital investment allocated to power over a reasonable period of years." Ch. 665, 5, 890 *660 (codified as amended at 16 U.S. C. 825s). In order to sell the hydroelectric power turned over to him under that statute, the Secretary of the Interior created what eventually became five regional Power Marketing Administrations (PMAs). The PMA Administrators were assigned the responsibility of preparing rate schedules and the supporting accounting and cost allocation studies. There were no formal procedures for public participation in PMA preparation of rate schedules, although some of the PMAs (not including the Southwestern Power Administration |
Justice Marshall | 1,986 | 15 | majority | United States v. City of Fulton | https://www.courtlistener.com/opinion/111624/united-states-v-city-of-fulton/ | some of the PMAs (not including the Southwestern Power Administration (SWPA), immediately concerned in this suit) began to adopt such procedures starting in late 1977. See (1980). When determining whether to approve a PMA's proposed rates, the Federal Power Commission utilized its "special expertise" and its "independent judgment" in measuring the proposal against the statutory standards. Bonneville Power Administration, 34 F. P. C. 1462, 1465 (1965).[1] Because the Flood Control Act imposed no particular procedures for Commission review of rate proposals, the Commission was largely free to design its own. See Southeastern Power Administration, 54 F. P. C. 1631, 1632, n. (1975). It developed a practice of affording notice and comment to customers and other affected parties when the Secretary submitted a rate schedule, and granting requests for oral argument or public hearing on a case-by-case basis. The parties differ as to the degree to which Commission practice included the use of interim rates. The Solicitor General cites several instances in which the Commission did *661 implement such rates; respondents answer that those instances were both isolated and unrepresentative. Our own examination of the historical record reveals that beginning in the 1970's, the Commission announced its intention to examine PMA rate proposals "on the basis of evidentiary records which are developed during the course of [adjudicatory] public hearings," Bonneville Power Administration, 54 F. P. C. 808, 810 (1975). It provided for full administrative hearings with cross-examination of witnesses.[2] At the same time, the Commission adopted, in some cases, the practice of examining rates submitted to it by the Secretary and, if the rates appeared to lie within the statutory boundaries, approving them on an interim basis pending the formal hearing. It required that the PMA refund any overcharges with interest if the Commission found after a hearing that an approved interim rate had been too high. See Southeastern Power Administration, 54 F. P. C. 3 (1975); Bonneville Power Administration, 52 F. P. C. 1912 (1974); see also Bonneville Power Administration, 58 F. P. C. 2498 (1977) (Federal Columbia River Transmission System Act). The Department of the Interior initially took the view that full evidentiary hearings were inappropriate under the Flood Control Act, and that if such hearings were to be held the Commission had no power to approve rates on an interim basis. The Commission, however, explicitly rejected that position. Southeastern Power Administration, ; see also Bonneville Power Administration, 59 F. P. C. 1194, 1195 (1977) (Federal Columbia River Transmission System Act). The Interior Department then acquiesced in the Commission's view. See *662 B This regulatory scheme was upset in |
Justice Marshall | 1,986 | 15 | majority | United States v. City of Fulton | https://www.courtlistener.com/opinion/111624/united-states-v-city-of-fulton/ | view. See *662 B This regulatory scheme was upset in 1977, with the passage of the Department of Energy Organization Act, 42 U.S. C. 7101 et seq. (DOE Act). That statute, designed to "assur[e] coordinated and effective administration of Federal energy policy and programs," 7112, eliminated the Secretary of the Interior's role in hydroelectric power rate regulation, and abolished the Federal Power Commission entirely. The Interior Secretary's rate-proposing function was transferred to the new Secretary of Energy, "acting by and through [the] Administrators" of the PMAs. 7152(a)(2). The Federal Power Commission's rate approval function was transferred to the Secretary of Energy as well.[3] The Secretary of Energy institutionalized an interim rate-approval process for hydroelectric rates. He delegated to the Assistant Secretary for Resource Applications "the authority to develop, acting by and through the [PMA] administrators, and to confirm, approve, and place in effect on an interim basis, power and transmission rates for the five power marketing administrations."[4] He simultaneously delegated to the new Federal Energy Regulatory Commission (FERC) *663 "the authority to confirm and approve on a final basis, or to disapprove, rates developed by the Assistant Secretary." Under the new regulatory scheme, the PMAs give extensive public notice of proposed rates. 10 CFR 903.13 They provide all interested persons the opportunity to consult with and obtain information from the PMAs, to examine backup data, and to comment on the proposed rates. 903.14. In most cases, the PMAs hold one or more "public information forums" and "public comment forums" regarding the rate proposal. 903.15, 903.16. Following this consultation and comment period, the PMA Administrator must develop rates which, in the Assistant Secretary's judgment, should be confirmed, approved, and placed into effect on an interim basis. The Assistant Secretary must prepare a statement explaining the principal factors on which his decision to confirm and approve the rates was based. 903.21. The Assistant Secretary, after his interim confirmation and approval, submits the proposed rates to FERC for final confirmation and approval. FERC views its role in this process as "in the nature of an appellate body," 79547 (1980); its function is to determine from the record before it whether "due process requirements have been met and [whether] the Administrator's program of rate schedules and the decision of the [Assistant Secretary] are rational and consistent with the statutory standards." In exercising that appellate function, FERC relies on the record before it, remanding for supplementation if necessary. If it disapproves the interim rates confirmed and approved by the Assistant Secretary, the Assistant Secretary has the responsibility to submit acceptable substitute rates. Overcharges attributable to |
Justice Marshall | 1,986 | 15 | majority | United States v. City of Fulton | https://www.courtlistener.com/opinion/111624/united-states-v-city-of-fulton/ | the responsibility to submit acceptable substitute rates. Overcharges attributable to excessive interim rates must be refunded with interest to affected customers. 10 CFR 903.22 II The dispute in this case involves the price charged for the sale of hydroelectric power by the Southwestern Power Administration *664 (SWPA) to respondent cities of Lamar, Fulton, and Thayer, Missouri. Respondents and the United States first signed power purchase contracts in 1952, 1956, and 1963 respectively; the Lamar and Fulton contracts were renewed in early 1977. The language of the 1977 contract is typical: "It is understood and agreed that the rates and/or terms and conditions set forth in the said Rate Schedule `F-1,' with the confirmation and approval of the Federal Power Commission, may be increased, decreased, modified, superseded, or supplemented, at any time, and from time to time, and that if so increased, decreased, modified, superseded, or supplemented, the new rates and/or terms and conditions shall thereupon become effective and applicable to the purchase and sale of Firm Power and Firm Energy under this Contract in accordance with and on the effective date specified in the order of the Federal Power Commission containing such confirmation and approval." 680 F. 2d, at 117 (emphasis by Court of Claims deleted). Provisions for rate increases under the contracts at issue in this case went unused for a long time. SWPA did not increase its basic rate between 1957 and 1977. 13069 (1979). Unfortunately, SWPA's costs did not also remain constant. As a result, FERC found by 1979 that SWPA's annual revenues fell about $20 million short of covering costs and repaying investment. After considerable congressional and Commission prodding, see H. R. Rep. No. 95-1247, p. 59 ; S. Rep. No. 95-1067, p. 53 ; Southwestern Power Administration, 58 F. P. C. 2170 (1977); see also Energy and Water Development Appropriations for 1980: Hearings before the Subcommittee on Energy and Water Development of the House Committee on Appropriations, 96th Cong., 1st Sess., 2995-2998 (1979), SWPA in April 1978 finally issued notice of a proposed 42% rate increase. After the close of the public participation period, SWPA *665 developed new studies scaling down its estimate of necessary revenues, and developed new proposed rate schedules increasing basic rates only 33%. On March 1, 1979, the Assistant Secretary confirmed and approved the rates and placed them into effect on an interim basis, effective April 1, In June 1981, FERC disapproved the rates as insufficiently supported, finding them likely to be too low. (1981). On reconsideration in January however, FERC concluded that the rates, while "on the low side," were |
Justice Marshall | 1,986 | 15 | majority | United States v. City of Fulton | https://www.courtlistener.com/opinion/111624/united-states-v-city-of-fulton/ | concluded that the rates, while "on the low side," were nonetheless reasonable; it confirmed and approved the rates through September 30, 4563 Respondents paid the increased rates assessed by SWPA. They then filed suit, seeking to recover money paid pursuant to the interim rate increase between April 1979 and January The Court of Claims ruled for respondents on the question of liability, the Claims Court entered a $954,816 judgment in their favor, App. to Pet. for Cert. 19a-21a, and the Court of Appeals for the Federal Circuit affirmed, III Respondents contend that interim approval of rate increases by the Assistant Secretary violates the Flood Control Act and their power purchase contracts. They predicate their argument on the statutory direction that rate increases shall "become effective upon confirmation and approval by the Federal Power Commission," and on the similar contractual language That language, according to respondents, by its terms precludes interim rate It is important to note what questions are not before this Court. Respondents do not contest that the DOE Act transferred the FPC's rate-approval function to the Secretary of Energy. See Brief for Respondents 39. They agree that *666 the Secretary could properly confirm and approve the rates on a final basis, without any further procedures or FERC involvement, and that he could "delegate and divide that function amongst subordinate officials and agencies, Further, respondents concede that the contractual language must be read, to some extent, in the light of the DOE Act: they do not argue that the contractual language, providing for rate increases "with the confirmation and approval of the Federal Power Commission," precludes any rate increase now that body no longer exists. Rather, respondents' sole claim is that the statute and the contracts preclude the Secretary from making hydroelectric power rates effective before rendering a final determination that those rates satisfy all statutory requirements. A rate increase, they argue, can become effective only after the entire administrative review process has been completed. A We turn first to respondents' statutory contention. Section 5 of the Flood Control Act, on its face, says little about the appropriate method of rate implementation under that Act. The relevant federal agencies, however, at least since the mid-1970's, have interpreted the statute to allow interim rate See We must uphold that interpretation if the statute yields up no definitive contrary legislative command and if the agencies' approach is a reasonable one. U. S. A. The statutory language, providing only that "the rate schedules [shall] become effective upon confirmation and approval by the [Secretary]," does not definitively speak to the question of interim |
Justice Marshall | 1,986 | 15 | majority | United States v. City of Fulton | https://www.courtlistener.com/opinion/111624/united-states-v-city-of-fulton/ | [Secretary]," does not definitively speak to the question of interim rates. Respondents argue that the requirement that rate schedules become effective "upon" confirmation and approval precludes the Secretary from making rates effective before all confirmation and approval are completed. The Court of Claims agreed. We can find, however, *667 no such unambiguous meaning in the wording of the statute. The agency's practice of allowing rates to become effective after interim "confirmation and approval," even though the rates are subject to further examination, is as consistent with the bare statutory language as is respondents' preferred arrangement. Nor does the legislative history of the Flood Control Act resolve the ambiguity. Respondents draw on that legislative history in arguing that the drafters of 5 of the Flood Control Act (like the drafters of 6 of the Bonneville Project Act of 1937, on which 5 of the Flood Control Act was based) intended to "protec[t] the power consumers." 90 Cong. Rec. 9283 (1944) (statement of Rep. Rankin). Respondents point out that during the pendency of an interim rate increase, power consumers pay more than they would have paid otherwise, and perhaps more than they should pay. Yet as we shall discuss more extensively below, the goal of protecting power customers is not the only policy embodied in the Flood Control Act. The existence of that policy, without more, hardly supplies an unambiguous legislative command barring any imposition of interim rates. Respondents rely on a statement by Secretary Ickes that the Federal Power Commission would have final yes-or-no authority over rates under the Bonneville Project Act, Columbia River (Bonneville Dam), Oregon and Washington: Hearings on H. R. 7642 before the House Committee on Rivers and Harbors, 75th Cong., 1st Sess., 150 (1937), but that statement is not particularly helpful in determining Congress' intent regarding interim rates. In the absence of a clear legislative command, we must consider whether the Secretary's choice " `represents a reasonable accommodation of conflicting policies that were committed to the agency's care by the statute.' " quoting United The Secretary has a dual obligation under the Flood Control Act. He is required to protect consumers *668 by ensuring that power is sold "at the lowest possible rates. consistent with sound business principles." See United He is also, however, required by the plain language of the statute to protect the public fisc by ensuring that federal hydroelectric programs recover their own costs and do not require subsidies from the federal treasury. See H. R. Conf. Rep. No. 2051, 78th Cong., 2d Sess., 7 (1944); see also S. Rep. No. 2280, 74th Cong., |
Justice Marshall | 1,986 | 15 | majority | United States v. City of Fulton | https://www.courtlistener.com/opinion/111624/united-states-v-city-of-fulton/ | 7 (1944); see also S. Rep. No. 2280, 74th Cong., 2d Sess., 2 (1936) (Bonneville Project Act); H. R. Rep. No. 2955, 74th Cong., 2d Sess., 2 (1936) (same). Interim ratesetting appears well suited to accommodating that dual goal. That process protects consumers by subjecting proposed rates to initial review before they are made effective, and by allowing for refunds if the rates are ultimately disapproved. It protects the Government by allowing it to collect rate increases that are necessary for recovery of its costs, without having to wait for time-consuming final review. It helps eliminate the possibility that delay in implementation of rate increases, particularly in a period of high inflation, will cause the Government constantly to be playing catchup in its attempt to secure an appropriate rate. Respondents argue that the Secretary's plan is inconsistent with the congressional scheme because it allows the implementation of rates that may not meet the statutory standards, and that may ultimately be found to be too high. Congress, respondents argue, intended to eliminate just such a possibility when it interposed the requirement of FPC "confirmation and approval" in the ratesetting process. The refund process, they contend, offers insufficient protection because while excessive charges are immediately passed on to the ultimate consumers, refunds of those charges may not successfully trickle down to those same consumers. Yet ratesetting agencies charged with protecting the public commonly have the power to allow rates to go into effect *669 prior to the completion of administrative review. See, e. g., Natural Gas Act, 4(e), 15 U.S. C. 717c(e); Federal Power Act, 205(e), 16 U.S. C. 824d(e); Federal Communications Act, 204, 47 U.S. C. 204; Interstate Commerce Act, 15(7), 49 U.S. C. 10708. See generally W. Jones, Cases and Materials on Regulated Industries 122-126 Congress plainly has not found that practice necessarily incompatible with the goal of consumer protection. Respondents rely on for the proposition that refunds are an inadequate remedy for excessive rates. In Tennessee Gas, the Commission was faced with a statutory scheme under which a private utility could put a rate increase into effect, after an initial suspension period, without any governmental review of the legality of the increase. The utility argued that once an increased rate went into effect, it should be allowed to collect that rate until the completion of all Commission proceedings on the legality of the rate, since any illegal charges ultimately would be subject to refund. We rejected that position, holding that the Commission did not have to rely solely on its refund procedure to protect consumers and could instead order |
Justice Marshall | 1,986 | 15 | majority | United States v. City of Fulton | https://www.courtlistener.com/opinion/111624/united-states-v-city-of-fulton/ | its refund procedure to protect consumers and could instead order an interim reduction of the increased rate. Tennessee Gas does not support respondents' argument. Where the Government seeks to implement an increase under the Flood Control Act, there is no danger of unreviewed illegal rates, as in Tennessee Gas. The rate when implemented has already been the subject of extensive public participation and review by the Assistant Secretary. The Secretary does not rely solely on the refund procedure to protect consumers, and thus the concerns that led the Tennessee Gas Court to find that process inadequate are not present. Instead, Tennessee Gas illustrates the authority this Court repeatedly has given regulatory agencies to do precisely what respondents claim they should not be able to do *670 to issue interim rate orders prior to final determinations whether proposed rates meet statutory requirements. Respondents argue that the Secretary should be barred from setting interim rates absent explicit congressional authorization. The Secretary, they contend, cannot create a complex regulatory structure out of thin air. The provisions of the Flood Control Act, however, are general, and are in all respects less complex than the analogous provisions of the Federal Power Act governing regulation of private utility charges. Congress, in declining to set out a detailed mandatory procedural scheme, apparently intended to leave the agency substantial discretion as to how to structure its review. There is no support in the legislative history for the proposition that Congress intended to bar the Secretary from taking all steps regarding power rate regulation not explicitly set out in the general terms of 5 of the Flood Control Act, and Congress may reasonably have intended to allow more administrative discretion with regard to this federal proprietary activity than with regard to control of private rates. Limiting the agency as respondents suggest would thus diserve Congress' goal of establishing "a convenient and practical method of disposing of power at [federal hydroelectric] projects." S. Rep. No. 1030, 78th Cong., 2d Sess., 3 (1944). Indeed, this Court has in other contexts allowed agencies to set interim rates even though their governing statutes did not explicitly so provide. In the Trans Alaska Pipeline Rate Cases, we held that it was "an intelligent and practical exercise of [the agency's rate] suspension power," for the Interstate Commerce Commission to set out, without a hearing, interim rates that it would allow to go into effect. We further held that the Commission had authority to condition such an action on the carriers' promise to refund charges ultimately found to be too high. That refund scheme, although |
Justice Marshall | 1,986 | 15 | majority | United States v. City of Fulton | https://www.courtlistener.com/opinion/111624/united-states-v-city-of-fulton/ | ultimately found to be too high. That refund scheme, although nowhere explicitly approved in the statute, was a " `legitimate, reasonable, and direct adjunct to the Commission's explicit statutory power *671 to suspend rates pending investigation.' " quoting United The Trans Alaska Pipeline Rate Cases were decided under a quite different statutory scheme from the one at issue today, and analogies between the two statutory schemes are loose at best. We see no reason, however, why we should take a narrower approach to the Secretary's powers under the Flood Control Act than we took to the ICC's under its enabling statute.[5] We therefore hold that the procedures established by the Secretary to exercise his powers under the Flood Control Act both are within his delegated authority and constitute a reasonable accommodation of the policies underlying that Act. At bottom, respondents seek to strike down the Secretary's scheme on the ground that it gives power customers too much process. They concede that there could be no objection to a scheme under which rate review was simply cut off after the Assistant Secretary's examination, but contend that the administrative plan must be invalidated because the Secretary has allowed still another layer of review. We would not be disposed to accept such a claim absent particularly compelling argument in its favor. Respondents have not supplied such argument here. B Respondents also argue that interim rate increases violate the terms of their power purchase contracts. Respondents make no claim that the contracts must be read literally, to bar any rate increase absent approval by a nonexistent Federal Power Commission. They nonetheless argue that the *672 contractual language unambiguously bars the imposition of interim rates. We can detect no such absolute bar. Respondents have presented no evidence demonstrating that the parties intended the contractual language, which tracks that of the statute, to do anything other than incorporate the statute's procedural requirements. The Court of Claims based its acceptance of respondents' position on its desire to construe the contracts "in harmony with" its interpretation of the statutory language, which, it noted, "is incorporated into the contract terms"; on its conclusion that there was no significant administrative practice of interim rate increases; and on its conclusion that the plain meaning of the contractual language unambiguously bars such rate -645, 680 F. 2d, at 119-121. The first premise is no longer helpful to respondents, since we have determined that the statute allows the imposition of interim rate We have also rejected the second premise, see We now reject the third. The contractual provision that rate increases will become |
Justice Powell | 1,981 | 17 | dissenting | Arkansas Louisiana Gas Co. v. Hall | https://www.courtlistener.com/opinion/110562/arkansas-louisiana-gas-co-v-hall/ | I agree with much of JUSTICE STEVENS' dissenting opinion and would affirm the judgment of the Supreme Court of Louisiana. Respondents are entitled to the relief they seek based on Louisiana state contract law. By virtue of the "most favored nations" clause in its contract with respondents, petitioner was obligated to pay respondents the higher rate it paid a comparable supplier. Petitioner did not comply with this provision, but the Court today holds that respondents nevertheless may not recover damages because they failed to file with the Commission the increased rate. It is said that the "filed rate doctrine" requires such a filing. I would agree with the Court if it were clear that respondents were neglectful or otherwise at fault in not filing and seeking Commission approval of the higher rate. But the Louisiana courts found that petitioner was responsible for respondents' failure to file. Petitioner did not disclose that it was paying higher rates to another producer from the same field under comparable conditions. The Louisiana Court of Appeal expressly found that respondents' failure to comply with the filed rate doctrine was caused primarily by the "un-cooperative and evasive" conduct of petitioner's officials. See Petitioner knew the facts, and the Louisiana Supreme Court held that petitioner had a state-law duty to disclose them in order not to frustrate the "most favored nations" clause. There is no showing that respondents *586 had any knowledge of their entitlement to invoke the clause until they finally obtained the facts through the Freedom of Information Act. In these circumstances, the filed rate doctrine should not preclude a state-law damages action. In holding to the contrary, the Court in effect rewards petitioner's breach of its state-law contractual duty to notify respondents that it was paying a higher rate to a comparable supplier. |
Justice Roberts | 2,014 | 0 | dissenting | Paroline v. United States | https://www.courtlistener.com/opinion/2670966/paroline-v-united-states/ | I certainly agree with the Court that Amy deserves restitution, and that Congress—by making restitution mandatory for victims of child pornography—meant that she have it. Unfortunately, the restitution statute that Congress wrote for child pornography offenses makes it impossible to award that relief to Amy in this case. In- stead of tailoring the statute to the unique harms caused by child pornography, Congress borrowed a generic resti- tution standard that makes restitution contingent on the Government’s ability to prove, “by the preponderance of the evidence,” “the amount of the loss sustained by a victim as a result of ” the defendant’s crime. 18 U.S. C. When it comes to Paroline’s crime—possession of two of Amy’s images—it is not possible to do anything more than pick an arbitrary number for that “amount.” And arbitrary is not good enough for the criminal law. The Court attempts to design a more coherent restitu- tion system, focusing on “the defendant’s relative role in the causal process that underlies the victim’s general losses.” Ante, at 21. But this inquiry, sensible as it may be, is not the one Congress adopted. After undertaking the inquiry that Congress did require, the District Court in this case concluded that the Government could not meet 2 PAROLINE v. UNITED STATES ROBERTS, C. J., dissenting its statutory burden of proof. Before this Court, the Gov- ernment all but concedes the point. See Brief for United States 25 (“it is practically impossible to know whether [Amy’s] losses would have been slightly lower if one were to subtract one defendant, or ten, or fifty”). I must regret- fully dissent. I Section 2259(a) of Title 18 directs that a district court “shall order restitution for any offense under this chapter,” which includes Paroline’s offense of knowingly possessing child pornography in violation of section 2252. In case Congress’s purpose were not clear from its use of “shall,” section 2259(b)(4) then emphasizes that “[t]he issuance of a restitution order under this section is mandatory.” Section 2259(b)(1) spells out who may receive restitu- tion, and for what. It provides that “[t]he order of restitu- tion under this section shall direct the defendant to pay the victim (through the appropriate court mechanism) the full amount of the victim’s losses as determined by the court pursuant to [section 2259(b)(2)].” The term “ ‘vic- tim’ ” is defined as “the individual harmed as a result of a commission of a crime under this chapter.” And the term “ ‘full amount of the victim’s losses’ includes any costs incurred by the victim for medical services relat- ing to physical, psychiatric, |
Justice Roberts | 2,014 | 0 | dissenting | Paroline v. United States | https://www.courtlistener.com/opinion/2670966/paroline-v-united-states/ | the victim for medical services relat- ing to physical, psychiatric, or psychological care”; “lost income”; and “any other losses suffered by the victim as a proximate result of the offense.” (D), (F). Section 2259(b)(2) then describes how the district court must calculate restitution. It provides that “[a]n order of restitution under this section shall be issued and enforced in accordance with section 3664 in the same manner as an order under section 3663A.” Unlike section 2259, sections 3663A and 3664 were not designed specifically for child pornography offenses; they are part of the Mandatory Victims Restitution Act of 1996 and supply general resti- Cite as: 572 U. S. (2014) 3 ROBERTS, C. J., dissenting tution guidelines for many federal offenses. Most relevant here, section 3664(e) provides that “[a]ny dispute as to the proper amount or type of restitution shall be resolved by the court by the preponderance of the evidence. The bur- den of demonstrating the amount of the loss sustained by a victim as a result of the offense shall be on the attorney for the Government.” A As the Court explains, the statute allows restitution only for those losses that were the “proximate result” of Paroline’s offense. See ante, at 9–11 (citing Contrary to Paroline’s argument, the proximate cause re- quirement is easily satisfied in this case. It was readily foreseeable that Paroline’s crime could cause Amy to suffer precisely the types of losses that she claims: future lost wages, costs for treatment and counseling, and attor- ney’s fees and costs, all of which are eligible losses enu- merated in section 2259(b)(3). There is a “direct relation” between those types of injuries and Paroline’s “injurious conduct.” I therefore agree with the Court that if Paroline actually caused those losses, he also proximately caused them. See ante, at 12. The more pressing problem is the statutory requirement of actual causation. See Burrage v. United States, 571 U. S. (2014) (slip op., at 6) (the ordinary meaning of the term “results from” requires proof that the defend- ant’s conduct was the “actual cause” of the injury). Here too the Court correctly holds that the statute precludes the restitution award sought by Amy and preferred by JUSTICE SOTOMAYOR’s dissent, which would hold Paroline responsible for Amy’s entire loss. See ante, at 16–19; contra, post, at 7–16. Congress has authorized restitution only for “the amount of the loss sustained by a victim as a result of the offense.” We have interpreted 4 PAROLINE v. UNITED STATES ROBERTS, C. J., dissenting virtually identical language, in the predecessor statute to section 3664, to require |
Justice Roberts | 2,014 | 0 | dissenting | Paroline v. United States | https://www.courtlistener.com/opinion/2670966/paroline-v-united-states/ | language, in the predecessor statute to section 3664, to require “restitution to be tied to the loss caused by the offense of conviction.” (citing 18 U.S. C. (1982 ed.); emphasis added). That is, restitution may not be imposed for losses caused by any other crime or any other defendant.1 JUSTICE SOTOMAYOR’s dissent dismisses section 3664(e), which is Congress’s direct answer to the very question presented by this case, namely, how to resolve a “dispute as to the proper amount of restitution.” JUSTICE SOTOMAYOR thinks the answer to that question begins and ends with the statement in section 2259(b)(1) that the defendant must pay “the full amount of the victim’s losses.” See post, at 1, 2, 10, 15. But losses from what? The answer is found in the rest of that sentence: “the full amount of the victim’s losses as determined by the court pursuant to paragraph 2.” (emphasis added). “[P]aragraph 2,” of course, instructs that “[a]n order of restitution under this section shall be issued and enforced in accordance with section 3664 in the same manner as an order under section 3663A.” And it is section 3664 that provides the statute’s burden of proof and speci- fies that the defendant pay for those losses sustained “as a result of the offense”—that is, his offense. The offense of conviction here was Paroline’s possession of two of Amy’s images. No one suggests Paroline’s crime —————— 1 In a case “where the loss is the product of the combined conduct of multiple offenders,” post, at 7 (SOTOMAYOR, J., dissenting), section 3664(h) provides that a court may “make each defendant liable for payment of the full amount of restitution or may apportion liability among the defendants to reflect the level of contribution to the victim’s loss and economic circumstances of each defendant.” As the Court notes, however, this provision applies only when multiple defendants are sentenced in the same proceeding, or charged under the same indictment. Ante, at 22; see also Brief for United States 43. Cite as: 572 U. S. (2014) 5 ROBERTS, C. J., dissenting actually caused Amy to suffer millions of dollars in losses, so the statute does not allow a court to award millions of dollars in restitution. Determining what amount the statute does allow—the amount of Amy’s losses that Paro- line’s offense caused—is the real difficulty of this case. See ante, at 12. B Regrettably, Congress provided no mechanism for an- swering that question. If actual causation is to be deter- mined using the traditional, but-for standard, then the Court acknowledges that “a showing of but-for causation cannot be |
Justice Roberts | 2,014 | 0 | dissenting | Paroline v. United States | https://www.courtlistener.com/opinion/2670966/paroline-v-united-states/ | Court acknowledges that “a showing of but-for causation cannot be made” in this case. Ante, at 12. Amy would have incurred all of her lost wages and counseling costs even if Paroline had not viewed her images. The Govern- ment and Amy respond by offering an “aggregate” causa- tion theory borrowed from tort law. But even if we apply this “legal fiction,” ante, at 15, and assume, for purposes of argument, that Paroline’s crime contributed something to Amy’s total losses, that suffices only to establish causation in fact. It is not sufficient to award restitution under the statute, which requires a further determination of the amount that Paroline must pay. He must pay “the full amount of the victim’s losses,” yes, but “as determined by” section 3664—that is, the full amount of the losses he caused. The Government has the burden to establish that amount, and no one has suggested a plausible means for the Government to carry that burden.2 The problem stems from the nature of Amy’s injury. As explained, section 3664 is a general statute designed to provide restitution for more common crimes, such as fraud and assault. The section 3664(e) standard will work just —————— 2 The correct amount is not the one favored by JUSTICE SOTOMAYOR’s dissent, which would hold Paroline liable for losses that he certainly did not cause, without any right to seek contribution from others who harmed Amy. 6 PAROLINE v. UNITED STATES ROBERTS, C. J., dissenting fine for most crime victims, because it will usually not be difficult to identify the harm caused by the defendant’s offense. The dispute will usually just be over the amount of the victim’s loss—for example, the value of lost assets or the cost of a night in the hospital. Amy has a qualitatively different injury. Her loss, while undoubtedly genuine, is a result of the collective actions of a huge number of people—beginning with her uncle who abused her and put her images on the Internet, to the distributors who make those images more widely avail- able, to the possessors such as Paroline who view her im- ages. The harm to Amy was produced over time, gradually, by tens of thousands of persons acting independently from one another.3 She suffers in particular from her knowledge that her images are being viewed online by an unknown number of people, and from her fear that any person she meets might recognize her from having wit- nessed her abuse. App. 59–66. But Amy does not know who Paroline is. Nothing in the record comes close to establishing that Amy |
Justice Roberts | 2,014 | 0 | dissenting | Paroline v. United States | https://www.courtlistener.com/opinion/2670966/paroline-v-united-states/ | Nothing in the record comes close to establishing that Amy would have suffered less if Paroline had not possessed her images, let alone how much less. See Brief for United States 25. Amy’s injury is indivisible, which means that Paroline’s particu- lar share of her losses is unknowable. And yet it is proof of Paroline’s particular share that the statute requires. By simply importing the generic restitution statute without accounting for the diffuse harm suffered by vic- tims of child pornography, Congress set up a restitution system sure to fail in cases like this one. Perhaps a case with different facts, say, a single distributor and only a —————— 3 The gang assaults discussed by JUSTICE SOTOMAYOR, post, at 8, are not a fair analogy. The gang members in those cases acted together, with a common plan, each one aiding and abetting the others in inflict- ing harm. But Paroline has never met or interacted with any, or virtually any, of the other persons who contributed to Amy’s injury, and his possession offense did not aid or abet anyone. Cite as: 572 U. S. (2014) 7 ROBERTS, C. J., dissenting handful of possessors, would be susceptible of the proof the statute requires. But when tens of thousands of copies (or more) of Amy’s images have changed hands all across the world for more than a decade, a demand for the Govern- ment to prove “the amount of the loss sustained by a victim as a result of the offense”—the offense before the court in any particular case—is a demand for the impos- sible. (emphasis added). When Congress con- ditioned restitution on the Government’s meeting that burden of proof, it effectively precluded restitution in most cases involving possession or distribution of child pornography. II The District Court in Paroline’s case found that the Government could not meet its statutory burden of proof. The Government does not really contest that holding here; it instead asks to be held to a less demanding standard. Having litigated this issue for years now in virtually every Circuit, the best the Government has come up with is to tell courts awarding restitution to look at what other courts have done. But that is not a workable guide, not least because courts have taken vastly different approaches to materially indistinguishable cases. According to the Government’s lodging in this case, District Courts award- ing less than Amy’s full losses have imposed restitution orders varying from $50 to $530,000.4 Restitution Awards for Amy Through December 11, 2013, Lodging of United States. How is a court supposed to use those |
Justice Roberts | 2,014 | 0 | dissenting | Paroline v. United States | https://www.courtlistener.com/opinion/2670966/paroline-v-united-states/ | United States. How is a court supposed to use those figures as any sort of guidance? Pick the median figure? The mean? Something else? More to the point, the Government’s submission lacks any basis in law. That the first district courts confronted —————— 4 Amy’s uncle—the initial source of all of her injuries—was ordered to pay $6,325 in restitution, which only underscores how arbitrary the statute is when applied to most child pornography offenses. 8 PAROLINE v. UNITED STATES ROBERTS, C. J., dissenting with Amy’s case awarded $1,000, or $5,000, or $530,000, for no articulable reason, is not a legal basis for awarding one of those figures in Paroline’s case. The statute re- quires proof of this defendant’s harm done, not the going rate. And of course, as the Government acknowledges, its approach “doesn’t work very well” in the first case brought by a particular victim. Tr. of Oral Arg. 24. The majority’s proposal is to have a district court “as- sess as best it can from available evidence the significance of the individual defendant’s conduct in light of the broader causal process that produced the victim’s losses.” Ante, at 22. Even if that were a plausible way to design a resti- tution system for Amy’s complex injury, there is no way around the fact that it is not the system that Congress created. The statute requires restitution to be based exclusively on the losses that resulted from the defendant’s crime—not on the defendant’s relative culpability. The majority’s plan to situate Paroline along a spectrum of offenders who have contributed to Amy’s harm will not assist a district court in calculating the amount of Amy’s losses—the amount of her lost wages and counseling costs—that was caused by Paroline’s crime (or that of any other defendant). The Court is correct, of course, that awarding Amy no restitution would be contrary to Congress’s remedial and penological purposes. See ante, at 20. But we have previ- ously refused to allow “policy considerations”—including an “expansive declaration of purpose,” and the need to “compensate victims for the full losses they suffered”—to deter us from reading virtually identical statutory lan- guage to require proof of the harm caused solely by the defendant’s particular offense. – 421. Moreover, even the Court’s “relative role in the causal process” approach to the statute, ante, at 21, is unlikely to make Amy whole. To the extent that district courts do Cite as: 572 U. S. (2014) 9 ROBERTS, C. J., dissenting form a sort of consensus on how much to award, experi- ence shows that the amount in any particular |
Justice Roberts | 2,014 | 0 | dissenting | Paroline v. United States | https://www.courtlistener.com/opinion/2670966/paroline-v-united-states/ | award, experi- ence shows that the amount in any particular case will be quite small—the significant majority of defendants have been ordered to pay Amy $5,000 or less. Lodging of United States. This means that Amy will be stuck litigating for years to come. The Court acknowledges that Amy may end up with “piecemeal” restitution, yet responds simply that “Congress has not promised victims full and swift restitution at all costs.” Ante, at 24. Amy will fare no better if district courts consider the other factors suggested by the majority, including the number of defendants convicted of possessing Amy’s im- ages, a rough estimate of those likely to be convicted in the future, and an even rougher estimate of the total number of persons involved in her harm. Ante, at 23. In the first place, only the last figure is relevant, because Paroline’s relative significance can logically be measured only in light of everyone who contributed to Amy’s injury—not just those who have been, or will be, caught and convicted. Even worse, to the extent it is possible to project the total number of persons who have viewed Amy’s images, that number is tragically large, which means that restitution awards tied to it will lead to a pitiful recovery in every case. See Brief for Respondent Amy 65 (estimating Paro- line’s “ ‘market share’ ” of Amy’s harm at 1/71,000, or $47). The majority says that courts should not impose “trivial restitution orders,” ante, at 23, but it is hard to see how a court fairly assessing this defendant’s relative contribu- tion could do anything else. Nor can confidence in judicial discretion save the statute from arbitrary application. See ante, at 22, 25–26. It is true that district courts exercise substantial discretion in awarding restitution and imposing sentences in general. But they do not do so by mere instinct. Courts are instead guided by statutory standards: in the restitution context, a fair determination of the losses caused by the individual 10 PAROLINE v. UNITED STATES ROBERTS, C. J., dissenting defendant under section 3664(e); in sentencing more gen- erally, the detailed factors in section 3553(a). A contrary approach—one that asks district judges to impose restitu- tion or other criminal punishment guided solely by their own intuitions regarding comparative fault—would un- dermine the requirement that every criminal defendant receive due process of law. * * * The Court’s decision today means that Amy will not go home with nothing. But it would be a mistake for that salutary outcome to lead readers to conclude that Amy has prevailed or that Congress has |
Justice Burger | 1,980 | 12 | majority | Andrus v. Shell Oil Co. | https://www.courtlistener.com/opinion/110271/andrus-v-shell-oil-co/ | The general mining law of 1872, 0 U.S. C. 22 et seq., provides that citizens may enter and explore the public domain, and search for minerals; if they discover "valuable mineral deposits," they may obtain title to the land on which such deposits are located.[1] In 1920 Congress altered this *659 program with the enactment of the Mineral Leasing Act. as amended, 0 U.S. C. 181 et seq. The Act withdrew oil shale and several other minerals from the general mining law and provided that thereafter these minerals would be subject to disposition only through leases. A savings clause, however, preserved "valid claims existent at date of the passage of this Act and thereafter maintained in compliance with the laws under which initiated, which claims may be perfected under such laws, including discovery."[2] The question presented is whether oil shale deposits located prior to the 1920 Act are "valuable mineral deposits" patentable under the savings clause of the Act. I The action involves two groups of oil shale claims located by claimants on public lands in Garfield County, Colo., prior to the enactment of the Mineral Leasing Act.[] The first group of claims, designated Mountain Boys Nos. 6 and 7, was located in 1918. In 1920, a business trust purchased the claims for $25,000, and in 1924 an application for patent was filed with *660 the Department of the Interior. Some 20 years later, after extended investigative and adjudicatory proceedings, the patent was rejected "without prejudice" on the ground that it was not then vigorously pursued. In 1958, Frank W. Winegar acquired the claims and filed a new patent application. In 1964, Winegar conveyed his interests in the claims to respondent Shell Oil Company. The second group of claims, known as Harold Shoup Nos. 1-4, was located in 1917. In 192, the claims were acquired by Karl C. Schuyler who in 19 bequeathed them to his surviving spouse. In 1960, Mrs. Schuyler incorporated respondent D. A. Shale, Inc., and transferred title to the claims to the corporation. Three months later, the corporation filed patent applications. In 1964, the Department issued administrative complaints alleging that the Mountain Boys claims and the Shoup claims were invalid. The complaints alleged, inter alia, that oil shale was not a "valuable mineral" prior to the enactment of the 1920 Mineral Leasing Act. The complaints were consolidated and tried to a hearing examiner who in 1970 ruled the claims valid. The hearing examiner observed that under established case law the test for determining a "valuable mineral deposit" was whether the deposit was one justifying present expenditures |
Justice Burger | 1,980 | 12 | majority | Andrus v. Shell Oil Co. | https://www.courtlistener.com/opinion/110271/andrus-v-shell-oil-co/ | deposit" was whether the deposit was one justifying present expenditures with a reasonable prospect of developing a profitable mine. See United ; Castle v. Womble, 19 Lans. Ch. D. 455 (1894).[4] He then reviewed the history *661 of oil shale operations in this country and found that every attempted operation had failed to show profitable production. On the basis of this finding and other evidence showing commercial infeasibility, the hearing examiner reasoned that "[i]f this were a case of first impression," oil shale would fail the "valuable mineral deposit" test. However, he deemed himself bound by the Department's contrary decision in Freeman v. Summers, 52 Lans. Ch. D. 201 (1927). There, the Secretary had written: "While at the present time there has been no considerable production of oil from shales, due to the fact that abundant quantities of oil have been produced more cheaply from wells, there is no possible doubt of its value and of the fact that it constitutes an enormously valuable resource for future use by the American people. "It is not necessary, in order to constitute a valid discovery under the general mining laws sufficient to support an application for patent, that the mineral in its present situation can be immediately disposed of at a profit." (Emphasis added.) The hearing examiner ruled that Freeman v. Summers compelled the conclusion that oil shale is a valuable mineral subject to appropriation under the mining laws, and he upheld the Mountain Boys and Shoup claims as valid and patentable. The Board of Land Appeals reversed. Adopting the findings of the hearing examiner, the Board concluded that oil shale claims located prior to 1920 failed the test of value because at the time of location there did not appear "as a present fact a reasonable prospect of success in developing an operating mine that would yield a reasonable profit." (Emphasis in original.) The Board recognized that this conclusion was at odds with prior departmental precedent, and *662 particularly with Freeman v. Summers; but it rejected that precedent as inconsistent with the general mining law and therefore unsound. The Board then considered whether its newly enunciated interpretation should be given only prospective effect. It found that respondents' reliance on prior rulings was minimal and that the Department's responsibility as trustee of public lands required it to correct a plainly erroneous decision.[5] Accordingly, it ruled that its new interpretation applied to the Mountain Boys and Shoup claims, and that those claims were invalid. Respondents appealed the Board's ruling to the United States District Court for the District of Colorado. The District Court |
Justice Burger | 1,980 | 12 | majority | Andrus v. Shell Oil Co. | https://www.courtlistener.com/opinion/110271/andrus-v-shell-oil-co/ | District Court for the District of Colorado. The District Court agreed with the Board that by not requiring proof of "present marketability" the decision in Freeman v. Summers had liberalized the traditional valuable mineral test. But it found that Congress in 191 and again in 1956 had considered the patentability of oil shale and had implicitly "ratified" that liberalized rule. Alternatively, the District Court concluded that the Department was stopped now from departing from the Freeman standard which investors had "relied upon for the past half-century." Shell Oil On these grounds, it reversed the Board's ruling and held that the claims at issue were valid. The Court of Appeals for the Tenth Circuit affirmed. It agreed with the District Court that the "different treatment afforded all oil shale claims as to the `valuable mineral deposit' element of a location became a part of the general mining laws by reason of its adoption and approval *66 by both Houses of Congress" in the years after 1920. And it held that the Department now must adhere to the Freeman rule. We granted certiorari because of the importance of the question to the management of the public lands. We affirm. II The legislative history of the 1920 Mineral Leasing Act shows that Congress did not consider "present marketability" a prerequisite to the patentability of oil shale.[6] In the extensive hearings and debates that preceded the passage of the 1920 Act, there is no intimation that Congress contemplated such a requirement; indeed, the contrary appears. During the 1919 floor debates in the House of Representatives, an amendment was proposed which would have substituted the phrase "deposits in paying quantities" for "valuable mineral." That amendment, however, was promptly withdrawn after Mr. Sinott, the House floor manager, voiced his objection to the change: "Mr. SINOTT. That language was put in with a great deal of consideration and we would not like to change from `valuable' to `paying.' There is quite a distinction. We are in line with the decisions of the courts as to what is a discovery, and I think it would be a very *664 dangerous matter to experiment with this language at this time." 58 Cong. Rec. 757 (1919) An examination of the relevant decisions at the time underscores the point. Those decisions are clear in rejecting a requirement that a miner must "demonstrat[e] that the vein would pay all the expenses of removing, extracting, crushing, and reducing the ore, and leave a profit to the owner," and in holding that "it is enough if the vein or deposit `has a present or |
Justice Burger | 1,980 | 12 | majority | Andrus v. Shell Oil Co. | https://www.courtlistener.com/opinion/110271/andrus-v-shell-oil-co/ | enough if the vein or deposit `has a present or prospective commercial value.'" Accord, ; United ; Montana Cent. R. ; East Tintic Consolidated Mining Co., 4 Lans. Ch. D. 79, 81 (1914); 2 C. Lindley, American Law Relating to Mines and Mineral Lands 6, pp. 768-769 (d ed. 1914). See generally Reeves, The Origin and Development of the Rules of Discovery, 8 Land & Water L. Rev. 1 (197). To be sure, prior to the passage of the 1920 Act, there existed considerable uncertainty as to whether oil shale was patentable.[7] That uncertainty, however, related to whether oil shale was a "mineral" under the mining law, and not to its "value." Similar doubts had arisen in the late 19th century *665 in regard to petroleum. Indeed, in 1986 the Secretary of the Interior had held that petroleum claims were not subject to location under the mining laws, concluding that only lands "containing the more precious metals gold, silver, cinnabar etc." were open to entry. Union Oil Co., 2 Lans. Ch. D. 222, 227. The Secretary's decision was short-lived. In 1897, Congress enacted the Oil Placer Act authorizing entry under the mining laws to public lands "containing petroleum or other mineral oils." Ch. 2, This legislation put to rest any doubt about oil as a mineral. But because oil shale, strictly speaking, contained kerogen and not oil, see n. its status remained problematic. See Reidy, Do Unpatented Oil Shale Claims Exist?, 4 Denver L. J. 9, 12 (1966). That this was the nature of the uncertainty surrounding the patentability of oil shale claims is evident from remarks made throughout the hearings and debates on the 1920 Act. In the 1918 hearings, Congressman Barnett, for example, explained: "Mr. BARNETT. If the department should contend that shale lands come within the meaning of the term `oil lands' they must perforce, by the same argument, admit that they are placer lands within the meaning of the act of 1897. "The Chairman. And patentable? "Mr. BARNETT. And patentable under that act." Hearings, at 918. The enactment of the 1920 Mineral Leasing Act put an end to these doubts. By withdrawing "oil shale in lands valuable for such minerals" from disposition under the general mining law, the Congress recognizedat least implicitly that oil shale had been a locatable mineral. In effect, the 1920 Act did for oil shale what the 1897 Oil Placer Act had done for oil. And, as Congressman Barnett's ready answer demonstrates, once it was settled that oil shale was a mineral *666 subject to location, and once a savings clause was |
Justice Burger | 1,980 | 12 | majority | Andrus v. Shell Oil Co. | https://www.courtlistener.com/opinion/110271/andrus-v-shell-oil-co/ | *666 subject to location, and once a savings clause was in place preserving pre-existing claims, it was fully expected that such claims would be patentable. The fact that oil shale then had no commercial value simply was not perceived as an obstacle to that end. III Our conclusion that Congress in enacting the 1920 Mineral Leasing Act contemplated that pre-existing oil shale claims could satisfy the discovery requirement of the mining law is confirmed by actions taken in subsequent years by the Interior Department and the Congress.[8] A On May 10, 1920, less than three months after the Mineral Leasing Act became law, the Interior Department issued "Instructions" to its General Land Office authorizing that Office to begin adjudicating applications for patents for pre-1920 oil shale claims. The Instructions advised as follows: "Oil shale having been thus recognized by the Department and by Congress as a mineral deposit and a source of petroleum lands valuable on account thereof must be held to have been subject to valid location and *667 appropriation under the placer mining laws, to the same extent and subject to the same provisions and conditions as if valuable on account of oil or gas." 47 Lans. Ch. D. 548, 551 (1920) The first such patent was issued immediately thereafter. Five years later, the Department ruled that patentability was dependent upon the "character, extent, and mode of occurrence of the oil-shale deposits." Dennis v. Utah, 51 Lans. Ch. D. 229, 22 (1925). Present profitability was not mentioned as a relevant, let alone a critical, consideration. In 1927, the Department decided Freeman v. Summers, 52 Lans. Ch. D. 201. The case arose out of a dispute between an oil shale claimant and an applicant for a homestead patent, and involved two distinct issues: (1) whether a finding of lean surface deposits warranted the geological inference that the claim contained rich "valuable" deposits below; and (2) whether present profitability was a prerequisite to patentability. Both issues were decided in favor of the oil shale claimant: the geological inference was deemed sound and the fact that there was "no possible doubt that [oil shale] constitutes an enormously valuable resource for future use by the American people" was ruled sufficient proof of "value." For the next years, Freeman was applied without deviation.[9] It was said that its application ensured that "valid rights [would] be protected and permitted to be perfected." Secretary of Interior Ann. Rep. 0 (1927). In all, 52 patents for 2,26 claims covering 49,088 acres were issued under the Freeman rule. This administrative practice, begun immediately upon the passage of |
Justice Burger | 1,980 | 12 | majority | Andrus v. Shell Oil Co. | https://www.courtlistener.com/opinion/110271/andrus-v-shell-oil-co/ | rule. This administrative practice, begun immediately upon the passage of the 1920 Act, "has peculiar weight [because] it involves a contemporaneous construction *668 of [the] statute by the men charged with the responsibility of setting its machinery in motion," Norwegian Nitrogen Products 15 (19). Accord, e. g., United ; 80 U.S. 1, It provides strong support for the conclusion that Congress did not intend to impose a present marketability requirement on oil shale claims. B In 190 and 191, congressional committees revisited the 1920 Mineral Leasing Act and re-examined the patentability of oil shale claims. Congressional interest in the subject was sparked in large measure by a series of newspaper articles charging that oil shale lands had been "improvidently, erroneously, and unlawfully, if not corruptly, transferred to individuals and private corporations." 74 Cong. Rec. 1079 (190) (S. Res. 79). The articles were based upon accusations leveled at the Interior Department by Ralph S. Kelly, then the General Land Office Division Inspector in Denver. Kelly's criticism centered on the Freeman v. Summers decision. Fearing another "Teapot Dome" scandal, the Senate authorized the Committee on Public Lands to "inquire into the alienation of oil shale lands." The Senate Committee held seven days of hearings focusing almost exclusively on "the so-called Freeman-Summers case." Hearings on S. Res. 79 before the Senate Committee on Public Lands and Surveys, 71st Cong., d Sess., 2 (191). At the outset of the hearings, the Committee was advised by E. C. Finney, Solicitor, Department of the Interior, that oil shale patents had been issued covering 175,000 acres of land and that 6 more patent applications were pending. Finney's statement prompted this interchange: "Senator PITTMAN: Well, were the shales on those patented lands of commercial value? *669 "Mr. FINNEY: If you mean by that whether they could have been mined and disposed of at a profit at the time of the patent, or now, the answer is no. "Senator PITTMAN: So the Government has disposed of 175,000 acres in patents on lands which in your opinion there was no valid claim to in the locator? "Mr. FINNEY: No; that was not my opinion. I have never held in the world, that I know of, that you had to have an actual commercial discovery of any commodity that you could take out and market at a profit. On the contrary, the department has held that that is not the case" Later in the hearings Senator Walsh expressed his understanding of the impact of the Freeman decision: "Senator WALSH: [It means] that the prospector having found at the surface the layer |
Justice Burger | 1,980 | 12 | majority | Andrus v. Shell Oil Co. | https://www.courtlistener.com/opinion/110271/andrus-v-shell-oil-co/ | that the prospector having found at the surface the layer containing any quantity of mineral, that is of oil-bearing shale or kerogen, that that would be a discovery in view of the beds down below of richer character. "Mr. FINNEY: In this formation, yes sir; that is correct." at 18. See also at 22-2, 26, The Senate Committee did not produce a report. But one month after the hearings were completed, Senator Nye, the Chairman of the Committee, wrote the Secretary of the Interior that he had "`conferred with Senator Walsh and beg[ged] to advise that there is no reason why your Department should not proceed to final disposition of the pending application for patents to oil shale lands in conformity with the law.'" App. 10. The patenting of oil shale lands under the standards enunciated in Freeman was at once resumed. At virtually the same time, the House of Representatives commenced its own investigation into problems relating to *670 oil shale patents. The House Committee, however, focused primarily on the question of assessment workwhether an oil shale claimant was required to perform $100 work per year or forfeit his claimand not on discovery. But the impact of the Freeman rule was not lost on the Committee: "Mr. SWING. In furtherance of the policy of conservation, Mr. Secretary, in view of the fact that there has not been discovered, as I understand it, any practical economical method of extracting oil from the shale in competition with oil wells would it not be proper public policy to withdraw all shale lands from private acquisition, since we are compelled to recognize, perforce, economic and fiscal conditions, that no one is going to make any beneficial use of the oil shale in the immediate future, but is simply putting it in cold storage as a speculative proposition? "Secretary WILBUR: As a matter of conservation, what you say is true, but what we have to meet here is the fact that in the leasing act there was a clause to the effect that valid existing claims were not included, and so we are dealing with claims that are thought to be valid, and the question "Mr. SWING (interposing). I realize that, and I understand the feeling of Congress, and I think generally the country, that in drawing the law we do not want to cut the ground from under the person who has initiated a right." Consolidated Hearings on Applications for Patent on Oil Shale Lands before the House Committee on the Public Lands, 71st Cong., d Sess., 100 (191).[10] *671 Congressman Swing's statement |
Justice Burger | 1,980 | 12 | majority | Andrus v. Shell Oil Co. | https://www.courtlistener.com/opinion/110271/andrus-v-shell-oil-co/ | 71st Cong., d Sess., 100 (191).[10] *671 Congressman Swing's statement of the "feeling of Congress" comports with our reading of the 1920 statute and of congressional intent. To hold now that Freeman was wrongly decided would be wholly inconsistent with that intent. Moreover, it would require us to conclude that the Congress in 190-191 closed its eyes to a major perversion of the mining laws. We reject any such conclusion. C In 1956 Congress again turned its attention to the patentability of oil shale. That year it amended the mining laws by eliminating the requirement that locators must obtain and convey to the United States existing homestead surface-land patents in order to qualify for a mining patent on minerals withdrawn under the 1920 Mineral Leasing Act. See Pub. L. 74, Where a surface owner refused to cooperate with the mining claimant and sell his estate, this requirement prevented the mining claimant from patenting his claim. See James W. Bell, 52 Lans. Ch. D. 197 (1927). In hearings on the amendment, it was emphasized that oil shale claimants would be principal beneficiaries of the amendment: "Mr. ASPINALL. This [bill] does not have to do with any other minerals except the leaseable minerals to which no one can get a patent since 1920. As far as I know, there are only just a few cases that are involved, and most of those cases are in the oil shale lands of eastern Utah and western Colorado. That is all this bill refers to." Hearings on H. R. 6501 before the House Committee on Interior and Insular Affairs -4 (1956). See also Hearings on H. R. 6501 before the Subcommittee on Mines and Mining of the House Committee on Interior and *672 Insular Affairs 4, 1-14, (1956). The Reports of both Houses also evince a clear understanding that oil shale claimants stood to gain by the amendment: "Under the Department of the Interior decision in the case of James W. Bell the owner of a valid mining claim located before February 25, 1920, on lands covered by the 1914 act, in order to obtain a patent to the minerals, is required to acquire the outstanding interest of the surface owner and thereafter to execute a deed of reconveyance to the United States. From 1946 to 1955, inclusive, 71 mining claims, including 67 oil shale claims, were issued under this procedure. The committee is informed that in a few cases mining claimants have been unable to obtain the cooperation of the owners of the surface estate and have been prevented thereby from obtaining patent to |
Justice Burger | 1,980 | 12 | majority | Andrus v. Shell Oil Co. | https://www.courtlistener.com/opinion/110271/andrus-v-shell-oil-co/ | estate and have been prevented thereby from obtaining patent to the mineral estate." S. Rep. No. 2524, 84th Cong., 2d Sess., 2 (1956); H. R. Rep. No. 2198, 84th Cong., 2d Sess., 2 (1956) The bill was enacted into law without floor debate. Were we to hold today that oil shale is a nonvaluable mineral we would virtually nullify this 1956 action of Congress. IV The position of the Government in this case is not without a certain irony. Its challenge to respondents' pre-1920 oil shale claims as a "nonvaluable" comes at a time when the value of such claims has increased sharply as the Nation searches for alternative energy sources to meet its pressing needs. If the Government were to succeed in invalidating old claims and in leasing the lands at public auction, the Treasury, no doubt, would be substantially enriched. However, the history of the 1920 Mineral Leasing Act and developments subsequent to that Act persuade us that the Government cannot achieve that end by imposing a present marketability *67 requirement on oil shale claims.[11] We conclude that the original position of the Department of the Interior, enunciated in the 1920 Instructions and in Freeman v. Summers, is the correct view of the Mineral Leasing Act as it applies to the patentability of those claims.[12] The judgment of the Court of Appeals is Affirmed. MR. JUSTICE STEWART, with whom MR. JUSTICE BRENNAN and MR. |
Justice Sotomayor | 2,014 | 24 | majority | Air Wisconsin Airlines Corp. v. Hoeper | https://www.courtlistener.com/opinion/2651116/air-wisconsin-airlines-corp-v-hoeper/ | In 2001, Congress created the Transportation Security Administration (TSA) to assess and manage threats against air travel. Aviation and Transportation Security Act (ATSA), 49 U.S. C. et seq. To ensure that the TSA would be informed of potential threats, Congress gave airlines and their employees immunity against civil liabil- ity for reporting suspicious behavior. But this immunity does not attach to “any disclosure made with actual knowledge that the disclosure was false, inaccurate, or misleading” or “any disclosure made with reckless disregard as to the truth or falsity of that disclosure.” The question before us is whether ATSA immunity may be denied under without a determination that a disclosure was materially false. We hold that it may not. Because the state courts made no such determination, and because any falsehood in the disclosure here would not have affected a reasonable security officer’s assessment of the supposed threat, we reverse the judgment of the Colo- rado Supreme Court. 2 AIR WISCONSIN AIRLINES CORP. v. HOEPER Opinion of the Court I A William Hoeper joined Air Wisconsin Airlines Corpora- tion as a pilot in 1998. But by late 2004, Air Wisconsin had stopped operating flights from Denver, Hoeper’s home base, on any type of aircraft for which he was certified. To continue flying for Air Wisconsin out of Denver, Hoeper needed to gain certification on the British Aerospace 146 (BAe-146), an aircraft he had not flown. Hoeper failed in his first three attempts to pass a profi- ciency test. After the third failure, as he later acknowl- edged at trial, his employment was “at [Air Wisconsin’s] discretion.” App. 193. But he and Air Wisconsin entered into an agreement to afford him “one more opportunity to pass [the] proficiency check.” The agreement left little doubt that Hoeper would lose his job if he failed again. In December 2004, Hoeper flew from Denver to Virginia for simulator training as part of this final test. During the training, Hoeper failed to cope with a challenging scenario created by the instructor, Mark Schuerman, and the simu- lator showed the engines “flam[ing] out” due to a loss of fuel. App. 203. As Schuerman began to tell Hoeper that he “should know better,” Hoeper responded angrily. He later described what happened: “At this point, that’s it. I take my headset off and I toss it up on the glare shield. [Schuerman] and I exchanged words at the same elevated decibel level. Mine went something like this: This is a bunch of shit. I’m sorry. You are railroading the situation and it’s not realistic.” at 203–204. When Hoeper announced |
Justice Sotomayor | 2,014 | 24 | majority | Air Wisconsin Airlines Corp. v. Hoeper | https://www.courtlistener.com/opinion/2651116/air-wisconsin-airlines-corp-v-hoeper/ | situation and it’s not realistic.” at 203–204. When Hoeper announced that he wanted to call the legal department of the pilots’ union, Schuerman ended the session so that Hoeper could do so. Schuerman then re- ported Hoeper’s behavior to Patrick Doyle, the Wisconsin- Cite as: 571 U. S. (2014) 3 Opinion of the Court based manager of the BAe-146 fleet. Doyle booked Hoeper on a United Airlines flight back to Denver. Several hours after Schuerman’s report, Doyle discussed the situation at Air Wisconsin’s headquarters with the airline’s Vice President of Operations, Kevin LaWare; its Managing Director of Flight Operations, Scott Orozco; and its Assistant Chief Pilot, Robert Frisch. LaWare later ex- plained the accretion of his concerns about what Hoeper might do next. He regarded Hoeper’s behavior in the simulator as “a fairly significant outburst,” of a sort that he “hadn’t seen before.” And he knew “it was a given that Hoeper’s employment was going to be terminated” as a result of his failure to complete the simulator training. Then, LaWare testified, Orozco mentioned that Hoeper was a Federal Flight Deck Officer (FFDO). The FFDO program allows the Government to “deputize volunteer pilots of air carriers to defend the flight decks of air- craft against acts of criminal violence or air piracy.” FFDOs are permitted “to carry a firearm while engaged in providing air transportation.” )(1). Hoeper had become an FFDO earlier in 2004 and had been issued a firearm. He was not allowed to carry the firearm during his trip to the training facility, because he was not “engaged in providing air transportation,” But ac- cording to one official at the meeting, the Denver airport’s security procedures made it possible for crew members to bypass screening, so that Hoeper could have carried his gun despite the rule. Indeed, Frisch later testified that he was “aware of one” incident in which an Air Wisconsin pilot had come to training with his FFDO weapon. App. 292. On the basis of this information, LaWare concluded, there was “no way to confirm” whether “Hoeper had his weapon with him, even though by policy, [he was] not supposed to have it with him.” Finally, LaWare testified, he and the other Air Wiscon- 4 AIR WISCONSIN AIRLINES CORP. v. HOEPER Opinion of the Court sin officials discussed two prior episodes in which disgrun- tled airline employees had lashed out violently. at 280. In one incident, a FedEx flight engineer under inves- tigation for misconduct “entered the cockpit” of a FedEx flight “and began attacking the crew with a hammer” before being subdued. United States v. |
Justice Sotomayor | 2,014 | 24 | majority | Air Wisconsin Airlines Corp. v. Hoeper | https://www.courtlistener.com/opinion/2651116/air-wisconsin-airlines-corp-v-hoeper/ | crew with a hammer” before being subdued. United States v. Calloway, 116 F.3d 1129, 1131 (CA6 1997). In another, a recently fired ticket agent brought a gun onto a Pacific Southwest Air- lines flight and shot his former supervisor and the crew, leading to a fatal crash. Malnic, Report Confirms That Gunman Caused 1987 Crash of PSA Jet, L. A. Jan. 6, 1989, p. 29. In light of all this—Hoeper’s anger, his impending ter- mination, the chance that he might be armed, and the history of assaults by disgruntled airline employees— LaWare decided that the airline “need[ed] to make a call to the TSA,” to let the authorities know “the status” of the situation. App. 282. Doyle offered to make the call. According to the jury, he made two statements to the TSA: first, that Hoeper “was an FFDO who may be armed” and that the airline was “concerned about his mental stability and the whereabouts of his firearm”; and second, that an “[u]nstable pilot in [the] FFDO program was terminated today.” App. to Pet. for Cert. 111a. (The latter statement appears in the rec- ord as the subject line of an internal TSA e-mail, summa- rizing the call from Doyle. App. 414.) The TSA responded to the call by ordering that Hoeper’s plane return to the gate. Officers boarded the plane, re- moved Hoeper, searched him, and questioned him about the location of his gun. When Hoeper stated that the gun was at his home in Denver, a Denver-based federal agent went there to retrieve it. Later that day, Hoeper boarded a return flight to Den- ver. Air Wisconsin fired him the following day. Cite as: 571 U. S. (2014) 5 Opinion of the Court B Hoeper sued Air Wisconsin in Colorado state court on several claims, including defamation.1 Air Wisconsin moved for summary judgment on the basis of ATSA im- munity,2 but the trial court denied it, ruling that the jury was entitled to find the facts pertinent to immunity. The case went to trial, and the court denied Air Wisconsin’s motion for a directed verdict on the same basis. It submit- ted the question of ATSA immunity to the jury, with the instruction—following the language of —that immunity would not apply if Hoeper had proved that Air Wisconsin “made the disclosure [to the TSA] with ac- tual knowledge that the disclosure was false, inaccurate, or misleading” or “with reckless disregard as to its truth or falsity.” App. 582. The jury instructions did not state that ATSA immunity protects materially true statements. The jury found for Hoeper on |
Justice Sotomayor | 2,014 | 24 | majority | Air Wisconsin Airlines Corp. v. Hoeper | https://www.courtlistener.com/opinion/2651116/air-wisconsin-airlines-corp-v-hoeper/ | protects materially true statements. The jury found for Hoeper on the defamation claim and awarded him $849,625 in compensatory damages and $391,875 in punitive damages. The court reduced the latter award to $350,000, for a total judgment of just under $1.2 million, plus costs. The Colorado Court of Appeals affirmed. (2009). It held “that the trial court properly submitted the ATSA immunity issue to the jury,” that “the record sup- —————— 1 Air Wisconsin agrees that it bears responsibility for Doyle’s state- ments. 2 The ATSA immunity provision specifies that “[a]ny air carrier or any employee of an air carrier who makes a voluntary disclosure of any suspicious transaction relevant to a possible violation of law or regulation, relating to air piracy, a threat to aircraft or passenger safety, or terrorism, to any employee or agent of the Department of Transportation, the Department of Justice, any Federal, State, or local law enforcement officer, or any airport or airline security officer shall not be civilly liable to any person under any law or regulation of the United States, any constitution, law, or regulation of any State or political subdivision of any State, for such disclosure.” 49 U.S. C. 6 AIR WISCONSIN AIRLINES CORP. v. HOEPER Opinion of the Court ports the jury’s rejection of immunity,” and that the evi- dence was sufficient to support the jury’s defamation verdict. The Colorado Supreme Court affirmed. WL 907764 It began by holding, contrary to the lower courts, “that immunity under the ATSA is a question of law to be determined by the trial court before trial.” But it concluded that the trial court’s error in submitting immunity to the jury was “harmless because Air Wisconsin is not entitled to immunity.” at *6. In a key footnote, the court stated: “In our determina- tion of immunity under the ATSA, we need not, and there- fore do not, decide whether the statements were true or false. Rather, we conclude that Air Wisconsin made the statements with reckless disregard as to their truth or falsity.” The court thus appears to have labored under the assumption that even true state- ments do not qualify for ATSA immunity if they are made recklessly. Applying this standard, and giving “no weight to the jury’s finding[s],” n. 5, the court held that “[a]l- though the events at the training may have warranted a report to TSA,” Air Wisconsin’s statements “overstated those events to such a degree that they were made with reckless disregard of their truth or falsity.” The court opined that Air Wisconsin “would likely be immune under the ATSA |
Justice Sotomayor | 2,014 | 24 | majority | Air Wisconsin Airlines Corp. v. Hoeper | https://www.courtlistener.com/opinion/2651116/air-wisconsin-airlines-corp-v-hoeper/ | that Air Wisconsin “would likely be immune under the ATSA if Doyle had reported that Hoeper was an Air Wisconsin employee, that he knew he would be termi- nated soon, that he had acted irrationally at the training three hours earlier and ‘blew up’ at test administrators, and that he was an FFDO pilot.” But because Doyle actually told TSA “(1) that he believed Hoeper to be mentally unstable; (2) that Hoeper had been terminated earlier that day; and (3) that Hoeper may have been armed,” the court determined that his state- ments “went well beyond” the facts and did not qualify for Cite as: 571 U. S. (2014) 7 Opinion of the Court immunity, The court went on to conclude that the evidence was sufficient to support the jury’s defama- tion verdict. Justice Eid, joined by two others, dissented in part. She agreed with the majority’s holding that immunity is an issue for the court, not the jury. But she reasoned that Air Wisconsin was entitled to immunity “because [its] state- ments to the TSA were substantially true.” We granted certiorari to decide “[w]hether ATSA im- munity may be denied without a determination that the air carrier’s disclosure was materially false.” 570 U. S. (2013). II A Congress patterned the exception to ATSA immunity after the actual malice standard of New York Co. v. Sullivan, and we have long held that actual malice requires material falsity. Because we pre- sume that Congress meant to incorporate the settled meaning of actual malice when it incorporated the lan- guage of that standard, we hold that a statement other- wise eligible for ATSA immunity may not be denied immunity unless the statement is materially false. In New York we held that under the First Amendment, a public official cannot recover “for a defama- tory falsehood relating to his official conduct unless he proves that the statement was made with ‘actual malice’— that is, with knowledge that it was false or with reckless disregard of whether it was false or not.” – 280. Congress borrowed this exact language in denying ATSA immunity to “(1) any disclosure made with actual knowledge that the disclosure was false, inaccurate, or misleading; or (2) any disclosure made with reckless disregard as to the truth or falsity of that disclosure.” 8 AIR WISCONSIN AIRLINES CORP. v. HOEPER Opinion of the Court One could in principle construe the language of the actual malice standard to cover true statements made recklessly. But we have long held, to the contrary, that actual malice entails falsity. See, e.g., Philadelphia News- papers, (“[A]s |
Justice Sotomayor | 2,014 | 24 | majority | Air Wisconsin Airlines Corp. v. Hoeper | https://www.courtlistener.com/opinion/2651116/air-wisconsin-airlines-corp-v-hoeper/ | actual malice entails falsity. See, e.g., Philadelphia News- papers, (“[A]s one might expect given the language of the Court in New York a public-figure plaintiff must show the falsity of the statements at issue in order to prevail in a suit for defa- mation” (citation omitted)); Garrison v. Louisiana, 379 U.S. 64, 74 (“We held in New York that a public official might be allowed the civil remedy only if he establishes that the utterance was false”). Indeed, we have required more than mere falsity to establish actual malice: The falsity must be “material.” As we explained in Masson, “[m]inor inaccuracies do not amount to falsity so long as ‘the substance, the gist, the sting, of the libelous charge be justified.’ ” A “statement is not considered false unless it ‘would have a different effect on the mind of the reader from that which the pleaded truth would have produced.’ ” (quoting R. Sack, Libel, Slander, and Related Problems 138 (1980)). These holdings were settled when Congress enacted the ATSA, and we therefore presume that Congress meant to adopt the material falsity requirement when it incorpo- rated the actual malice standard into the ATSA immunity exception. “[I]t is a cardinal rule of statutory construction that, when Congress employs a term of art, it presumably knows and adopts the cluster of ideas that were attached to each borrowed word in the body of learning from which it is taken.” FAA v. Cooper, 566 U. S. (slip op., at 6) (internal quotation marks omitted). The actual malice standard does not cover materially true statements made recklessly, so we presume that Congress did not mean to deny ATSA immunity to such statements. Other indicia of statutory meaning could rebut this Cite as: 571 U. S. (2014) 9 Opinion of the Court presumption, but here, they do not. First, the ATSA’s text favors a falsity requirement. The first subsection of requires falsity, as a true disclosure cannot have been made “with actual knowledge” that it “was false.” The only question is whether the second subsection— which denies immunity to “any disclosure made with reckless disregard as to [its] truth or falsity”—similarly requires falsity. We conclude that it does. The second subsection simply extends the immunity exception from knowing falsehoods to reckless ones, ensuring that an air carrier cannot avoid liability for a baseless report by stick- ing its head in the sand to avoid “actual knowledge” that its statements are false. “[T]he defense of truth even if not explicitly recognized,is implicit in a standard of recovery that rests on knowing or reckless disregard of |
Justice Sotomayor | 2,014 | 24 | majority | Air Wisconsin Airlines Corp. v. Hoeper | https://www.courtlistener.com/opinion/2651116/air-wisconsin-airlines-corp-v-hoeper/ | of recovery that rests on knowing or reckless disregard of the truth.” Cox Broadcasting 498–499 (1975) (Powell, J., concurring). A material falsity requirement also serves the purpose of ATSA immunity. The ATSA shifted from airlines to the TSA the responsibility “for assessing and investigating possible threats to airline security.” (Eid, J., concurring in part and dissenting in part). In directing the TSA to “receive, assess, and distribute intel- ligence information related to transportation security,” 49 U.S. C. Congress wanted to ensure that air carriers and their employees would not hesitate to provide the TSA with the information it needed. This is the pur- pose of the immunity provision, evident both from its context and from the title of the statutory section that contained it: “encouraging airline employees to report sus- picious activities.” ATSA (capitali- zation and boldface type omitted). It would defeat this purpose to deny immunity for substantially true reports, on the theory that the person making the report had not yet gathered enough information to be certain of its truth. Such a rule would restore the pre-ATSA state of affairs, in 10 AIR WISCONSIN AIRLINES CORP. v. HOEPER Opinion of the Court which air carriers bore the responsibility to investigate and verify potential threats. We therefore hold that ATSA immunity may not be denied under to materially true statements. This interpretation of the statute is clear enough that Hoeper effectively concedes it. See Brief for Respondent 30 (acknowledging that if the Colorado Supreme Court actually said “ ‘an airline may be denied ATSA immunity for reporting true information,’ ” then “the court was likely wrong”). Hoeper does point out in a footnote that given Congress’ desire to deny immunity to “ ‘bad actors,’ ” and “given that the vast majority of reckless statements will not turn out to be true[,] Congress could have quite reasonably chosen to deny the special privilege of ATSA immunity to all reckless speakers,” even those whose statements turned out to be true. But although Congress could have made this choice, noth- ing about the statute’s text or purpose suggests that it actually did. Instead, Congress chose to model the excep- tion to ATSA immunity after a standard we have long construed to require material falsity. B We are not persuaded by Hoeper’s arguments that we should affirm the judgment of the Colorado Supreme Court notwithstanding its misapprehension of the ATSA immunity standard. Hoeper first argues that Air Wisconsin forfeited the claim that it is entitled to immunity because its state- ments were materially true. His premise is that Air Wisconsin argued the truth |
Justice Sotomayor | 2,014 | 24 | majority | Air Wisconsin Airlines Corp. v. Hoeper | https://www.courtlistener.com/opinion/2651116/air-wisconsin-airlines-corp-v-hoeper/ | true. His premise is that Air Wisconsin argued the truth of its statements only in chal- lenging the evidentiary basis for the defamation verdict, not in asserting immunity. But Air Wisconsin’s brief before the Colorado Supreme Court argued that the exception to ATSA immunity “appears to incorporate the New York actual malice standard,” which—as we have ex- Cite as: 571 U. S. (2014) 11 Opinion of the Court plained—requires material falsity. Petitioner’s Opening Brief in No. 09SC1050, p. 24. Hoeper next argues that the Colorado Supreme Court performed the requisite analysis of material falsity, albeit in the context of finding the record sufficient to support the jury’s defamation verdict. For several reasons, however, this analysis does not suffice for us to affirm the denial of ATSA immunity. First, to the extent that the immunity determination belongs to the court—as the Colorado Su- preme Court held—a court’s deferential review of jury findings cannot substitute for its own analysis of the record. Second, the jury here did not find that any falsity in Air Wisconsin’s statements was material, because the trial court instructed it only to determine whether “[o]ne or more of th[e] statements was false,” App. 580, without addressing materiality. Third, applying the material falsity standard to a defamation claim is quite different from applying it to ATSA immunity. In both contexts, a materially false statement is one that “ ‘would have a different effect on the mind of the reader [or listener] from that which the truth would have produced.’ ” Masson, 501 U.S., at But the identity of the relevant reader or listener varies according to the context. In determining whether a falsehood is material to a defamation claim, we care whether it affects the subject’s reputation in the community. In the context of determining ATSA immu- nity, by contrast, we care whether a falsehood affects the authorities’ perception of and response to a given threat.3 —————— 3 These are very different inquiries. Suppose the TSA receives the following tip: “My adulterous husband is carrying a gun onto a flight.” Whether the husband is adulterous will presumably have no effect on the TSA’s assessment of any security risk that he poses. So if the word “adulterous” is false, the caller may still be entitled to ATSA immunity. But any falsity as to that word obviously would affect the husband’s reputation in the community, so it would be material in the context of a defamation claim. 12 AIR WISCONSIN AIRLINES CORP. v. HOEPER Opinion of the Court III Finally, the Colorado Supreme Court’s analysis of mate- rial falsity was erroneous. |
Justice Sotomayor | 2,014 | 24 | majority | Air Wisconsin Airlines Corp. v. Hoeper | https://www.courtlistener.com/opinion/2651116/air-wisconsin-airlines-corp-v-hoeper/ | Colorado Supreme Court’s analysis of mate- rial falsity was erroneous. We turn next to explaining why, by applying the ATSA immunity standard to the facts of this case.4 A We begin by addressing how to determine the material- ity of a false statement in the ATSA context. As we noted earlier, a materially false statement is generally one that “ ‘would have a different effect on the mind of the reader [or listener] from that which the truth would have produced.’ ” The parties quibble over whether ATSA immunity requires some special version of this standard, but they more or less agree—as do we—that the usual standard suffices as long as the hypothetical reader or listener is a security officer. A further question is what it means for a statement to produce “ ‘a different effect on the mind of ’ ” a security officer from that which the truth would have produced. In defamation law, the reputational harm caused by a false statement is its effect on a reader’s or listener’s mind. But contrary to the position of Hoeper’s counsel at oral argu- ment, Tr. of Oral Arg. 32–33, courts cannot decide whether a false statement produced “ ‘a different effect on the mind of ’ ” a hypothetical TSA officer without considering the effect of that statement on TSA’s behavior. After all, the —————— 4 We “recognize the prudence of allowing the lower courts ‘to un- dertake [a fact-intensive inquiry] in the first instance.’ ” Holland v. Florida, Here, however, we conclude that another prudential consideration—the need for clear guidance on a novel but important question of federal law—weighs in favor of our applying the ATSA immunity standard. Cf. Bose (“[T]his Court’s role in marking out the limits of [a First Amendment] standard through the process of case-by-case adjudication is of special importance”). Cite as: 571 U. S. (2014) 13 Opinion of the Court whole reason the TSA considers threat reports is to deter- mine and execute a response. A plaintiff seeking to defeat ATSA immunity need not show “precisely what a particular official or federal agency would have done in a counterfactual scenario.” Brief for United States as Amicus Curiae 27. Such a showing would be “impossible given the need to maintain se- crecy regarding airline security operations.” Brief for Re- spondent 42. But any falsehood cannot be material, for purposes of ATSA immunity, absent a substantial likeli- hood that a reasonable security officer would consider it important in determining a response to the supposed threat. Cf. TSC Industries, 426 U.S. 438, 449 (1976) (an omission in |
Justice Sotomayor | 2,014 | 24 | majority | Air Wisconsin Airlines Corp. v. Hoeper | https://www.courtlistener.com/opinion/2651116/air-wisconsin-airlines-corp-v-hoeper/ | TSC Industries, 426 U.S. 438, 449 (1976) (an omission in a proxy solicitation “is material if there is a substantial likelihood that a reasonable shareholder would consider it important in deciding how to vote”). This standard “is an objective one, involving the [hypothetical] significance of an omitted or misrepresented fact to a reasonable” security official, rather than the actual significance of that fact to a partic- ular security official. B We apply the material falsity standard to the facts of this case. In doing so, we neither embrace nor reject the Colorado Supreme Court’s unanimous holding “that im- munity under the ATSA is a question of law to be deter- mined by the trial court before trial.” WL 9097764, *4; see (Eid, J., concurring in part and dissent- ing in part) (agreeing with majority). Rather, we conclude that even if a jury were to find the historical facts in the manner most favorable to Hoeper, Air Wisconsin is enti- tled to ATSA immunity as a matter of law. We begin with Air Wisconsin’s statement that Hoeper “was an FFDO who may be armed.” App. to Pet. for Cert. 111a. Hoeper cannot dispute the literal truth of this 14 AIR WISCONSIN AIRLINES CORP. v. HOEPER Opinion of the Court statement: He was an FFDO, and because FFDOs possess weapons, any FFDO “may be armed.” Hoeper argues only that to avoid any misinterpretation, Air Wisconsin should have qualified the statement by adding that it had no reason to think he was actually carrying his gun during the trip to Virginia, especially because he was not allowed to do so under )(1).5 We agree that Air Wiscon- sin’s statement could have been misinterpreted by some, but we reject Hoeper’s argument for two reasons. First, any confusion of the nature that Hoeper suggests would have been immaterial: A reasonable TSA officer, having been told only that Hoeper was an FFDO and that he was upset about losing his job, would have wanted to investi- gate whether Hoeper was carrying his gun. Second, to accept Hoeper’s demand for such precise wording would vitiate the purpose of ATSA immunity: to encourage air carriers and their employees, often in fast-moving situa- tions and with little time to fine-tune their diction, to provide the TSA immediately with information about potential threats. Baggage handlers, flight attendants, gate agents, and other airline employees who report suspi- cious behavior to the TSA should not face financial ruin if, in the heat of a potential threat, they fail to choose their words with exacting care.6 —————— 5 See Tr. of Oral Arg. |
Justice Sotomayor | 2,014 | 24 | majority | Air Wisconsin Airlines Corp. v. Hoeper | https://www.courtlistener.com/opinion/2651116/air-wisconsin-airlines-corp-v-hoeper/ | with exacting care.6 —————— 5 See Tr. of Oral Arg. 42–43 (concession by Hoeper’s counsel that “it would have been true for [Air Wisconsin] to say, look, we’re calling to let you know, because Mr. Hoeper’s an FFDO, we don’t have any reason to believe that he has gun with him, but we can’t tell for sure, so we just thought we would tell you, in case you have any questions and want to investigate further”). While we take the jury’s findings at face value, we note that the record suggests Air Wisconsin may well have added the qualifier that Hoeper argues was necessary. An internal TSA e-mail summarizing Doyle’s call concludes by stating: “[Redacted] does not believe [redacted] is in possession of a firearm at this time.” App. 414. 6 Hoeper also takes issue with Air Wisconsin’s statement that it was “concerned about the whereabouts of his firearm,” App. to Pet. for Cite as: 571 U. S. (2014) 15 Opinion of the Court We next consider Air Wisconsin’s statement that Hoeper “was terminated today.” App. to Pet. for Cert. 111a. When Air Wisconsin made that statement, Hoeper had not yet been fired. But everyone knew the firing was almost certainly imminent. Hoeper acknowledged that his em- ployment was “at [Air Wisconsin’s] discretion” after his third failed test, App. 193, and the agreement between him and Air Wisconsin stated that his “fourth attempt” to pass the test would be his “final” one, No reasonable TSA officer would care whether an angry, po- tentially armed airline employee had just been fired or merely knew he was about to meet that fate. Finally, we consider Air Wisconsin’s statements that Hoeper was “[u]nstable” and that it was “concerned about his mental stability.” App. to Pet. for Cert. 111a. Al- though the details of Hoeper’s behavior during the simula- tor session may be disputed, Hoeper himself testified that he had become visibly angry: He decided “that’s it,” he removed his headset and “toss[ed] it,” and he accused the instructor—at an “elevated decibel level,” and with an expletive—of “railroading the situation.” App. 203–204. It would surely have been correct, then, for Air Wisconsin to report that Hoeper “ ‘blew up’ ” during the test. WL 907764, The question is whether, from the perspective of a reasonable security officer, there is any material difference between a statement that Hoeper had just “blown up” in a professional setting and a statement that he was “[u]nstable.” We think not. We are no more troubled by Air Wisconsin’s related statement that it was “concerned about [Hoeper’s] mental stability.” Hoeper |
Justice Sotomayor | 2,014 | 24 | majority | Air Wisconsin Airlines Corp. v. Hoeper | https://www.courtlistener.com/opinion/2651116/air-wisconsin-airlines-corp-v-hoeper/ | statement that it was “concerned about [Hoeper’s] mental stability.” Hoeper is correct that many of the Air Wiscon- sin officials who attended the meeting at headquarters —————— Cert. 111a. But his arguments concerning this statement are the same as those concerning the statement that he “may [have] been armed,” and we reject them for the same reasons. 16 AIR WISCONSIN AIRLINES CORP. v. HOEPER Opinion of the Court might not have framed their concerns in terms of “men- tal stability.” LaWare, for instance, testified that “[t]hose weren’t the words that [he] would have anticipated” when he directed Doyle to call the TSA. App. 272. But the officials who attended the meeting did harbor concerns about Hoeper’s mental state: They knew he had just “blown up,” and they worried about what he might do next. It would be inconsistent with the ATSA’s text and purpose to expose Air Wisconsin to liability because its employee could have chosen a slightly better phrase than “mental stability” to articulate its concern. Just as “[m]inor inaccuracies do not amount to falsity” in the defamation context, “so long as ‘the substance, the gist, the sting, of the libelous charge be justified,’ ” Masson, 501 U.S., at a statement that would otherwise qualify for ATSA immunity cannot lose that immunity because of some minor imprecision, so long as “the gist” of the state- ment is accurate. Doyle’s statements to the TSA accu- rately conveyed “the gist” of the situation; it is irrelevant whether trained lawyers or judges might with the luxury of time have chosen more precise words. Hoeper’s overarching factual theory appears to be that members of the BAe-146 team, including Doyle and Schuer- man, harbored personal animosity toward him, which caused them to manipulate the proficiency tests in order to fail him. But even if Hoeper were correct about all this (and we express no view on that question), we do not see why it would have made him any less a threat in the eyes of a reasonable security officer. As between two employees—one who thinks he is being fired because of his inadequate skills, another who thinks he is being fired because his employer hates him—the latter is presumably more, not less, likely to lash out in anger. The partial dissent argues that Doyle’s reference to Hoeper’s “mental stability” was so egregious as to make his report to the TSA the basis of a $1.2 million defama- Cite as: 571 U. S. (2014) 17 Opinion of the Court tion judgment. We disagree. While lawyers and judges may in some contexts apply the label |
Justice Sotomayor | 2,014 | 24 | majority | Air Wisconsin Airlines Corp. v. Hoeper | https://www.courtlistener.com/opinion/2651116/air-wisconsin-airlines-corp-v-hoeper/ | lawyers and judges may in some contexts apply the label “mentally unstable” to people suffering from serious mental illnesses, see post, at 4 (SCALIA, J., concurring in part and dissenting in part), that is hardly the only manner in which the label is used. A holding that Air Wisconsin lost its ATSA immunity by virtue of Doyle’s failure to be aware of every connotation of the phrase “mental stability” would eviscerate the immun- ity provision. All of us from time to time use words that, on reflection, we might modify. If such slips of the tongue could give rise to major financial liability, no airline would contact the TSA (or permit its employees to do so) without running by its lawyers the text of its proposed disclosure— exactly the kind of hesitation that Congress aimed to avoid. The partial dissent further argues that Hoeper’s “dis- play of anger” made him no more a threat than “millions of perfectly harmless air travelers.” Post, at 4. But Hoeper did not just lose his temper; he lost it in circum- stances that he knew would lead to his firing, which he regarded as the culmination of a vendetta against him. And he was not just any passenger; he was an FFDO, which meant that he could plausibly have been carrying a firearm. In short, Hoeper was not some traveling busi- nessman who yelled at a barista in a fit of pique over a badly brewed cup of coffee. Finally, the partial dissent relies on an expert’s testi- mony “that Hoeper’s behavior did not warrant any report to the TSA.” Post, at 4 (citing App. ). But the expert appears to have based that statement on an outdated understanding of reporting obligations that is flatly at odds with the ATSA. Prior to the ATSA, “airlines were responsible for assessing and investigating possible threats to airline security.” (Eid, J., concurring in part and dissenting in part). But the ATSA shifted that responsibility to the TSA, creating a policy 18 AIR WISCONSIN AIRLINES CORP. v. HOEPER Opinion of the Court “known as ‘when in doubt, report.’ ” ; see The expert who believed that Hoeper’s conduct did not warrant a report to the TSA also believed that airlines have “an obligation to filter out the low noise from what’s significant” in reporting threats. App. That understanding does not comport with the policy that Congress chose to enact. The Colorado Supreme Court recognized that even if the facts are viewed in the light most favorable to Hoeper, Air Wisconsin “would likely be immune” had it “reported that |
Justice Sotomayor | 2,014 | 24 | majority | Air Wisconsin Airlines Corp. v. Hoeper | https://www.courtlistener.com/opinion/2651116/air-wisconsin-airlines-corp-v-hoeper/ | Air Wisconsin “would likely be immune” had it “reported that Hoeper knew he would be terminated soon, that he had acted irrationally at the training three hours earlier and ‘blew up’ at test administrators, and that he was an FFDO pilot.” But the court erred in parsing so finely the distinctions between these hypothet- ical statements and the ones that Air Wisconsin actually made. The minor differences are, for the reasons we have explained, immaterial as a matter of law in determining Air Wisconsin’s ATSA immunity. By incorporating the actual malice standard into Congress meant to give air carriers the “ ‘breathing space’ ” to report potential threats to security officials without fear of civil liability for a few inaptly chosen words. New York To hold Air Wisconsin liable for minor misstatements or loose wording would undermine that purpose and disregard the statutory text. * * * The judgment of the Supreme Court of Colorado is therefore reversed, and the case is remanded for proceed- ings not inconsistent with this opinion. It is so ordered. Cite as: 571 U. S. (2014) 1 Opinion of SCALIA, J. SUPREME COURT OF THE UNITED STATES No. 12–315 AIR WISCONSIN AIRLINES CORPORATION, PETITIONER v. WILLIAM L. HOEPER ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SUPREME COURT OF COLORADO [January 27, 2014] JUSTICE SCALIA, with whom JUSTICE THOMAS and JUSTICE KAGAN join, concurring in part and dissenting in part. I agree with the Court that under the Aviation and Transportation Security Act (ATSA), 49 U.S. C. et seq., an airline may not be denied immunity for a re- port it made to the Transportation Security Administration (TSA) absent a finding that the report was materially false. I also agree that, in this context, materiality means that the falsehood had a natural tendency to influence a reasonable TSA officer’s determination of an appropriate response to the report; and that neither the jury nor the courts below considered material falsity in this ATSA- specific way. I therefore join Parts I, II, and III–A of the Court’s opinion. Having answered the question we granted certiorari to decide, see 570 U. S. (2013), I would stop there and remand the case for further proceedings. Instead, the Court proceeds to “apply the [ATSA] material falsity standard to the facts of this case” in the first instance, ante, at 13, and concludes as a matter of law that Air Wisconsin’s report to the TSA about William Hoeper was not materially false. In so holding, the Court in my view reaches out to decide a factbound |
Justice Sotomayor | 2,014 | 24 | majority | Air Wisconsin Airlines Corp. v. Hoeper | https://www.courtlistener.com/opinion/2651116/air-wisconsin-airlines-corp-v-hoeper/ | Court in my view reaches out to decide a factbound question better left to the lower courts, and then proceeds to give the wrong 2 AIR WISCONSIN AIRLINES CORP. v. HOEPER Opinion of SCALIA, J. answer. I therefore respectfully dissent from Part III–B and the disposition. We have held that under the First Amendment, a court’s role is to determine whether “[a] reasonable jury could find a material difference between” the defendant’s state- ment and the truth. That makes sense, since materiality is the sort of “ ‘mixed question of law and fact’ ” that “has typically been resolved by juries.” United States v. Gaudin, The jury has a vital role to play in the materiality inquiry, which entails “ ‘deli- cate assessments of the inferences a “reasonable deci- sionmaker” would draw from a given set of facts and the significance of those inferences to him’ ” and is therefore “ ‘peculiarly one for the trier of fact.’ ” (quoting TSC Industries, (1976); brackets omitted). Such a question cannot be withdrawn from the jury unless “the facts and the law will reasonably support only one conclusion” on which “reason- able persons could [not] differ.” McDermott Int’l, Inc. v. Wilander, The same rule applies to a determination of immunity from suit: When a defendant raises qualified immunity on summary judg- ment, the court must “adop[t] the plaintiff ’s version of the facts” unless “no reasonable jury could believe it.” Therefore, if we are to apply the ATSA materiality standard to the complex record in this case in the first instance, it is proper to view “the historical facts in the manner most favorable to Hoeper,” as the Court purports to do. Ante, at 13. We must of course begin by taking as given the findings that we know the jury already made, including that Air Wisconsin told the TSA that the airline was “concerned about [Hoeper’s] mental stability” and that he was an “[u]nstable pilot,” App. to Pet. for Cert. 111a (special verdict form), and that those statements were Cite as: 571 U. S. (2014) 3 Opinion of SCALIA, J. false, Next, we must ask whether a reasonable jury could find the remaining historical facts to be such that those statements were not only false, but materially false from the perspec- tive of a reasonable TSA agent. If not, judgment for Air Wisconsin is proper; but if so, the ATSA materiality ques- tion should be tried to a (properly instructed) jury. (Un- less, of course, a reasonable jury would be compelled to find facts that would render the statements materially false, |
Justice Sotomayor | 2,014 | 24 | majority | Air Wisconsin Airlines Corp. v. Hoeper | https://www.courtlistener.com/opinion/2651116/air-wisconsin-airlines-corp-v-hoeper/ | to find facts that would render the statements materially false, in which case judgment for Hoeper would be proper; but that is assuredly not the case here.) Applying that reasonable-jury standard, I do not see how we can possibly hold as a matter of law that Air Wisconsin’s report was not materially false. The Court acknowledges Hoeper’s description of the confrontation that spawned the airline’s threat report: After failing a flight simulator test, Hoeper “decided ‘that’s it,’ he removed his headset and ‘toss[ed] it,’ and he accused the instructor—at an ‘elevated decibel level,’ and with an expletive—of ‘railroading the situation.’ ” Ante, at 15 (quoting App. 203–204). A jury could credit Hoeper’s account. It could also believe his “overarching factual theory” that his anger was reasonable because the instruc- tor had “manipulate[d]” the test to cause him to fail out of “personal animosity,” ante, at 16—a theory that was not without supporting evidence, see, e.g., App. 259–260 (pilot testifying as expert witness that Hoeper’s testing was “absolutely unfair” and “biased”). Moreover, there was evidence from which a jury could conclude that no one who interacted with Hoeper during or after the confrontation— including the instructor—viewed him as either unstable or threatening. See, e.g., at 15–16 (instructor acknowl- edging that he “ ‘quickly realized it wasn’t a threatening situation’ ”); at 29–31 (instructor testifying he “ ‘never felt that [Hoeper] was going to go do something stupid,’ ” “ ‘didn’t believe that Mr. Hoeper posed a threat in any way 4 AIR WISCONSIN AIRLINES CORP. v. HOEPER Opinion of SCALIA, J. to anybody else at all,’ ” “ ‘did not believe that Mr. Hoeper was engaging in irrational behavior,’ ” and “ ‘deem[ed] him perfectly safe to get on an airplane’ ”); (airline representative who gave Hoeper permission to fly home testifying he “had no concern that [Hoeper] was a physical threat to anybody” and “didn’t believe he was mentally unstable”). In short, a jury could find that Hoeper did nothing more than engage in a brief, run-of-the-mill, and arguably justified display of anger that included raising his voice and swearing, but that did not cause anyone, including the person on the receiving end of the outburst, to view him as either irrational or a potential source of violence. Viewing the facts in that light, I cannot agree with the Court that a reasonable TSA official would not “consider im- portant,” ante, at 13, the difference between an individual who engaged in this sort of heated but commonplace dis- play of anger, on the one hand, and on the other, an |
Justice Sotomayor | 2,014 | 24 | majority | Air Wisconsin Airlines Corp. v. Hoeper | https://www.courtlistener.com/opinion/2651116/air-wisconsin-airlines-corp-v-hoeper/ | anger, on the one hand, and on the other, an individual whose colleagues regard him as “mentally unsta- ble.” It is the difference between a category that no doubt includes millions of perfectly harmless air travelers and one that, in ordinary parlance, connotes an alarming degree of unpredictability and aggressiveness. Indeed, we have used that term in connection with individuals so “dangerously mentally ill” that they may be subject to civil confinement. (1997). The importance of that difference was highlighted by the expert testimony in this case of a former TSA Fed- eral Security Director, who stated—based on a version of the underlying facts the jury was entitled to accept—that Hoeper’s behavior did not warrant any report to the TSA. App.* —————— * The Court dismisses the former Director’s testimony because he testified that in making threat reports to the TSA, airline officials should use “common sense” to “filter out the garbage and report [only] Cite as: 571 U. S. (2014) 5 Opinion of SCALIA, J. The association with dangerous mental illness is not, as the Court suggests, merely one “connotation of the phrase ‘mental [in]stability’ ” among many, ante, at 17; it is the everyday understanding of that phrase. The Court says that this is “hardly the only manner in which the label is used,” but it does not even attempt to describe an- other usage, let alone one that would be a materially accurate description of the facts of this case as a jury might find them. The Court also suggests that the cir- cumstances of this case—particularly the fact that Hoeper knew his firing was imminent, had reason to be angry with the airline, and was authorized to carry a firearm— distinguish Hoeper’s confrontation with the instructor from an ordinary “fit of pique.” But if so, it was all the more important for the airline to make an accurate report to the TSA, so that the agency could assess the possible danger and determine an appropriate response. Falsely reporting to the TSA that a young Irishman is an IRA terrorist is much more likely to produce a prompt and erroneous response than reporting that a 70-year-old English grandmother is. The circumstances the Court identifies enhanced, rather than diminished, the likeli- hood that the false “mentally unstable” designation would have a material effect on the TSA’s response. In sum, it is simply implausible that, taking the facts of —————— really suspicious incidents,” App. a view the Court deems “flatly at odds with the ATSA,” ante, at 17. The ATSA, however, simply requires airlines to report “threat[s] to civil |
Justice Sotomayor | 2,014 | 24 | majority | Air Wisconsin Airlines Corp. v. Hoeper | https://www.courtlistener.com/opinion/2651116/air-wisconsin-airlines-corp-v-hoeper/ | ATSA, however, simply requires airlines to report “threat[s] to civil aviation,” 49 U.S. C. The statute surely places a heavy thumb on the scale in favor of reporting, but it certainly does not preclude the exercise of reasonable judgment in deciding what rises to the level of a “threat” and what constitutes, as the former Director put it, irrelevant “garbage.” And even if one disagrees with the former Director that no report should have been made at all, the point is that a reasonable jury could have considered his testimony relevant to establishing that falsely expressing concerns about an individual’s “mental stability” in the circumstances of this case would have a material effect on the TSA’s decisionmaking process. 6 AIR WISCONSIN AIRLINES CORP. v. HOEPER Opinion of SCALIA, J. this case in the light most favorable to Hoeper, a reason- able jury would have to find that the report of mental in- stability would have no effect upon the course of action determined by the TSA. The Court’s holding to the con- trary demonstrates the wisdom of preserving the jury’s role in this inquiry, designed to inject a practical sense that judges sometimes lack. I respectfully dissent from that holding |
Justice Kagan | 2,019 | 3 | majority | Madison v. Alabama | https://www.courtlistener.com/opinion/4594559/madison-v-alabama/ | The Eighth Amendment, this Court has held, prohibits the execution of a prisoner whose mental illness prevents him from “rational[ly] understanding” why the State seeks to impose that punishment. v. Quarterman, 551 U.S. 930, 959 (2007). In this case, Vernon ar- gued that his memory loss and dementia entitled him to a stay of execution, but an Alabama court denied the relief. We now address two questions relating to the Eighth Amendment’s bar, disputed below but not in this Court. First, does the Eighth Amendment forbid execution when- ever a prisoner shows that a mental disorder has left him without any memory of committing his crime? We (and, now, the parties) think not, because a person lacking such a memory may still be able to form a rational understand- ing of the reasons for his death sentence. Second, does the Eighth Amendment apply similarly to a prisoner suffering from dementia as to one experiencing psychotic delusions? We (and, now, the parties) think so, because either condi- tion may—or, then again, may not—impede the requisite comprehension of his punishment. The only issue left, on which the parties still disagree, is what those rulings 2 MADISON v. ALABAMA Opinion of the Court mean for ’s own execution. We direct that issue to the state court for further consideration in light of this opinion. I A This Court decided in (1986), that the Eighth Amendment’s ban on cruel and unusual punishments precludes executing a prisoner who has “lost his sanity” after sentencing. While on death row, Alvin was beset by “pervasive delu- sion[s]” associated with “[p]aranoid [s]chizophrenia.” at 402–403. Surveying both the common law and state statutes, the Court found a uniform practice against tak- ing the life of such a prisoner. See –409. Among the reasons for that time-honored bar, the Court ex- plained, was a moral “intuition” that “killing one who has no capacity” to understand his crime or punishment “simply offends humanity.” ; see at 409 (citing the “natural abhorrence civilized societies feel” at perform- ing such an act). Another rationale rested on the lack of “retributive value” in executing a person who has no com- prehension of the meaning of the community’s judgment. ; see (Powell, J., concurring in part and concurring in judgment) (stating that the death penalty’s “retributive force[ ] depends on the defendant’s awareness of the penalty’s existence and purpose”). The resulting rule, now stated as a matter of constitutional law, held “a category of defendants defined by their mental state” incompetent to be executed. The Court clarified the scope of that category in v. Quarterman |
Justice Kagan | 2,019 | 3 | majority | Madison v. Alabama | https://www.courtlistener.com/opinion/4594559/madison-v-alabama/ | Court clarified the scope of that category in v. Quarterman by focusing on whether a prisoner can “reach a rational understanding of the reason for [his] execution.” Like Alvin Scott suffered from “gross delusions” stemming from “extreme psychosis.” In reversing a Cite as: 586 U. S. (2019) 3 Opinion of the Court ruling that he could still be executed, the Court set out the appropriate “standard for competency.” at 957. the Court now noted, had not provided “specific criteria.” But had explored what lay behind the Eighth Amendment’s prohibition, high- lighting that the execution of a prisoner who cannot com- prehend the reasons for his punishment offends moral values and “serves no retributive purpose.” 551 U.S., at 958. Those principles, the Court explained, indi- cate how to identify prisoners whom the State may not execute. The critical question is whether a “prisoner’s mental state is so distorted by a mental illness” that he lacks a “rational understanding” of “the State’s rationale for [his] execution.” 58–959. Or similarly put, the issue is whether a “prisoner’s concept of reality” is “so impair[ed]” that he cannot grasp the execution’s “meaning and purpose” or the “link between [his] crime and its punishment.” B Vernon killed a police officer in 1985 during a domestic dispute. An Alabama jury found him guilty of capital murder, and the trial court sentenced him to death. He has spent most of the ensuing decades on the State’s death row. In recent years, ’s mental condition has sharply deteriorated. suffered a series of strokes, includ- ing major ones in 2015 and 2016. See Tr. 19, 46–47 (Apr. 14, 2016). He was diagnosed as having vascular dementia, with attendant disorientation and confusion, cognitive impairment, and memory loss. See at 19–20, 52–54. In particular, claims that he can no longer recol- lect committing the crime for which he has been sentenced to die. See Tr., Pet. Exh. 2, p. 8. After his 2016 stroke, petitioned the trial court for a stay of execution on the ground that he had become 4 MADISON v. ALABAMA Opinion of the Court mentally incompetent. Citing and he argued that “he no longer understands” the “status of his case” or the “nature of his conviction and sentence.” Pet. for Sus- pension in No. CC–85–1385.80 (C. C. Mobile Cty., Ala., Feb. 12, 2016), pp. 11, 14. And in a later filing, emphasized that he could not “independently recall the facts of the offense he is convicted of.” Brief Pursuant to Order (Apr. 21, 2016), p. 8. Alabama countered that Mad- ison had “a rational understanding of [the reasons |
Justice Kagan | 2,019 | 3 | majority | Madison v. Alabama | https://www.courtlistener.com/opinion/4594559/madison-v-alabama/ | that Mad- ison had “a rational understanding of [the reasons for] his impending execution,” as required by and even assuming he had no memory of committing his crime. Brief on ’s Competency (April 21, 2016), pp. 4–5, 8. And more broadly, the State claimed that could not possibly qualify as incompetent under those two decisions because both “concerned themselves with ‘[g]ross delusions’ ”—which all agree does not have. at 2; see ( “failed to implicate” and because he “does not suffer from psychosis or delusions”). Expert reports from two psychologists largely aligned with the parties’ contending positions. Dr. John Goff, ’s expert, found that although “un- derst[ood] the nature of execution” in the abstract, he did not comprehend the “reasoning behind” Alabama’s effort to execute him. Tr., Pet. Exh. 2 (Apr. 14, 2016), p. 8; see Goff stated that had “Major Vascular Neurological Disorder”— called vascular dementia— which had caused “significant cognitive decline.” And Goff underscored that “demonstrate[d] retrograde amnesia” about his crime, meaning that he had no “independent recollection[ ]” of the murder. ; see For his part, Dr. Karl Kirkland, the court- appointed expert, reported that “was able to discuss his case” accurately and “appear[ed] to understand his legal situation.” Tr., Ct. Exh. 1, pp. 10–11. Although Kirkland acknowledged that ’s strokes had led to Cite as: 586 U. S. (2019) 5 Opinion of the Court cognitive decline, see the psychologist made no men- tion of ’s diagnosed vascular dementia. Rather, Kirkland highlighted that “[t]here was no evidence of psychosis, paranoia, or delusion.” ; see (Mad- ison “did not seem delusional at all”). At a competency hearing, Alabama similarly stressed ’s absence of psychotic episodes or delusions. The State asked both experts to affirm that was “neither delusional [n]or psychotic.” Tr. 56; see And its closing argument focused on their agreement that he was not. As the State summarized: “He’s not psychotic. He’s not delusional.” 1. On the State’s view, that fact answered the competency question because “[t]he Supreme Court is looking at whether someone’s delusions or someone’s paranoia or someone’s psychosis is standing in the way of ” rationally understanding his punishment. 2. ’s counsel disputed that point. “[T]he State would like to say, well, he’s not delusional, he’s not psychotic,” the attorney recapped. 3. But, she continued, “[t]hat’s not really the criteria” under Tr. 83. Rather, the Court there barred executing a person with any mental illness—“dementia” and “brain injuries” no less than psychosis and delusions—that prevents him from comprehending “why he is being executed.” The trial court found competent to be executed. Its order first |
Justice Kagan | 2,019 | 3 | majority | Madison v. Alabama | https://www.courtlistener.com/opinion/4594559/madison-v-alabama/ | trial court found competent to be executed. Its order first recounted the evidence given by each expert witness. The summary of Kirkland’s report and testimony began by stating that the psychologist had “found no evidence of paranoia[,] delusion [or] psychosis.” Order (Apr. 29, 2016), p. 5 (2016 Order). The court then noted Kirkland’s view that could “give details of the history of his case” and “appear[ed] to understand his legal situation.” Turning to the Goff report, the court noted the expert’s finding that was “amne- sic” and could not recollect his crime. ; see at 7. In a single, final paragraph, the court provided both its 6 MADISON v. ALABAMA Opinion of the Court ruling and its reasoning. had failed to show, the court wrote, that he did not “rationally understand the punishment he is about to suffer and why he is about to suffer it.” The court “accept[ed] the testimony of Dr. Kirkland as to the understanding has concerning the situation.” “Further,” the court concluded, “the evidence does not support that Mr. Madi- son is delusional.” next sought habeas relief in federal court, where he faced the heavy burden of showing that the state-court ruling “involved an unreasonable application of[ ] clearly established federal law” or rested on an “un- reasonable determination of the facts.” Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 28 U.S. C. The District Court rejected his petition, but the Court of Appeals for the Eleventh Circuit ruled that Madi- son had demonstrated both kinds of indisputable error. See This Court then summarily reversed the appeals court’s decision. See Dunn v. 583 U. S. (per curiam). We explained, contrary to the Eleventh Circuit’s principal holding, that “[n]either nor ‘clearly established’ that a prisoner is incompetent to be executed” because of a simple failure to remember his crime. at (slip op., at 4). And we found that the state court did not act unreasonably—otherwise put, did not err “beyond any possibility for fairminded disagreement”—when it found that had the necessary understanding to be executed. But we made clear that our decision was premised on AEDPA’s “demanding” and “deferential standard.” at (slip op., 4). “We express[ed] no view” on the question of ’s competency “outside of the AEDPA context.” at (slip op., at 4).1 —————— 1 Neither did we opine on—or even mention—the subsidiary legal Cite as: 586 U. S. (2019) 7 Opinion of the Court When Alabama set an execution date in 2018, returned to state court to argue again that his mental condition precluded the State from going forward. In his petition, reiterated the |
Justice Kagan | 2,019 | 3 | majority | Madison v. Alabama | https://www.courtlistener.com/opinion/4594559/madison-v-alabama/ | the State from going forward. In his petition, reiterated the facts and arguments he had previously presented to the state court. But claimed that since that court’s decision (1) he had suffered further cognitive decline and (2) a state board had suspended Kirkland’s license to practice psychology, thus discrediting his prior testimony. See Pet. to Suspend Execution in No. CC–85–1385.80 pp. 1–2, 16–19.2 Alabama responded that nothing material had changed since the court’s first com- petency hearing. See Motion to Dismiss p. 9. The State repeated its argument that permits executing pointing to the experts’ agreement that he is “not delusional or psychotic” and —————— question whether a mental disorder other than delusions may render a person incompetent to be executed. Alabama told the Eleventh Circuit that it could not, thus reprising the claim the State had made in the trial court. See (describing Alabama’s argument that “only a prisoner suffering from gross delusions can show incompetency under ”); Recording of Oral Arg. in No. 16–12279 (CA11, June 23, 2016), at 26:36–26:45 (“In this case, what we have is someone who claims to have a mental illness, dementia,” but does not have “delusions, which is what requires”); at 26:48–27:21 (When asked if someone with “severe dementia” but no delusions could be executed, the State responded “I think so because they don’t have delusions”). (Alabama alternatively argued that the state court’s decision was not based on that view, see Brief for Appellee in No. 16– 12279 (CA11), pp. 37–38; the quotations the dissent picks out, see post, n. 4, come from that additional argument.) The Eleventh Circuit rejected the State’s contention that dementia could not preclude an execution as “inconsistent with the principles underlying” and But we had no reason to address that holding in light of the errors we saw in other parts of the appeals court’s analysis. 2 As ’s petition recounted, the license suspension followed the opening of a criminal investigation into whether Kirkland had commit- ted narcotics offenses. See Pet. to Suspend Execution 17–19. 8 MADISON v. ALABAMA Opinion of the Court asserting that neither “memory impairment [n]or demen- tia [could] suffice to satisfy the and stand- ards” without “an expansion” of those decisions. Motion to Dismiss 4, 10. A week before the scheduled execution, the state court again found mentally competent. Its brief order stated only that “did not provide a substantial threshold showing of insanity[ ] sufficient to convince this Court to stay the execution.” App. A to Pet. for Cert. then filed in this Court a request to stay his execution and a petition |
Justice Kagan | 2,019 | 3 | majority | Madison v. Alabama | https://www.courtlistener.com/opinion/4594559/madison-v-alabama/ | Court a request to stay his execution and a petition for certiorari. We ordered the stay on the scheduled execution date and granted the petition a few weeks later. See 583 U. S. (2018). Because the case now comes to us on direct review of the state court’s decision (rather than in a habeas proceeding), AEDPA’s deferential standard no longer governs. (And for that reason—contrary to the dissent’s suggestion, post, at 12—our decision on ’s habeas petition cannot help resolve the questions raised here.) II Two issues relating to ’s application are before us. Recall that our decision there held the Eighth Amendment to forbid executing a prisoner whose mental illness makes him unable to “reach a rational understand- ing of the reason for [his] execution.” ; see at 2–3. The first question presented is whether prohibits executing merely because he cannot remember committing his crime. The second ques- tion raised is whether permits executing merely because he suffers from dementia, rather than psychotic delusions.3 In prior stages of this case, as we —————— 3 The dissent is in high dudgeon over our taking up the second ques- tion, arguing that it was not presented in ’s petition for certio- rari. See post, at 1–6. But that is incorrect. The petition presented two questions—the same two we address here. The first question asked Cite as: 586 U. S. (2019) 9 Opinion of the Court have described, the parties disagreed about those matters. See at 4–8. But at this Court, accepted Alabama’s position on the first issue and Alabama accepted ’s on the second. See, Tr. of Oral Arg. 11, 36. And rightly so. As the parties now recognize, the standard set out in supplies the answers to both questions. First, a person lacking memory of his crime may yet ra- tionally understand why the State seeks to execute him; if so, the Eighth Amendment poses no bar to his execution. Second, a person suffering from dementia may be unable to rationally understand the reasons for his sentence; if so, the Eighth Amendment does not allow his execution. What matters is whether a person has the “rational un- derstanding” requires—not whether he has any particular memory or any particular mental illness. A Consider initially a person who cannot remember his crime because of a mental disorder, but who otherwise has —————— whether the Eighth Amendment bars executing because he has no “memory of his commission of the capital offense.” Pet. for Cert. iii. The second question asked whether that Amendment bars his execution because his “vascular dementia” and “severe cognitive dys- |
Justice Kagan | 2,019 | 3 | majority | Madison v. Alabama | https://www.courtlistener.com/opinion/4594559/madison-v-alabama/ | his execution because his “vascular dementia” and “severe cognitive dys- function” prevent him from either remembering his crime “or under- standing the circumstances of his scheduled execution.” So the first question concerned whether memory loss alone could form the basis of a claim and the second whether the varied consequences of dementia could do so. The body of the petition, to be sure, devoted more space to the first question. But it clearly referenced the second. See Pet. for Cert. 18 (“[T]his Court has never sought to constrain the world of maladies that can give rise to a finding that a prisoner is incompetent to be executed”); (“[C]ourts have recognized dementia and attendant cognitive decline and memory impairment as a basis for a finding of incompetency to be executed”). And in any event, the number of words spent on each is not what matters. Our Rule states that the Court will consider “[o]nly the questions set out in the petition, or fairly included therein.” This Court’s Rule 14.1(a). Here, we consider, in order, the two questions set out in ’s petition. 10 MADISON v. ALABAMA Opinion of the Court full cognitive function. The memory loss is genuine: Let us say the person has some kind of amnesia, which has produced a black hole where that recollection should be. But the person remains oriented in time and place; he can make logical connections and order his thoughts; and he comprehends familiar concepts of crime and punishment. Can the State execute him for a murder? When we con- sidered this case before, using the deferential standard applicable in habeas, we held that a state court could allow such an execution without committing inarguable error. See 583 U. S., at (slip op., at 4) (stat- ing that no prior decision had “clearly established” the opposite); Today, we address the issue straight-up, sans any deference to a state court. Again, is the failure to remember committing a crime alone enough to prevent a State from executing a prisoner? It is not, under ’s own terms. That decision asks about understanding, not memory—more specifically, about a person’s understanding of why the State seeks capital punishment for a crime, not his memory of the crime itself. And the one may exist without the other. Do you have an independent recollection of the Civil War? Obviously not. But you may still be able to reach a rational—indeed, a sophisticated—understanding of that conflict and its consequences. Do you recall your first day of school? Probably not. But if your mother told you years later that you were sent |
Justice Kagan | 2,019 | 3 | majority | Madison v. Alabama | https://www.courtlistener.com/opinion/4594559/madison-v-alabama/ | your mother told you years later that you were sent home for hitting a classmate, you would have no trouble grasping the story. And similarly, if you somehow blacked out a crime you committed, but later learned what you had done, you could well appreci- ate the State’s desire to impose a penalty. Assuming, that is, no other cognitive impairment, loss of memory of a crime does not prevent rational understanding of the State’s reasons for resorting to punishment. And that kind of comprehension is the standard’s singular focus. Cite as: 586 U. S. (2019) 11 Opinion of the Court The same answer follows from the core justifications offered for framing its Eighth Amendment test as it did. Echoing reasoned that execution has no retributive value when a prisoner cannot appreciate the meaning of a community’s judgment. See 551 U.S., at 958–959 (citing –408); But as just explained, a person who can no longer remember a crime may yet recognize the retributive message society intends to convey with a death sentence. Similarly, and stated that it “offends humanity” to execute a person so wracked by mental illness that he cannot com- prehend the “meaning and purpose of the punishment.” ; 551 U. S., 60; see 58. But that offense to morality must be much less when a per- son’s mental disorder causes nothing more than an episodic memory loss. Moral values do not exempt the simply forgetful from punishment, whatever the neurological reason for their lack of recall. But such memory loss still may factor into the “rational understanding” analysis that demands. If that loss combines and interacts with other mental shortfalls to deprive a person of the capacity to comprehend why the State is exacting death as punishment, then the standard will be satisfied. That may be so when a person has difficulty preserving any memories, so that even newly gained knowledge (about, say, the crime and punishment) will be quickly forgotten. Or it may be so when cognitive deficits prevent the acquisition of such knowledge at all, so that memory gaps go forever uncompensated. As indicated, neurologists, psychologists, and other experts can contribute to a court’s understanding of issues of that kind. See 62. But the sole inquiry for the court remains whether the prisoner can rationally understand the reasons for his death sentence. 12 MADISON v. ALABAMA Opinion of the Court B Next consider a prisoner who suffers from dementia or a similar disorder, rather than psychotic delusions. The dementia, as is typical, has compromised this prisoner’s cognitive functions. But it has not resulted in the kind |
Justice Kagan | 2,019 | 3 | majority | Madison v. Alabama | https://www.courtlistener.com/opinion/4594559/madison-v-alabama/ | cognitive functions. But it has not resulted in the kind of delusional beliefs that Alvin and Scott held. May the prisoner nonetheless receive a stay of execution under and ? Or instead, is a delusional disor- der a prerequisite to declaring a mentally ill person in- competent to be executed? We did not address that issue when we last considered this case, on habeas review; in that sense, the question is one of first impression. See n. 1. But here too, has already answered the ques- tion. Its standard focuses on whether a mental disorder has had a particular effect: an inability to rationally un- derstand why the State is seeking execution. See at 2–3. Conversely, that standard has no interest in es- tablishing any precise cause: Psychosis or dementia, delu- sions or overall cognitive decline are all the same under so long as they produce the requisite lack of com- prehension. To be sure, on occasion spoke of “gross delusions” in explaining its holding. 551 U.S., at 960. And similarly, talked about the “insane,” which sometimes refers to persons holding such irrational be- liefs. See, 410.4 But those refer- ences are no more than a predictable byproduct of the two cases’ facts. At the same time (and interchangeably), used more inclusive terms, such as “mental ill- —————— 4 Alternatively, however, the term may be used to encompass persons with other mental conditions, so long as they are “severe enough [to] prevent[ ] a person from having legal capacity and excuse[ ] the person from criminal or civil responsibility.” Black’s Law Diction- ary 914 (10th ed. 2014). In that different understanding, “insanity” connotes a general standard of legal competency rather than a more limited description of delusional disorders. Cite as: 586 U. S. (2019) 13 Opinion of the Court ness,” “mental disorder,” and “psychological dysfunction.” 551 U.S., 36, 959, 960; see – 409, n. 2 (referring to prisoners with “mental illness”). And most important, framed its test, as just de- scribed, in a way utterly indifferent to a prisoner’s specific mental illness. The standard concerns, once again, not the diagnosis of such illness, but a consequence—to wit, the prisoner’s inability to rationally understand his punishment. And here too, the key justifications and offered for the Eighth Amendment’s bar confirm our con- clusion about its reach. As described above, those deci- sions stated that an execution lacks retributive purpose when a mentally ill prisoner cannot understand the socie- tal judgment underlying his sentence. See 551 U.S., 58–959; ; at 2–3. And they indicated that an execution offends morality in the same |
Justice Kagan | 2,019 | 3 | majority | Madison v. Alabama | https://www.courtlistener.com/opinion/4594559/madison-v-alabama/ | they indicated that an execution offends morality in the same circumstance. See 960; 477 U. S., at 409; at 2–3. Both rationales for the consti- tutional bar thus hinge (just as the standard deriving from them does) on the prisoner’s “[in]comprehension of why he has been singled out” to die. ; see at 2–3. Or said otherwise, if and when that failure of understanding is present, the rationales kick in—irrespective of whether one disease or another (say, psychotic delusions or dementia) is to blame. In evaluating competency to be executed, a judge must therefore look beyond any given diagnosis to a down- stream consequence. As and recognized, a delusional disorder can be of such severity—can “so impair the prisoner’s concept of reality”—that someone in its thrall will be unable “to come to grips with” the punish- ment’s meaning. ; 477 U.S., at 409. But delusions come in many shapes and sizes, and not all will interfere with the understanding that the Eighth Amendment requires. See 551 14 MADISON v. ALABAMA Opinion of the Court U. S., 62 (remanding the case to consider expert evi- dence on whether the prisoner’s delusions did so). And much the same is true of dementia. That mental condition can cause such disorientation and cognitive decline as to prevent a person from sustaining a rational understanding of why the State wants to execute him. See at 11– 12. But dementia has milder forms, which allow a person to preserve that understanding. Hence the need— for dementia as for delusions as for any other mental disorder—to attend to the particular circumstances of a case and make the precise judgment requires. III The only question left—and the only one on which the parties now disagree—is whether ’s execution may go forward based on the state court’s decision below. ’s counsel says it cannot because that ruling was tainted by legal error—specifically, the idea that only delusions, and not dementia, can support a finding of mental incompetency. See Tr. of Oral Arg. 12, 21, 25, 27. Alabama counters that the state court did not rely on that (concededly) incorrect view of the law. See 7–41. But we come away at the least unsure whether that is so—especially given Alabama’s evidence and arguments in the state court. As noted earlier, the 2018 ruling we review today con- tains only one sentence of explanation. See –8. It states that “did not provide a substantial threshold showing of insanity[ ] sufficient to convince this Court to stay the execution.” App. A to Pet. for Cert. If the state court used the word |
Justice Kagan | 2,019 | 3 | majority | Madison v. Alabama | https://www.courtlistener.com/opinion/4594559/madison-v-alabama/ | Pet. for Cert. If the state court used the word “insanity” to refer to a delu- sional disorder, then error occurred: The court would have denied a stay on the ground that did not have that specific kind of mental illness. And the likelihood that the court made that mistake is heightened by the State’s emphasis, at that stage of the proceedings (as at Cite as: 586 U. S. (2019) 15 Opinion of the Court others), that was “not delusional or psychotic” and that “dementia” could not suffice to bar his execution absent “an expansion of and ” Motion to Dismiss 4, 10; see at 4–8; but see post, –10, and n. 4 (disregarding those arguments).5 Alabama argues, however, that the court spoke of “insanity” only because the state statute under which sought relief uses that term. See Tr. of Oral Arg. 37; –16–23 (2011) (allowing a stay of execution “on account of the [convict’s] insanity”). But even if so, that does not advance the State’s view that the state court properly understood the Eighth Amendment bar when assessing ’s competency. Alabama told this Court in opposing certio- rari that its statute covers only those with delusional disorders, and not those with dementia. See Brief in Opposition 12 (“[T]he sole question to be answered under the state statute was whether was insane, not whether he suffered from dementia”). The state court’s (supposed) echoing of statutory language understood in that way cannot provide assurance that the court knew a person with dementia might receive a stay of execution; indeed, it suggests exactly the opposite. The court’s 2018 order thus calls out for a do-over. Alabama further contends, however, that we should look past the state court’s 2018 decision to the court’s initial 2016 determination of competency. (The dissent similarly begins with the 2016 ruling, see post, –7, even though that is not the decision under review here.) According to the State, nothing material changed in the interim period, see ; thus, we may find the meaning of the later ruling in the earlier one, see Tr. of Oral Arg. 36–37. And, —————— 5 The State once again repeated that argument in its Brief in Opposi- tion to ’s certiorari petition. See Brief in Opposition 11–12 (“ does not argue that he is insane. Instead, he argues that he suffers from dementia” and that his execution should be barred “under a yet-unannounced expansion of and ”). 16 MADISON v. ALABAMA Opinion of the Court the State continues, the 2016 opinion gets the law right. Alabama’s proof is that the court, after summarizing |
Justice Kagan | 2,019 | 3 | majority | Madison v. Alabama | https://www.courtlistener.com/opinion/4594559/madison-v-alabama/ | law right. Alabama’s proof is that the court, after summarizing the psychologists’ testimony, found that “ has a ra- tional[ ] understanding, as required by” concern- ing the “punishment he is about to suffer and why he is about to suffer it.” 2016 Order, ; see Tr. of Oral Arg. 39; –6. (The dissent quotes the same passage. See post,) But the state court’s initial decision does not aid Ala- bama’s cause. First, we do not know that the court in 2018 meant to incorporate everything in its prior opinion. The order says nothing to that effect; and though it came out the same way as the earlier decision, it need not have rested on all the same reasoning. Second, the 2016 opin- ion itself does not show that the state court realized that persons suffering from dementia could satisfy the standard. True enough, as Alabama says, that the court accurately stated that standard in its decision. But as described above, Alabama had repeatedly argued to the court (over ’s objection) that only prisoners suffer- ing from delusional disorders could qualify as incompetent under See, Brief on ’s Competency 2 ( “failed to implicate” and because he “does not suffer from psychosis or delusions”); Tr. 82 (“The Supreme Court [in ] is looking at whether some- one’s delusions or someone’s paranoia or someone’s psy- chosis is standing in the way of ” rationally understanding his punishment); see at 4–5; but see post, – 10, and n. 4 (disregarding those arguments). And Ala- bama relied on the expert opinion of a psychologist who highlighted ’s lack of “psychosis, paranoia, or delusion,” while never mentioning his dementia. Tr., Ct. Exh. 1 (Apr. 14, 2016), p. 9. That too-limited understand- ing of ’s compass is reflected in the court’s 2016 opinion. In its single paragraph of analysis, the court “accept[ed] the testimony” of the State’s preferred psy- Cite as: 586 U. S. (2019) 17 Opinion of the Court chologist.6 And the court further found that “the evidence does not support that Mr. is delusional”—without ever considering his undisputed dementia. 2016 Order, For those reasons, we must return this case to the state court for renewed consideration of ’s competency (assuming Alabama sets a new execution date). See, Kindred Nursing Centers L. P. v. Clark, 581 U. S. (slip op., ) (remanding when “uncertain” whether “an impermissible taint occurred”); In that proceed- ing, two matters disputed below should now be clear. First, under and the Eighth Amendment may permit executing even if he cannot remem- ber committing his crime. Second, under those same decisions, |
Justice Kagan | 2,019 | 3 | majority | Madison v. Alabama | https://www.courtlistener.com/opinion/4594559/madison-v-alabama/ | remem- ber committing his crime. Second, under those same decisions, the Eighth Amendment may prohibit executing even though he suffers from dementia, rather than delusions. The sole question on which ’s competency depends is whether he can reach a “rational understanding” of why the State wants to execute him. In answering that question—on which we again express no view, see —the state court may not rely on any arguments or evidence tainted with the legal errors we have addressed. And because that is so, the court should consider whether it needs to supplement the existing record. Some evidence in that record, including portions of the experts’ reports and testimony, expressly reflects an incorrect view of the relevance of delusions or memory; still other evidence might have implicitly rested on those same misjudgments. —————— 6 The court well understood that expert’s exclusive focus on whether had psychotic delusions. In summarizing his testimony, the court began as follows: “Dr. Kirkland in his exam found no evidence of paranoia or delusion at the time of his examin[ation], on March 31, 2016. He found that there was no psychosis present.” 2016 Order, ; see 18 MADISON v. ALABAMA Opinion of the Court The state court, we have little doubt, can evaluate such matters better than we. It must do so as the first step in assessing ’s competency—and ensuring that if he is to be executed, he understands why. We accordingly vacate the judgment of the state court and remand the case for further proceedings not incon- sistent with this opinion. It is so ordered. JUSTICE KAVANAUGH took no part in the consideration or decision of this case. Cite as: 586 U. S. (2019) 1 ALITO, J., dissenting SUPREME COURT OF THE UNITED STATES No. 17–7505 VERNON MADISON, PETITIONER v. |
Justice Thomas | 1,998 | 1 | second_dissenting | Stewart v. Martinez-Villareal | https://www.courtlistener.com/opinion/118206/stewart-v-martinez-villareal/ | From 1986 to 1991, respondent filed three petitions for federal habeas relief; each was dismissed on the ground that respondent had not yet exhausted his state remedies. In March 1993, respondent filed his fourth federal habeas petition presenting, inter alia, his claim under that he was not competent to be executed. Finding that some of respondent's claims were procedurally defaulted, that others were without merit, and that respondent's Ford claim was not ripe for decision, the Court of Appeals held that the fourth petition should be denied. In May 1997, after the Arizona state courts rejected his Ford claim, respondent returned for a fifth time to federal court, again arguing that he was incompetent to be executed. Because this filing was a "second or successive habeas corpus application," respondent's Ford claim should have been dismissed. I therefore respectfully dissent. Unlike the Court, I begin with the plain language of the statute. Section 2244(b)(1) provides that a "claim presented in a second or successive habeas corpus application that was presented in a prior application shall be dismissed." 28 U.S. C. 2244(b)(1) (1994 ed., Supp. II). An "application" is a "putting to, placing before, preferring a request or petition *649 to or before a person. The act of making a request for something." Black's Law Dictionary 98-99 (6th ed. 1990); see also Webster's Ninth New Collegiate Dictionary 97 (1991) (application is a "request, petition a form used in making a request"). Respondent's March 1993 federal habeas petition was clearly a habeas "application" (the Court concedes as much), because it placed before the District Court respondent's request for a writ of habeas corpus. Once this application was denied, however, none of respondent's claims for reliefincluding his claim that he was incompetent to be executedremained before the Court. It was thus necessary for respondent to file a new request for habeas relief so that his Ford claim would again be "pu[t] to" or "plac[ed] before" the District Court. (The Court certainly did not raise respondent's Ford claim sua sponte. ) Respondent's May 1997 request for relief was therefore a habeas application distinct from his earlier requests for relief, and it was thus undoubtedly "second or successive." Respondent's Ford claim was also "presented" in both his March 1993 and his May 1997 habeas applications. To "present" is "to bring or introduce into the presence of someone" or "to lay (as a charge) before a court as an object of inquiry." Webster's Ninth New Collegiate Dictionary 930 (1991). Respondent clearly "presented" his Ford claim in both his 1993 and his 1997 habeas applications, for in each |
Justice Thomas | 1,998 | 1 | second_dissenting | Stewart v. Martinez-Villareal | https://www.courtlistener.com/opinion/118206/stewart-v-martinez-villareal/ | his 1993 and his 1997 habeas applications, for in each he introduced to the District Court his argument that he is not competent to be executed. Under the plain meaning of the statute, therefore, respondent's Ford claim was a "claim presented in a second or successive habeas corpus application that was presented in a prior application." 2244(b)(1). The reasons offered by the Court for disregarding the plain language of the statute are unpersuasive. Conceding that "[t]his may have been the second time that respondent had asked the federal courts to provide relief on his Ford claim," ante, at 643, the Court nevertheless concludes that respondent has really filed only "one application for habeas *650 relief," The District Court, however, did not hold respondent's Ford claim in abeyance when it denied his March 1993 habeas petition, so that claim was no longer before the District Court in May 1997. At best, then, respondent's May 1997 filing was an effort to reopen his Ford claim. But that filing (which is most definitely an "application") is subject to the statutory requirements for second or successive habeas applications. As we have recently stated in a closely related context: "[A] prisoner's motion to recall the mandate on the basis of the merits of the underlying decision can be regarded as a second or successive application for purposes of 2244(b). Otherwise, petitioners could evade the bar against relitigation of claims presented in a prior application, 2244(b)(1), or the bar against litigation of claims not presented in a prior application, 2244(b)(2)." Cal- deron v. Thompson, ante, at 553. In just the same way, habeas petitioners cannot be permitted to evade 2244(b)'s prohibitions simply by moving to reopen claims already presented in a prior habeas application. The Court also reasons that respondent's "Ford claim herepreviously dismissed as prematureshould be treated in the same manner as the claim of a petitioner who returns to a federal habeas court after exhausting state remedies," for "in both situations, the habeas petitioner does not receive an adjudication of his claim." Ante, at 644, 645. Implicit in the Court's reasoning is its assumption that a prisoner whose habeas petition has been dismissed for failure to exhaust state remedies, and who then exhausts those remedies and returns to federal court, has not then filed a "second or successive habeas corpus application." 2244(b)(1). To be sure, "none of our cases ha[s] ever suggested" that a prisoner in such a situation was filing a successive petition. See ante, at 644. But that is because, before enactment of the Antiterrorism and Effective Death Penalty Act of 1996 |
Justice Thomas | 1,998 | 1 | second_dissenting | Stewart v. Martinez-Villareal | https://www.courtlistener.com/opinion/118206/stewart-v-martinez-villareal/ | of the Antiterrorism and Effective Death Penalty Act of 1996 *651 (AEDPA), a federal court could grant relief on a claim in a second or successive application so long as the ground for relief had not already been "presented and determined, " 28 U.S. C. 2244(a) or "adjudicated," 2244(b), in a previous application. Claims presented in a petition dismissed for failure to exhaust are neither "determined" nor "adjudicated." Thus, the preAEDPA practice of permitting petitioners to raise claims already presented in applications dismissed for failure to exhaust says nothing about whether those later applications were considered second or successive. Even if the Court were correct that such an application would not have been considered second or successive, such a case is altogether different from this case, in which only one of many claims was not adjudicated. In the former situation, the federal court dismisses the unexhausted petition without prejudice, see so it could be argued that the petition should be treated as if it had never been filed. In contrast, when a court addresses a petition and adjudicates some of the claims presented in it, that petition is certainly an "application," and any future application must be "second or successive."[1] Otherwise, the court would have adjudicated the merits of claims that had not been presented in an "application."[2] Ultimately, the Court's holding is driven by what it sees as the "far reaching and seemingly perverse" implications for federal habeas practice of a literal reading of the statute. *652 Ante, at 644. Such concerns are not, in my view, sufficient to override the statute's plain meaning. And to the extent concerns about habeas practice motivate the Court's decision, it bears repeating that federal habeas corpus is a statutory right and that this Court, not Congress, has expanded the availability of the writ. Before this judicial expansion, a prisoner seeking a writ of habeas corpus was permitted to challenge only the jurisdiction of the court that had rendered the judgment under which he was in custody. See A Ford claim obviously does not present such a challenge.[3] A statute that has the effect of precluding adjudication of a claim that for most of our Nation's history would have been considered noncognizable on habeas can hardly be described as "perverse." Accordingly, whether one considers respondent's March 1993 federal habeas petition to have been his first habeas applicationbecause his three previous applications had been dismissed for failure to exhaustor his fourth because respondent had already filed three previous habeas applications by that timehis May 1997 request for relief was undoubtedly either a "second" (following |
Justice Douglas | 1,972 | 10 | dissenting | Adams v. Illinois | https://www.courtlistener.com/opinion/108480/adams-v-illinois/ | Until the Court traditionally applied new constitutional criminal procedure standards to cases finalized and police practices operative before the promulgation of the new rules.[1]Linkletter, however, was the cradle of a new doctrine of nonretroactivity which exempts from relief the earlier victims of unconstitutional police practices. I have disagreed on numerous occasions with applications of various brands of this doctrine and I continue my dissent in this case.[2] My own view is that even-handed justice requires either prospectivity only[3] or complete retroactivity. *287 To me there is something inherently invidious as Mr. Justice Harlan phrased it, in "[s]imply fishing one case from the stream of appellate review, using it as a vehicle for pronouncing new constitutional standards, and then permitting a stream of similar cases subsequently to flow by unaffected by that new rule" I agree with his critique, that the purported distinction between those rules that are designed to improve the factfinding process and those designed to further other values was "inherently intractable" and to illustrate his point he adverted to the Court's difficulty in reconciling with its rule such nonretroactivity cases as ; and all of which held nonretroactive decisions designed, in part, to enhance the integrity of the factfinding process. He also questioned the workability of any rule which requires a guess as to "whether a particular decision has really announced a `new' rule at all or whether it has simply applied a well-established constitutional principle." ; Desist v. United For example, as I suggest infra, at 293-295, a serious question arises in this case whether should have been fully anticipated by state judicial authorities.[4] *288 Additionally, it is curious that the plurality rule is sensitive to "reasonable reliance" on prior standards by law enforcement agencies but is unconcerned about the *289 unfairness of arbitrarily granting relief to Coleman but denying it to Adams. Given my disagreement with the plurality's rule, I am reluctant even to attempt to apply it, but even by its own *290 terms, the balancing approach would appear to require that we hold Coleman retroactive. This conclusion reinforces my fear that the process is too imprecise as a neutral guide for either this Court or the lower courts and will invariably permit retroactivity decisions to turn on predilections, not principles. I In applying the rule, I am first troubled by the plurality's adoption of the finding of the court below that: "On [the] scale of probabilities, we judge that the lack of counsel at a preliminary hearing involves less danger to `the integrity of the truth-determining process at trial' than the omission of counsel |
Justice Douglas | 1,972 | 10 | dissenting | Adams v. Illinois | https://www.courtlistener.com/opinion/108480/adams-v-illinois/ | the truth-determining process at trial' than the omission of counsel at the trial itself or on appeal." Ante, at 282-283. The same might have been said of the right to counsel at sentencing, Mempa at certain arraignments, or at preliminary hearings where guilty pleas were taken, all of which have been held retroactive.[5] Rather than reaching for these analogies, however, the plurality suggests that the danger to the integrity of the truth-determining process is no greater here than at a pretrial lineup or at an interrogation conducted without counsel. In relying on these analogies, the plurality gives short shrift to the argument that "in practice [the preliminary] hearing may provide the defense with the most valuable discovery technique available to him," an objective which is not so readily achievable at lineups and interrogations at which counsel serves only a protective function. The State's access to superior investigative resources and its ability to keep its case secret until trial normally puts the defendant at a clear disadvantage.[6]*292 In light of this disparity, one important service the preliminary hearing performs is to permit counsel to penetrate the evidence offered by the prosecution at the hearing, to test its strengths and weaknesses (without the presence of a jury), to learn the names and addresses of witnesses, to focus upon the key factual issues in the upcoming trial, and to preserve testimony for impeachment purposes. The alternative discovery techniques suggested now by the plurality are puny in comparison. A bill of particulars can usually reach only prosecution witnesses' names, and it may be cold comfort to defense counsel to learn that he can obtain pretrial statements of prosecution witnesses inasmuch as such statements are often prepared from the State's viewpoint and have not been subjected to cross-examination. And in many such statements are not discoverable. Finally, when read in light of Coleman's exaltation of the virtues of counseled preliminary hearings, the present language of the plurality may lend itself to a "credibility gap" between it and those involved in the administration of the criminal process. "Plainly," said the Coleman Court, "the guiding hand of counsel at the preliminary hearing is essential to protect the indigent accused against an erroneous or improper prosecution," and: "The inability of the indigent accused on his own to realize these advantages of a lawyer's assistance compels the conclusion that the preliminary hearing is a `critical stage' of the State's criminal process at which the accused is `as much entitled to such aid [of counsel]. as at the trial itself.' " -10. It will *293 now appear somewhat anomalous that |
Justice Douglas | 1,972 | 10 | dissenting | Adams v. Illinois | https://www.courtlistener.com/opinion/108480/adams-v-illinois/ | " -10. It will *293 now appear somewhat anomalous that the right to counsel at a preliminary hearing is fundamental enough to be incorporated into the Fourteenth Amendment but not fundamental enough to warrant application to the victims of previous unconstitutional conduct.[7] II I also believe that the plurality's case for establishing good-faith reliance on "the old standards" by state judicial systems ignores important developments in the right-to-counsel cases prior to Coleman. First of all, no decision of this Court had held that counsel need not be afforded at the preliminary hearing stage. Therefore, to build a case for good-faith reliance the State must wring from our decision the negative implication that uncounseled probable-cause hearings were permissible. Such negative implications are found, says the plurality, in and cases reversing convictions obtained through the use at trial of uncounseled guilty pleas entered at preliminary hearings. Neither of those decisions, however, faced the question of whether reversal *294 was required on the facts of the instant case. And, though I have studied these two short opinions, I am unable, as is the plurality, to divine any hidden message to law enforcement agencies that we would permit the denial of counsel at preliminary hearings where guilty pleas were not taken. Rather, these cases reinforce, in my mind, the importance of counsel at every stage in the criminal process. In any event, by the time Coleman came down, it was clear, as Mr. Justice Harlan opined, albeit with some regret, that our holding was an inevitable consequence of prior case law: "If I felt free to consider this case upon a clean slate I would have voted to affirm these convictions. Butin light of the lengths to which the right to appointed counsel has been carried in recent decisions of this Court, see ; United v. Wade, ; 388 U.S. ; Mathis v. United ; and I consider that course is not open to me with due regard for the way in which the adjudicatory process of this Court, as I conceive it, should work. "It would indeed be strange were this Court, having held a suspect or an accused entitled to counsel at such pretrial stages as `in-custody' police investigation, whether at the station house (Miranda) or even in the home (Orozco), now to hold that he is left to fend for himself at the first formal confrontation in the courtroom."[8] *295 Thus, in the instant case, at the times relevant, the State should have foreseen that the right to counsel attached to the probable-cause hearing. III I also disagree that "[t]he impact |
Justice Douglas | 1,972 | 10 | dissenting | Adams v. Illinois | https://www.courtlistener.com/opinion/108480/adams-v-illinois/ | the probable-cause hearing. III I also disagree that "[t]he impact upon the administration of the criminal law of [Coleman retroactivity] needs no elaboration." Ante, at 284. In the 19 months since Coleman was decided all new prosecutions have presumably followed it and we therefore need only be concerned, for impact purposes, with those state proceedings in which a preliminary hearing was held prior to June 1970. Inasmuch as the median state sentence served by felons when they are first released is about 20.9 months,[9] most pre-Coleman sentences would now be served and as a practical matter these former prisoners would not seek judicial review. Moreover, we may exclude from our consideration those 16 or more that prior to Coleman routinely appointed counsel at or prior to preliminary hearings. See American Bar Association, Project on Standards for Criminal Justice, Providing Defense Services 5.1 Additionally, we may exclude from consideration the possibility of collateral challenges by federal prisoners inasmuch as counsel have routinely been present at preliminary hearings before federal commissioners.[10] See Fed. Rule Crim. Proc. 5 (b). While there are some current prisoners who might challenge their confinements if Coleman were held retrospective, *296 many of these attacks would probably fail under the harmless-error rule of The plurality opinion suggests that conducting such harmless-error proceedings would be onerous. One reason given is that in Illinois, for example, preliminary hearings were not recorded before Coleman. That assertion may not be entirely accurate in light of the fact that this very record contains a transcript of Adams' preliminary hearing. Perhaps, as the respondent seems to concede,[11] transcripts were made available in other Illinois cases. That is the more reasonable assumption in light of our holding in that the State must provide a preliminary hearing transcript to an indigent in every circumstance in which the more affluent accused could obtain one. Even where a transcript was not available, however, a prisoner might be able to show at an evidentiary hearing that he was prejudiced by a particular need for discovery, by the inability to preserve the testimony of either an adverse or favorable witness, or by the inability to secure his release on bail in order to assist in the preparation of his defense.[12] Courts are accustomed, of course, to assessing claims of prejudice without the aid of transcripts of previous proceedings, such as is required by or Indeed, in Coleman we remanded for a determination of whether the failure to appoint counsel had been harmless Not every Coleman claim would warrant an evidentiary hearing. Many attacks might be disposed of summarily, such as |
per_curiam | 1,979 | 200 | per_curiam | Morland v. Sprecher | https://www.courtlistener.com/opinion/110147/morland-v-sprecher/ | On March 26, 1979, the District Court for the Western District of Wisconsin entered a preliminary injunction restraining petitioners from publishing or otherwise disseminating an article entitled "The H-Bomb Secret: How We Got It, Why We're Telling It." On June 21, 1979, one judge of the Court of Appeals for the Seventh Circuit denied in part petitioners' motion for an expedited hearing of their appeal. That hearing is currently set for September 10, 1979. Petitioners seek a writ of mandamus to the Court of Appeals ordering it to expedite their appeal. They claim that parties who have been enjoined from engaging in constitutionally protected speech have a right to prompt appellate review of that injunction. See National Socialist See also Nebraska Press ; Nebraska Press In view of their conduct in prosecuting their appeal before the Court of Appeals, however, we conclude that petitioners have effectively relinquished whatever right they might otherwise have had to expedited consideration. The District Court's preliminary injunction was entered on March 26, 1979, yet petitioners waited until June 15, 1979, to file a meaningful motion for expedited review before the Court of Appeals. Prior to that time, petitioners (1) waited two weeks after the District Court entered its injunction before filing a notice of appeal, and then waited another week before proposing that the appeal be accorded special scheduling treatment; (2) in that proposal, suggested an 89-day briefing schedule thatas they knewprovided for oral argument in the case, at the earliest, 10 days after the Court of Appeals' summer recess was to begin; (3) at a subsequent prehearing conference held by the Senior Staff Attorney of the Court of Appeals, asked that the briefing and argument schedule they had originally proposed be extended by an additional three weeks, i. e., into the latter half of July; (4) participated in a second prehearing conference in which a panel of the Court of Appeals discussed scheduling with the parties, and did not object either to the briefing schedule ordered by the court or to the September 10 hearing date; and (5) pursuant to the schedule discussed at the conference, took 81 days to file their opening brief on the merits. It was only upon the filing of that brief on June 15, 1979 (just four days before the Seventh Circuit's scheduled recess was to begin), that they sought expedition. Accordingly, as proposed by petitioners, the onus of expedition would have fallen entirely on the Government, which would have had a severely limited opportunity to respond to petitioners' opening brief, and on the Court of Appeals, whose conscientious |
per_curiam | 1,979 | 200 | per_curiam | Morland v. Sprecher | https://www.courtlistener.com/opinion/110147/morland-v-sprecher/ | opening brief, and on the Court of Appeals, whose conscientious attempts during the preceding two monthsby way of two prehearing conferences and numerous *711 additional discussions with the partiesto manage its docket in an orderly fashion, would have been frustrated. It is true that between May 8, 1979, and June 15, 1979, petitioners were unsuccessfully seeking reconsideration by the District Court based on newly discovered information. But that information did not affect the essentials of petitioners' legal argument in favor of expedited review of the District Court's March 26 orderi. e., that ever since the order was issued, petitioners had been operating under an allegedly unconstitutional and irreparably injurious prior restraint against the publication of information subject to First Amendment protection. Because they chose not to make that argument to the Court of Appeals until long after it had ripened, and until they had taken close to three months to prepare their own brief on the merits, petitioners forbore any right to expedition that the Constitution might otherwise have afforded them. The motion for leave to file a petition for writ of mandamus is Denied. MR. JUSTICE WHITE, with whom MR. |
Justice Brennan | 1,975 | 13 | majority | NLRB v. J. Weingarten, Inc. | https://www.courtlistener.com/opinion/109194/nlrb-v-j-weingarten-inc/ | The National Labor Relations Board held in this case that respondent employer's denial of an employee's request that her union representative be present at an investigatory interview which the employee reasonably believed might result in disciplinary action constituted an unfair labor practice in violation of 8 (a) (1) of the National Labor Relations Act,[1] as amended, because it interfered with, restrained, and coerced the individual right of the employee, protected by 7 of the Act, "to engage in concerted activities for mutual aid or protection"[2] 202 N. L. R. B. 446 *253 The Court of Appeals for the Fifth Circuit held that this was an impermissible construction of 7 and refused to enforce the Board's order that directed respondent to cease and desist from requiring any employee to take part in an investigatory interview without union representation if the employee requests representation and reasonably fears disciplinary action.[3] We granted certiorari and set the case for oral argument with No.73-765, Garment We reverse. *254 I Respondent operates a chain of some 100 retail stores with lunch counters at some, and so-called lobby food operations at others, dispensing food to take out or eat on the premises. Respondent's sales personnel are represented for collective-bargaining purposes by Retail Clerks Union, Local 455. Leura Collins, one of the sales personnel, worked at the lunch counter at Store No. 2 from 11 to 1970 when she was transferred to the lobby operation at Store No. 98. Respondent maintains a companywide security department staffed by "Loss Prevention Specialists" who work undercover in all stores to guard against loss from shoplifting and employee dishonesty. In June 1972, "Specialist" Hardy, without the knowledge of the store manager, spent two days observing the lobby operation at Store No. 98 investigating a report that Collins was taking money from a cash register. When Hardy's surveillance of Collins at work turned up no evidence to support the report, Hardy disclosed his presence to the store manager and reported that he could find nothing wrong. The store manager then told him that a fellow lobby employee of Collins had just reported that Collins had purchased a box of chicken that sold for $2.98, but had placed only $1 in the cash register. Collins was summoned to an interview with Specialist Hardy and the store manager, and Hardy questioned her. The Board found that several times during the questioning she asked the store manager to call the union shop steward or some other union representative to the interview, and that her requests were denied. Collins admitted that she had purchased some chicken, a |
Justice Brennan | 1,975 | 13 | majority | NLRB v. J. Weingarten, Inc. | https://www.courtlistener.com/opinion/109194/nlrb-v-j-weingarten-inc/ | denied. Collins admitted that she had purchased some chicken, a loaf of bread, and some cake which she said she paid for and donated to her church for a church dinner. She explained that she purchased four pieces of chicken for which the price was $1, but that because the lobby department *255 was out of the small-size boxes in which such purchases were usually packaged she put the chicken into the larger box normally used for packaging larger quantities. Specialist Hardy left the interview to check Collins' explanation with the fellow employee who had reported Collins. This employee confirmed that the lobby department had run out of small boxes and also said that she did not know how many pieces of chicken Collins had put in the larger box. Specialist Hardy returned to the interview, told Collins that her explanation had checked out, that he was sorry if he had inconvenienced her, and that the matter was closed. Collins thereupon burst into tears and blurted out that the only thing she had ever gotten from the store without paying for it was her free lunch. This revelation surprised the store manager and Hardy because, although free lunches had been provided at Store No. 2 when Collins worked at the lunch counter there, company policy was not to provide free lunches at stores operating lobby departments. In consequence, the store manager and Specialist Hardy closely interrogated Collins about violations of the policy in the lobby department at Store No. 98. Collins again asked that a shop steward be called to the interview, but the store manager denied her request. Based on her answers to his questions, Specialist Hardy prepared a written statement which included a computation that Collins owed the store approximately $160 for lunches. Collins refused to sign the statement. The Board found that Collins, as well as most, if not all, employees in the lobby department of Store No. 98, including the manager of that department, took lunch from the lobby without paying for it, apparently because no contrary policy was ever made known to them. Indeed, when company headquarters advised Specialist Hardy by telephone during the interview that *256 headquarters itself was uncertain whether the policy against providing free lunches at lobby departments was in effect at Store No. 98, he terminated his interrogation of Collins. The store manager asked Collins not to discuss the matter with anyone because he considered it a private matter between her and the company, of no concern to others. Collins, however, reported the details of the interview fully to her shop |
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