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Justice Marshall | 1,984 | 15 | majority | EEOC v. Shell Oil Co. | https://www.courtlistener.com/opinion/111141/eeoc-v-shell-oil-co/ | in the form of annual reports filed with the see 29 CFR 16027, 160211 ; the employer thus cannot plead ignorance of the figures relied upon by the Commissioner Nor would disclosure of the manner in which the Commission staff analyzed those figures materially assist the employer in complying with the statute, because the purpose of the staff's analysis is not to determine whether and how the employer has committed unlawful employment practices, but rather "to identify situations where the patterns of employment discrimination are the most serious, and where the maintenance of a successful `systemic case' will have a significant positive impact on the employment opportunities available to minorities and women" Compliance Manual 161 [37] *81 Any marginal advantage, in terms of facilitating voluntary compliance by well-intentioned employers, entailed by respondent's proposal would be more than offset by the concomitant impairment of the ability of the to identify and eliminate systemic employment discrimination To construe the notice requirement as respondent suggests would place a potent weapon in the hands of employers who have no interest in complying voluntarily with the Act, who wish instead to delay as long as possible investigations by the It would always be open to such an employer to challenge the adequacy of the Commission's disclosure of the data on which a charge is founded If the employer then refused to comply with the Commission's subpoena, a district court would be required to assess the employer's contention before the subpoena could be enforced The difficulties of making such an assessment responsibly and the opportunities for appeals of district court judgments would substantially slow the process by which the obtains judicial authorization to proceed with its inquiries[38] Accordingly, we construe 706(b) to require the Commission, within 10 days of the filing of a charge, to reveal to the employer all of the information that must be included in the charge itself under the current version of 29 CFR 160112(3) Because respondent was provided with a copy of Commissioner Norton's charge 10 days after it was filed with the and because the charge itself comported with 160112(3), see we conclude that the notice provision was satisfied in this case *82 III For the foregoing reasons, we find that all of the strictures embodied in Title VII and in the regulations promulgated thereunder, pertaining to the form and content of a charge of systemic discrimination and to the timing and adequacy of the notice afforded the accused employer, were adhered to in this case Consequently, the Commission was entitled to enforcement of its subpoena The Court of Appeals' |
Justice Marshall | 1,984 | 15 | majority | EEOC v. Shell Oil Co. | https://www.courtlistener.com/opinion/111141/eeoc-v-shell-oil-co/ | entitled to enforcement of its subpoena The Court of Appeals' judgment to the contrary is reversed, and the case is remanded for further proceedings consistent with this opinion It is so ordered JUSTICE O'CONNOR, with whom THE CHIEF JUSTICE, JUSTICE POWELL, and JUSTICE REHNQUIST join, concurring in part and dissenting in part I agree with much of what the Court has written But the Court has deliberately declined to come to grips with the crucial threshold issue in this case: Is inadequate notice a legitimate defense to a subpoena enforcement action brought by the Equal Employment Opportunity Commission ( or Commission)? If it is not, the Court's concern that a meaningful notice requirement would impede the 's investigations is wholly unfounded The Court clearly suggests it is inclined to answer the question in the negative, see ante, at 65-66, 75-77, but then proceeds on the assumption that the question has not been properly presented or briefed I believe the question is before us and should be addressed While respondent Shell Oil Co (Shell) has maintained throughout that a subpoena may not be enforced if the notice filed in connection with the investigation was unlawful, the has not conceded the point In connection with the statement cited by the Court ante, at 66, n 17, the conceded that questions concerning the adequacy of the notice may be raised at the enforcement proceeding But I find no clear concession here or in the 's briefs that if *83 notice is inadequate a district court should then quash the 's subpoena To the contrary, the entire thrust of the 's position is that investigation should not be postponed for the purpose of weighing the adequacy of the notice That the has adamantly maintained that the notice furnished to Shell was in fact lawful need not be read as a concession that, if it had not been, the subpoena would properly have been quashed The 's view of the link between the adequacy of notice and the enforceability of the subpoena is unquestionably less than crystalline But in such circumstances the Court is not bound to adopt a reading of the statute that is without sound support in the statutory text I agree with the Court that a proper charge is a prerequisite to enforcement of an subpoena The has broad flexibility in determining precisely what must be included in the charge And the charge against respondent Shell was consistent with requirements laid out in the statute and regulations I therefore agree with the Court's conclusion that the Court of Appeals erred in directing |
Justice Marshall | 1,984 | 15 | majority | EEOC v. Shell Oil Co. | https://www.courtlistener.com/opinion/111141/eeoc-v-shell-oil-co/ | Court's conclusion that the Court of Appeals erred in directing the District Court not to enforce the 's subpoena But in my view the Court of Appeals correctly concluded that the notice furnished to Shell was inadequate The statute makes quite clear that the notice of charge must be more informative than the charge itself Accordingly, I believe the District Court should enforce the 's subpoena but simultaneously direct the to furnish Shell with adequate notice of the "date, place and circumstances" of the allegedly unlawful employment practices underlying the charge I Systemic "pattern or practice" discrimination by an employer triggers four separate but coordinated steps by the The requirements and purposes of one of these steps furnishing the employer with notice of a charge can be understood only in the context of the other three *84 (1) Filing a charge with the Commission A charge is a complaint filed with the "alleging that an employer has engaged in an unlawful employment practice " 42 US C 2000e-5(b) A charge may be filed by "a person claiming to be aggrieved" Alternatively, a "Commissioner's charge" may be filed when a Commissioner decides to initiate a complaint, usually on the basis of a "pattern or practice" of discrimination 42 US C 2000e-6(e) A Commissioner identifies such instances of "systemic" discrimination by comparing statistics furnished to the Commission by the employer with employment statistics for the market from which the Commissioner believes the employer should be hiring In either event, a charge is filed with the Commission, not with or against the allegedly discriminating employer Charges must generally be filed within 180 days after the alleged unlawful employment practice occurred 42 US C 2000e-5(e) The form of a charge is flexible: the statute requires only that "[c]harges shall be in writing under oath or affirmation and shall contain such information and be in such form as the Commission requires" 42 US C 2000e-5(b) In the case of a Commissioner's charge the oath or affirmation is made by the Commissioner who formally reviews the evidence suggesting a pattern or practice of discrimination Commission regulations provide that all charges should contain "[a] clear and concise statement of the facts, including pertinent dates, constituting the alleged unlawful employment practices " 29 CFR 160112(3) But the regulations go on to state: "Notwithstanding the provisions of paragraph of this section, a charge is sufficient when the Commission receives from the person making the charge a written statement sufficiently precise to identify the parties, and to describe generally the action or practices complained of A charge may |
Justice Marshall | 1,984 | 15 | majority | EEOC v. Shell Oil Co. | https://www.courtlistener.com/opinion/111141/eeoc-v-shell-oil-co/ | generally the action or practices complained of A charge may be amended to cure technical defects or omissions, including failure to verify the charge, or to *85 clarify and amplify allegations made therein" 29 CFR 160112(b) Thus under both the statute and the regulations a charge may be accepted by the Commission even if it lacks a full description of the "date, place and circumstances" of the alleged unlawful employment practices Internal guidelines set out more specific conditions applicable only to a Commissioner's pattern or practice charges According to 16 of the Compliance Manual reprinted in App to Pet for Cert 40a-43a, the looks for employers who meet one of six statistical profiles: (1) employers "who continue in effect policies and practices which result in low utilization of available minorities and/or women"; (2) employers "who employ a substantially smaller proportion of minorities and/or women than other employers in the same labor market who employ persons with the same general level of skills"; (3) employers who employ "a substantially smaller proportion of minorities and/or women" in their higher paid than their lower paid job categories; (4) employers who maintain recruitment hiring, assignment, promotion, discharge or other policies not justified by business necessity "that have an adverse impact on minorities and/or women"; (5) employers who utilize restrictive employment practices that "are likely to be used as models for other employers"; or (6) employers who fail to provide available minorities and women with fair access to employment if the employer has "substantial numbers of employment opportunities" Members of the staff compile statistics or other factual materials to identify such patterns The figures are passed through successive stages of staff review within the Commission and finally presented to an Commissioner, in the form of a "memorandum detailing information *86 concerning respondent's practices, the reasons for selecting the respondent (including a showing that at least one of the systemic selection standards applies to the respondent), and a description and justification of the proposed scope of the case"[1] Each recommendation is accompanied by a Commissioner charge ready for signature (2) Notice of the charge Once a charge has been filed with the "the Commission shall serve a notice of the charge (including the date, place and circumstances of the alleged unlawful employment practice) on [the respondent] within ten days "[2] 42 US C 2000e-5(b) The notice of charge is not the same, nor was it intended to serve the same purpose, as the charge itself Before 1972 notice was provided by serving a copy of the charge on the employer, 42 US C 2000e-5 (1970 ed), |
Justice Marshall | 1,984 | 15 | majority | EEOC v. Shell Oil Co. | https://www.courtlistener.com/opinion/111141/eeoc-v-shell-oil-co/ | charge on the employer, 42 US C 2000e-5 (1970 ed), and in 1972 the House bill would have preserved that form of notice[3] But the Senate's different view prevailed As amended in 1972, 42 US C 2000e-5(b) expressly requires more in the notice of charge than in the charge itself A charge need only allege an unlawful employment practice and "contain such information and be in such form as the Commission requires" Its purpose is prospective to initiate the investigation, to set out the bounds of the unlawful employment practices that the Commission suspects it may ultimately discover A notice of charge, in contrast, must "includ[e] the date, place and circumstances of the alleged unlawful employment practice" Its basic purpose is retrospective to identify what the agency has in hand when it initiates the *87 investigation Thus, absent Commission regulations to the contrary, a charge might satisfy the statutory requirements even if it contained only a naked allegation of a violation of Title VII The notice of charge would nevertheless have to say more, disclosing the date, place and circumstances of the conduct that triggered the complainant's suspicions in the first place Commission regulations provide the with precisely the tools it requires to gather any additional information from the complainant that may be needed to furnish adequate notice to the employer 29 CFR 160115(b) (3) Investigation of a charge The has the duty to investigate all charges, 42 US C 2000e-5(b), 2000e-6(e), and to that end it is vested with broad investigatory power: "In connection with any investigation of a charge filed under section 2000e-5 of this title, the Commission or its designated representative shall at all reasonable times have access to, for the purposes of examination, and the right to copy any evidence of any person being investigated or proceeded against that relates to unlawful employment practices and is relevant to the charge under investigation" 42 US C 2000e-8 Equally important, the may investigate a pattern or practice charge without making any preliminary finding that there is "reasonable cause" to believe the charge is true A threshold "reasonable cause" requirement existed before the 1972 amendments,[4] and would have been retained by the *88 Senate's bill in 1972 But the House's more liberal position prevailed and is reflected in 2000e-5(b) as finally enacted (4) Disposition of the charge A "reasonable cause" requirement does however remain applicable at the conclusion of the 's investigation At that stage the Commission must either dismiss the charge or press for a remedy Dismissal is required if "there is not reasonable cause to |
Justice Marshall | 1,984 | 15 | majority | EEOC v. Shell Oil Co. | https://www.courtlistener.com/opinion/111141/eeoc-v-shell-oil-co/ | Dismissal is required if "there is not reasonable cause to believe that the charge is true" 42 US C 2000e-5(b) Again, prompt notice to the respondent is required If, on the other hand, the charge appears to be valid, the Commission must first attempt an informal resolution of the problem "If the Commission determines after investigation that there is reasonable cause to believe that the charge is true, the Commission shall endeavor to eliminate any such alleged unlawful employment practice by informal methods of conference, conciliation, and persuasion" [5] Only if informal attempts to resolve the problem fail is a civil action by the Commission or the Attorney General in order: "If within thirty days after a charge is filed with the Commission or within thirty days after expiration of [time limits as affected by state or local enforcement proceedings] the Commission has been unable to secure from the respondent a conciliation agreement acceptable to the Commission, the Commission may bring a civil action " 42 US C 2000e-5(f)(1)[6] II It is against this statutory background that we must assess the notice the furnishes to an employer in connection *89 with a pattern or practice discrimination charge On its face, the notice of charge served on Shell contains no information whatsoever concerning the "date, place and circumstances" of the alleged discrimination App 62-63 Instead, it refers to a copy of the charge itself, attached to the notice The charge, for its part, identifies the "place" as Shell's Wood River Refinery, but supplies no "date" for the alleged violations, and includes only the most sweepingly broad and unspecific discussion of the "circumstances" of the alleged discrimination Without elaboration, the charge alleges Shell's failure "to recruit, hire, promote, train, assign or select Blacks" in six broadly defined job categories, and its failure "to recruit, hire, promote, train, select, and assign females" to seven job categories App to Pet for Cert 44a For good measure the charge states that the discriminatory practices "include, but are not limited to" those specified Over a year after the notice of the charge was filed, the charge itself was amended to include a "date" for the alleged violations: "from July 2, 1965, continuing through at least the date of the charge" at 47a It has not escaped notice that July 2, 1965, was the day on which the Civil Rights Act of 1964 became effective In my view this brief, formal, and wholly uninformative "charge," appended to an entirely empty "notice," did not comport with the language and purposes of 2000e-5(b)'s notice requirement A two-paragraph piece of |
Justice Marshall | 1,984 | 15 | majority | EEOC v. Shell Oil Co. | https://www.courtlistener.com/opinion/111141/eeoc-v-shell-oil-co/ | and purposes of 2000e-5(b)'s notice requirement A two-paragraph piece of vacuous legal boilerplate that completely omits the statistical information that the has in fact relied on in filing the charge serves none of the purposes that underlie the notice requirement As a threshold matter, I agree with the Court, ante, at 75-77, that the notice provision is not intended to circumscribe the 's investigative authority The charge, not the notice of the charge, sets the contours of the investigation But notice to those who are selected as the targets of a Government employment discrimination investigation has been judged by Congress to be desirable in and of itself *90 I agree with the Court that a first purpose of the notice provision is "to provide employers fair notice that accusations of discrimination have been leveled against them" Ante, at 74 As explained in the Senate Report accompanying the 1972 amendments to Title VII, the notice requirement was "included in the bill to insure that fairness and due process are part of the enforcement scheme," and for the "[p]rotection of [the] rights of [the] respondent"[7] Experience teaches that Government administrative agency investigations can be prone to abuse; they are likely to be conducted more reasonably, more carefully, and more fairly, when the concerned parties are adequately notified of the causes of the investigation that are in progress Second, effective notice may conserve both employer and agency resources by moderating the confrontational posture of the investigation and allowing the employer to explain or clarify its position to the In addition, as the Court points out ante, at 79, notice helps to ensure that documents pertaining to the investigation are preserved Finally, and perhaps most importantly, the notice requirement serves a purpose that is central to the statutory scheme encouraging quick, voluntary, and informal resolution of complaints I agree with the Court that the notice requirement must be construed so as to advance Congress' desire that the "attempt to resolve disputes through conciliation" Ante, at 78 The Act's overriding goal is not to promote the employment of lawyers but to correct discriminatory practices quickly and effectively To this end, the is always required to attempt to resolve charges first through "informal methods of conference, conciliation, and persuasion" 42 US C 2000e-5(b) The strict statutory time limits on filing a charge with the Commission, furnishing notice to the respondent of the "date, place and circumstances" of the activities underlying the charge, and *91 investigating the charge, appear in the same subsection of the statute and are plainly intended to further the same objective Adequate |
Justice Marshall | 1,984 | 15 | majority | EEOC v. Shell Oil Co. | https://www.courtlistener.com/opinion/111141/eeoc-v-shell-oil-co/ | and are plainly intended to further the same objective Adequate notice is especially important with respect to pattern or practice discrimination charges which need not involve intentional or knowing misconduct See, e g, Teamsters v United States, 431 US 324, In light of these purposes, I believe that a notice of charge adequately discloses the "date, place and circumstances of the alleged unlawful employment practice" only when it informs the respondent of the complainant's underlying reasons for filing the charge and is sufficient to permit a well-intentioned respondent to undertake immediate remedial measures if the charge is valid It is here that I part company with the Court I have no difficulty concluding that the notice of charge served on Shell did not meet these requirements The time period referred to in the 's amendment to the charge can only be characterized as chosen to convey as little information as possible It appears that the had in fact relied on Shell's employment statistics for 1970-1977, see Reply Brief for Petitioner 4 yet it tardily informed Shell that the "date" of the charge encompassed 1965- And the allegations of discrimination in the notice of charge are so broad and unspecific as to be wholly uninformative It is almost impossible to imagine what specific remedial actions Shell might have initiated in response to this notice of charge It is unrealistic to expect a large employer like Shell to build a comprehensive and elaborate remedial program around a general accusation that it has failed "to recruit, hire, promote, train, assign or select" minorities and women in essentially all job categories, when in fact the charge of unlawful discrimination is grounded on far more specific and limited information The employer surely needs to know which are the greatest problem areas, which time periods gave rise to the most troublesome statistical imbalances, what size program will be needed to rectify *92 the problem, what labor market the employer is expected to recruit from, and so on Though the had carefully marshaled this information before issuing a Commissioner's charge, it categorically refused to disclose any of it to Shell The Court's suggestion, ante, at 80, that the employer "cannot plead ignorance of the figures relied upon by the Commissioner" is simply mistaken The employer supplies only one-half of the relevant figures its own employment statistics The supplies the other half overall statistics for the employment market from which the employer draws It is only in a comparison between these two sets of figures that a pattern of discrimination becomes apparent The relevant employment market |
Justice Marshall | 1,984 | 15 | majority | EEOC v. Shell Oil Co. | https://www.courtlistener.com/opinion/111141/eeoc-v-shell-oil-co/ | a pattern of discrimination becomes apparent The relevant employment market for comparison was disputed in this case It seems extraordinary that the should decline to provide a market definition and the comparative statistics that it works with when any remedial action must involve recruitment in that same market, at a level tailored to the seriousness of the imbalances that the believes exist at the outset In short, I find the 's insistence on secrecy incomprehensible The notice of charge served on Shell, and the 's subsequent "stonewalling," do not serve the design and purpose of Congress to encourage prompt, voluntary correction of discriminatory employment practices The notice and other procedural requirements of 2000e-5(b) demand that the start with a more informative approach There is time enough for litigation if the employer proves recalcitrant At the outset, the 's main interest should be to encourage voluntary remedial action The statute unambiguously establishes that as the preferred course III While the notice of charge to Shell was deficient, the Court of Appeals erred in suggesting that the subpoena should not be enforced until the deficiency had been rectified Title VII places only minimal limits on the Commission's power to gain *93 access to information: the information must "relat[e] to unlawful employment practices" and be "relevant to the charge under investigation" 42 US C 2000e-8 The material sought by the from Shell is clearly "relevant" to the pattern or practice charge that has been filed with the by Commissioner Norton The material also "relates to unlawful employment practices" covered by Title VII Finally, 2000e-8 presupposes that the underlying charge is itself valid The charge here was accepted by the Commission and is indisputably valid, notwithstanding its generality As the statute vests the Commission with absolute discretion to determine what constitutes a valid charge, and that discretion has not been significantly narrowed by regulations The requirements of 2000e-8 were thus fully met There is no direct link between the 's subpoena powers and its duty to notify employers of filed charges the notice of charge does not define the permissible scope of an investigation The Commission's strong interest in avoiding a "minitrial" on every discovery request makes it inappropriate for the enforcement of 2000e-8 discovery requests to turn, at the outset, on the 's compliance with 2000e-5(b)'s notice requirement I agree with the Court, therefore, that the 's subpoena should have been promptly enforced without more ado But I agree with the Court of Appeals that the has failed to comply with the notice-of-charge requirement Accordingly, since the issue was properly raised, I |
Justice Marshall | 1,984 | 15 | majority | EEOC v. Shell Oil Co. | https://www.courtlistener.com/opinion/111141/eeoc-v-shell-oil-co/ | notice-of-charge requirement Accordingly, since the issue was properly raised, I believe the should be informed by the District Court that the notice was inadequate, and directed to furnish better notice In the unlikely event that the failed or refused to comply with such an order, the District Court might consider appropriate sanctions 42 US C 2000e-9; 29 US C 161 The District Court's power to order proper notice pendent to its enforcement of the 's subpoena cannot be in *94 doubt The District Court clearly has jurisdiction over the subpoena enforcement action brought by the 42 US C 2000e-5(f)(3), 2000e-9; 29 US C 161 No principle of ripeness or exhaustion requires the District Court assiduously to ignore the 's violation of the statutory notice requirement while it enforces the 's investigative subpoena The Court's decision in FTC v Standard Oil Co of California, 449 US 232, is not to the contrary, because there is no adequate substitute for the relief I believe the District Court should give Shell An important statutory purpose encouraging prompt, informal resolution of discrimination charges will be irretrievably undermined if the District Court is barred from considering the adequacy of notice at the same proceeding in which it enforces the investigative subpoena The dispute concerning the notice will not be resolvable at later stages of the controversy, and that in itself justifies resolving it at the first available opportunity Cf id, The apparently does not disagree with the conclusion that the District Court may address the adequacy of notice at a subpoena enforcement proceeding See ante, at 66, n 17 Disclosure to the employer of the information relied on by the Commissioner who files a pattern or practice charge does not open the door for litigation by an employer seeking to obstruct or delay the 's investigation: the accuracy or reasonableness of a charge is not a justiciable issue at the investigatory stage That a charge, or the information on which it is based, is erroneous, inaccurate, incomplete, misleading, false, insufficiently substantiated, outdated, or otherwise unreliable, is not relevant to the enforcement of 2000e-8 subpoenas, providing that the information sought is relevant to the charge filed The statute is unambiguous: the determination whether there is "reasonable cause" to believe a charge is true is to be made at the conclusion not at the outset of an investigation With this facet of the law clarified, the has no legitimate *95 reason to refuse to disclose the "circumstances" of a pattern or practice charge at the beginning of its investigation IV In my view, |
Justice Marshall | 1,984 | 15 | majority | EEOC v. Shell Oil Co. | https://www.courtlistener.com/opinion/111141/eeoc-v-shell-oil-co/ | at the beginning of its investigation IV In my view, a memorandum "detailing information concerning respondent's practices, the reasons for selecting the respondent (including a showing that at least one of the systemic selection standards applies to the respondent), and a description and justification of the proposed scope of the case," see Compliance Manual 16 would more than satisfy the requirement of fair and meaningful notice The Commissioners apparently feel the same way when it is they who have to be notified it is their internal guidelines that require the preparation of such a memorandum before a Commissioner will sign a pattern or practice charge There is absolutely no need or justification for supplying this information to the complainant but concealing it from the employer, who is most able to take positive and prompt remedial action Accordingly, I would vacate and remand with instructions that the subpoena be enforced and that the be directed to provide Shell with meaningful notice of the date and circumstances of the alleged unlawful employment practices |
per_curiam | 1,976 | 200 | per_curiam | Standard Oil Co. of Cal. v. United States | https://www.courtlistener.com/opinion/109551/standard-oil-co-of-cal-v-united-states/ | Following an eight-day trial, the United States District Court for the Northern District of California enjoined movant from engaging in certain practices found to violate 3 of the Sherman Act, as amended, 15 U.S. C. 3. The judgment was summarily affirmed by this Court. Movant now seeks to have the judgment set aside on the basis of alleged misconduct by Government counsel and by a material witness who is now prosecuting a treble-damages action against movant. Preliminarily to filing a motion in the District Court pursuant to Fed. Rule Civ. Proc. 60 (b), movant has filed a motion in this Court requesting that we recall our mandate[1] and grant leave to proceed in the District Court. We hold that the District Court may entertain a Rule 60 (b) motion without leave by this Court. We therefore deny the motion to recall our mandate, without prejudice to Standard Oil's right to proceed in the District Court. *18 We recognize that in the past both this Court and many Courts of Appeals have required appellate leave before the District Court could reopen a case which had been reviewed on appeal.[2] The requirement derived from a belief that an appellate court's mandate bars the trial court from later disturbing the judgment entered in accordance with the mandate. See In re Potts, ; Butcher & cert. denied, ; Home Indemnity Co. of New It has also been argued that the appellate-leave requirement protects the finality of the judgment and allows the appellate court to screen out frivolous Rule 60 (b) motions. ; 7 J. Moore, Federal Practice ¶ 60.30 [2], p. 429 n. 27 (1975). In our view, the arguments in favor of requiring appellate leave are unpersuasive. Like the original district court judgment, the appellate mandate relates to the record and issues then before the court, and does not purport to deal with possible later events. Hence, the district judge is not flouting the mandate by acting on the motion. See 11 C. Wright & A. Federal Practice and Procedure 2873, pp. 269-270 Cf. Furthermore, the interest in finality is no more impaired in this situation than in any Rule 60 (b) proceeding. Finally, we have confidence in the ability of the district courts to recognize frivolous Rule 60 (b) motions. Indeed, the trial court "is in a much better position to pass upon the issues presented in a motion pursuant to Rule 60 (b)," Accord, Wilson Research ; 11 Wright & The appellate-leave requirement adds to the delay and expense of litigation and also burdens the increasingly scarce time of the federal |
Justice Stewart | 1,978 | 18 | majority | Crist v. Bretz | https://www.courtlistener.com/opinion/109893/crist-v-bretz/ | This case involves an aspect of the constitutional guarantee against being twice put in jeopardy. The precise issue is whether the federal rule governing the time when jeopardy attaches in a jury trial is binding on Montana through the Fourteenth Amendment. The federal rule is that jeopardy attaches when the jury is empaneled and sworn; a Montana statute provides that jeopardy does not attach until the first witness is sworn.[1] I The appellees, Merrel Cline[2] and L. R. Bretz, were brought to trial in a Montana court on charges of grand larceny, obtaining money and property by false pretenses, and several counts of preparing or offering false evidence. A jury was empaneled and sworn following a three-day selection process. Before the first witness was sworn, however, the appellees filed a motion drawing attention to the allegation in the *30 false-pretenses charge that the defendants' illegal conduct began on January 13, 1974.[3] Effective January 1, 1974, the particular statute relied on in that count of the information, Mont. Rev. Codes Ann. 94-1805 (1947), had been repealed. The prosecutor moved to amend the information, claiming that "1974" was a typographical error, and that the date on which the defendants' alleged violation of the statute had commenced was actually January 13, 1973, the same date alleged in the grand larceny count. The trial judge denied the prosecutor's motion to amend the information and dismissed the false-pretenses count. The State promptly but unsuccessfully asked the Montana Supreme Court for a writ of supervisory control ordering the trial judge to allow the amendment. Returning to the trial court, the prosecution then asked the trial judge to dismiss the entire information so that a new one could be filed. That motion was granted, and the jury was dismissed. A new information was then filed, charging the appellees with grand larceny and obtaining money and property by false pretenses. Both charges were based on conduct commencing January 13, 1973. Other than the change in dates, the new false-pretenses charge described essentially the same offense charged in the earlier defective count. After a second jury had been selected and sworn, the appellees moved to dismiss the new information, claiming that the Double Jeopardy Clauses of the United and Montana Constitutions barred a second prosecution. The motion was denied, and the trial began. The appellees were found guilty on the false-pretenses count, and sentenced to terms of imprisonment. The Montana Supreme Court, which had previously denied appellees habeas corpus relief, State ex rel. affirmed the judgment as to Bretz on the ground that under state law *31 jeopardy had |
Justice Stewart | 1,978 | 18 | majority | Crist v. Bretz | https://www.courtlistener.com/opinion/109893/crist-v-bretz/ | on the ground that under state law *31 jeopardy had not attached in the first trial. In the meantime the appellees had brought a habeas corpus proceeding in a Federal District Court, again alleging that their convictions had been unconstitutionally obtained because the second trial violated the Fifth and Fourteenth Amendment guarantee against double jeopardy. The federal court denied the petition, holding that the Montana statute providing that jeopardy does not attach until the first witness is sworn does not violate the United Constitution. The court held in the alternative that even if jeopardy had attached, a second prosecution was justified, as manifest necessity supported the first dismissal. (Mont.).[4] The Court of Appeals for the Ninth Circuit reversed. It held that the federal rule governing the time when jeopardy attaches is an integral part of the constitutional guarantee, and thus is binding upon the under the Fourteenth Amendment. The appellate court further held that there had been no manifest necessity for the Montana trial judge's dismissal of the defective count, and, accordingly, that a second prosecution was not constitutionally permissible.[5] Appellants appealed pursuant to 28 U.S. C. 1254 (2), seeking review only of the holding of the Court of Appeals that Montana is constitutionally required to recognize that, for purposes of the constitutional guarantee against double jeopardy, jeopardy attaches in a criminal trial when the jury is empaneled and sworn. We postponed consideration of probable jurisdiction sub nom. and the case was argued. Thereafter the case was set for *32 reargument, and the parties were asked to address the following two questions: "1. Is the rule heretofore applied in the federal courts that jeopardy attaches in jury trials when the jury is swornconstitutionally mandated? "2. Should this Court hold that the Constitution does not require jeopardy to attach in any trialstate or federal, jury or nonjuryuntil the first witness is sworn?" II A The unstated premise of the questions posed on reargument is that if the rule "that jeopardy attaches in jury trials when the jury is sworn" is "constitutionally mandated," then that rule is binding on Montana, since "the double jeopardy prohibition of the Fifth Amendment [applies] to the through the Fourteenth Amendment," and "the same constitutional standards" must apply equally in federal and state courts. The single dispositive question, therefore, is whether the federal rule is an integral part of the constitutional guarantee. The Double Jeopardy Clause of the Fifth Amendment is stated in brief compass: "[N]or shall any person be subject for the same offence to be twice put in jeopardy of life or limb." But this |
Justice Stewart | 1,978 | 18 | majority | Crist v. Bretz | https://www.courtlistener.com/opinion/109893/crist-v-bretz/ | twice put in jeopardy of life or limb." But this deceptively plain language has given rise to problems both subtle and complex, problems illustrated by no less than eight cases argued here this very Term.[6] This case, however, presents a single straightforward issue concerning the point during a jury trial when a defendant is deemed to have been put in jeopardy, for only if that point has once been * reached does any subsequent prosecution of the defendant bring the guarantee against double jeopardy even potentially into play. ; The Fifth Amendment guarantee against double jeopardy derived from English common law, which followed then, as it does now,[7] the relatively simple rule that a defendant has been put in jeopardy only when there has been a conviction or an acquittalafter a complete trial.[8] A primary purpose served by such a rule is akin to that served by the doctrines of res judicata and collateral estoppelto preserve the finality of judgments.[9] And it is clear that in the early years of our national history the constitutional guarantee against double jeopardy was considered to be equally limited in scope. As Mr. Justice Story explained: "[The Double Jeopardy Clause] does not mean, that [a person] shall not be tried for the offence a second time, if the jury shall have been discharged without giving any verdict; for, in such a case, his life or limb cannot judicially be said to have been put in jeopardy." 3 J. Story, Commentaries on the Constitution 1781, pp. 659-660 (18). But this constitutional understanding was not destined to endure. Beginning with this Court's decision in United *34 it became firmly established by the end of the 19th century that a defendant could be put in jeopardy even in a prosecution that did not culminate in a conviction or an acquittal, and this concept has been long established as an integral part of double jeopardy jurisprudence.[10] Thus in the Court was able accurately to say: "Past cases have decided that a defendant, put to trial before a jury, may be subjected to the kind of `jeopardy' that bars a second trial for the same *35 offense even though his trial is discontinued without a verdict." See also, e. g., The basic reason for holding that a defendant is put in jeopardy even though the criminal proceeding against him terminates before verdict was perhaps best stated in 187-188: "The underlying idea, one that is deeply ingrained in at least the Anglo-American system of jurisprudence, is that the State with all its resources and power should not be allowed to |
Justice Stewart | 1,978 | 18 | majority | Crist v. Bretz | https://www.courtlistener.com/opinion/109893/crist-v-bretz/ | all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty." Although it has thus long been established that jeopardy may attach in a criminal trial that ends inconclusively, the precise point at which jeopardy does attach in a jury trial might have been open to argument before this Court's decision in[] There the Court held that the Double Jeopardy Clause prevented a second prosecution of a defendant whose first trial had ended just after the jury had been sworn and before any testimony had been taken. The Court thus necessarily pinpointed the stage in a jury trial when jeopardy attaches, and the Downum case has since been understood as explicit authority for the proposition that jeopardy attaches when the jury is empaneled and sworn. See United ; 420 U. S., at The reason for holding that jeopardy attaches when the jury is empaneled and sworn lies in the need to protect the interest of an accused in retaining a chosen jury. That *36 interest was described in as a defendant's "valued right to have his trial completed by a particular tribunal." It is an interest with roots deep in the historic development of trial by jury in the Anglo-American system of criminal justice.[12] Throughout that history there ran a strong tradition that once banded together a jury should not be discharged until it had completed its solemn task of announcing a verdict.[13] Regardless of its historic origin, however, the defendant's "valued right to have his trial completed by a particular tribunal" is now within the protection of the constitutional guarantee against double jeopardy, since it is that "right" that lies at the foundation of the federal rule that jeopardy attaches when the jury is empaneled and sworn. United at ; 410 U. S., at ; United v. Jorn, (plurality opinion). *37 It follows that Montana's view as to when jeopardy attaches is impermissible under the Fourteenth Amendment unless it can be said that the federal rule is not "at the core" of the Double Jeopardy Clause. See ; ; In asking us to hold that it is not, appellants argue that the federal standard is no more than an arbitrarily chosen rule of convenience,[14] similar in its lack of constitutional status to the federal requirement of a unanimous verdict by 12 jurors, which |
Justice Stewart | 1,978 | 18 | majority | Crist v. Bretz | https://www.courtlistener.com/opinion/109893/crist-v-bretz/ | federal requirement of a unanimous verdict by 12 jurors, which has been held not to bind the U.S. 404; But see If the rule that jeopardy attaches when the jury is sworn were simply an arbitrary exercise of linedrawing, this argument might well be persuasive, and it might reasonably be concluded that jeopardy does not constitutionally attach until the first witness is sworn, to provide consistency in jury and nonjury trials.[15] Indeed, it might then be concluded that the point of the attachment of jeopardy could be moved a few steps forward or backward without constitutional significance.[16] But the federal rule as to when jeopardy attaches in a jury *38 trial is not only a settled part of federal constitutional law. It is a rule that both reflects and protects the defendant's interest in retaining a chosen jury. We cannot hold that this rule, so grounded, is only at the periphery of double jeopardy concerns. Those concernsthe finality of judgments, the minimization of harassing exposure to the harrowing experience of a criminal trial, and the valued right to continue with the chosen juryhave combined to produce the federal law that in a jury trial jeopardy attaches when the jury is empaneled and sworn. We agree with the Court of Appeals that the time when jeopardy attaches in a jury trial "serves as the lynchpin for all double jeopardy jurisprudence." In at a case involving the application of the Double Jeopardy Clause through the Fourteenth Amendment, the Court said that "jeopardy `attached' when the first jury was selected and sworn." Today we explicitly hold what assumed: The federal rule that jeopardy attaches when the jury is empaneled and sworn is an integral part of the constitutional guarantee against double jeopardy. The judgment is Affirmed. MR. |
Justice Alito | 2,013 | 8 | concurring | Sekhar v. United States | https://www.courtlistener.com/opinion/944097/sekhar-v-united-states/ | The question that we must decide in this case is whether “the General Counsel’s recommendation to approve the Commitment,” App. 142—or his right to make that rec- ommendation—is property that is capable of being ex- torted under the Hobbs Act, 18 U.S. C. In my view, they are not. I The jury in this case returned a special verdict form and stated that the property that petitioner attempted to extort was “the General Counsel’s recommendation to approve the Commitment.” What the jury obviously meant by this was the general counsel’s internal sugges- tion to his superior that the state government issue a nonbinding commitment to invest in a fund managed by FA Technology Ventures. We must therefore decide whether this nonbinding internal recommendation by a salaried state employee constitutes “property” within the meaning of the Hobbs Act, which defines “extortion” as “the obtaining of property from another, with his con- sent, induced by wrongful use of actual or threatened force, violence, or fear, or under color of official right.” 2 SEKHAR v. UNITED STATES ALITO, J., concurring in judgment The Hobbs Act does not define the term “property,” but even at common law the offense of extortion was under- stood to include the obtaining of any thing of value. 2 E. Coke, The First Part of the Institutes of the Laws of England 368b (18th English ed. 1823) (“Extortion is a great misprison, by wresting or unlawfully taking by any officer, by colour of his office, any money or valuable thing of or from any man”); 4 W. Blackstone, Commentaries *141 (extortion is “an abuse of public, justice which con- sists in any officer’s unlawfully taking, by colour of his office, from any man, any money or thing of value”). See also 2 J. Bishop, Criminal Law pp. 331–332 (9th ed. 1923) (“In most cases, the thing obtained is money. But probably anything of value will suffice”); 3 F. Wharton, A Treatise on Criminal Law p. 2095 (11th ed. 1912) (“[I]t is enough if any valuable thing is received”). At the time Congress enacted the Hobbs Act, the con- temporary edition of Black’s Law Dictionary included an expansive definition of the term. See Black’s Law Diction- ary 1446 (3d ed. 1933). It stated that “[t]he term is said to extend to every species of valuable right and interest. The word is also commonly used to denote everything which is the subject of ownership, corporeal or incorporeal, tangible or intangible, visible or invisible, real or personal; everything that has an exchangeable value or which goes to make up wealth or estate.” |
Justice Alito | 2,013 | 8 | concurring | Sekhar v. United States | https://www.courtlistener.com/opinion/944097/sekhar-v-united-states/ | value or which goes to make up wealth or estate.” at 1446–1447. And the lower courts have long given the term a similarly expan- sive construction. See, e.g., United (“The concept of prop- erty under the Hobbs Act includes, in a broad sense, any valuable right considered as a source or element of wealth”). Despite the breadth of some of these formulations, however, the term “property” plainly does not reach every- thing that a person may hold dear; nor does it extend to everything that might in some indirect way portend the Cite as: 570 U. S. (2013) 3 ALITO, J., concurring in judgment possibility of future economic gain. I do not suggest that the current lower court case law is necessarily correct, but it seems clear that the case now before us is an outlier and that the jury’s verdict stretches the concept of property beyond the breaking point. It is not customary to refer to an internal recommenda- tion to make a government decision as a form of property. It would seem strange to say that the government or its employees have a property interest in their internal rec- ommendations regarding such things as the issuance of a building permit, the content of an environmental impact statement, the approval of a new drug, or the indictment of an individual or a corporation. And it would be even stranger to say that a private party who might be affected by the government’s decision can obtain a property inter- est in a recommendation to make the decision. See, e.g., (CA11 1982) (“Doyle had no protected property interest in the mere recommendation for a raise; thus she was not entitled to due process safeguards when the recommended raise was disapproved by the University”). Our decision in (2000), supports the conclusion that internal recommenda- tions regarding government decisions are not property. In we vacated a business owner’s conviction under the federal mail fraud statute, 18 U.S. C. for “ob- taining money or property” through misrepresentations made in an application for a video poker license issued by the State. We held that a video poker license is not prop- erty in the hands of the State. I do not suggest that the concepts of property under the mail fraud statute and the Hobbs Act are necessarily the same. But surely a video poker license has a stronger claim to be classified as property than a mere internal recommendation that a state government take an initial step that might lead eventually to an investment that 4 SEKHAR v. UNITED STATES ALITO, J., concurring in |
Justice Alito | 2,013 | 8 | concurring | Sekhar v. United States | https://www.courtlistener.com/opinion/944097/sekhar-v-united-states/ | that 4 SEKHAR v. UNITED STATES ALITO, J., concurring in judgment would be beneficial to private parties. The Government has not cited any Hobbs Act case holding that an internal recommendation regarding a gov- ernment decision constitutes property. Nor has the Gov- ernment cited any other example of the use of the term “property” in this sense.* The Second Circuit recharacterized the property that petitioner attempted to obtain as the general counsel’s “right to make a recommendation consistent with his legal judgment.” And the Govern- ment also presses that theory in this Court. Brief for United States 15, 34–45. According to the Government, the general counsel’s property interest in his recommenda- tion encompasses the right to make the recommendation. –36. But this argument assumes that the rec- ommendation itself is property. See (the general counsel’s “ ‘recommendation’ and his ‘right to make the recommendation’ are merely different expressions of the same property”). If an internal recommendation regarding a government decision does not constitute property, then surely a government employee’s right to make such a recommendation is not property either (nor could it be deemed a property right). II The Government argues that the recommendation was the general counsel’s personal property because it was —————— * To recognize that an internal recommendation regarding a govern- ment decision is not property does not foreclose the possibility that threatening a government employee, as the government’s agent, in order to secure government property could qualify as Hobbs Act extor- tion. Here, after all, petitioner’s ultimate goal was to secure an invest- ment of money from the government. But the jury found only that petitioner had attempted to obtain the general counsel’s recommenda- tion, so I have no occasion to consider whether a Hobbs Act conviction could have been sustained on a different legal theory. Cite as: 570 U. S. (2013) 5 ALITO, J., concurring in judgment inextricably related to his right to pursue his profession as an attorney. See at 34–35. But that argument is clearly wrong: If the general counsel had left the State’s employ before submitting the recommendation, he could not have taken the recommendation with him, and he certainly could not have given it or sold it to someone else. Therefore, it is obvious that the recommendation (and the right to make it) were inextricably related to the general counsel’s position with the government, and not to his broader personal right to pursue the practice of law. The general counsel’s job surely had economic value to him, as did his labor as a lawyer, his law license, and his reputation as |
Justice Alito | 2,013 | 8 | concurring | Sekhar v. United States | https://www.courtlistener.com/opinion/944097/sekhar-v-united-states/ | as a lawyer, his law license, and his reputation as an attorney. But the indictment did not allege, and the jury did not find, that petitioner attempted to obtain those things. Nor would such a theory make sense in the context of this case. Petitioner did not, for example, seek the general counsel’s legal advice or de- mand that the general counsel represent him in a legal proceeding. Cf. United F.3d 180, 186–187 (CA5 2011) (a person’s labor is property capable of being extorted). Nor did petitioner attempt to enhance his own ability to compete with the general counsel for legal work by threatening to do something that would, say, tarnish the general counsel’s reputation or cause his law license to be revoked. Cf. Tropiano, 418 F. 2d, at 1071– 1072, –1077 (threats to competitor in order to obtain customers constitute extortion); United Zemek, ; United Coffey, 108–109 (EDNY 2005) (the right to pursue a lawful business is extortable property under the Hobbs Act). The Court holds that petitioner’s conduct does not amount to attempted extortion, but for a different reason: According to the Court, the alleged property that petition- er pursued was not transferrable and therefore is not capable of being “obtained.” Ante, at 4–5, 7–8. Because I 6 SEKHAR v. UNITED STATES ALITO, J., concurring in judgment do not believe that the item in question constitutes prop- erty, it is unnecessary for me to determine whether or not petitioner sought to obtain it. * * * If Congress had wanted to classify internal recommen- dations pertaining to government decisions as property, I think it would have spoken more clearly than it did in the Hobbs Act. But even if the Hobbs Act were ambiguous on this point, the rule of lenity would counsel in favor of an interpretation of the statute that does not reach so broadly, see This is not to say that the Government could not have prosecuted petitioner for ex- tortion on these same facts under some other theory. The question before us is whether the general counsel’s recommendation—or the right to make it—constitutes property under the Hobbs Act. In my view, they do not. For these reasons, I concur in the Court’s judgment |
Justice Thomas | 2,016 | 1 | dissenting | Whole Woman's Health v. Hellerstedt | https://www.courtlistener.com/opinion/3217332/whole-womans-health-v-hellerstedt/ | Today the Court strikes down two state statutory provi- sions in all of their applications, at the behest of abortion clinics and doctors. That decision exemplifies the Court’s troubling tendency “to bend the rules when any effort to limit abortion, or even to speak in opposition to abortion, is at issue.” (Scalia, J., dissenting). As JUSTICE ALITO observes, see post (dissenting opinion), today’s decision creates an abor- tion exception to ordinary rules of res judicata, ignores compelling evidence that Texas’ law imposes no unconsti- tutional burden, and disregards basic principles of the severability doctrine. I write separately to emphasize how today’s decision perpetuates the Court’s habit of apply- ing different rules to different constitutional rights— especially the putative right to abortion. To begin, the very existence of this suit is a jurispruden- tial oddity. Ordinarily, plaintiffs cannot file suits to vindi- cate the constitutional rights of others. But the Court employs a different approach to rights that it favors. So in this case and many others, the Court has erroneously allowed doctors and clinics to vicariously vindicate the putative constitutional right of women seeking abortions. This case also underscores the Court’s increasingly 2 WHOLE WOMAN’S HEALTH v. HELLERSTEDT THOMAS, J., dissenting common practice of invoking a given level of scrutiny— here, the abortion-specific undue burden standard—while applying a different standard of review entirely. What- ever scrutiny the majority applies to Texas’ law, it bears little resemblance to the undue-burden test the Court articulated in Planned Parenthood of Southeastern Pa. v. and its successors. Instead, the majority eviscerates important features of that test to return to a regime like the one that repudiated. Ultimately, this case shows why the Court never should have bent the rules for favored rights in the first place. Our law is now so riddled with special exceptions for special rights that our decisions deliver neither predict- ability nor the promise of a judiciary bound by the rule of law. I This suit is possible only because the Court has allowed abortion clinics and physicians to invoke a putative consti- tutional right that does not belong to them—a woman’s right to abortion. The Court’s third-party standing juris- prudence is no model of clarity. See Driv- ing this doctrinal confusion, the Court has shown a partic- ular willingness to undercut restrictions on third-party standing when the right to abortion is at stake. And this case reveals a deeper flaw in straying from our normal rules: when the wrong party litigates a case, we end up resolving disputes that make for bad law. For most of our Nation’s history, |
Justice Thomas | 2,016 | 1 | dissenting | Whole Woman's Health v. Hellerstedt | https://www.courtlistener.com/opinion/3217332/whole-womans-health-v-hellerstedt/ | make for bad law. For most of our Nation’s history, plaintiffs could not challenge a statute by asserting someone else’s constitu- tional rights. See This Court would “not listen to an objection made to the constitutionality of an act by a party whose rights it does not affect and who has therefore no interest in defeating it.” Clark v. Kansas City, 176 U.S. 114, 118 (1900) (internal quotation marks omitted). And Cite as: 579 U. S. (2016) 3 THOMAS, J., dissenting for good reason: “[C]ourts are not roving commissions assigned to pass judgment on the validity of the Nation’s laws.” 610–611 In the 20th century, the Court began relaxing that rule. But even as the Court started to recognize exceptions for certain types of challenges, it stressed the strict limits of those exceptions. A plaintiff could assert a third party’s rights, the Court said, but only if the plaintiff had a “close relation to the third party” and the third party faced a formidable “hindrance” to asserting his own rights. Pow- ; accord, –133 (similar). Those limits broke down, however, because the Court has been “quite forgiving” in applying these standards to certain claims. Some constitutional rights remained “personal rights which may not be vicari- ously asserted.” 174 (1969) (Fourth Amendment rights are purely per- sonal); see (so is the Fifth Amendment right against self-incrimination). But the Court has abandoned such limitations on other rights, producing serious anomalies across similar factual scenarios. Lawyers cannot vicariously assert potential clients’ Sixth Amendment rights because they lack any current, close relationship. –131. Yet litigants can assert potential jurors’ rights against race or sex discrimination in jury selection even when the litigants have never met potential jurors and do not share their race or sex. at 410–416; J. E. B. v. Alabama ex rel. T. B., And vendors can sue to invalidate state regulations implicating potential customers’ equal protection rights against sex discrimination. 194–197 (striking down sex-based age restrictions on pur- chasing beer). 4 WHOLE WOMAN’S HEALTH v. HELLERSTEDT THOMAS, J., dissenting Above all, the Court has been especially forgiving of third-party standing criteria for one particular category of cases: those involving the purported substantive due process right of a woman to abort her unborn child. In a plurality of this Court fashioned a blanket rule allowing third-party stand- ing in abortion cases. “[I]t generally is appro- priate,” said the Court, “to allow a physician to assert the rights of women patients as against governmental inter- ference with the abortion decision.” Yet the plural- ity conceded that the traditional criteria for an exception to |
Justice Thomas | 2,016 | 1 | dissenting | Whole Woman's Health v. Hellerstedt | https://www.courtlistener.com/opinion/3217332/whole-womans-health-v-hellerstedt/ | ity conceded that the traditional criteria for an exception to the third-party standing rule were not met. There are no “insurmountable” obstacles stopping women seeking abor- tions from asserting their own rights, the plurality admit- ted. Nor are there jurisdictional barriers. held that women seeking abortions fell into the mootness exception for cases “ ‘capable of repetition, yet seeking review,’ ” enabling them to sue after they terminated their pregnancies without showing that they intended to become pregnant and seek an abortion again. Yet, since Singleton, the Court has unquestioningly accepted doctors’ and clinics’ vicarious assertion of the constitutional rights of hypothetical pa- tients, even as women seeking abortions have successfully and repeatedly asserted their own rights before this Court.1 —————— 1 Compare, e.g., and Sten- ; Planned Parenthood of South- eastern (assuming that physi- cians and clinics can vicariously assert women’s right to abortion), with, e.g., ; Hodgson v. Minnesota, ; H. L. v. Matheson, 450 U.S. 398, 400 (1981); ; Harris v. McRae, ; 137– 138 ; ; Beal v. Doe, ; (women seeking abortions have capably asserted their own Cite as: 579 U. S. (2016) 5 THOMAS, J., dissenting Here too, the Court does not question whether doctors and clinics should be allowed to sue on behalf of Texas women seeking abortions as a matter of course. They should not. The central question under the Court’s abor- tion precedents is whether there is an undue burden on a woman’s access to abortion. See ; see Part II, infra. But the Court’s permissive approach to third-party standing encourages litigation that deprives us of the information needed to resolve that issue. Our precedents encourage abortion providers to sue—and our cases then relieve them of any obligation to prove what burdens women actually face. I find it astonishing that the majority can discover an “un- due burden” on women’s access to abortion for “those [women] for whom [Texas’ law] is an actual rather than an irrelevant restriction,” ante, at 39 (internal quotation marks omitted), without identifying how many women fit this description; their proximity to open clinics; or their preferences as to where they obtain abortions, and from whom. “[C]ommonsense inference[s]” that such a burden exists, ante, at 36, are no substitute for actual evidence. There should be no surer sign that our jurisprudence has gone off the rails than this: After creating a constitutional right to abortion because it “involve[s] the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy,” at the Court has created special rules that cede |
Justice Thomas | 2,016 | 1 | dissenting | Whole Woman's Health v. Hellerstedt | https://www.courtlistener.com/opinion/3217332/whole-womans-health-v-hellerstedt/ | autonomy,” at the Court has created special rules that cede its enforcement to others. II Today’s opinion also reimagines the undue-burden standard used to assess the constitutionality of abortion restrictions. Nearly years ago, in Planned Parenthood of Southeastern a plurality of —————— rights, as plaintiffs). 6 WHOLE WOMAN’S HEALTH v. HELLERSTEDT THOMAS, J., dissenting this Court invented the “undue burden” standard as a special test for gauging the permissibility of abortion restrictions. held that a law is unconstitutional if it imposes an “undue burden” on a woman’s ability to choose to have an abortion, meaning that it “has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus.” at 877. thus instructed courts to look to whether a law substantially impedes women’s access to abortion, and whether it is reasonably related to legitimate state inter- ests. As the Court explained, “[w]here it has a rational basis to act, and it does not impose an undue burden, the State may use its regulatory power” to regulate aspects of abortion procedures, “all in furtherance of its legitimate interests in regulating the medical profession in order to promote respect for life, including life of the unborn.” I remain fundamentally opposed to the Court’s abortion jurisprudence. E.g., at 168–169 (THOMAS, J., concur- ring); 982 (THOMAS, J., dis- senting). Even taking as the baseline, however, the majority radically rewrites the undue-burden test in three ways. First, today’s decision requires courts to “consider the burdens a law imposes on abortion access together with the benefits those laws confer.” Ante, at 19. Second, today’s opinion tells the courts that, when the law’s justifi- cations are medically uncertain, they need not defer to the legislature, and must instead assess medical justifications for abortion restrictions by scrutinizing the record them- selves. Finally, even if a law imposes no “substan- tial obstacle” to women’s access to abortions, the law now must have more than a “reasonabl[e] relat[ion] to a legitimate state interest.” (internal quotation marks omitted). These precepts are nowhere to be found in or its successors, and transform the undue-burden test to something much more akin to strict scrutiny. Cite as: 579 U. S. (2016) 7 THOMAS, J., dissenting First, the majority’s free-form balancing test is contrary to When assessing Pennsylvania’s recordkeeping requirements for abortion providers, for instance, did not weigh its benefits and burdens. Rather, held that the law had a legitimate purpose because data collection advances medical research, “so it cannot be said that the requirements serve no purpose other than to make abortions more |
Justice Thomas | 2,016 | 1 | dissenting | Whole Woman's Health v. Hellerstedt | https://www.courtlistener.com/opinion/3217332/whole-womans-health-v-hellerstedt/ | requirements serve no purpose other than to make abortions more difficult.” ( joint opinion of O’Connor, KENNEDY, and Souter, JJ.). The opinion then asked whether the recordkeeping require- ments imposed a “substantial obstacle,” and found none. Contrary to the majority’s statements, see ante, at 19, did not balance the benefits and burdens of Pennsylvania’s spousal and parental notification provi- sions, either. Pennsylvania’s spousal notification re- quirement, the plurality said, imposed an undue burden because findings established that the requirement would “likely prevent a significant number of women from obtaining an abortion”—not because these burdens out- weighed its ; see at 887–894. And summarily upheld paren- tal notification provisions because even pre- deci- sions had done so. at 899–900 (joint opinion). Decisions in ’s wake further refute the majority’s benefits-and-burdens balancing test. The Court in Ma- had no difficulty upholding a Montana law authorizing only physicians to perform abortions—even though no legisla- tive findings supported the law, and the challengers claimed that “all health evidence contradict[ed] the claim that there is any health basis for the law.” (internal quotation marks omitted). Mazurek also deemed objections to the law’s lack of benefits “squarely foreclosed by itself.” Instead, the Court explained, “ ‘the Constitution gives the States broad latitude to decide that particular functions may be performed only by licensed 8 WHOLE WOMAN’S HEALTH v. HELLERSTEDT THOMAS, J., dissenting professionals, even if an objective assessment might suggest that those same tasks could be performed by others.’ ” (quoting ; emphasis in original); see Second, by rejecting the notion that “legislatures, and not courts, must resolve questions of medical uncertainty,” ante, at 20, the majority discards another core element of the framework. Before today, this Court had “given state and federal legislatures wide discretion to pass legislation in areas where there is medical and scientific uncertainty.” This Court emphasized that this “traditional rule” of deference “is consistent with” This Court underscored that legislatures should not be hamstrung “if some part of the medical community were disinclined to follow the pro- scription.” And this Court concluded that “[c]onsiderations of marginal safety, including the balance of risks, are within the legislative competence when the regulation is rational and in pursuit of legitimate ends.” ; see (KENNEDY, J., dissent- ing) (“the right of the legislature to resolve matters on which physicians disagreed” is “establish[ed] beyond doubt”). This Court could not have been clearer: When- ever medical justifications for an abortion restriction are debatable, that “provides a sufficient basis to conclude in [a] facial attack that the [law] does not impose an undue burden.” 550 U.S., Otherwise, legisla- |
Justice Thomas | 2,016 | 1 | dissenting | Whole Woman's Health v. Hellerstedt | https://www.courtlistener.com/opinion/3217332/whole-womans-health-v-hellerstedt/ | does not impose an undue burden.” 550 U.S., Otherwise, legisla- tures would face “too exacting” a standard. Today, however, the majority refuses to leave disputed medical science to the legislature because past cases “placed considerable weight upon the evidence and argu- ment presented in judicial proceedings.” Ante, at 20. But while relied on record evidence to uphold Pennsyl- vania’s spousal-notification requirement, that requirement had nothing to do with debated medical science. 505 U.S., at 888–894 And while ob- Cite as: 579 U. S. (2016) 9 THOMAS, J., dissenting served that courts need not blindly accept all legislative findings, see ante, at 20, that does not help the majority. refused to accept Congress’ finding of “a medical consensus that the prohibited procedure is never medically necessary” because the procedure’s necessity was debated within the medical –166. Having identified medical uncertainty, explained how courts should resolve conflicting positions: by respect- ing the legislature’s judgment. See Finally, the majority overrules another central aspect of by requiring laws to have more than a rational basis even if they do not substantially impede access to abor- tion. Ante, at 19–20. “Where [the State] has a rational basis to act and it does not impose an undue burden,” this Court previously held, “the State may use its regulatory power” to impose regulations “in furtherance of its legiti- mate interests in regulating the medical profession in order to promote respect for life, including life of the un- born.” at ; see (similar). No longer. Though the majority declines to say how substan- tial a State’s interest must be, ante, at 20, one thing is clear: The State’s burden has been ratcheted to a level that has not applied for a quarter century. Today’s opinion does resemble in one respect: After disregarding significant aspects of the Court’s prior jurisprudence, the majority applies the undue-burden standard in a way that will surely mystify lower courts for years to come. As in today’s opinion “simply highlight[s] certain facts in the record that apparently strike the Justices as particularly significant in estab- lishing (or refuting) the existence of an undue burden.” (Scalia, J., concurring in judgment in part and dissenting in part); see ante, at 23–24, 31–34. As in “the opinion then simply announces that the provision either does or does not impose a ‘substantial 10 WHOLE WOMAN’S HEALTH v. HELLERSTEDT THOMAS, J., dissenting obstacle’ or an ‘undue burden.’ ” (opinion of Scalia, J); see ante, at 26, 36. And still “[w]e do not know whether the same conclusions could have been reached on a different record, or in what respects |
Justice Thomas | 2,016 | 1 | dissenting | Whole Woman's Health v. Hellerstedt | https://www.courtlistener.com/opinion/3217332/whole-womans-health-v-hellerstedt/ | been reached on a different record, or in what respects the record would have had to differ before an opposite conclu- sion would have been appropriate.” (opinion of Scalia, J.); cf. ante, at 26, 31–32. All we know is that an undue burden now has little to do with whether the law, in a “real sense, deprive[s] women of the ultimate decision,” and more to do with the loss of “individualized attention, serious conversation, and emotional support,” ante, at 36. The majority’s undue-burden test looks far less like our post- precedents and far more like the strict-scrutiny standard that rejected, under which only the most compelling rationales justified restrictions on abortion. See 874–875 One searches the majority opinion in vain for any acknowl- edgment of the “premise central” to ’s rejection of strict scrutiny: “that the government has a legitimate and substantial interest in preserving and promoting fetal life” from conception, not just in regulating medical procedures. (internal quotation marks omit- ted); see 871 Meanwhile, the majority’s undue- burden balancing approach risks ruling out even minor, previously valid infringements on access to abortion. Moreover, by second-guessing medical evidence and mak- ing its own assessments of “quality of care” issues, ante, at 23–24, 30–31, 36, the majority reappoints this Court as “the country’s ex officio medical board with powers to disapprove medical and operative practices and standards throughout the United States.” (internal quotation marks omitted). And the majority seriously burdens States, which must guess at how much more compelling their interests must be to pass muster Cite as: 579 U. S. (2016) 11 THOMAS, J., dissenting and what “commonsense inferences” of an undue burden this Court will identify next. III The majority’s furtive reconfiguration of the standard of scrutiny applicable to abortion restrictions also points to a deeper problem. The undue-burden standard is just one variant of the Court’s tiers-of-scrutiny approach to consti- tutional adjudication. And the label the Court affixes to its level of scrutiny in assessing whether the government can restrict a given right—be it “rational basis,” interme- diate, strict, or something else—is increasingly a meaning- less formalism. As the Court applies whatever standard it likes to any given case, nothing but empty words sepa- rates our constitutional decisions from judicial fiat. Though the tiers of scrutiny have become a ubiquitous feature of constitutional law, they are of recent vintage. Only in the 1960’s did the Court begin in earnest to speak of “strict scrutiny” versus reviewing legislation for mere rationality, and to develop the contours of these tests. See Strict Judicial Scrutiny, 1274, 1284–1285 In short order, the |
Justice Thomas | 2,016 | 1 | dissenting | Whole Woman's Health v. Hellerstedt | https://www.courtlistener.com/opinion/3217332/whole-womans-health-v-hellerstedt/ | See Strict Judicial Scrutiny, 1274, 1284–1285 In short order, the Court adopted strict scrutiny as the standard for reviewing everything from race-based classifications under the Equal Protection Clause to restrictions on constitutionally protected speech. at 1275–1283. then ap- plied strict scrutiny to a purportedly “fundamental” sub- stantive due process right for the first time. at 162– 164; see ; accord, at 871 (noting that post- cases inter- preted to demand “strict scrutiny”). Then the tiers of scrutiny proliferated into ever more gradations. See, e.g., U.S., at 197–198 (intermediate scrutiny for sex-based classifications); Lawrence v. Texas, 539 U.S. 558, 580 (2003) (O’Connor, J., concurring in judgment) (“a more searching form of rational basis review” applies to 12 WHOLE WOMAN’S HEALTH v. HELLERSTEDT THOMAS, J., dissenting laws reflecting “a desire to harm a politically unpopular group”); (per cu- riam) (applying “ ‘closest scrutiny’ ” to campaign-finance contribution limits). ’s undue-burden test added yet another right-specific test on the spectrum between rational-basis and strict-scrutiny review. The illegitimacy of using “made-up tests” to “displace longstanding national traditions as the primary determi- nant of what the Constitution means” has long been ap- parent. United (Scalia, J., dissenting). The Constitution does not prescribe tiers of scrutiny. The three basic tiers— “rational basis,” intermediate, and strict scrutiny—“are no more scientific than their names suggest, and a further element of randomness is added by the fact that it is largely up to us which test will be applied in each case.” ; see also at 217–221 (Rehnquist, J., dissenting). But the problem now goes beyond that. If our recent cases illustrate anything, it is how easily the Court tinkers with levels of scrutiny to achieve its desired result. This Term, it is easier for a State to survive strict scrutiny despite discriminating on the basis of race in college ad- missions than it is for the same State to regulate how abortion doctors and clinics operate under the putatively less stringent undue-burden test. All the State apparently needs to show to survive strict scrutiny is a list of aspira- tional educational goals (such as the “cultivat[ion of] a set of leaders with legitimacy in the eyes of the citizenry”) and a “reasoned, principled explanation” for why it is pursuing them—then this Court defers. Fisher v. University of Tex. at Austin, ante, at 7, 12 (internal quotation marks omit- ted). Yet the same State gets no deference under the undue-burden test, despite producing evidence that abor- tion safety, one rationale for Texas’ law, is medically debated. See Whole Woman’s Health v. Lakey, 46 F. Supp. Cite as: 579 U. |
Justice Thomas | 2,016 | 1 | dissenting | Whole Woman's Health v. Hellerstedt | https://www.courtlistener.com/opinion/3217332/whole-womans-health-v-hellerstedt/ | Health v. Lakey, 46 F. Supp. Cite as: 579 U. S. (2016) 13 THOMAS, J., dissenting 3d 673, 684 (WD Tex. 2014) (noting conflict in expert testimony about abortion safety). Likewise, it is now easier for the government to restrict judicial candidates’ campaign speech than for the Government to define mar- riage—even though the former is subject to strict scrutiny and the latter was supposedly subject to some form of rational-basis review. Compare v. Florida Bar, 575 U. S. – (2015) (slip op., at 8–9), with United States v. Windsor, U. S. (2013) (slip op., at 20). These more recent decisions reflect the Court’s tendency to relax purportedly higher standards of review for less- preferred rights. E.g., (THOMAS, J., dissent- ing) (“The Court makes no effort to justify its deviation from the tests we traditionally employ in free speech cases” to review caps on political contributions). Mean- while, the Court selectively applies rational-basis review— under which the question is supposed to be whether “any state of facts reasonably may be conceived to justify” the law, — with formidable toughness. E.g., Lawrence, 539 U.S., at 580 (O’Connor, J., concurring in judgment) (at least in equal protection cases, the Court is “most likely” to find no rational basis for a law if “the challenged legislation inhib- its personal relationships”); see (Scalia, J., dissenting) (faulting the Court for applying “an unheard-of form of rational-basis review”). These labels now mean little. Whatever the Court claims to be doing, in practice it is treating its “doctrine referring to tiers of scrutiny as guidelines informing our approach to the case at hand, not tests to be mechanically applied.” at (slip op., at 1) (BREYER, J., concurring). The Court should abandon the pretense that anything other than policy preferences underlies its balancing of constitutional rights and inter- 14 WHOLE WOMAN’S HEALTH v. HELLERSTEDT THOMAS, J., dissenting ests in any given case. IV It is tempting to identify the Court’s invention of a constitutional right to abortion in 410 U.S. 113, as the tipping point that transformed third-party standing doctrine and the tiers of scrutiny into an un- workable morass of special exceptions and arbitrary appli- cations. But those roots run deeper, to the very notion that some constitutional rights demand preferential treatment. During the Lochner era, the Court considered the right to contract and other economic liberties to be fundamental requirements of due process of law. See The Court in 1937 repudiated Lochner’s foundations. See West Coast Hotel But the Court then created a new taxonomy of preferred rights. In 1938, seven Justices heard a constitutional challenge |
Justice Thomas | 2,016 | 1 | dissenting | Whole Woman's Health v. Hellerstedt | https://www.courtlistener.com/opinion/3217332/whole-womans-health-v-hellerstedt/ | preferred rights. In 1938, seven Justices heard a constitutional challenge to a federal ban on shipping adulterated milk in interstate commerce. Without economic substantive due process, the ban clearly invaded no constitutional right. See United 152–153 (1938). Within Justice Stone’s opinion for the Court, however, was a footnote that just three other Justices joined—the famous Carolene Products Footnote 4. See n. 4; Lusky, Footnote Redux: A Carolene Products Reminiscence, The footnote’s first paragraph suggested that the presumption of constitutionality that ordinarily attaches to legislation might be “narrower when legislation appears on its face to be within a specific prohibition of the Constitution.” –153, n. 4. Its second paragraph ap- peared to question “whether legislation which restricts those political processes, which can ordinarily be expected to bring about repeal of undesirable legislation, is to be Cite as: 579 U. S. (2016) 15 THOMAS, J., dissenting subjected to more exacting judicial scrutiny under the general prohibitions of the [14th] Amendment than are most other types of legislation.” And its third and most familiar paragraph raised the question “whether prejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities, and which may call for a corre- spondingly more searching judicial inquiry.” Though the footnote was pure dicta, the Court seized upon it to justify its special treatment of certain personal liberties like the First Amendment and the right against discrimination on the basis of race—but also rights not enumerated in the Constitution.2 As the Court identified which rights deserved special protection, it developed the tiers of scrutiny as part of its equal protection (and, later, due process) jurisprudence as a way to demand extra justifications for encroachments on these rights. See –1273, 1281–1285. And, having created a new category of fundamental rights, the Court loosened the reins to recognize even putative rights like abortion, see –164, which hardly implicate “discrete and insular minorities.” The Court also seized upon the rationale of the Carolene Products footnote to justify exceptions to third-party standing doctrine. The Court suggested that it was tilting the analysis to favor rights involving actual or perceived minorities—then seemingly counted the right to contra- —————— 2 See Strict Judicial Scrutiny, 1278– 1 ; see also Linzer, The Carolene Products Footnote and the Preferred Position of Individual Rights: Louis Lusky and John Hart Ely vs. Harlan Fiske Stone, 12 Const. Commentary 277, 277–278, 288–300 (1995); (1942) (Stone, C. J., concurring) (citing the Carolene Products footnote to suggest that the presumption of constitutionality did |
Justice Thomas | 2,016 | 1 | dissenting | Whole Woman's Health v. Hellerstedt | https://www.courtlistener.com/opinion/3217332/whole-womans-health-v-hellerstedt/ | Products footnote to suggest that the presumption of constitutionality did not fully apply to encroachments on the unenumerated personal liberty to procreate). 16 WHOLE WOMAN’S HEALTH v. HELLERSTEDT THOMAS, J., dissenting ception as such a right. According to the Court, what matters is the “relationship between one who acted to protect the rights of a minority and the minority itself ”— which, the Court suggested, includes the relationship “between an advocate of the rights of persons to obtain contraceptives and those desirous of doing so.” Eisenstadt v. Baird, (citing Sedler, Standing to Assert Constitutional Jus Tertii in the Supreme Court, 71 Yale L. J. 599, 631 (1962)). Eighty years on, the Court has come full circle. The Court has simultaneously transformed judicially created rights like the right to abortion into preferred constitu- tional rights, while disfavoring many of the rights actually enumerated in the Constitution. But our Constitution renounces the notion that some constitutional rights are more equal than others. A plaintiff either possesses the constitutional right he is asserting, or not—and if not, the judiciary has no business creating ad hoc exceptions so that others can assert rights that seem especially im- portant to vindicate. A law either infringes a constitu- tional right, or not; there is no room for the judiciary to invent tolerable degrees of encroachment. Unless the Court abides by one set of rules to adjudicate constitu- tional rights, it will continue reducing constitutional law to policy-driven value judgments until the last shreds of its legitimacy disappear. * * * Today’s decision will prompt some to claim victory, just as it will stiffen opponents’ will to object. But the entire Nation has lost something essential. The majority’s em- brace of a jurisprudence of rights-specific exceptions and balancing tests is “a regrettable concession of defeat—an acknowledgement that we have passed the point where ‘law,’ properly speaking, has any further application.” Scalia, The Rule of Law as a Law of Rules, 56 U. Chi. L. Rev. 1175, 1182 (1989). I respectfully dissent. Cite as: 579 U. S. (2016) 1 ALITO, J., dissenting SUPREME COURT OF THE UNITED STATES No. 15–274 WHOLE WOMAN’S HEALTH, ET AL., PETITIONERS v. JOHN HELLERSTEDT, COMMISSIONER, TEXAS DEPARTMENT OF STATE HEALTH SERVICES, ET AL. |
Justice Souter | 1,997 | 20 | concurring | Raines v. Byrd | https://www.courtlistener.com/opinion/118146/raines-v-byrd/ | Appellees claim that the Line Item Veto Act, Pub. L. 104 130, codified at 2 U.S. C. 691 et seq. (1994 ed., Supp. II), is unconstitutional because it grants the President power, which Article I vests in Congress, to repeal a provision of federal law. As Justice Stevens points out, appellees essentially claim that, by granting the President power to repeal statutes, the Act injures them by depriving them of their official role in voting on the provisions that become law. See post, at 836-837. Under our precedents, it is fairly debatable whether this injury is sufficiently "personal" and "concrete" to satisfy the requirements of Article III.[1] There is, first, difficulty in applying the rule that an injury on which standing is predicated be personal, not official. If *831 our standing doctrine recognized this as a distinction with a dispositive effect, the injury claimed would not qualify: the Court is certainly right in concluding that appellees sue not in personal capacities, but as holders of seats in the Congress. See ante, at 821. And yet the significance of this distinction is not so straightforward. In Braxton County it is true, we dismissed a challenge by a county court to a state tax law for lack of jurisdiction, broadly stating that "`the interest of a [party seeking relief] in this court should be a personal and not an official interest,' " ); accord, Joint Anti-Fascist Refugee But the Court found Braxton County "inapplicable" to a challenge by a group of state legislators in and found the legislators had standing even though they claimed no injury but a deprivation of official voting power,[2] Thus, it is at least arguable that the official nature of the harm here does not preclude standing. Nor is appellees' injury so general that, under our case law, they clearly cannot satisfy the requirement of concreteness. On the one hand, appellees are not simply claiming *832 harm to their interest in having government abide by the Constitution, which would be shared to the same extent by the public at large and thus provide no basis for suit, see, e. g., Valley Forge ; ; Instead, appellees allege that the Act deprives them of an element of their legislative power; as a factual matter they have a more direct and tangible interest in the preservation of that power than the general citizenry has. Cf. at ; see also ; Colorado General On the other hand, the alleged, continuing deprivation of federal legislative power is not as specific or limited as the nullification of the decisive votes of a group |
Justice Souter | 1,997 | 20 | concurring | Raines v. Byrd | https://www.courtlistener.com/opinion/118146/raines-v-byrd/ | as the nullification of the decisive votes of a group of legislators in connection with a specific item of legislative consideration in being instead shared by all the members of the official class who could suffer that injury, the Members of Congress.[3] Because it is fairly debatable whether appellees' injury is sufficiently personal and concrete to give them standing, it behooves us to resolve the question under more general *833 separation-of-powers principles underlying our standing requirements. See ; United While "our constitutional structure [does not] requir[e] that the Judicial Branch shrink from a confrontation with the other two coequal branches," Valley Forge we have cautioned that respect for the separation of powers requires the Judicial Branch to exercise restraint in deciding constitutional issues by resolving those implicating the powers of the three branches of Government as a "last resort," see The counsel of restraint in this case begins with the fact that a dispute involving only officials, and the official interests of those, who serve in the branches of the National Government lies far from the model of the traditional common-law cause of action at the conceptual core of the case-or-controversy requirement, see Joint Anti-Fascist Refugee Although the contest here is not formally between the political branches (since Congress passed the bill augmenting Presidential power and the President signed it), it is in substance an interbranch controversy about calibrating the legislative and executive powers, as well as an intrabranch dispute between segments of Congress itself. Intervention in such a controversy would risk damaging the public confidence that is vital to the functioning of the Judicial Branch, cf. Valley Forge (quoting ), by embroiling the federal courts in a power contest nearly at the height of its political tension. While it is true that a suit challenging the constitutionality of this Act brought by a party from outside the Federal Government would also involve the Court in resolving the dispute over the allocation of power between the political branches, it would expose the Judicial Branch to a lesser risk. Deciding a suit to vindicate an interest outside the *834 Government raises no specter of judicial readiness to enlist on one side of a political tug-of-war, since "the propriety of such action by a federal court has been recognized since" Valley Forge And just as the presence of a party beyond the Government places the Judiciary at some remove from the political forces, the need to await injury to such a plaintiff allows the courts some greater separation in the time between the political resolution and the judicial review. "[B]y connecting the |
Justice Souter | 1,997 | 20 | concurring | Raines v. Byrd | https://www.courtlistener.com/opinion/118146/raines-v-byrd/ | the political resolution and the judicial review. "[B]y connecting the censureship of the laws with the private interests of members of the community, the legislation is protected from wanton assailants, and from the daily aggressions of party-spirit." 1 A. de Tocqueville, Democracy in America 105 (Schoken ed. 1961). The virtue of waiting for a private suit is only confirmed by the certainty that another suit can come to us. The parties agree, and I see no reason to question, that if the President "cancels" a conventional spending or tax provision pursuant to the Act, the putative beneficiaries of that provision will likely suffer a cognizable injury and thereby have standing under Article III. See Brief for Appellants 19-20, 0; Brief for Appellees 32-33. By depriving beneficiaries of the money to which they would otherwise be entitled, a cancellation would produce an injury that is "actual," "personal and individual," and involve harm to a "legally protected interest," ; assuming the canceled provision would not apply equally to the entire public, the injury would be "concrete," at 573-574; and it would be "fairly trace[able] to the challenged action of the" executive officials involved in the cancellation, at as well as probably "redress[able] by a favorable decision," See, e. g., *835 While the Court has declined to lower standing requirements simply because no one would otherwise be able to litigate a claim, see Valley Forge ; ; United the certainty of a plaintiff who obviously would have standing to bring a suit to court after the politics had at least subsided from a full boil is a good reason to resolve doubts about standing against the plaintiff invoking an official interest, cf. Joint Anti-Fascist Refugee -154 (explaining that the availability of another person to bring suit may affect the standing calculus). I therefore conclude that appellees' alleged injuries are insufficiently personal and concrete to satisfy Article III standing requirements of personal and concrete harm. Since this would be so in any suit under the conditions here, I accordingly find no cognizable injury to appellees. |
Justice Stevens | 1,979 | 16 | majority | Lake Country Estates, Inc. v. Tahoe Regional Planning Agency | https://www.courtlistener.com/opinion/110033/lake-country-estates-inc-v-tahoe-regional-planning-agency/ | We granted certiorari to decide whether the Tahoe Regional Planning Agency, an entity created by Compact between California and Nevada, is entitled to the immunity that the Eleventh Amendment provides to the compacting States themselves.[1] The case also presents the question whether the individual members of the Agency's governing body are entitled to absolute immunity from federal damages claims when acting in a legislative capacity. Lake Tahoe, a unique mountain lake, is located partly in California and partly in Nevada. The Lake Tahoe Basin, an area comprising 500 square miles, is a popular resort area that has grown rapidly in recent years.[2] *394 In 1968, the States of California and Nevada agreed to create a single agency to coordinate and regulate development in the Basin and to conserve its natural resources. As required by the Constitution,[3] in 1969 Congress gave its consent to the Compact, and the Tahoe Regional Planning Agency (TRPA) was organized.[4] The Compact authorized TRPA to adopt and to enforce a regional plan for land use, transportation, conservation, recreation, and public services.[5] Petitioners own property in the Lake Tahoe Basin. In they filed a complaint in the United States District Court for the Eastern District of California alleging that TRPA, the individual members of its governing body, and its executive officer had adopted a land-use ordinance and general plan, and engaged in other conduct, that destroyed the economic value of petitioners' property.[6] Petitioners alleged that respondents had thereby taken their property without due process of law and without just compensation in violation of the Fifth and Fourteenth Amendments to the Constitution of the United States. They sought monetary and equitable relief. Petitioners advanced alternative theories to support their *395 federal claim. First, they asserted that the alleged violations of the Fifth and Fourteenth Amendments gave rise to an implied cause of action, comparable to the claim based on an alleged violation of the Fourth Amendment recognized in and that jurisdiction could be predicated on 28 U.S. C. 1331.[7] Second, they claimed that respondents had acted under color of state law and therefore their cause of action was authorized by 42 U.S. C. 1983[8] and jurisdiction was provided by 28 U.S. C. 1343.[9] The District Court dismissed the complaint. Although it concluded that the complaint sufficiently alleged a cause of *396 action for "inverse condemnation,"[10] it held that such an action could not be brought against TRPA because that agency did not have the authority to condemn property. The court also held that the individual defendants were immune from liability for the exercise of the discretionary functions alleged |
Justice Stevens | 1,979 | 16 | majority | Lake Country Estates, Inc. v. Tahoe Regional Planning Agency | https://www.courtlistener.com/opinion/110033/lake-country-estates-inc-v-tahoe-regional-planning-agency/ | from liability for the exercise of the discretionary functions alleged in the complaint. On appeal, the Court of Appeals for the Ninth Circuit affirmed the dismissal of TRPA, but reinstated the complaint against the individual respondents. Addressing first the questions of cause of action and jurisdiction, the Court of Appeals rejected petitioners' claims based on 1983 and 1343. The court held that congressional approval had transformed the Compact between the States into federal law. As a result, the respondents were acting pursuant to federal authority, rather than under color of state law, and 1983 and 1343 could not be invoked to provide a cause of action and federal jurisdiction. But the court accepted petitioners' alternative argument: It held that they had alleged a deprivation of due process in violation of the Fifth and Fourteenth Amendments, that an implied remedy comparable to that upheld in was available, and that federal jurisdiction was provided by 1331. Having found a cause of action and a basis for federal jurisdiction, the court turned to the immunity questions. Although the point had not been argued, the Court of Appeals decided that the Eleventh Amendment immunized TRPA from suit in a federal court. With respect to the individual respondents, the Court of Appeals held that absolute immunity should be afforded for conduct of a legislative character and qualified immunity for executive action. Since the record did not adequately disclose whether the challenged conduct was legislative or executive, the court remanded for a hearing. Petitioners ask this Court to hold that TRPA is not entitled to Eleventh Amendment immunity and that the individual *397 respondents are not entitled to absolute immunity when acting in a legislative capacity. Because none of the respondents filed a cross-petition for certiorari, we have no occasion to review the Court of Appeals' additional holding that a violation of the Due Process Clause was adequately alleged.[11] For purposes of our decision, we assume the sufficiency of those allegations. *398 I Before addressing the immunity issues, we must consider whether petitioners properly invoked the jurisdiction of a federal court. While respondents did not cross petition for certiorari, they now argue that the rationale does not apply to a claim based on the deprivation of property rather than liberty, and therefore the Court of Appeals' jurisdictional analysis was defective. We do not normally address any issues other than those fairly comprised within the questions presented by the petition for certiorari and any cross-petitions. An exception to this rule is the question of jurisdiction: even if not raised by the parties, we cannot ignore the absence |
Justice Stevens | 1,979 | 16 | majority | Lake Country Estates, Inc. v. Tahoe Regional Planning Agency | https://www.courtlistener.com/opinion/110033/lake-country-estates-inc-v-tahoe-regional-planning-agency/ | not raised by the parties, we cannot ignore the absence of federal jurisdiction. In this case, however, respondents' attack on the Court of Appeals' holding fails to support dismissal for want of jurisdiction for two reasons. First, respondents' "jurisdictional" arguments are not squarely directed at jurisdiction itself, but rather at the existence of a remedy for the alleged violation of their federal rights. Faced with a similar claim in Mt. Healthy Board of we found that the cause-of-action argument was "not of the jurisdictional sort which the Court raises on its own motion." Since the petitioners in Mt. Healthy had "failed to preserve the issue whether the complaint stated a claim upon which relief could be granted," the Court simply assumed, without deciding, that the suit could properly be brought. Second, even if the lack of a cause of action were considered a jurisdictional defect in a suit brought under 1331,[12] we may not dismiss for that reason if the record discloses that federal jurisdiction does in fact exist. In this case, we need not even reach the question to conclude that there is both a cause of action and federal jurisdiction. *399 Section 1983 provides a remedy for individuals alleging deprivations of their constitutional rights by action taken "under color of state law." The Court of Appeals incorrectly assumed that the requirement of federal approval of the interstate Compact foreclosed the possibility that the conduct of TRPA and its officers could be found to be "under color of state law" within the meaning of 1983.[13] The Compact had its genesis in the actions of the compacting States, and it remains part of the statutory law of both States.[14] The actual implementation of TRPA, after federal approval was obtained, depended upon the appointment of governing members and executives by the two States and their subdivisions and upon mandatory financing secured, by the terms of the Compact, from the counties.[15] In discharging their duties as officials of TRPA, the state and county appointees necessarily have also served the interests of the political units that appointed them. The federal involvement, by contrast, is limited to the appointment of one non-voting member to the governing board.[16] While congressional consent to the original Compact was required, the States may confer additional powers and duties on TRPA without further congressional action. And each State retains an absolute right to withdraw from the Compact. Even if it were not well settled that 1983 must be given *400 a liberal construction,[17] these facts adequately characterize the alleged actions of the respondents as "under color of state law" |
Justice Stevens | 1,979 | 16 | majority | Lake Country Estates, Inc. v. Tahoe Regional Planning Agency | https://www.courtlistener.com/opinion/110033/lake-country-estates-inc-v-tahoe-regional-planning-agency/ | actions of the respondents as "under color of state law" within the meaning of that statute. Federal jurisdiction therefore rests on 1343, and there is no need to address the question whether there is an implied remedy for violation of the Fifth or the Fourteenth Amendment. II The Court of Appeals held that California and Nevada had delegated authority ordinarily residing in each of those States to TRPA. Because "the bi-state Authority serves as an agency of the participant states, exercising a specially aggregated slice of state power," the court concluded "that the TRPA is protected by sovereign immunity, preserved for the states by the Eleventh Amendment." -1360. The reasoning of the Court of Appeals would extend Eleventh Amendment immunity to every bistate agency unless that immunity were expressly waived. TRPA argues that the propriety of this result is evidenced by the special constitutional requirement of congressional approval of any interstate compact. Any agency that is so important that it could not even be created by the States without a special Act of Congress should receive the same immunity that is accorded to the States themselves. We cannot accept such an expansive reading of the Eleventh Amendment. By its terms, the protection afforded by that Amendment is only available to "one of the United States." It is true, of course, that some agencies exercising *401 state power have been permitted to invoke the Amendment in order to protect the state treasury from liability that would have had essentially the same practical consequences as a judgment against the State itself.[18] But the Court has consistently refused to construe the Amendment to afford protection to political subdivisions such as counties and municipalities, even though such entities exercise a "slice of state power."[19] If an interstate compact discloses that the compacting States created an agency comparable to a county or municipality, which has no Eleventh Amendment immunity, the Amendment should not be construed to immunize such an entity. Unless there is good reason to believe that the States structured the new agency to enable it to enjoy the special constitutional protection of the States themselves, and that Congress concurred in that purpose, there would appear to be no justification for reading additional meaning into the limited language of the Amendment. California and Nevada have both filed briefs in this Court disclaiming any intent to confer immunity on TRPA. They point to provisions of their Compact that indicate that TRPA is to be regarded as a political subdivision rather than an arm of the State. Thus TRPA is described in Art. III (a) as |
Justice Stevens | 1,979 | 16 | majority | Lake Country Estates, Inc. v. Tahoe Regional Planning Agency | https://www.courtlistener.com/opinion/110033/lake-country-estates-inc-v-tahoe-regional-planning-agency/ | State. Thus TRPA is described in Art. III (a) as a "separate legal entity" and in Art. VI (a) as a "political subdivision." Under the terms of the Compact, 6 of the 10 governing members of TRPA are appointed by counties and cities, and only 4 by the 2 States.[20] Funding under the *402 Compact must be provided by the counties, not the States.[21] Finally, instead of the state treasury being directly responsible for judgments against TRPA, Art. VII (f) expressly provides that obligations of TRPA shall not be binding on either State. The regulation of land use is traditionally a function performed by local governments. Concern with the proper performance of that function in the bistate area was a primary motivation for the creation of TRPA itself, and gave rise to the specific controversy at issue in this litigation. Moreover, while TRPA, like cities, towns, and counties, was originally created by the States, its authority to make rules within its jurisdiction is not subject to veto at the state level. Indeed, that TRPA is not in fact an arm of the State subject to its control is perhaps most forcefully demonstrated by the fact that California has resorted to litigation in an unsuccessful attempt to impose its will on TRPA.[22] The intentions of Nevada and California, the terms of the Compact, and the actual operation of TRPA make clear that nothing short of an absolute rule, such as that implicit in the holding of the Court of Appeals, would allow TRPA to claim the sovereign immunity provided by the Constitution to Nevada and California. Because the Eleventh Amendment prescribes no such rule, we hold that TRPA is subject to "the judicial power of the United States" within the meaning of that Amendment.[23] III We turn, finally, to petitioners' challenge to the Court of Appeals' holding that the individual respondents are absolutely *403 immune from federal damages liability for actions taken in their legislative capacities. The immunity of legislators from civil suit for what they do or say as legislators has its roots in the parliamentary struggles of 16th- and 17th-century England; such immunity was consistently recognized in the common law and was taken as a matter of course by our Nation's founders.[24] In this Court reasoned that Congress, in enacting 1983 as part of the Civil Rights Act of 1871, could not have intended "to overturn the tradition of legislative freedom achieved in England by Civil War and carefully preserved in the formation of State and National Governments here." It therefore held that state legislators are absolutely immune from |
Justice Stevens | 1,979 | 16 | majority | Lake Country Estates, Inc. v. Tahoe Regional Planning Agency | https://www.courtlistener.com/opinion/110033/lake-country-estates-inc-v-tahoe-regional-planning-agency/ | It therefore held that state legislators are absolutely immune from suit under 1983 for actions "in the sphere of legitimate legislative activity." Petitioners do not challenge the validity of the holding in Tenney, or of the decisions recognizing the absolute immunity of federal legislators.[25] Rather, their claim is that absolute immunity should be limited to the federal and state levels, and should not extend to individuals acting in a legislative capacity at a regional level. In support of this proposed distinction, petitioners argue that the source of immunity for state legislators is found in constitutional provisions, such as the Speech or Debate Clause, which have no application to a body such as TRPA. In addition, they point out that because state legislatures have effective means of disciplining their members that TRPA does not have, the threat of possible *404 personal liability is necessary to deter lawless conduct by the governing members of TRPA.[26] We find these arguments unpersuasive. The Speech or Debate Clause of the United States Constitution[27] is no more applicable to the members of state legislatures than to the members of TRPA. The States are, of course, free to adopt similar clauses in their own constitutions, and many have in fact done so.[28] These clauses reflect the central importance attached to legislative freedom in our Nation. But the absolute immunity for state legislators recognized in Tenney reflected the Court's interpretation of federal law; the decision did not depend on the presence of a speech or debate clause in the constitution of any State, or on any particular set of state rules or procedures available to discipline erring legislators. Rather, the rule of that case recognizes the need for *405 immunity to protect the "public good." As Mr. Justice Frankfurter pointed out: "Legislators are immune from deterrents to the uninhibited discharge of their legislative duty, not for their private indulgence but for the public good. One must not expect uncommon courage even in legislators. The privilege would be of little value if they could be subjected to the cost and inconvenience and distractions of a trial upon a conclusion of the pleader, or to the hazard of a judgment against them based upon a jury's speculation as to motives. The holding of this Court in that it was not consonant with our scheme of government for a court to inquire into the motives of legislators, has remained unquestioned." This reasoning is equally applicable to federal, state, and regional legislators.[29] Whatever potential damages liability regional legislators may face as a matter of state law, we hold that petitioners' federal claims |
Justice Stevens | 1,979 | 16 | majority | Lake Country Estates, Inc. v. Tahoe Regional Planning Agency | https://www.courtlistener.com/opinion/110033/lake-country-estates-inc-v-tahoe-regional-planning-agency/ | matter of state law, we hold that petitioners' federal claims do not encompass the recovery of damages from the members of TRPA acting in a legislative capacity.[30] *406 Like the Court of Appeals, we are unable to determine from the record the extent to which petitioners seek to impose liability upon the individual respondents for the performance of their legislative duties. We agree, however, that to the extent the evidence discloses that these individuals were acting in a capacity comparable to that of members of a state legislature, they are entitled to absolute immunity from federal damages liability. The judgment of the Court of Appeals is reversed in part and affirmed in part. It is so ordered. MR. JUSTICE BRENNAN, dissenting in part. I join Part I of MR. JUSTICE BLACKMUN'S opinion dissenting in part. In addition I would not reach the question, which the Court discusses in dicta, ante, at 401, whether compacting States can create an agency protected by Eleventh Amendment immunity. In all other respects I join the Court's opinion. MR. JUSTICE MARSHALL, dissenting in part. The Court today extends absolute immunity to nonelected regional officials for their legislative acts. Because extension of such extraordinary protection is without support in either precedent or policy, I cannot join Part III of the Court's opinion. In this Court declined to construe 42 U.S. C. 1983 as abrogating state legislators' unqualified immunity from suits that arise out of their legislative activity. Underlying the decision in Tenney was a recognition of the unique status of the legislative privilege, maintained for several centuries at common law and enshrined in the Federal Constitution, Art. I, 6, as well as in all but seven of the States' -375. Absent evidence of explicit congressional intent, *407 the Court was unwilling to strip state legislators of a protection so long enjoyed when there remained power in the voters to "discourag[e] or correc[t]" abuses by their elected representatives. Neither of the premises on which Tenney rested can sustain today's holding. Immunity for appointed regional officials is without common-law antecedents or state constitutional status. Even the Compact does not purport to confer immunity on TRPA officials, and neither California nor Nevada has claimed any such intent in the briefs filed in the instant case. More significantly, none of TRPA's 10-member governing board is elected. Six are appointed by county and city governments in the area, two are appointed by the Governors of California and Nevada respectively, and two are members by virtue of their offices in state natural resource agencies. Compact, Art. III (a). Thus, no member of |
Justice Stevens | 1,979 | 16 | majority | Lake Country Estates, Inc. v. Tahoe Regional Planning Agency | https://www.courtlistener.com/opinion/110033/lake-country-estates-inc-v-tahoe-regional-planning-agency/ | resource agencies. Compact, Art. III (a). Thus, no member of the board is directly accountable to the public for his legislative acts. To cloak these officials with absolute protection where control by the electorate is so attenuated subverts the very system of checks and balances that the doctrine of legislative privilege was designed to secure. Insulating appointed officials from liability, no matter how egregious their "legislative" misconduct, is unlikely to enhance the integrity of the decisional process. Nor will public support for the outcome of such processes be fostered by a scheme placing these decision-makers beyond constitutional constraints. Equally troubling is the majority's refusal to confront the logical implications of its analysis. To be sure, the Court expressly reserves the question whether individuals performing legislative functions at the local level should be afforded absolute immunity from federal damages claims. Ante, at 404 n. 26. But the majority's reasoning in this case leaves little room to argue that municipal legislators stand on a different footing than their regional counterparts. Surely the Court's supposition that the "cost and inconvenience and distractions *408 of a trial" will impede officials in the " `uninhibited discharge of their legislative duty,' " ante, at 405, quoting applies with equal force whether the officials occupy local or regional positions. Moreover, the Court implies that the test for conferring unqualified immunity is purely functional. Ante, at 405 n. 30. If the sole inquiry under that test is the nature of the officials' responsibilities, see ib not the common-law and constitutional underpinnings of the privilege itself or the wisdom of extending it to nonelected officials, then presumably any appointed member of a municipal government can claim absolute protection for his legislative acts. A doctrine that denies redress for constitutional wrongs should, in my judgment, be narrowly confined to those contexts where history and public policy compel its acceptance. Today's decision both expands the scope of immunity beyond such limits and lays the groundwork for further extension. I respectfully dissent. MR. JUSTICE BLACKMUN, with whom MR. JUSTICE BRENNAN joins as to Part I, dissenting in part. I I cannot conclude so easily, as the Court does, ante, at 405-406, that the members of TRPA are absolutely immune from liability from federal claims for what ultimately may be determined to be legislative acts. Nor do I know what the Court means by a "regional legislator"other than its conclusion that members of TRPA are suchor where the line is now to be drawn between a "regional legislator" and a member of a public body somewhat farther down the scale of entities in |
Justice Stevens | 1,979 | 16 | majority | Lake Country Estates, Inc. v. Tahoe Regional Planning Agency | https://www.courtlistener.com/opinion/110033/lake-country-estates-inc-v-tahoe-regional-planning-agency/ | public body somewhat farther down the scale of entities in our varied political structures. It is difficult for me to associate the members of TRPA with federal or state legislators. Their duties are not solely legislative; they possess some executive powers. They are not in equipoise with other branches of government, and the concept *409 of separation of powers has no relevance to them. They are not subject to the responsibility and the brake of the electoral process. And there is no provision for discipline within the body, as the Houses of Congress and the state legislatures possess. I therefore am not now prepared to agree that the members of TRPA enjoy absolute immunity, against federal claims, for their "legislative" acts. I think they are entitled to qualified immunity within the limitations outlined in and Those cases, it seems to me, set forth the guidelines appropriate for this one, and I would follow them in the present context. II I also do not join the Court in its flat ruling, ante, at 404, that the Speech or Debate Clause of our Federal Constitution, Art. I, 6, has no application to state legislatures. That may well be, but some federal courts have ruled otherwise, ; In re Grand Jury Proceedings, and United and the controversy on this point remains a live one. See United (CA7), opinion on rehearing en banc, Because the issue of application of the Clause to state legislatures (as distinguished from TRPA) is not presented here, I would not decide it with a passing fiat. |
per_curiam | 1,981 | 200 | per_curiam | Ford Motor Credit Co. v. Cenance | https://www.courtlistener.com/opinion/110511/ford-motor-credit-co-v-cenance/ | The motion of the American Bankers Association for leave to file a brief as amicus curiae is granted. The motion of the California Bankers Association for leave to file a brief as amicus curiae is granted. These cases were consolidated in the Court of Appeals. In each, a prospective purchaser of an automobile entered into an installment sales transaction with an automobile dealer. Prior to completion of the transaction the dealer submitted the buyer's credit application to petitioner Ford Motor Credit Co. (FMCC). Once the dealer was notified that the buyer met FMCC's credit standards, the buyer and the dealer executed *156 a retail installment contract. On each contract the following legend appeared: "The foregoing contract hereby is accepted by the Seller and assigned to Ford Motor Credit Company in accordance with the terms of the Assignment set forth on the reverse side hereof." Pursuant to the arrangement between the dealer and FMCC, FMCC purchased each contract without recourse against the dealer. Although FMCC did not assist in the actual negotiations, it provided the dealer with credit forms, including blank retail installment contracts. Although each did so, none of the dealers was obligated to seek financing from FMCC in perfecting its sales transaction. Subsequently, each buyer brought suit in Federal District Court, alleging violations of the Truth in Lending Act, as amended, 15 U.S. C. 1601 et seq. The allegations common to all suits were that FMCC was a creditor within the meaning of the Act and that the statement concerning assignment to FMCC did not adequately disclose that status.[1] The respective District Courts agreed and the Court of Appeals for the Fifth Circuit affirmed. In determining that FMCC was a creditor, the Court of Appeals relied upon its prior decision in There the court had held under similar facts that it would be elevating form over substance to characterize a party such as FMCC, there Chrysler Credit Corp., as anything but a creditor. In the immediate case, the court reiterated that point: "The Meyers analysis applies with even greater force *157 to the instant situation because here the dealers regularly dealt only with Ford. The dealer and Ford prearranged for the assignment of the finance instrument. At no time did the risk of finance reside with the dealer. The transaction between dealer and automobile purchaser was conditioned upon acceptance of the credit application by Ford. Indeed, the credit application form was prepared by Ford. As in Meyers, it would be elevating form over substance to hold that Ford was anything but an original creditor within the meaning of the |
per_curiam | 1,981 | 200 | per_curiam | Ford Motor Credit Co. v. Cenance | https://www.courtlistener.com/opinion/110511/ford-motor-credit-co-v-cenance/ | anything but an original creditor within the meaning of the Act and Regulation Z." Having concluded that FMCC was a creditor within the meaning of the Act, the Court of Appeals went on to hold that the statement in the retail sales agreement notifying the buyer of the assignment to FMCC was an insufficient disclosure of creditor status in violation of 12 CFR 226.6 The court also held that FMCC was liable for certain other Truth in Lending Act violations pertinent to each particular suit. FMCC's petition for certiorari challenges these holdings. We grant the petition in major part,[2] affirm the holding that FMCC is a creditor within the meaning of the Act, but reverse the holding that the statement revealing the assignment to FMCC was not a sufficient disclosure of creditor status to satisfy 226.6 The Truth in Lending Act, as it stood prior to recent amendments, defined creditors in pertinent part as those "who regularly extend, or arrange for the extension of, credit" 15 U.S. C. 1602 (f). Regulation Z, promulgated *158 pursuant to the Act, defines the term consistently with the above: "Creditor' means a person who in the ordinary course of business regularly extends or arranges for the extension of consumer credit" 12 CFR 226.2 On the facts of this case, the above definition easily encompasses both the dealers and FMCC.[3] Each dealer arranged for the extension of credit but FMCC actually extended the credit. The facts negate any suggestion that the dealers anticipated financing any of these transactions. The sales were contingent upon FMCC's approval of the credit worthiness of the buyer. The acceptance of the contract and the assignment became operational simultaneously, and the assignment divested the dealer of any risk in the transaction. In short, we agree with the Court of Appeals that it would be elevating form over substance to conclude that FMCC is not a creditor within the meaning of the Act.[4] *159 Equally formalistic, however, is the conclusion below that the statement notifying the buyer of the assignment to FMCC was an insufficient disclosure of FMCC's creditor status. As the Court of Appeals recognized, other Courts of Appeals that have addressed this precise point have held that such a statement adequately disclosed FMCC's role in the transactions. ; ; rev'd on other grounds, Those courts have reasoned that the statement notifying the buyer that the contract was, upon acceptance, assigned to FMCC served the purpose of the Act by disclosing the nature of the relationship of the finance company to the transaction. It was unnecessary precisely to characterize FMCC as |
Justice Marshall | 1,976 | 15 | majority | Laing v. United States | https://www.courtlistener.com/opinion/109340/laing-v-united-states/ | These companion cases involve two taxpayers whose taxable years were terminated by the Internal Revenue Service (IRS) prior to their normal expiration date pursuant to the jeopardy-termination provisions of 6851 (1) of the Internal Revenue Code of 1954 (Code), 26 U.S. C. 6851 (1).[1] Section 6851 (1) allows the IRS immediately to terminate a taxpayer's taxable period when it finds that the taxpayer intends to do any act tending to prejudice or render ineffectual the collection of his income tax for the current or preceding taxable *164 year. Upon termination the tax is immediately owing and, after notice, the IRS may, and usually does, levy upon the taxpayer's property under 6331 of the Code, 26 U.S. C. 6331 to assure payment. We must decide whether the IRS, when assessing and collecting the unreported tax due after the termination of a taxpayer's taxable period, must follow the procedures mandated by 6861 et seq. of the Code, 26 U.S. C. 6861 et seq., for the assessment and collection of a deficiency whose collection is in jeopardy.[2] The answer, as we shall see, depends on whether the unreported tax due upon such a termination is a "deficiency" as defined in 6211 of the Code, 26 U.S. C. 6211 (1970 ed. and Supp. IV). The Government argues that the tax liability that arises after a 6851 termination cannot be a "deficiency," and that the procedures for the assessment and collection of deficiencies in jeopardy are therefore inapplicable. We reject this argument. We agree with the taxpayers that any tax owing, but unreported, after a 6851 termination is a deficiency, and that the assessment of that deficiency is subject to the provisions of 6861 et seq. We reverse in No. 73-1808 and affirm in No. 74-75. I A. No. 73-1808, Laing v. United Petitioner James Burnett McKay Laing is a citizen of New Zealand. *165 He entered the United from Canada on a temporary visitor's visa on May 31, 1972. On the following June 24, Mr. Laing and two companions sought to enter Canada from Vermont but were refused entry by Canadian officials. As they turned back, they were detained by United customs authorities at Derby, Vt. Upon a search of the vehicle in which the three were traveling, the customs officers discovered in the engine compartment a suitcase containing more than $300,000 in United currency. The IRS District Director found that petitioner Laing and his companions were in the process of placing assets beyond the reach of the Government by removing them from the United thereby tending to prejudice or render ineffectual the collection |
Justice Marshall | 1,976 | 15 | majority | Laing v. United States | https://www.courtlistener.com/opinion/109340/laing-v-united-states/ | United thereby tending to prejudice or render ineffectual the collection of their income tax.[3] He declared the taxable periods of petitioner and his companions immediately terminated under 6851 An assessment of $310,000 against each was orally asserted for the period from January 1 through June 24, 1972. The assessment against Mr. Laing was subsequently abated to the amount of $195,985.55 when a formal letter-notice of termination and demand for payment and the filing of a return were sent. Mr. Laing received no deficiency notice under 6861 (b) and no specific information about how the amount of the tax was determined.[4] After Mr. Laing and his companions refused to pay the tax, the IRS seized the currency that had been found *166 in the vehicle. A portion thereof was applied to the tax assessed against Mr. Laing.[5] On July 15, petitioner filed suit against the United the Commissioner of Internal Revenue, the District Director, and the Chief of the Collection Division, District of Vermont, in the United District Court for the District of Vermont. He asserted the absence of a notice of deficiency, which he claimed was required under 6861 (b), and he challenged as violative of due process both the provisions of the levy and distraint statute, 6331 and the actions of the IRS in seizing and retaining the currency "without any finding of a substantial or probable nexus between that money and taxable income." App. in No. 73-1808, p. 20.[6] The District Court, relying on its controlling court's decision in held that a notice of deficiency is not required when a taxable period is terminated pursuant to 6851 (1), and dismissed the suit as prohibited by the Federal Anti-Injunction Act, 7421 of the Code, 26 U.S. C. 7421 and as within the plain wording of the exception to the Declaratory Judgment Act, 28 U.S. C. 2201, for a controversy with respect to federal taxes. Adhering to its earlier ruling in Irving, the Second Circuit affirmed per curiam. It expressly declined to follow the Sixth Circuit's decision in[7] These rulings of the Second Circuit, and one of the *167 Seventh Circuit, Williamson v. United 31 A. F. T. R. 2d 73-800 (1971), appeared to be in conflict with holdings by other Courts of Appeals, Hall v. United ; and[8] Suggesting that the conflict was irreconcilable and noting that some 70 pending cases in the federal courts depended on its resolution, the Solicitor General did not oppose Mr. Laing's petition for certiorari. We granted certiorari to resolve the conflict.[9] B. No. 74-75, United v. Hall. Respondent Elizabeth Jane Hall is a |
Justice Marshall | 1,976 | 15 | majority | Laing v. United States | https://www.courtlistener.com/opinion/109340/laing-v-united-states/ | 74-75, United v. Hall. Respondent Elizabeth Jane Hall is a resident of Shelbyville, Ky. After the arrest of her husband in Texas on drug-related charges, Kentucky state troopers obtained a warrant and searched respondent's home on January 31, They found controlled substances there. The next day the Acting District Director notified respondent Hall by letter that he found her "involved in illicit drug activities, thereby tending to prejudice or render ineffectual collection of income tax for the period 1-1-73 thru 1-30-73." App. in No. 74-75, p. 11. Citing 6851, the Acting Director declared respondent's taxable period for the first 30 days of "immediately terminated" and her income tax for that period "immediately due and payable." He further informed respondent that a tax in the amount of $52,680.25 for the period "will be immediately assessed" and that "[d]emand for immediate payment of the full amount of this tax is hereby made." A return for the terminated period, pursuant to 443 (3) of the Code, 26 U.S. C. 443 *168 (3), was requested but not filed. The formal assessment was made on February 1. As was the case with Mr. Laing, Mrs. Hall received no deficiency notice under 6861 (b) and no specific information about how the amount of the tax had been determined. Respondent was unable to pay the tax so assessed. Therefore, the IRS, acting pursuant to 6331, levied upon and seized respondent's 1970 Volkswagen and offered it for sale.[10] Respondent Hall instituted suit on February 13 in the United District Court for the Western District of Kentucky, seeking injunctive relief and compensatory and punitive damages. The court issued an order temporarily restraining the IRS from selling the automobile and from seizing any more of respondent's property. Thereafter, relying upon Schreck v. United the court held that the Federal Anti-Injunction Act, 7421 was inapplicable because of the IRS's failure to follow the procedures of 6861 et seq. The court ordered the return of respondent's automobile upon her posting a bond in the amount of its fair market value.[11] It issued a preliminary injunction restraining the defendants (the United the Acting District Director, the Group Supervisor of Internal Revenue, and a lieutenant of the Kentucky State Police) "from harassing or intimidating [respondent] in any manner including but not limited to trespassing on, seizing or levying upon any of her property of whatever nature, be it rental property or not." Pet. for Cert. in No. 74-75, p. 5a. *169 On appeal, the United Court of Appeals for the Sixth Circuit affirmed per curiam, relying upon its opinion and decision in decided one |
Justice Marshall | 1,976 | 15 | majority | Laing v. United States | https://www.courtlistener.com/opinion/109340/laing-v-united-states/ | curiam, relying upon its opinion and decision in decided one month earlier. In Rambo the court had held that the failure of the IRS to issue a deficiency notice for a terminated taxable period, and the consequent unavailability of a remedy in the United Tax Court, entitled the taxpayer to injunctive relief. Because of the conflict, indicated above, we also granted certiorari in Mrs. Hall's case. II In these cases, the taxpayers seek the protection of certain procedural safeguards that the Government claims were not intended to apply to jeopardy terminations. Specifically, the taxpayers argue that the procedures mandated by 6861 et seq. for assessing and collecting deficiencies whose collection is in jeopardy also govern assessments of taxes owing, but not reported, after the termination of a taxpayer's taxable period under 6851. Resolution of this claim requires analysis of the interplay between these two basic jeopardy provisions 6851, the jeopardy-termination provision, and 6861, the jeopardy-assessment provision. The initial workings of the jeopardy-termination provision, which essentially permits the shortening of a taxable year, are not in dispute. When the District Director determines that the conditions of 6851 are metgenerally, that the taxpayer is preparing to do something that will endanger the collection of his taxes[12]the District Director may declare the taxpayer's *170 current tax year terminated. The tax for the shortened period and any unpaid tax for the preceding year become due and payable immediately, 6851 and the taxpayer must file a return for the shortened year. 443 (3). The disagreement between the taxpayers and the Government focuses on the applicability of the jeopardy-assessment procedures of 6861 et seq. to the assessment[13] and collection of taxes that become due upon a 6851 termination. Section 6861 provides for the immediate assessment of a deficiency, as defined in 6211 whenever the assessment or collection of the deficiency would be "jeopardized by delay." By allowing an immediate assessment, 6861 provides an exception to the general rule barring an assessment until the taxpayer has been sent a notice of deficiency and has been afforded an opportunity to seek resolution of his tax liability in the Tax Court.[14] Certain procedural safeguards are provided, however, to the taxpayer whose deficiency is assessed *171 immediately under 6861 Within 60 days after the jeopardy assessment, the District Director must send the taxpayer a notice of deficiency, 6861 (b), which enables the taxpayer to file a petition with the Tax Court for a redetermination of the deficiency, 26 U.S. C. 6213 (1970 ed., Supp. IV). The taxpayer can stay the collection of the amount assessed by posting an equivalent |
Justice Marshall | 1,976 | 15 | majority | Laing v. United States | https://www.courtlistener.com/opinion/109340/laing-v-united-states/ | the collection of the amount assessed by posting an equivalent bond, 6863 Any property seized for the collection of the tax cannot be sold until a notice of deficiency is issued and the taxpayer is afforded an opportunity to file a petition in the Tax Court. If the taxpayer does seek a redetermination of the deficiency in the Tax Court, the prohibition against sale extends until the Tax Court decision becomes final. 6863 (b) (3) (A).[15] The taxpayers view the provisions of 6861 et seq. as complementary to those of 6851. They contend that to the extent the tax owing upon a jeopardy termination has not been reported, it is a "deficiency" as that term is defined in 6211 and used in 6861 and that the deficiency, being of necessity one whose assessment or collection is in jeopardy,[16] must be assessed and collected in accordance with the procedures of 6861 et seq. Under the Government's view, on the other hand, 6851 and 6861 are aimed at distinct problems and have no bearing on each other. "Section 6851," according to the Government, "advances the date when *172 taxes are due and payable, while Section 6861 advances the time for collection of taxes which are already overdue [i. e., already owing for a prior, normally expiring taxable year]." Brief for United 10. The validity of this distinction rests on the Government's claim that a deficiency can arise only with respect to a nonterminated taxable year, so that no deficiency can be created by a 6851 termination. If there is no deficiency to assess, of course, the provisions of 6861 et seq. cannot apply. Thus, under the Government's reading of the Code, the procedures for assessment and collection of a tax owing, but not reported, after the termination of a taxable period are not governed by 6861 et seq.[17] The Government argues that, with the single exception of the bond provision of 6851 (e), the taxpayer's only remedy upon a jeopardy termination is to pay the tax, file for a refund, and, if the refund is refused, bring suit in the district *173 court or the Court of Claims. See 28 U.S. C. 1346 (1). Since the IRS has up to six months to act on a request for a refund, the taxpayer, under the Government's theory, may have to wait up to half a year before gaining access to any judicial forum. See 26 U.S. C. 6532 7422 (1970 ed. and Supp. IV). The Government does not seriously challenge the taxpayers' conclusion that if the termination of their taxable periods created a |
Justice Marshall | 1,976 | 15 | majority | Laing v. United States | https://www.courtlistener.com/opinion/109340/laing-v-united-states/ | that if the termination of their taxable periods created a deficiency whose assessment or collection was in jeopardy, the assessments and collections in these cases should have been pursuant to the procedures of 6861 et seq. The question, then, is whether the tax owing, but not reported, upon a jeopardy termination is a deficiency within the meaning of 6211 III In essence, a deficiency as defined in the Code is the amount of tax imposed less any amount that may have been reported by the taxpayer on his return.[18] 6211 *174 Where there has been no tax return filed, the deficiency is the amount of tax due. Treas. Reg. 301.6211-1 26 CFR 301.6211-1 (1975). As we have seen, upon terminating a taxpayer's taxable year under 6851, the District Director makes a demand for the payment of the unpaid tax for the terminated period and for the preceding taxable year. The taxpayer is then required to file a return for the truncated taxable year. 443 (3). The amount due, of course, must be determined according to ordinary tax principles, as applied to the abbreviated reporting period. The amount properly assessed upon a 6851 termination is thus the amount of tax imposed under the Code for the preceding year and the terminated short year, less any amount that may already have been paid. To the extent this sum has not been reported by the taxpayer on a return, it fits precisely the statutory definition of a deficiency.[19] The Government resists this conclusion by reading the definition of "deficiency" restrictively to include only those taxes due at the end of a full taxable year when a return has been or should have been made. It argues that a "deficiency" cannot be determined before the close of a taxable year. Of course, we agree with the Government *175 that a deficiency does not arise until the tax is actually due and the taxable year is complete. The fact is, however, that under 6851 the tax is due immediately upon termination. Moreover, upon a 6851 termination, the taxpayer's taxable year has come to a close. See[20] Section 441 (b) (3) defines as a "taxable year" the terminated taxable period on which a return is due under 443 (3). See also 7701 (23). Under the statutory definition of 6211 the tax owing and unreported after a jeopardy termination, which in these cases and in most 6851 terminations is the full tax due, is clearly a deficiency. We see nothing in the definition to suggest that a deficiency can arise only at the conclusion of a 12-month |
Justice Marshall | 1,976 | 15 | majority | Laing v. United States | https://www.courtlistener.com/opinion/109340/laing-v-united-states/ | deficiency can arise only at the conclusion of a 12-month taxable year; it is sufficient that the taxable period in question has come to an end and the tax in question is due and unreported.[21] *176 Besides conflicting with the plain language of the Code provisions directly before us, the Government's position in these cases would, for no discernible purpose, isolate the taxpayer subjected to a jeopardy termination from most other income-tax payers. If the unreported tax due after a jeopardy termination is not a deficiency, the IRS need not issue the taxpayer a deficiency notice and accord him access to the Tax Court for a redetermination of his tax. Denial of an opportunity to litigate in the Tax Court is out of keeping with the thrust of the Code, which generally allows income-tax payers access to that court. Where exceptions are intended, the Code is explicit on the matter. See, e. g., 6871 (b). Denying a Tax Court forum to a particular class of taxpayers is sufficiently anomalous that an intention to do so should not be imputed to Congress when the statute does not expressly so provide. This is particularly so in view of the Government's concession that the jeopardy-assessment procedures of 6861 et seq. are sufficient to protect its interests, and that providing taxpayers with the *177 limited protections of those procedures would not impair the collection of the revenues.[22] IV While the plain language of the provisions at issue here and their place in the legislative scheme suggest that the unreported tax due upon a 6851 termination is a deficiency and that the deficiency, its collection being in jeopardy, must be assessed and collected according to the procedures of 6861 et seq., the Government attempts to undercut this conclusion by pointing to the legislative history of the several provisions at issue in this case. We are unpersuaded. The jeopardy-assessment and jeopardy-termination provisions have long been treated in a closely parallel fashion, and nothing that the Government points to in the early codifications suggests the contrary. As the Government points out, the Revenue Act of 1918 (1918 Act) contained a termination provision, 250 (g), that was very similar to the present 6851. Under the 1918 statute all assessments were made under the authority of Rev. Stat. 3182,[23] and the taxpayer could attack an assessment only by paying the amount claimed and bringing suit for a refund in district court. Since there was no way for the taxpayer to contest assessments prior to payment, the Government had no need for any expedited jeopardy-assessment procedure *178 such as is |
Justice Marshall | 1,976 | 15 | majority | Laing v. United States | https://www.courtlistener.com/opinion/109340/laing-v-united-states/ | need for any expedited jeopardy-assessment procedure *178 such as is now authorized in 6861.[24] When a termination was made under 250 (g), the tax assessment and collection thus proceeded exactly as in any other case the taxpayer had to pay first and litigate later. In the Revenue Act of 1921 (1921 Act), Congress added both a special procedure for prepayment challenges to assessments and an exception to that procedure. The special procedure made available, under certain circumstances, a limited administrative remedy within the Bureau of Internal Revenue (predecessor to the IRS) by which taxpayers could question assessments before paying the taxes assessed. 250 (d) of the 1921 Act, The Commissioner could, however, *179 pretermit that procedure if he believed that collection of the revenues might be jeopardized by delay. This exception, contained in a proviso to 250 (d), was the precursor of 6861. Since the proviso limited the availability of the administrative remedy to cases where collection of the taxes due would not be "jeopardized by such delay," the remedy was necessarily inapplicable to cases in which a 250 (g) termination was made. As of 1921, then, the nascent prepayment remedy was available to ordinary taxpayers but not to taxpayers in either jeopardy situationwhere the tax year had been terminated pursuant to 250 (g), or where the full tax year had run and the Commissioner had determined that the collection of the tax would be jeopardized under the proviso to 250 (d). The Government, however, relies heavily on the 1921 Act, claiming that "[t]he key to an understanding of the term `deficiency' lies" therein. Brief for United 42. It relies on a reference to the term "deficiency" in 250 (b), which set out the procedure for handling under-payments after returns had been filed: "If the amount already paid is less than that which should have been paid, the difference, to the extent not covered by any credits due to the taxpayer under section 252 (hereinafter called `deficiency') shall be paid upon notice and demand by the collector." This "hereinafter" reference was permanently eliminated when the Act was revised in the Revenue Act of 1924 (1924 Act) and the word "deficiency" precisely defined in much the same way as it is today. Nonetheless, the Government persists in viewing the reference in the 1921 Act as an authoritative definition of "deficiency." Since the reference related only to money owed after a return had been filed and examined, the Government *180 argues that Congress in 1921 did not consider the amount assessed pursuant to a jeopardy termination which often must be assessed before |
Justice Marshall | 1,976 | 15 | majority | Laing v. United States | https://www.courtlistener.com/opinion/109340/laing-v-united-states/ | to a jeopardy termination which often must be assessed before a return is filedto be a "deficiency." This supposed limitation in the 1921 Act continues, in the Government's view, to this day. We disagree with the Government's analysis. To understand the use of the word "deficiency" in the 1921 Act, it is necessary to begin with the 1918 Act, where the term first appeared. In the 1918 statute the term was not formally defined but appeared in various provisions dealing with underpayments and overpayments of tax, referring to the difference between the amount due and the amount already paid. "Deficiency" was used synonymously with the word "understatement," and it is clear from the context that neither word was being used as a term of art. In the 1921 Act, the 1918 language was left largely unchanged, except that after the reference to the difference between the amount paid and the amount due, Congress added the parenthetical expression "(hereinafter called `deficiency')," and from that point on replaced all references to "understatement" with the word "deficiency." From the context, it is evident that the "hereinafter" parenthetical term was not intended as a restrictive definition of deficiency, but merely as an indication that throughout the subsection the word would be used as shorthand for the difference between the amount paid and the amount that should have been paid.[25] We thus find nothing in the informal use of the term "deficiency" in the 1921 Act to limit our construction *181 of the precise definition in 6211 of the present Code. In 1924 Congress made a number of important changes in the jeopardy-assessment scheme. The termination section, 282, remained basically the same as it had been in 250 (g) of the 1921 Act, but taxpayers' prepayment remedies in the jeopardy-assessment provision were substantially altered. Section 274 of the 1924 Act, provided that if, "in the case of any taxpayer, the Commissioner determine[d] that there is a deficiency" in the tax imposed by the Act, the Commissioner was required to mail a notice of deficiency to the taxpayer. Within 60 days of mailing of the notice, and prior to payment of the deficiency, the taxpayer was entitled to file an appeal with the Board of Tax Appeals, an agency independent of the Bureau of Internal Revenue. The only exception to this statutory provision permitting general access to the Board of Tax Appeals was that for a jeopardy assessment. The jeopardy-assessment provision, 274 (d), permitted the Commissioner to assess and collect a deficiency immediately, bypassing various procedures set out in 274 for the ordinary assessment and collection |
Justice Marshall | 1,976 | 15 | majority | Laing v. United States | https://www.courtlistener.com/opinion/109340/laing-v-united-states/ | set out in 274 for the ordinary assessment and collection of deficiencies. Even in the jeopardy-assessment situation, however, the taxpayer could gain access to the Board of Tax Appeals by posting a bond. 279 Section 273 of the 1924 Act defined "deficiency," much as it is now defined, as the amount by which the tax due exceeds the tax shown on the taxpayer's return, or, "if no return is made by the taxpayer, then the amount by which the tax exceeds the amounts previously assessed (or collected without assessment) as a deficiency." 273 (2). In cases in which no return was filed and no amount had previously been assessed or collected, 273 (2) in effect defined a "deficiency" simply as the amount *182 of tax due. Since 282the termination provision provided that at the time of termination the Commissioner would demand "immediate payment of the tax for the taxable period so declared terminated and of the tax for the preceding taxable year or so much of such tax as is unpaid" and that the tax demanded would become "immediately due and payable," the tax "due and payable" at the time of the termination notice, to the extent unreported, would appear to fit the definition of "deficiency" in 273 (2). This being so, the Government's assertion that under the 1924 Act, 282 terminations were not subject to the procedures of 274 (d) is incorrect, and much of the force of its argument from the history of the statute is lost. With the amendments made by the Revenue Act of 1926, c. 27, the statutory provisions relevant to these cases took essentially their present form. The jurisdiction of the Board of Tax Appeals (subsequently renamed the Tax Court) was broadened, in part by granting taxpayers subjected to jeopardy assessments a means of having their assessment redetermined by the Board without having to post bond as had previously been required. Under the new jeopardy-assessment procedures, the Commissioner could immediately assess the deficiency, but in addition to a demand for payment, he was required to send a notice of deficiency, 279 (b), which allowed the jeopardy taxpayer immediate access to the Board of Tax Appeals. 274 As in the 1924 Act, there was no indication that taxpayers subjected to a jeopardy termination would not then be assessed under the jeopardy-assessment procedures to the extent a deficiency was owing, and thereby allowed to follow the same route to the Board of Tax Appeals that was available to other jeopardy taxpayers. *183 In sum, to the extent that it sheds any light on the question at |
Justice Marshall | 1,976 | 15 | majority | Laing v. United States | https://www.courtlistener.com/opinion/109340/laing-v-united-states/ | extent that it sheds any light on the question at all, the legislative history seems to help the taxpayers rather than the Government. In the course of the development of a prepayment remedy and a jeopardy exception to that remedy between 1918 and 1926, taxpayers subjected to jeopardy terminations and those subjected to jeopardy assessments for nonterminated taxable years were consistently treated alike. In 1921, when the administrative remedy was first created, neither those subjected to a jeopardy assessment for a nonterminated year nor those subjected to a termination could avail themselves of that remedy. In 1924, those terminated and those subjected to jeopardy assessments for nonterminated years were similarly denied access to the Board of Tax Appeals, unless they filed a bond in the amount of the claim. And in 1926, when the scheme assumed its current form, there was no indication that Congress intended for the first time to treat the two groups separately by granting direct access to the Board of Tax Appeals to those subjected to a jeopardy assessment for a nonterminated year, but denying it to those subjected to an assessment following a jeopardy termination. V Based on the plain language of the statutory provisions, their place in the legislative scheme, and the legislative history, we agree with the taxpayers' reading of the pertinent sections of the Code.[26] Under that reading, the *184 tax owing, but not reported, at the time of a 6851 termination is a deficiency whose assessment and collection are subject to the procedures of 6861 et seq. Section 6861 (b) requires a notice of deficiency to be mailed to a taxpayer within 60 days after the jeopardy assessment. Section 6863 bars the offering for sale of property seized until the taxpayer has had an opportunity to litigate in the Tax Court. Because the District Director failed to comply with these requirements in these cases, the taxpayers' suits were not barred by the Anti-Injunction Act,[27] 7421 of the Code. The judgment of the *185 United Court of Appeals for the Sixth Circuit in No. 74-75 is affirmed. The judgment of the United Court of Appeals for the Second Circuit in No. 73-1808 is reversed, and the case is remanded to that court for further proceedings consistent with this opinion. It is so ordered. MR. JUSTICE STEVENS took no part in the consideration or decision of these cases. MR. |
Justice Kennedy | 1,999 | 4 | dissenting | West v. Gibson | https://www.courtlistener.com/opinion/118305/west-v-gibson/ | The rules governing this case are clear and well established, or at least had been before the majority's unsettling opinion today. Relief may not be awarded against the United States unless it has waived its sovereign immunity. See Department of The waiver must be expressed in unequivocal statutory text and cannot be implied. ; Even when the United States has waived its immunity, the waiver must be "strictly construed, in terms of its scope, in favor of the sovereign," Blue ; accord, at for "`this Court has long decided that limitations and conditions upon which the Government consents to be sued must be strictly observed and exceptions thereto are not to be implied,' " quoting Not only do these rules reserve authority over the public fisc to the branch of Government with which the Constitution has placed it, they also form an important part of the background of settled legal principles upon which Congress relied in enacting various statutes authorizing suits against the United States, such as the Tucker Act, 28 U.S. C. 1491; 10(a) of the Administrative Procedure Act, 5 U.S. C. 702; and the Federal Tort Claims Act, 28 U.S. C. 2671 et seq. The rules governing waivers of sovereign immunity make clear that the Equal Employment Opportunity Commission (EEOC) may not award or authorize compensatory damages against the United States unless it is permitted to do so by a statutory provision which waives the United States' immunity to the awards in clear and unambiguous terms. Section 717(b) of Title VII of the Civil Rights Act of 1964, 42 U.S. C. 2000e16(b), which authorizes the EEOC to enforce federal compliance with Title VII "through appropriate remedies, including reinstatement or hiring of employees *225 with or without back pay," effects a waiver of the United States' sovereign immunity for some purposes. Unlike other similar statutes, however, the provision does not mention awards of compensatory damages. Compare 717(b) with 2 U.S. C. 1311(b)(1)(B), 1405(g) (1994 ed., Supp. III). A waiver of immunity to other types of relief does not provide the unequivocal statement required to establish a waiver of immunity to damages awards. See United ("Though [11 U.S. C. 106(c)], too, waives sovereign immunity, it fails to establish unambiguously that the waiver extends to monetary claims"); at Nor does the statutory grant of authority to the EEOC to enforce Title VII through appropriate remedies include, in unequivocal terms or even by necessary implication, the power to award or authorize compensatory damages. Even if the phrase "appropriate remedies" had been intended, as the majority maintains, to incorporate relief authorized for violations |
Justice Kennedy | 1,999 | 4 | dissenting | West v. Gibson | https://www.courtlistener.com/opinion/118305/west-v-gibson/ | as the majority maintains, to incorporate relief authorized for violations of Title VII under other statutory provisions, it is not obvious that the phrase's meaning would have been intended also to "expand" to include remedies that were not available at the time 717 was adopted. Ante, at 218. It is far from clear, moreover, that the phrase was intended to incorporate other statutory provisions at all. Unlike other subsections of 717, see 717(d) (incorporating various provisions relating to judicial actions), 717(b) does not make an explicit reference to other statutory provisions. In addition, the specific examples given by the statute of appropriate remediesreinstatement or hiring of employees with or without backpayare equitable in nature. See United The interpretive canons of noscitur a sociis and ejusdem generis suggest the appropriate remedies authorized by 717(b) are remedies of the same nature as reinstatement, hiring, and backpayi. e., equitable remedies. The phrase "appropriate remedies," furthermore, connotes the remedial discretion *226 which is the hallmark of equity. A plausible, and perhaps even the best, interpretation of 717(b), then, is that it grants administrative authority to determine which of the traditional forms of equitable relief are appropriate in any given case of discrimination. Whether or not this is the better reading, it should suffice to establish beyond dispute that the statute does not authorize awards of compensatory damages in express and unequivocal terms. As a consequence, 717(b) cannot provide the required waiver of the United States' sovereign immunity. Unlike 717(b), 42 U.S. C. 1981a does authorize awards of compensatory damages against the United States. Although it is clear the statute authorizes courts to award damages, however, 1981a does not so much as mention the EEOC, much less empower it to award or authorize money damages. It is settled law that a waiver of sovereign immunity in one forum does not effect a waiver in other forums. See, e. g., ; Great Northern Life Ins. ; The majority's attempt to read 42 U.S. C. 1981a(a)(1) to authorize administrative awards of compensatory damages is not persuasive. Section 1981a(a)(1) provides: "In an action brought by a complaining party under section 706 or 717 of the Civil Rights Act of 1964 the complaining party may recover compensatory and punitive damages as allowed in subsection (b) of this section, in addition to any relief authorized by section 706(g) of the Civil Rights Act of 1964" *227 The provision authorizes an award of compensatory damages in an "action" brought under 717; the word "action" is often used to distinguish judicial cases from administrative "proceedings." See New York Gaslight Club, Unlike 717(b), |
Justice Kennedy | 1,999 | 4 | dissenting | West v. Gibson | https://www.courtlistener.com/opinion/118305/west-v-gibson/ | from administrative "proceedings." See New York Gaslight Club, Unlike 717(b), which authorizes administrative proceedings, 717(c) authorizes "civil action[s]" in court. It is most natural, therefore, to understand the phrase "an action brought by a complaining party under section 717" as a reference to a judicial action under 717(c) but not to an administrative proceeding under 717(b). Compensatory awards are authorized under 1981a(a)(1), moreover, "in addition to any relief authorized by section 706(g) of the Civil Rights Act of 1964." Section 706(g) authorizes a "court" to grant equitable relief for violations of Title VII. This provision, as incorporated through 717(d), applies only in "civil actions" brought under 717(c); it does not apply in proceedings before the EEOC or any other agency. Section 1981a(a)(1)'s express reference to 706(g) confirms that compensatory damages are available only in judicial actions. Other provisions of 1981a also make clear that the statute authorizes compensatory damages only in judicial actions. Section 1981a(c) provides that "[i]f a complaining party seeks compensatory damages under this section(1) any party may demand a trial by jury; and (2) the court shall not inform the jury of the limitations [on damages awards] described in subsection (b)(3) of this section." It cannot be disputed that this provision contemplates a jury trial overseen by a court. With due respect to the majority, the provision does not guarantee a jury trial to either party "if a complaining party proceeds to court under 717(c)," ante, at 221; it provides that either party may obtain a jury trial "[i]f a complaining party seeks compensatory damages," 1981a(c). While falling short of embracing the argument as its own, the majority flirts with the contention that allowing agencies rather than juries to award compensatory damages lowers *228 the costs of resolving employment disputes and protects the public fisc. It is not clear to me that juries would be less protective of the fisc than would one group of Government employees who deem themselves empowered by agency interpretation to award Government funds to fellow employees. When a Government employee seeks damages from the Government itself, there may be advantages in insisting upon the expertise of a trial court with experience in awarding damages in all types of cases, with the additional safeguards of trial in a forum of high visibility, trial by jury if either party chooses to ask for it, and appellate review. These factors are disregarded by the majority, which seems instead to suggest that the nature and convenience of administrative proceedings will by necessity provide a financial advantage to the Government. In all events, speculation does not suffice |
Justice Douglas | 1,971 | 10 | concurring | Ely v. Klahr | https://www.courtlistener.com/opinion/108363/ely-v-klahr/ | The complaint in this case was filed on April 27, 1964. The District Court stayed all proceedings on June 25, 1964, until after the next regular session of the legislature and, when nothing was achieved, stayed them again until after a special session. A reapportionment plan produced by that legislature was held unconstitutional. Thereupon the District Court drew a "temporary and provisional" plan for the general elections of 1966 and 1968. See ; ; In 1967 the legislature produced another plan which was approved by the voters and became effective January 17, 1969. This plan was also declared unconstitutional by the District Court on July 22, 1969. The legislature then adopted a new plan effective January 22, 1970. The District Court allowed this plan to be used for the 1970 general election, although it considered the plan to be unconstitutional. The District Court in its decree provided: "The court, having been advised that detailed population figures for the State of Arizona will be available from the official 1970 census by the summer of 1971, assumes that the Arizona Legislature will by November 1, 1971, enact a valid plan of reapportionment for both houses of the Arizona Legislature and a valid plan of redistricting the congressional *117 districts of Arizona. Upon failure of the Legislature so to do, any party to this action may apply to the court for appropriate relief." The District Court also retained jurisdiction of the cause. Since Arizona has not had a constitutionally valid apportionment plan. Members of the Arizona Legislature who were elected in the 1970 election were elected under a plan the District Court held unconstitutional. Under that plan a computer was instructed to redistrict the State and to accomplish, in order, the following objectives: (1) to make the districts as equal in population as possible; (2) to circumscribe the districts in such a way that each included one incumbent senator and two incumbent representatives; (3) to make the districts compact; and (4) to make districts politically homogeneous. Even assuming the legislative districts were of equal population the plan would have several practical deficiencies as far as minority representation goes. The 1970 plan insured that no incumbent would be running against another incumbent, as often may happen under a reapportionment plan. Thus the opportunity for preserving the status quo was assisted. An effort to make each district politically homogeneous compounded this problem. The record provides a new definition of gerrymandering. A gerrymandered district in Arizona is not one where a "natural" majority finds its power erased by either moving lines to increase the numbers of |
Justice Douglas | 1,971 | 10 | concurring | Ely v. Klahr | https://www.courtlistener.com/opinion/108363/ely-v-klahr/ | erased by either moving lines to increase the numbers of the opposition in the district or by moving the lines so that a majority is dispersed. In Arizona a gerrymandered district came to be one that is overwhelmingly either Republican or Democratic. Thus when the second and fourth factors are combined an incumbent had not only the natural benefits of incumbency, *118 but also the benefits (where possible) of a one-party district, his own fiefdom. The record reveals that the 1970 plan heavily favored incumbents even if we assumed equal population districts. Such an assumption, of course, is contrary to the facts; deviations in Arizona ranged from about 24% above the median to about 52% below the median. The basic unit for a district was the local political precinct. Unfortunately, there were no population figures for the basic unit, thus making it difficult to build the districts. Such figures were created by programming the computer to assume that a precinct population was that part of the 1960 county population which the number of registered voters in the precinct in 1968 bore to the number of registered voters in the country in 1968. If all segments of society were equally likely to register to vote, then the Arizona method of computing population would be unobjectionable. But all members of a community are not equally likely to register. For example, only two counties out of eight with Spanish surname populations in excess of 15% showed a voter registration equal to the statewide average.[1] Not only are the poor, the blacks, the Chicanos, and the Indians less likely to register in the first place, they are also likely to have a higher rate of illiteracy among their members. Arizona law at the time of the decision below required a literacy test for voter registration. (4), 16-101 (5). Naturally this compounded the problem of underregistration of minority groups.[2]*119 While the present record lacks some basic statistics, we do know that in 1965 the Bureau of the Census determined that less than 50% of the residents of voting age were registered or voted in the 1964 presidential election in Apache County, Navajo County, and Coconino County. 14505. Under 4 (a) of the Voting Rights Act of 1965, the application of the literacy tests was suspended by the publication of the statistics in the Federal Register, but the suspension was lifted a year later on the showing that the literacy tests had not been used in a discriminatory manner. Apache As of last fall Yuma County was subject to the literacy test ban of the Voting |
Justice Douglas | 1,971 | 10 | concurring | Ely v. Klahr | https://www.courtlistener.com/opinion/108363/ely-v-klahr/ | was subject to the literacy test ban of the Voting Rights Act of 1965. See 131 n. 12. The 1970 plan adversely affected minorities. Because of the registration statistics used, one district in the Phoenix ghetto had approximately 70,000 residents while an affluent all-white district in another area of Phoenix had only 27,000 residents. The Indian reservation area in northeastern Arizona fared little better. While it had sufficient numbers of Indians to justify a separate district which could undoubtedly elect Indian representatives in the state legislature, the Indians were done in. At the time of this suit there were no Indians elected to either the State House or Senate. But just to the south of the area two state senators lived 10 miles apart. Hence, the incumbency rule was invoked to split the Indian area so as to accommodate the two white senators. The Arizona Legislature has yet to develop a reapportionment plan which can pass constitutional muster. The incumbents who now have the opportunity to draft *120 the plan come from districts which are malapportioned and overrepresent the white vote. A valid apportionment plan will seemingly mean the defeat of several incumbents. The new efforts to gerrymander the State for the members of the current legislature will doubtless be prodigious. Members of the 1970 legislature had the twin advantages of running as single incumbents and in politically homogeneous districts. Members of minority groups had the disadvantage of underrepresentation. That invidious discrimination still exists. On oral argument it was said that there is no point in initiating the design of a reapportionment plan now because the 1970 census figures are not available. That argument is difficult to comprehend, for it appears[3] that in March 1971 New Jersey completed a comprehensive reapportionment plan based on the 1970 census. The District Court has shown great patience and has been persevering. It probably is the first to realize that the Gordian knot must be cut if there is to be a plan that satisfies constitutional requirements. It has indicated it will wait until November 1, 1971, before it initiates a constitutional plan. The hearings on such a plan will doubtless be long drawn out and extensive. The prize is great, for if the present incumbents can prolong matters, the 1972 election may come and go with the existing invalid 1970 plan in effect. It is not difficult to imagine how easy that strategy might be. The 1972 primaries in Arizona are in September.[4] Primaries apart, there is always the problem of review by this Court. We are plagued with election cases coming here |
Justice Douglas | 1,971 | 10 | concurring | Ely v. Klahr | https://www.courtlistener.com/opinion/108363/ely-v-klahr/ | this Court. We are plagued with election cases coming here on the eve of elections, with the remaining *121 time so short we do not have the days needed for oral argument and for reflection on the serious problems that are usually presented. If an election case is filed in our summer recess, we will not consider it until the first week in October; and our effort to note the appeal, hear the case, and decide it before November without disrupting the state election machinery is virtually impossible. The time needed is lacking.[5] *122 If a case is to be heard and decided on these important issues it must be here by February so that we can work it into our spring calendar of argued cases and decide it before July. If the District Court waits until November to hold hearings and put a reapportionment plan in operation, it is unlikely that any such schedule can be met. It is, therefore, essential that the judicial machinery be put into motion soon, so that a resolution of a matter *123 that has defied solution for seven years be no longer delayed. I write these words not in criticism of the District Court but in support of its steadfast efforts to bring this stubborn litigation to an early end. MR. JUSTICE HARLAN concurs in the result upon the premises set forth in his separate opinions in Whitcomb v. Chavis, post, p. 165; ; and |
Justice Brennan | 1,978 | 13 | dissenting | Sears, Roebuck & Co. v. Carpenters | https://www.courtlistener.com/opinion/109862/sears-roebuck-co-v-carpenters/ | The Court concedes that both the objective and the location of the Union's peaceful, nonobstructive picketing of *215 Sears' store may have been protected under the National Labor Relations Act.[1] Therefore, despite the Court's transparent effort to disguise it, faithful application of the principles of labor law pre-emption established in San Diego Building Trades[2] would compel the conclusion that the California Superior Court was powerless to enjoin the Union from picketing on Sears' property: that the trespass was arguably protected is determinative of the state court's lack of jurisdiction, whether or not pre-emption limits an employer's remedies. See ; Meat ;[3] By holding that the arguably protected character of union activity will no longer be sufficient to pre-empt state-court jurisdiction, the Court creates an exception of indeterminate dimensions to a principle of labor law pre-emption that has been followed for at least two decades. Now, when the employer *216 lacks a "reasonable opportunity" to have the Board consider whether the challenged aspect of the employee conduct is protected and when employees having that opportunity have not invoked the Board's jurisdiction, a state court will have jurisdiction to enjoin arguably protected activity if the "risk of an erroneous adjudication [by it does not outweigh] the anomalous consequence [of denying a remedy to the employer]." Ante, at 206. In making this rather amorphous determination, the lower courts apparently are to consider the strength of the argument that 7 in fact protects the arguably protected activity, their own assessments of their ability correctly to determine the underlying labor law issue, and the strength of the state interest in affording the employer an opportunity to have a state court restrain the arguably protected conduct. This drastic abridgment of established principles is unjustified and unjustifiable. The test, itself fashioned after some 15 years of judicial experience with jurisdictional conflicts that threatened national labor policy, see Motor Coach has provided stability and predictability to a particularly complex area of the law for nearly 20 years. Thus, the most elementary notions of stare decisis dictate that the test be reconsidered only upon a compelling showing, based on actual experience, that the test disserves important interests. Emphatically, that showing has not been and cannot be made. Rather, the test has proved to embody an entirely acceptable, and probably the best possible, accommodation of the competing state-federal interests. That an employer's remedies in consequence may be limited, while anomalous to the Court, produces no positive social harm; on the contrary, the limitation on employer remedies is fully justified both by the ease of application of the test by thousands |
Justice Brennan | 1,978 | 13 | dissenting | Sears, Roebuck & Co. v. Carpenters | https://www.courtlistener.com/opinion/109862/sears-roebuck-co-v-carpenters/ | by the ease of application of the test by thousands of state and federal judges and by its effect of averting the danger that state courts may interfere with national labor policy. In *217 sharp contrast, today's decision creates the certain prospect of state-court interference that may seriously erode 7's protections of labor activities. Indeed, the most serious objection to the decision today is not that it is contrary to the teachings of stare decisis but rather that the Court's attempt to create a narrow exception to the principles of promises to be applied by the lower courts so as to disserve the interests protected by the national labor laws. I It is appropriate to recall the considerations that have shaped the development of the doctrine of labor law pre-emption. The National Labor Relations Act (Act), of course, changed the substantive law of labor relations. Prior to its enactment many courts treated concerted labor activities of employees as tortious conspiracies or restraints of trade to be enjoined unless the activities related to a specific benefit sought by the employees from their employer; activity directed at strengthening the union was, for these courts, impermissible. See F. Frankfurter & N. Greene, The Labor Injunction 26-29 (1930) (hereafter Frankfurter & Greene). While some courts regarded peaceful picketing as permissible if intended to attain lawful objectives, others regarded picketing as always enjoinable. Section 7 abrogated these state laws. It declares that "concerted activities for the purpose of collective bargaining or other mutual aid or protection," including specific types and forms of picketing, are protected from interference from any source. Section 7 further provides that employers no longer have an absolute right to prohibit concerted activities occurring on their properties; unwilling employers frequently are required to suffer the presence of organizational activities on their premises. See ; ; Republic Aviation *218 But the Act did more than displace certain state laws. Section 8 (a) of the Act declares that it is an unfair labor practice for an employer to interfere with employee exercise of 7 rights, and 8 (b) of the Act provides that certain forms of employee activity, including several types of picketing, are unfair labor practices. Congress created the National Labor Relations Board to administer these provisions and prescribed a detailed procedure for the imposition of restraint on any conduct that is violative of the Act: charge and complaint, notice and hearing, and an order pending judicial review. The animating force behind the doctrine of labor law pre-emption has been the recognition that nothing could more fully serve to defeat the purposes of |
Justice Brennan | 1,978 | 13 | dissenting | Sears, Roebuck & Co. v. Carpenters | https://www.courtlistener.com/opinion/109862/sears-roebuck-co-v-carpenters/ | nothing could more fully serve to defeat the purposes of the Act than to permit state and federal courts, without any limitation, to exercise jurisdiction over activities that are subject to regulation by the National Labor Relations Board. See Motor Coach Congress created the centralized expert agency to administer the Act because of its convictiongenerated by the historic abuses of the labor injunction, see Frankfurter & Greenethat the judicial attitudes, court procedures, and traditional judicial remedies, state and federal, were as likely to produce adjudications incompatible with national labor policy as were different rules of substantive law. See Although Congress could not be understood as having displaced "all local regulation that touches or concerns in any way the complex interrelationships between employers, employees, and unions," Motor Coach the legislative scheme clearly embodies an implicit prohibition of those state- and federal-court adjudications that might significantly interfere with those interests that are a central concern to national labor policy. The Act's treatment of picketing illustrates the nature of the generic problem, and at the same time highlights the issue in this case. While this Court has never held that the prescription *219 of detailed procedures for the restraint of specific types of picketing and the provision that other types of picketing are protected implies that picketing is to be free from all restraint under state law, see, e. g., Automobile it by the same token necessarily is true that to permit local adjudications, without limitation, of the legality of picketing would threaten intolerable interference with the interests protected by the Act. As the Court recognizes, the nature of the threatened interference differs depending on whether the picketing implicates the Act's prohibitions or its protections. See ante, at 190. As to arguably prohibited picketing, there is a risk that the state court might misinterpret or misapply the federal prohibition and restrain conduct that Congress may have intended to be free from governmental restraint.[4] But even when state courts can be depended upon accurately to determine whether conduct is in fact prohibited, local adjudication may disrupt the congressional scheme by resulting in different forms of relief than would adjudication by the By providing that an expert, centralized agency would administer the Act, Congress quite plainly evidenced an intention that, ordinarily at least, this expert agency should, on the basis of its experience with labor matters, determine the remedial implications of violations of the Act. If state courts were permitted to administer all the Act's prohibitions, the divergences in relief would add up to significant departures from federal policy. These considerations led the Court to |
Justice Brennan | 1,978 | 13 | dissenting | Sears, Roebuck & Co. v. Carpenters | https://www.courtlistener.com/opinion/109862/sears-roebuck-co-v-carpenters/ | departures from federal policy. These considerations led the Court to fashion the rule, announced in that *220 state courts have no jurisdiction over "arguably prohibited" conduct. This aspect of has never operated as a flat prohibition.[5] There are circumstances in which state courts can be depended upon accurately to determine whether the underlying conduct is prohibited and in which Congress cannot be assumed to have intended to oust state-court jurisdiction. Illustrative are decisions holding that States may regulate mass picketing, obstructive picketing, or picketing that threatens or results in violence. See Automobile Automobile ; Construction ; Electrical Because violent tortious conduct on a picket line is prohibited by 8 (b) and because state courts can reliably determine whether such conduct has occurred without considering the merits of the underlying labor dispute, allowing local adjudications of these tort actions could neither fetter the exercise of rights protected by the Act nor otherwise interfere with the effective administration of the federal scheme. And the possible inconsistency of remedy is not alone a sufficient reason for pre-empting state-court jurisdiction. *221 In view of the historic state interest in "such traditionally local matters as public safety and order," Electrical at the Act could not, in the absence of a clear statement to the contrary, be construed as precluding the imposition of different, even harsher, state remedies in such cases. See Automobile Indeed, in view of the delay attendant upon resort to the Board, it could well produce positive harm to prohibit state jurisdiction in these circumstances. Our decisions leave no doubt that exceptions to the principle are to be recognized only in comparable circumstances. See ; ; When, on the other hand, the underlying conduct may be protected by the Act, the risk of interference with the federal scheme is of a different character. The danger of permitting local adjudications is not that timing or form of relief might be different from what the Board would administer, but rather that the local court might restrain conduct that is in fact protected by the Act. This might result not merely from attitudinal differences but even more from unfair procedures or lack of expertise in labor relations matters. The present case illustrates both the nature and magnitude of the danger. Because the location of employee picketing is often determinative of the meaningfulness of the employees' ability to engage in effective communication with their intended audience, employees often have the right to engage in picketing at particular locations, including the private property of another. See ; Scott Hudgens, 230 N. L. R. B. 414, 95 LRRM 1351 |
Justice Brennan | 1,978 | 13 | dissenting | Sears, Roebuck & Co. v. Carpenters | https://www.courtlistener.com/opinion/109862/sears-roebuck-co-v-carpenters/ | Hudgens, 230 N. L. R. B. 414, 95 LRRM 1351 ; cf. The California Superior Court here entered an order, ex parte, broad enough to prohibit all effective picketing of Sears' store for a period of 35 days. See opinion of my Brother BLACKMUN, ante, at 212. *222 Since labor disputes are usually short lived, see ibid., this possibly erroneous order may well have irreparably altered the balance of the competing economic forces by prohibiting the Union's use of a permissible economic weapon at a crucial time. Obviously it is not lightly to be inferred that a Congress that provided elaborate procedures for restraint of prohibited picketing and that failed to provide an employer with a remedy against otherwise unprotected picketing could have contemplated that local tribunals with histories of insensitivity to the organizational interests of employees be permitted effectively to enjoin protected picketing. In recognition of this fact, this Court's efforts in the area of labor law pre-emption have been largely directed to developing durable principles to ensure that local tribunals not be in a position to restrain protected conduct. Because the Court today appears to have forgotten some of the lessons of history, it is appropriate to summarize this Court's efforts. The first approach to be triedand abandonedwas for this Court to proceed on a case-by-case basis and determine whether each particular final state-court ruling "does, or might reasonably be thought to conflict in some relevant manner with federal labor policy," Motor Coach 403 U. S., -291; see Automobile Not surprisingly, such an effort proved institutionally impossible. Because of the infinite combinations of events that implicate the central protections of the Act, this Court could not, without largely abdicating its other responsibilities, hope to determine on an ad hoc, generic-situation-by-generic-situation basis whether applications of state laws threatened national labor policy. In any case, such an approach necessarily disserved national labor policy because decision by this Court came too late to repair the damage that an erroneous decision would do to the congressionally established balance of power and was no substitute for decision in the first instance by the Board. The *223 Court soon concluded that protecting national labor policy from disruption or defeat by conflicting local adjudications demanded broad principles of labor law pre-emption, easily administered by state and federal courts throughout the Nation, that would minimize, if not eliminate entirely, the possibility of decisions of local tribunals that irreparably injure interests protected by 7. The only rule[6] satisfying these dual requirements was 's flat prohibition: "When an activity is arguably subject to 7 or 8 of the |
Justice Brennan | 1,978 | 13 | dissenting | Sears, Roebuck & Co. v. Carpenters | https://www.courtlistener.com/opinion/109862/sears-roebuck-co-v-carpenters/ | activity is arguably subject to 7 or 8 of the Act, the States as well as the federal courts must defer to the exclusive competence of the Board." While there is some unavoidable uncertainty concerning the arguably prohibited prong of I emphasize that it has heretofore been absolutely clear that there is no state power to deal with conduct that is a central concern of the Act[7] and arguably protected by it, see ; Meat ; As the Court itself recognizes, see ante, at 194-197 and 204, none of the exceptions have ever been or could ever be applied to local attempts to restrain such conduct. But the approach to "arguably protected" activity does not "swee[p] away state-court jurisdiction over conduct traditionally subject to *224 state regulation without careful consideration of the relative impact of such a jurisdictional bar on the various interests affected." Ante, at 188. Quite the contrary, such careful consideration is subsumed by the determination whether the underlying conduct may be protected by 7. By enacting 7, Congress necessarily intended to pre-empt certain state laws: e. g., those prohibiting concerted activities as conspiracies or unlawful restraints of trade. In any instance in which it can seriously be maintained that the congressionally established scheme protects the employee activity, the assessment of the relative weight of the competing state and federal interests has to be regarded as having been made by Congress. By drafting the statute so as to permit a Board determination that the underlying conduct is in fact within the ambit of 7's protections, Congress necessarily indicated its view that the historic state interest in regulating the conduct, however defined, may have to yield to the attainment of other objectives and that the state interest thus must be regarded as less than compelling. And, of course, there is necessarily a possibility that to permit state-court jurisdiction over arguably protected conduct could fetter the exercise of rights protected by the Act and otherwise interfere with the congressional scheme. A local tribunal could recognize an activity as arguably protected, yet, given its attitude toward organized labor, lack of expertise in labor matters, and insensitive procedures, misapply or misconceive the Board's decisional criteria and restrain conduct that is within the ambit of 7. II The present case illustrates both the necessity of this flat rule and the danger of even the slightest deviation from it. The present case, of course, is a classic one for pre-emption. The question submitted to the state court was whether the Union had a protected right to locate peaceful nonobstructive pickets on the privately owned |
Justice Brennan | 1,978 | 13 | dissenting | Sears, Roebuck & Co. v. Carpenters | https://www.courtlistener.com/opinion/109862/sears-roebuck-co-v-carpenters/ | right to locate peaceful nonobstructive pickets on the privately owned walkway adjacent to Sears' *225 retail store or on the privately owned parking lot a few feet away. A That the trespass was arguably protected could scarcely be clearer. indicates that trespassory 7 activity is protected when "reasonable efforts through other available channels" will not enable the union to reach its intended audience. This standard, which was developed in the context of a rather different factual situation, is but an application of more general principles. "[T]he basic objective under the Act [is the] accommodation of 7 rights and private property rights `with as little destruction of one as is consistent with the maintenance of the other.' The locus of that accommodation, however, may fall at differing points along the spectrum depending on the nature and strength of the respective 7 rights and private property rights asserted in any given context." quoting ; see Scott Hudgens, 230 N. L. R. B., at 417, 95 LRRM, at 1354. Here, it can seriously be contended that the locus of the accommodation should be on the side of permitting the trespass. The 7 interest is strong: The object of the picketing was arguably protected on one of two theoriesas "area standards"[8] or as "recognitional"[9] picketingand the record suggests that the relocation of the picketing to the nearest public areaa public sidewalk 150 to 200 feet awaymay have so *226 diluted the picketing's impact as to make it virtually meaningless.[10] The private property interest, in contrast, was exceedingly weak. The picketing was confined to a portion of Sears' property which was open to the public and on which Sears had permitted solicitations by other groups.[11] Thus, while Sears to be sure owned the property, it resembled public property in many respects. Indeed, while Sears' legal position would have been quite different if the lot and walkways had been owned by the city of Chula Vista, it is doubtful that Sears would have been any less angered or upset by the picketing if the property had in fact been public. But the Court refuses to follow the simple analysis that has been sanctioned by the decisions of the last 20 years. Its reasons for discarding prior teachings, apparently, is a belief that faithful application of to the generic situation presented by this case causes positive social harm. I disagree. It bears emphasizing that only partially pre-empts an employer's remedies against unlawful trespassory picketing. A state court may, of course, enjoin any picketing that is clearly unprotected by the Act: e. g., peaceful, nonobstructive picketing occurring within |
Justice Brennan | 1,978 | 13 | dissenting | Sears, Roebuck & Co. v. Carpenters | https://www.courtlistener.com/opinion/109862/sears-roebuck-co-v-carpenters/ | by the Act: e. g., peaceful, nonobstructive picketing occurring within a retail store. See Brief for Respondent 30 n. 14, citing v. Fansteel Corp., ; Marshall Field & v. ; Brief for as Amicus Curiae 15 n. 9. And, as already indicated, state courts have jurisdiction over picketing *227 that is obstructive, or involves large groups of persons, or otherwise entails a serious threat of violence. Automobile ; Construction ; Automobile ; Electrical These decisions constitute an almost dispositive answer to my Brother POWELL's suggestion that state trespass laws should be allowed full play, see ante, at 213: most of the factual situations that concern him fall within a recognized exception. Finally, an employer may file an unfair labor practice charge under 8 (b) and obtain a "cease and desist" order from the Board where the picketing has an objective prohibited by 8 (b). Thus, pre-emption of state-court jurisdiction to deal with trespassory picketing has been largely, if not entirely, confined to situations such as presented in this case, i. e., in which the interest of the employer in preventing the picketing is weak, the 7 interest in picketing on the employer's property strong, and the picketing peaceful and nonobstructive. In this circumstance, I think the denial to the employer of a remedy is an entirely acceptable social cost for the benefits of a pre-emption rule that avoids the danger of state-court interference with national labor policy. The Court's arguments to the contrary are singularly unpersuasive. Because an employer's remedies are only pre-empted in the narrow circumstances of a case such as the present one, any suggestion that the faithful application of creates a "no-man's land" which results in a substantial risk of violence, see opinion of my Brother BLACKMUN, ante, at 208; opinion of my Brother POWELL, ante, at 213; cf. opinion of the Court, ante, at 202, can be dismissed as the most unfounded speculation. An employer like Sears may be angered or outraged by the presence of peaceful, nonobstructive picketing close to its retail store. But the Act requires the employer's toleration of peaceful picketing when 7 affords the union the right to engage in this form of *228 economic pressure. There is simply no basis whatsoever for a conclusion that the risk of violence is any greater when an employer is told by a state court that bars his state trespass action than when he is told either that 7 protects picketing on a public area immediately adjacent to his business, cf. or that 7 in fact privileges the entry onto his property. Cf. Scott Hudgens. |
Justice Brennan | 1,978 | 13 | dissenting | Sears, Roebuck & Co. v. Carpenters | https://www.courtlistener.com/opinion/109862/sears-roebuck-co-v-carpenters/ | fact privileges the entry onto his property. Cf. Scott Hudgens. In apparent recognition of this indisputable fact, the Court places no great reliance on the likelihood of violence. But the only other reason advanced for a conclusion that produces socially intolerable results is that it is "anomalous" to deny an employer a trespass remedy. Since the Act extensively regulates the conditions under which an employer's proprietary rights must yield to the exercise of 7 rights, I am at a loss as to why the anomaly here is any greater than that which results from the pre-emption of state remedies against tortious conspiracies, compare 7 of the Act with Frankfurter & Greene 26-39, or from the pre-emption of state remedies against nonmalicious libels. See B That this Court's departure from creates a great risk that protected picketing will be enjoined is amply illustrated by the facts of this case and by the task that was assigned to the California Superior Court. To decide whether the location of the Union's picketing rendered it unlawful, the state court here had to address a host of exceedingly complex labor law questions, which implicated nearly every aspect of the Union's labor dispute with Sears and which were uniquely within the province of the Board. Because it had to assess the "relative strength of the 7 right," see its first task necessarily was to determine the nature of the Union's picketing. This picketing could have *229 been characterized in one of three ways: as protected area-standards picketing, see opinion of the Court, ante, at 186-187; as prohibited picketing to compel a reassignment of work, see ante, at 185-186, and n. 9; or as recognitional picketing that is protected at the outset but prohibited if no petition for a representative election is filed within a reasonable time, not to exceed 30 days. See at 225 n. 9; ante, at 186, and n. 10. Notably, if the state court concluded that the picketing was prohibited by 8 (b) (4)or unprotected by 7 on any other theorythat determination would have been conclusive against respondent: Whether or not the state court agreed with the Union's contention that effective communication required that picketing be located on Sears' premises, the court would enjoin the trespassory picketing on the ground that no protected 7 interest was involved. Obviously, since even the Court admits that the characterization of the picketing "entail [s] relatively complex factual and legal determinations," see ante, at 198, there is a substantial danger that the state court, lacking the Board's expertise and specialized sensitivity to labor relations matters, would err |
Justice Brennan | 1,978 | 13 | dissenting | Sears, Roebuck & Co. v. Carpenters | https://www.courtlistener.com/opinion/109862/sears-roebuck-co-v-carpenters/ | expertise and specialized sensitivity to labor relations matters, would err at the outset and effectively deny respondent the right to engage in any effective 7 communication.[12] But even if the state court correctly assesses the 7 interest, there are a host of other pitfalls. A myriad of factors are or *230 could be relevant to determining whether 7 protected the trespass: e. g., whether and to what extent relocating the picketing on the nearest public property 150 feet away would have diluted its impact; whether the picketing was characterized as recognitional or area standards; whether or the extent to which Sears had opened the property up to the public or permitted similar solicitation on it; whether it mattered that the pickets did not work for Sears, etc. And if relevant, each of these factors would suggest a number of subsidiary inquiries. It simply cannot be seriously contended that the thousands of judges, state and federal, throughout the United States can be counted upon accurately to identify the relevant considerations and give each the proper weight in accommodating the respective rights. Indeed, the actions of the California courts illustrate the danger. Not only was the ex parte order of the California Superior Court entered under conditions precluding careful consideration of all relevant considerations, even the Court of Appeal, presumably able to devote more time and deliberation to isolate the correct decisional criteria, failed properly to appreciate the significance of a criterion critical to the application of national law: that the distance of the picketing from a store entrance is largely determinative of its effectiveness. Cf. Scott Hudgens, 230 N. L. R. B., at 417, 95 LRRM, at 1354 ("a message announced by picket sign a [substantial] distance from the focal point would be too greatly diluted to be meaningful"). Nothing better demonstrates the wisdom of the heretofore settled rule that "the primary responsibility for making [the] accommodation [between 7 rights and private property rights] must rest with the Board in the first instance." The Court does not deny that its decision may well result in state-court decisions erroneously prohibiting or curtailing conduct in fact protected by 7. But it identifies two considerations *231 that persuade it that the risk of interference is minimal and that, in any case, the risk does not outweigh the anomalous consequence of denying the employer a remedy. The first is its belief that the generic type of activity which the Court characterizes as trespassory organizational activity by nonemployeesis more likely to be unprotected than protected. Ante, at 205-206. In so concluding, the Court relies on for |
Justice Brennan | 1,978 | 13 | dissenting | Sears, Roebuck & Co. v. Carpenters | https://www.courtlistener.com/opinion/109862/sears-roebuck-co-v-carpenters/ | at 205-206. In so concluding, the Court relies on for the proposition that there is a strong presumption against permitting trespasses by nonemployees. But the Court overlooks a critical distinction between Babcock and the case at bar. Babcock involved a trespass on industrial property which the employer had fenced off from the public at large, and it is a grave error to treat Babcock as having substantial implications for the generic situation presented by this case. To permit trespassory 7 activities in the Babcock fact pattern entails far greater interference with an employer's business than does allowing peaceful nonobstructive picketing on a parking lot which is open to the public and which has been used for other types of solicitation. As my Brother BLACKMUN'S concurring opinion notes, this Court's short-lived holding that picketing at shopping centers is protected by the Fourteenth Amendment, see Food overruled in has resulted in a situation where neither this Court nor the Board has considered, in any comprehensive fashion, the quite different question of the conditions under which union representatives may enter privately owned areas of shopping centers to engage in protected activities such as peaceful picketing. But the Court's own opinion in and the Board's decision in Scott Hudgens, [13] both suggest that *232 trespasses in such circumstances will often be protected. Quite apart from the fact the Court has no basis for blithely assuming that all private property is fungible, that this Court would fail to appreciate so possibly vital a distinction in assessing the strength of a 7 claim illustrates the danger of permitting lower courts, which lack even this Court's exposure to labor law, to rule on the question whether trespassory picketing by nonemployees is protected. The Court's second reason is more problematic still. It urges that the risk that local adjudications will interfere with protected 7 activity is "minimized by the fact that in the cases in which the argument in favor of protection is the strongest, the union is likely to invoke the Board's jurisdiction and thereby avoid the state forum." Ante, at 206. That, with all respect, betrays ignorance of the conduct of adversaries in the real world of labor disputes. Whether a union will seek the protection of a Board order will depend upon whether that tactic will best serve its self-interest, and that determination will depend in turn on whether the employer's request inhibits or interferes with the union's ability to engage in protected conduct. A request that a trespass cease may or may not so threaten the union as to lead it to go to |
Justice Brennan | 1,978 | 13 | dissenting | Sears, Roebuck & Co. v. Carpenters | https://www.courtlistener.com/opinion/109862/sears-roebuck-co-v-carpenters/ | threaten the union as to lead it to go to the trouble and expense of attempting to invoke the Board's jurisdiction, and the strength of the argument that the conduct is protected will frequently be a factor of no relevance. For example, if the union perceives the employer's request as a hollow threat or believes that the employer's legal position in any case has no merit, the union will have no reason to turn to the Board. It might, on the other hand, be the case that the union *233 would have more of an incentive to file a 8 (a) (1) charge if it believed that resort to the Board were necessary to protect itself against adjudications by hostile state tribunals. Of course, even then, the union may not believe that invocation of the Board's jurisdiction is worth the trouble and expense in those instances in which it believes its own legal position unassailable. But there is no point in conjecturing on this score. The Court assiduously avoids holding that resort to the Board will oust a state court's jurisdiction[14] and is divided on this question. Compare opinion of my Brother BLACKMUN, ante, at 208-210, with opinion of my Brother POWELL, ante, p. 212. The Court cannot have it both ways: Unless and until the Court decides that the filing of a charge pre-empts adjudications by local tribunals, speculation as to the conditions under which there would or would not be a failure to file is an idle exercise.[15] *234 III But what is far more disturbing than the specific holding in this case is its implications for different generic situations. Whatever the shortcomings of none can deny the necessity for a rule in this complex area that is capable of uniform application by the lower courts. The Court's new exception to cannot be expected to be correctly applied by those courts and thus most inevitably will threaten erosion of the goal of uniform administration of the national labor laws. Even though the Court apparently intends to create only a very narrow exception to largely if not entirely limited to situations in which the employer first requested the nonemployees engaged in area-standards picketing on the employer's property to remove the pickets from the employer's land and the union did not respond by filing 8 (a) (1) unfair labor practice chargesthe approach the Court today adopts cannot be so easily cabined and thus threatens intolerable disruption of national labor policy. Because 8 (b) only affords an employer a remedy against certain types of unprotected employee activity, there necessarily will be |
Justice Brennan | 1,978 | 13 | dissenting | Sears, Roebuck & Co. v. Carpenters | https://www.courtlistener.com/opinion/109862/sears-roebuck-co-v-carpenters/ | certain types of unprotected employee activity, there necessarily will be a myriad of circumstances in which an employer will be confronted with possibly unprotected employee or union conduct, and yet be unable directly to invoke the Board's processes to receive a determination of the protected *235 character of the conduct. Today's decision certainly opens the door to a conclusion by state and federal courts that the Court's new exception applies in any situation where the employer has requested that the labor organization cease what the employer claims is unprotected conduct and the union has not responded by filing a 8 (a) (1) charge. In that circumstance, today's decision sanctions a three-step process by the state or federal court. First, the court must inquire whether the employer had a "reasonable opportunity" to force a Board determination. What constitutes a "reasonable opportunity"? I have to assume from today's decision that the employer can never be deemed to have an acceptable opportunity when nonemployees are engaged in the arguably protected activity. But what if employees are involved? Will the fact that the employer can provoke the filing of an unfair labor practice charge by disciplining the employee always constitute an acceptable alternative? Perhaps so, but the Court provides no guidance that can help the local judges. Some may believe that the fact that any discipline will enhance the seriousness of the unfair labor practice renders that course unacceptable. Similarly, what of the instances in which employer discipline might not, under the circumstances, provoke the filing of a charge: e. g., if an economic strike were in progress? Second, if the lower court concludes that the employer did not have an acceptable means of placing the protection issue before the Board, it must then proceed to inquire whether, in light of its assessment of the strength of the argument that 7 might protect the generic type of conduct involved, there is a substantial likelihood that its adjudication will be incompatible with national labor policy. This is a particularly onerous task to assign to judges having no special expertise or specialized sensitivity in the application of the federal labor laws, and it is not clairvoyant to predict that many local tribunals will misconceive the relevant criteria and erroneously *236 conclude that they are capable of correctly applying the labor laws. With all respect, the Court's opinion proves my point. As I have already observed, in concluding that peaceful picketing upon Sears' walkway was more likely to be unprotected than protected, the Court makes an entirely unfounded assumption concerning the approach the Board is likely to |
Justice Brennan | 1,978 | 13 | dissenting | Sears, Roebuck & Co. v. Carpenters | https://www.courtlistener.com/opinion/109862/sears-roebuck-co-v-carpenters/ | unfounded assumption concerning the approach the Board is likely to apply to the organizational activities of nonemployees at shopping centers. Since the great majority of state and federal judges around the Nation rarely, if ever, have this Court's exposure to the federal labor laws, local tribunals surely will commit far more grievous errors in assessing the likelihood that its adjudication will subvert national labor policy. But the final step in the Court's new pre-emption inquiry is the most troublesome: The range of circumstances in which local tribunals might conclude that the anomaly of denying an employer a remedy outweighs the risk of erroneous determinations by the state courts is limitless. Many erroneous determinations of non-pre-emption are certain to occur, and the local adjudications of the protection issues will inevitably often be inconsistent and contrary to national policy. This prospect should give the Court more concern than its opinion reflects. It is no answer that errors remain correctible while this Court sits. The burden that will be thrown upon this Court finally to decide, on an ad hoc, generic-situation-by-generic-situation basis, whether the employer had a "reasonable opportunity" to obtain a Board determination and, if not, whether the risk of interference outweighs the anomaly of denying the employer a remedy, should give us pause. Inconsistency and error in decisions below may compel review of an inordinate number of cases, lest lower court adjudications threaten irretrievable injury to interests protected by 7. Indeed, the experience of 30 years ago should, I would have thought, taught us the folly of such an approach. And our burden will be even greater if, as my Brother BLACKMUN suggests, ante, at 211-212, this Court must fashion a code of *237 "labor law due process" to minimize the risk of erroneous state-court determinations of protection questions. I do not doubt that this Court could, if it wished, minimize the deleterious consequences of today's unfortunate decision. But the Court cannot prevent it from introducing inconsistency and confusion that will threaten the fabric of national labor policy and from imposing new and unnecessary burdens on this Court. Adherence to would spare us and the Nation these burdens. Because the Court has not demonstrated that produces an unacceptable accommodation of the conflicting state and federal interests, I respectfully dissent. |
Justice Souter | 1,996 | 20 | concurring | Melendez v. United States | https://www.courtlistener.com/opinion/118045/melendez-v-united-states/ | I agree with the conclusion that 18 U.S. C. 3553(e) requires a motion by the Government asking the district court to impose a sentence below the statutory minimum, but I part company with the Court on the characterization of the policy statement numbered 5K1.1, United States Sentencing Commission, Guidelines Manual 5K1.1, p. s. (Nov. 1995) (USSG). The text of this policy statement deals with departures from the Guidelines; the best reading of each sentence is that its referent is a Guideline departure, and that neither directly applies to reductions below mandatory minimums. The Application Notes (which are "the legal equivalent of a policy statement," USSG 1B1.7) are where the Sentencing Commission has dealt with sentences below statutory minimums. In my view, the Sentencing Commission has discharged its responsibility under 28 U.S. C. 994(n) by its *132 inclusion of the Application Notes, which effectively tell district courts that the policy statement applies as well to motions for reductions below mandatory minimums. Thus, my disagreement is over the suggestion that the two sentences of 5K1.1 can be treated separately. I would simply say that the Application Notes indicate that 5K1.1 applies to motions under 3553(e), and leave it at that. Justice Stevens, concurring in the judgment. Petitioner has persuaded me that the Sentencing Commission intended 5K1.1 to create a unitary motion system under which any request for a departure below the Guideline range based on substantial assistance would also authorize a departure below the statutory minimum. Such a system would be eminently reasonable, but, for two reasons, I am convinced that Congress did not intend to authorize it. First, I agree with the Court that the text of 3553(e) does not authorize the court to impose a sentence below the statutory minimum unless the Government has made a motion requesting that relief. Second, notwithstanding my serious doubts concerning the wisdom of a congressional decision to impose statutory minimum sentences higher than those considered appropriate by the Commission, the very fact that Congress has done so indicates that it intended to confer the authority to dispense with the statutory minima on the prosecutor rather than the Commission. Thus, I concur in the judgment because I agree with the Court's interpretation of 3553(e). Justice Breyer, with whom Justice O'Connor joins, concurring in part and dissenting in part. I join Parts I and II of the Court's opinion, for, like the Court, I believe the Commission does not have the power to modify Congress' statutes. I disagree with Part III, however, because the Commission does have the power to write its own Guidelines and, in |
Justice Souter | 1,996 | 20 | concurring | Melendez v. United States | https://www.courtlistener.com/opinion/118045/melendez-v-united-states/ | have the power to write its own Guidelines and, in my view, the Commission has in *133 fact exercised that power to create what the Court calls a "unitary motion system." To understand that system, one must keep in mind two facts. First, many "substantial assistance" departures involve departures only from Guideline sentences, not from statutory mandatory minimum sentences. When a defendant seeks a "substantial assistance" departure from the minimum Guideline sentence for robbery, fraud, money laundering, tax evasion, or most other offenses, the defendant need not worry about a statutorily required minimum sentence, for either no such minimum sentence applies, or that sentence is so far below the minimum Guideline sentence that there is no practical likelihood of a departure drastic enough to make it relevant. The Guidelines govern departures from these Guideline sentences, and they permit judges to depart downward for "substantial assistance" only if the Government makes a "motion stating that the defendant has provided substantial assistance in the investigation or prosecution of another person who has committed an offense." United States Sentencing Commission, Guidelines Manual 5K1.1, p. s. (Nov. 1995) (USSG). I call the policy statement that sets forth this rule the "Substantial Assistance Guideline." Second, some criminal convictions implicate not only the Guidelines, but also the special statutes (applicable particularly to drug and weapon offenses) that set "mandatory minimum" sentences. See United States Sentencing Commission, Mandatory Minimum in the Federal Criminal Justice System, App. A, pp. A1-A8 (Mandatory Minimum ). The law does not normally permit a departure below such mandatory statutory minimums. But cf. 18 U.S. C. 3553(f) (limitation on applicability of statutory minimums in certain cases); USSG 5C1.2 (same). The law does permit such a departure, however, for one special reason, namely, "substantial assistance," but only if the Government makes a "motion so as to reflect a defendant's *134 substantial assistance in the investigation or prosecution of another person who has committed an offense." 18 U.S. C. 3553(e). I shall call the statute that states this rule the "Substantial Assistance Statute." With these two basic facts in mind, one might ask what the Commission means by the term "substantial assistance" in its Substantial Assistance Guideline. In particular, do those words in that Guideline mean the same thing that those same words mean in the Substantial Assistance Statute? Or does the Commission intend those words in its Guideline to create a tougher, or perhaps a more lenient, standard where departures from Guideline minimums (rather than departures from statutory minimums) are at issue? The answer to this interpretive question, in my view, is that the |
Justice Souter | 1,996 | 20 | concurring | Melendez v. United States | https://www.courtlistener.com/opinion/118045/melendez-v-united-states/ | to this interpretive question, in my view, is that the Commission means the term "substantial assistance" in its Substantial Assistance Guideline to create the same standard that the Substantial Assistance Statute creates using the same words. As so interpreted, the Guideline authorizes a sentencing judge to depart downward from a Guideline sentence for substantial assistance only if the Government files the same kind of motion that the Government would file to obtain a departure from a statutory minimum sentence, were such a sentence at issue. My reasons for believing that the Commission intended to tie its Substantial Assistance Guideline to the Substantial Assistance Statute (thereby recognizing one kind of "substantial assistance," not two) are the following: First, as I have said, the language the Commission used to write its Substantial Assistance Guideline is virtually identical to the language that appears in the Substantial Assistance Statute. Compare USSG 5K1.1, p. s., with 18 U.S. C. 3553(e). Second, the Commission nowhere suggests that the key words "substantial assistance" mean something different in the two places (the Guideline and the Statute) where they appear, and I cannot imagine any reason why the Commission would *135 have wanted to create different standards through the use of identical words, thereby creating additional administrative complexity and risking unnecessary confusion. Third, the Commission's commentary refers to statutory and guideline departures indiscriminately. USSG 2D1.1, comment., n. 7 (citing Substantial Assistance Guideline for proposition that statutory minimum may be "waived"); see also Mandatory Minimum The Court's reason for reaching the contrary conclusion is that the Commission did not specify that courts could not depart below a minimum Guideline sentence without a Government motion for departure below any applicable statutory minimum. That is, the Substantial Assistance Guideline does not say: "Upon motion of the government stating that the defendant has provided substantial assistance and authorizing the court to depart below the statutory minimum, if any, the court may depart from the guidelines." Ante, at 131 (emphasis added; internal quotation marks omitted). But it is not surprising that the Commission neglected to add these words of crystal clarity to the Substantial Assistance Guideline, since that Guideline governs many cases that have nothing to do with mandatory minimum sentences. It makes sense, instead, for the Commission to have noted the interplay of "substantial assistance" and statutory minimums in its commentary to the Substantial Assistance Guideline, see USSG 5K1.1, p. s., comment., n. 1, and in its section on drug offenses, for which statutory minimums are relatively common, see 2D1.1, comment., n. 7. I recognize that the Court, through its interpretation of the |
Justice Souter | 1,996 | 20 | concurring | Melendez v. United States | https://www.courtlistener.com/opinion/118045/melendez-v-united-states/ | I recognize that the Court, through its interpretation of the Guideline, avoids having to decide "whether the Commission could create this unitary motion system." Ante, at 130. But the legal question it avoids is not a difficult one. Congress delegated to the Commission broad authority to determine when sentencing courts may reward substantial assistance with a reduced sentence. See 28 U.S. C. 994(n). *136 The Commission's exercise of delegated authority is normally lawful as long as it is reasonable. See, e. g., United (CADC) (Thomas, J.) ), cert. denied sub nom. And a unitary system seems perfectly reasonable. Indeed, the Federal Rules of Criminal Procedure recognize an identical "unitary" system for post judgment substantial assistance motions. See Fed. Rule Crim. Proc. 35(b) ("[O]n motion of the Government made within one year after the imposition of the sentence," court may reduce sentence "to reflect a defendant's subsequent, substantial assistance"; this may include reduction "to a level below that established by statute as a minimum sentence"). Thus in my view, the Commission had the power to create a "unitary motion system," and is free to maintain such a system, or to change it, in light of evolving criminal justice policies. In this case, the lower courts accepted the Government's "departure" motion as sufficient to justify a departure below the 135-month Guideline minimum applicable to petitioner's crime, but not sufficient to justify a departure below the applicable 10-year statutory minimum. On a "unitary" view, this disposition could not be correct. Either the motion was sufficient to warrant a departure below the statutory minimum, or it was insufficient to warrant a departure below the Guideline minimum. I would remand this case to the lower courts for further consideration of this case-specific issue. For these reasons, while agreeing with much of what the Court has written, I dissent from its disposition. |
Justice Blackmun | 1,975 | 11 | majority | Johnson v. Railway Express Agency, Inc. | https://www.courtlistener.com/opinion/109254/johnson-v-railway-express-agency-inc/ | This case presents the issue whether the timely filing of a charge of employment discrimination with the Equal Employment Opportunity Commission (EEOC), pursuant to 706 of Title VII of the Civil Rights Act of 1964, 42 U.S. C. 2000e-5, tolls the running of the period of limitation applicable to an action, based on the same facts, instituted under 42 U.S. C. 1981. I Petitioner, Willie Johnson, Jr., is a Negro. He started to work for respondent Railway Express Agency, Inc., now, by change of name, REA Express, Inc. (REA), in Memphis, Tenn., in the spring of 1964 as an express handler. On May 31, while still employed by REA, but now as a driver rather than as a handler, petitioner, with others, timely filed with the EEOC a charge that REA was discriminating against its Negro employees with respect to seniority rules and job assignments. He also charged the respondent unions, Brotherhood of Railway Clerks Tri-State Local and Brotherhood of Railway Clerks Lily of the Valley Local, with maintaining racially segregated memberships (white and Negro respectively). Three weeks later, on June 20, REA terminated petitioner's employment. Petitioner then amended his charge to include an allegation that he had been discharged because of his race. The EEOC issued its "Final Investigation Report" on December 22, App. 14a. The report generally supported petitioner's claims of racial discrimination. It was not until more than two years later, however, on March 31, 10, that the Commission rendered its decision finding reasonable cause to believe petitioner's charges. And 9 1/2 more months went by before the *456 EEOC, on January 15, pursuant to 42 U.S. C. 2000e-5 (e), as it then read, gave petitioner notice of his right to institute a Title VII civil action against the respondents within 30 days.[1] After receiving this notice, petitioner encountered some difficulty in obtaining counsel. The United States District Court for the Western District of Tennessee, on February 12, permitted petitioner to file the right-to-sue letter with the court's clerk as a complaint, in satisfaction of the 30-day requirement. The court also granted petitioner leave to proceed in forma pauperis, and it appointed counsel to represent him. On March 18, counsel filed a "Supplemental Complaint" against REA and the two unions, alleging racial discrimination on the part of the defendants, in violation of Title VII of the 1964 Act and of 42 U.S. C. 1981. The unions and REA respectively moved for summary judgment or, in the alternative, for dismissal of all claims. The District Court dismissed the 1981 claims as barred by Tennessee's one-year statute of limitations. |
Justice Blackmun | 1,975 | 11 | majority | Johnson v. Railway Express Agency, Inc. | https://www.courtlistener.com/opinion/109254/johnson-v-railway-express-agency-inc/ | 1981 claims as barred by Tennessee's one-year statute of limitations. Tenn. Code Ann. 28-304[2] Petitioner's remaining claims were dismissed on other grounds.[3] *457 In his appeal to the United States Court of Appeals for the Sixth Circuit, petitioner, with respect to his 1981 claims, argued that the running of the one-year period of limitation was suspended during the pendency of his timely filed administrative complaint with the EEOC under Title VII. The Court of Appeals rejected this argument. See also Because of an apparent conflict between that ruling, and language and holdings in cases from other Circuits,[4] we granted certiorari restricted to the limitation issue. We invited the Solicitor General to file a brief as amicus curiae expressing the views of the United States. II A. Title VII of the Civil Rights Act of 1964 was enacted "to assure equality of employment opportunities by eliminating those practices and devices that discriminate on the basis of race, color, religion, sex, or national origin." It creates statutory rights against invidious *458 discrimination in employment and establishes a comprehensive scheme for the vindication of those rights. Anyone aggrieved by employment discrimination may lodge a charge with the EEOC. That Commission is vested with the "authority to investigate individual charges of discrimination, to promote voluntary compliance with the requirements of Title VII, and to institute civil actions against employers or unions named in a discrimination charge." 415 U.S., at Thus, the Commission itself may institute a civil action. 42 U.S. C. 2000e-5 (f) (1) (10 ed., Supp. III). If, however, the EEOC is not successful in obtaining "voluntary compliance" and, for one reason or another, chooses not to sue on the claimant's behalf, the claimant, after the passage of 180 days, may demand a right-to-sue letter and institute the Title VII action himself without waiting for the completion of the conciliation procedures. 42 U.S. C. 2000e-5 (f) (1) (10 ed., Supp. III). See H. R. Rep. No. 92-238, p. 12 ; McDonnell Douglas In the claimant's suit, the federal district court is empowered to appoint counsel for him, to authorize the commencement of the action without the payment of fees, costs, or security, and even to allow an attorney's fee. 42 U.S. C. 2000e-5 (f) (1) (10 ed., Supp. III) and 42 U.S. C. 2000e-5 (k). Where intentional engagement in unlawful discrimination is proved, the court may award backpay and order "such affirmative action as may be appropriate." 42 U.S. C. 2000e-5 (g) (10 ed., Supp. III). The backpay, however, may not be for more than the two-year period prior to the filing of |
Justice Blackmun | 1,975 | 11 | majority | Johnson v. Railway Express Agency, Inc. | https://www.courtlistener.com/opinion/109254/johnson-v-railway-express-agency-inc/ | more than the two-year period prior to the filing of the charge with the Commission. Some District Courts have ruled that neither compensatory nor punitive damages may be awarded in the Title VII suit.[5] *459 Despite Title VII's range and its design as a comprehensive solution for the problem of invidious discrimination in employment, the aggrieved individual clearly is not deprived of other remedies he possesses and is not limited to Title VII in his search for relief. "[T]he legislative history of Title VII manifests a congressional intent to allow an individual to pursue independently his rights under both Title VII and other applicable state and federal statutes." In particular, Congress noted "that the remedies available to the individual under Title VII are co-extensive with the indiv[i]dual's right to sue under the provisions of the Civil Rights Act of 18, 42 U.S. C. 1981, and that the two procedures augment each other and are not mutually exclusive." H. R. Rep. No. 92-238, p. 19 See also S. Rep. No. 92-415, p. 24 Later, in considering the Equal Employment Opportunity Act of 12, the Senate rejected an amendment that would have deprived a claimant of any right to sue under 1981. 118 Cong. Rec. 3371-3373 B. Title 42 U.S. C. 1981, being the present codification of 16 of the century-old Civil Rights Act of 1870, 16 Stat. 1, on the other hand, on its face relates primarily to racial discrimination in the making and enforcement of contracts. Although this Court has not specifically so held, it is well settled among the Federal Courts of Appeals[6]and we now join themthat 1981 *460 affords a federal remedy against discrimination in private employment on the basis of race. An individual who establishes a cause of action under 1981 is entitled to both equitable and legal relief, including compensatory and, under certain circumstances, punitive damages. See, e. g., (CA1), cert. denied, ; And a backpay award under 1981 is not restricted to the two years specified for backpay recovery under Title VII. Section 1981 is not coextensive in its coverage with Title VII. The latter is made inapplicable to certain employers. 42 U.S. C. 2000e (b) (10 ed., Supp. III). Also, Title VII offers assistance in investigation, conciliation, counsel, waiver of court costs, and attorneys' fees, items that are unavailable at least under the specific terms of 1981. III Petitioner, and the United States as amicus curiae, concede, as they must, the independence of the avenues of relief respectively available under Title VII and the older 1981. See Jones v. Alfred H. Mayer Further, it |
Justice Blackmun | 1,975 | 11 | majority | Johnson v. Railway Express Agency, Inc. | https://www.courtlistener.com/opinion/109254/johnson-v-railway-express-agency-inc/ | older 1981. See Jones v. Alfred H. Mayer Further, it has been noted that the filing of a Title VII charge and resort to Title VII's administrative machinery are not prerequisites for the institution of a 1981 action. Long v. Ford Motor ; Caldwell v. National Brewing 3 F.2d 10, cert. denied, ; Young v. International *461 Tel. & Tel. Cf. (CA7), cert. denied sub nom. International Harvester v. Waters, We are satisfied, also, that Congress did not expect that a 1981 court action usually would be resorted to only upon completion of Title VII procedures and the Commission's efforts to obtain voluntary compliance. Conciliation and persuasion through the administrative process, to be sure, often constitute a desirable approach to settlement of disputes based on sensitive and emotional charges of invidious employment discrimination. We recognize, too, that the filing of a lawsuit might tend to deter efforts at conciliation, that lack of success in the legal action could weaken the Commission's efforts to induce voluntary compliance, and that a suit is privately oriented and narrow, rather than broad, in application, as successful conciliation tends to be. But these are the natural effects of the choice Congress has made available to the claimant by its conferring upon him independent administrative and judicial remedies. The choice is a valuable one. Under some circumstances, the administrative route may be highly preferred over the litigatory; under others, the reverse may be true. We are disinclined, in the face of congressional emphasis upon the existence and independence of the two remedies, to infer any positive preference for one over the other, without a more definite expression in the legislation Congress has enacted, as, for example, a proscription of a 1981 action while an EEOC claim is pending. We generally conclude, therefore, that the remedies available under Title VII and under 1981, although related, and although directed to most of the same ends, are separate, distinct, and independent. With this base established, we turn to the limitation issue. *462 IV A. Since there is no specifically stated or otherwise relevant federal statute of limitations for a cause of action under 1981, the controlling period would ordinarily be the most appropriate one provided by state law. See ; Auto ; ; Chattanooga ; For purposes of this case, the one-year limitation period in Tenn. Code Ann. 28-304 clearly and specifically has application.[7] See Warren v. Norman Realty The cause of action asserted by petitioner accrued, if at all, not later than June 20, the date of his discharge. Therefore, in the absence of some circumstance that suspended |
Justice Blackmun | 1,975 | 11 | majority | Johnson v. Railway Express Agency, Inc. | https://www.courtlistener.com/opinion/109254/johnson-v-railway-express-agency-inc/ | discharge. Therefore, in the absence of some circumstance that suspended the running of the limitation period, petitioner's cause of *463 action under 1981 was time barred after June 20, 1968, over 2 1/2 years before petitioner filed his complaint. B. Respondents argue that the only circumstances that would suspend or toll the running of the limitation period under 28-304 are those expressly provided under state law. See Tenn. Code Ann. 28-106 to 28-115 and 28-301 (1955). Petitioner concedes, at least implicitly, that no tolling circumstance described in the State's statutes was present to toll the period for his 1981 claim. He argues, however, that state law should not be given so broad a reach. He claims that, although the duration of the limitation period is bottomed on state law, it is federal law that governs other limitations aspects, such as tolling, of a 1981 cause of action. Without launching into an exegesis on the nice distinctions that have been drawn in applying state and federal law in this area,[8] we think it suffices to say that petitioner has overstated his case. Indeed, we may assume that he would argue vigorously in favor of applying state law if any of the Tennessee tolling provisions could be said to assist his cause.[9] Any period of limitation, including the one-year period specified by 28-304, is understood fully only in the context of the various circumstances that suspend it from running against a particular cause of action. Although any statute of limitations is necessarily arbitrary, the length of the period allowed for instituting suit inevitably reflects a value judgment concerning the point *464 at which the interests in favor of protecting valid claims are outweighed by the interests in prohibiting the prosecution of stale ones. In virtually all statutes of limitations the chronological length of the limitation period is interrelated with provisions regarding tolling, revival, and questions of application. In borrowing a state period of limitation for application to a federal cause of action, a federal court is relying on the State's wisdom in setting a limit, and exceptions thereto, on the prosecution of a closely analogous claim. There is nothing anomalous or novel about this. State law has been followed in a variety of cases that raised questions concerning the overtones and details of application of the state limitation period to the federal cause of action. Auto ; -467 ; Nor is there anything peculiar to a federal civil rights action that would justify special reluctance in applying state law. Indeed, the express terms of 42 U.S. C. 1988[10] suggest that the contrary |
Justice Blackmun | 1,975 | 11 | majority | Johnson v. Railway Express Agency, Inc. | https://www.courtlistener.com/opinion/109254/johnson-v-railway-express-agency-inc/ | terms of 42 U.S. C. 1988[10] suggest that the contrary is true. *465 C. Although state law is our primary guide in this area, it is not, to be sure, our exclusive guide. As the Court noted in Auto -707, considerations of state law may be displaced where their application would be inconsistent with the federal policy underlying the cause of action under consideration. Petitioner argues that a failure to toll the limitation period in this case will conflict seriously with the broad remedial and humane purposes of Title VII. Specifically, he urges that Title VII embodies a strong federal policy in support of conciliation and voluntary compliance as a means of achieving the statutory mandate of equal employment opportunity. He suggests that failure to toll the statute on a 1981 claim during the pendency of an administrative complaint in the EEOC would force a plaintiff into premature and expensive litigation that would destroy all chances for administrative conciliation and voluntary compliance. We have noted this possibility above and, indeed, it is conceivable, and perhaps almost to be expected, that failure to toll will have the effect of pressing a civil rights complainant who values his 1981 claim into court before the EEOC has completed its administrative proceeding.[11] One answer to this, although perhaps not a highly satisfactory one, is that the plaintiff in his 1981 suit may ask the court to stay proceedings until the administrative efforts at conciliation and voluntary compliance have been completed. But the fundamental answer to petitioner's argument lies in the factpresumably *4 a happy one for the civil rights claimantthat Congress clearly has retained 1981 as a remedy against private employment discrimination separate from and independent of the more elaborate and time-consuming procedures of Title VII. Petitioner freely concedes that he could have filed his 1981 action at any time after his cause of action accrued; in fact, we understand him to claim an unfettered right so to do. Thus, in a very real sense, petitioner has slept on his 1981 rights. The fact that his slumber may have been induced by faith in the adequacy of his Title VII remedy is of little relevance inasmuch as the two remedies are truly independent. Moreover, since petitioner's Title VII court action now also appears to be time barred because of the peculiar procedural history of this case, petitioner, in effect, would have us extend the 1981 cause of action well beyond the life of even his Title VII cause of action. We find no policy reason that excuses petitioner's failure to take the minimal steps |
Justice Blackmun | 1,975 | 11 | majority | Johnson v. Railway Express Agency, Inc. | https://www.courtlistener.com/opinion/109254/johnson-v-railway-express-agency-inc/ | reason that excuses petitioner's failure to take the minimal steps necessary to preserve each claim independently. V Petitioner cites American Pipe & Construction v. and Burnett v. New York Central R. in support of his position. Neither case is helpful. The respective periods of limitation in those cases were derived directly from federal statutes rather than by reference to state law. Moreover, in each case there was a substantial body of relevant federal procedural law to guide the decision to toll the limitation period, and significant underlying federal policy that would have conflicted with a decision not to suspend the running of the statute.[12] In the *467 present case there is no relevant body of federal procedural law to guide our decision, and there is no conflicting federal policy to protect.[13] Finally, and perhaps most importantly, the tolling effect given to the timely prior filings in American Pipe and in Burnett depended heavily on the fact that those filings involved exactly the same cause of action subsequently asserted. This factor was more than a mere abstract or theoretical consideration because the prior filing in each case necessarily operated to avoid the evil against which the statute of limitations was designed to protect.[14] The judgment of the Court of Appeals is affirmed. It is so ordered. *468 MR. JUSTICE MARSHALL, with whom MR. JUSTICE DOUGLAS and MR. JUSTICE BRENNAN join, concurring in part and dissenting in part. In recognizing that Congress intended to supply aggrieved employees with independent but related avenues of relief under Title VII of the Civil Rights Act of 1964 and 16 of the Civil Rights Act of 1870, 42 U.S. C. 1981, the Court emphasizes the importance of a full arsenal of weapons to combat unlawful employment discrimination in the private as well as the public sector. The majority stands on firm ground in recognizing that both remedies are available to victims of discriminatory practices. Accordingly, I concur in Parts I-III of the Court's opinion. But, the Court stumbles in its analysis of the relation between the two statutes on the tolling question. The majority concludes that the filing of a Title VII charge with the Equal Employment Opportunity Commission (EEOC) does not toll the applicable statute of limitations. It relies exclusively on state law for the period and effect of the limitation and discounts the importance of the federal policies of conciliation and avoidance of *469 unnecessary litigation in this area. The majority recognizes these policies but concludes that tolling the statute of limitations for a 1981 suit during the pendency of Title VII proceedings is |
Justice Blackmun | 1,975 | 11 | majority | Johnson v. Railway Express Agency, Inc. | https://www.courtlistener.com/opinion/109254/johnson-v-railway-express-agency-inc/ | 1981 suit during the pendency of Title VII proceedings is not an appropriate means of furthering them. I disagree. The congressional purpose of discouraging premature judicial intervention and the absence of any real risk of reviving stale claims suggest the propriety of tolling here. On balance, I view the failure to apply the tolling principle as undermining the foundation of Title VII and frustrating the congressional policy of providing alternative remedies. I must, therefore, dissent from Parts IV and V of the opinion. The Court sets out the circumstances that suspend a statute of limitations without close examination of the statute's equitable underpinnings. According to the majority, the federal court is deprived of authority to toll the state statute because it borrows both "the State's wisdom in setting a limit, [as well as] exceptions thereto," ante, at 464, and offers no special reason for reluctance to apply the "overtones" of the period to a federal civil rights action. As a general practice, where Congress has created a federal right without prescribing a period for enforcement, the federal courts uniformly borrow the most analogous state statute of limitations. The applicable period of limitations is derived from that which the State would apply if the action had been brought in a state court. See, e. g., Auto ; ; See also American Pipe & Construction v. For the purposes of this case the 1981 action is governed by the District Court's application of the one-year Tennessee provision for "actions brought under the federal civil rights statutes." Tenn. Code Ann. 28-304 See ante, at 462 n. 7. *470 Congress' failure to include a built-in limitations period in 1981 does not automatically warrant "an imprimatur on state law" and sanction the borrowing of both the effect as well as the duration from state law. Auto ; ; Board of It is well settled that when federal courts sit to enforce federal rights, they have an obligation to apply federal equity principles: "When Congress leaves to the federal courts the formulation of remedial details, it can hardly expect them to break with historic principles of equity in the enforcement of federally-created equitable rights." See also Moviecolor, Ltd. v. Eastman Kodak (CA2), cert. denied, The effect to be given the borrowed statute is thus a matter of judicial implication. Simply stated, we must determine whether the national policy considerations favoring the continued availability of the 1981 cause of action outweigh the interests protected by the State's statute of limitations. See Auto ; I Title VII and now 1981 both express the federal policy against discriminatory employment |
Justice Blackmun | 1,975 | 11 | majority | Johnson v. Railway Express Agency, Inc. | https://www.courtlistener.com/opinion/109254/johnson-v-railway-express-agency-inc/ | now 1981 both express the federal policy against discriminatory employment practices. Emporium Capwell v. WACO, ; ; McDonnell Douglas ; Griggs v. Duke Power As we have recently observed, "legislative enactments in this area have long evinced a *471 general intent to accord parallel or overlapping remedies against discrimination." It is this general legislative intent that must guide us in determining whether congressional purpose with respect to a particular statute is effectuated by tolling the statute of limitations. A full exposition of the statutory origins of 1981 with respect to prohibition against private acts of discrimination is set out in Jones v. Alfred H. Mayer In construing 1982, a sister provision to 1981, we concluded that Congress intended to prevent private discriminatory deprivations of all the rights enumerated in 1 of the 18 Act, including the right to The Court's recognition of a proscription in 1981 against private acts of employment discrimination, ante, at 459-460, reaffirms that the early Civil Rights Acts reflect congressional intent to "speak of all deprivations whatever their source." ; see also The legislative history of Title VII and its 12 amendments demonstrates that Congress intended to provide a coordinated but comprehensive set of remedies against employment discrimination. The short statute of limitations and the procedural prerequisites to Title VII actions emphasized the need to preserve the remedy of a suit under the 1870 legislation, which did not suffer from the same procedural restrictions as the latter enactment. See H. R. Rep. No. 92-238, p. 19 ; S. Rep. No. 92-415, p. 24 See also 118 Cong. Rec. 3370 Congressional sentiment was that "[b]y strengthening the administrative remedy [it] should not also eliminate preexisting rights which the Constitution and [the Congress had] accorded to aggrieved individuals." *472 While encouragement of private settlement to avoid unnecessary litigation under Title VII and the preservation of an independent 1981 action may appear somewhat at odds, the two themes are reconciled in the context of their joint remedial purpose: devising a flexible network of remedies to guarantee equal employment opportunities. See, e. g., Guerra v. Manchester Terminal ; Boudreaux v. Baton Rouge Marine Contracting ; Macklin v. Spector Freight Systems, Inc., 156 U. S. App. D. C. 69, 84-86, n. 30, 478 F.2d 9, See also Culpepper v. Reynolds Metals In Alexander v. we examined the relationship between compulsory arbitration and litigation under Title VII, a relationship analogous to that between the EEOC factfinding and conciliation process and litigation under 1981, and accommodated both avenues of redress. The reasoning leading to that result is equally compelling here. Forced compliance with |
Justice Blackmun | 1,975 | 11 | majority | Johnson v. Railway Express Agency, Inc. | https://www.courtlistener.com/opinion/109254/johnson-v-railway-express-agency-inc/ | to that result is equally compelling here. Forced compliance with a short statute of limitations during the pendency of a charge before the EEOC would discourage and/or frustrate recourse to the congressionally favored policy of conciliation, 415 U. S., at and "[t]he possibility of voluntary compliance or settlement of Title VII claims would thus be reduced, and the result could well be more litigation, not less." Cf. American Pipe & Constr. v. -556. Congressional effort, with the 12 amendments, to strengthen the administrative remedy by increasing EEOC's ability to conciliate complaints is frustrated by the majority's requirement that an employee file the 1981 action prior to the conclusion of the Title VII conciliation efforts in order to avoid the bar of the *473 statute of limitations.[1] Legislative pains to avoid unnecessary and costly litigation by making the informal investigatory and conciliatory offices of EEOC readily available to victims of unlawful discrimination cannot be squared with the formal mechanistic requirement of early filing for the technical purpose of tolling a limitations statute. In sum, the federal policies weigh strongly in favor of tolling. II Examination of the purposes served by the statute of limitations indicates that they would not be frustrated by adoption of the tolling rule. Statutes of limitations are designed to insure fairness to defendants by preventing the revival of stale claims in which the defense is hampered by lost evidence, faded memories, and disappearing witnesses, and to avoid unfair surprise. None of these factors exists here. Respondents were informed of the petitioner's grievances through the complaint filed with the Commission and conciliation negotiations. The charge filed with the EEOC and the 1981 claim arise out of the same factual circumstances. The petitioner in this case diligently pursued the informal procedures before the Commission and adhered to the congressional preference for conciliation prior to litigation. Now, when Johnson asserts his right to proceed with litigation under 1981 after his good-faith, albeit unnecessary, compliance with Title VII procedures, the majority interposes the bar of the Tennessee statute of limitations which clearly was not designed to include such cases.[2] *474 In my judgment, following the antitolling position of the Court to its logical conclusion produces an inequitable result. Aggrieved employees will be forced into simultaneously prosecuting premature 1981 actions in the federal courts. In essence, the litigant who first explores conciliation prior to resort to litigation must file a duplicative claim in the district court on which the court will either take no action until the Title VII proceedings are concluded or proceed in frustration of the EEOC attempts to conciliate. |
Justice Blackmun | 1,975 | 11 | majority | Johnson v. Railway Express Agency, Inc. | https://www.courtlistener.com/opinion/109254/johnson-v-railway-express-agency-inc/ | or proceed in frustration of the EEOC attempts to conciliate. No federal policy considerations warrant this waste of judicial time and derogation of the conciliation process. Adoption of the tolling principle, however, protects the federal interest in both preserving multiple remedies for employment discrimination and in the proper function of the limitations statute. As a normal consequence tolling works to suspend the operation of a statute of limitations during the pendency of an event or condition. See American Pipe & Construction v. 561; Burnett v. New York Central R. In American *475 Pipe we held that the initiation of a timely class action tolled the running of the limitation period as to individual members of the class, enabling them to institute separate actions after the District Court found class action an inappropriate mechanism for the litigation. In similar manner the Burnett court viewed the initiation of a timely Federal Employers' Liability Act suit in state court as tolling the statute of limitations for the later filing of a federal action following dismissal of the state proceeding for improper venue. The Court's analysis in both cases rested on the conclusion that each plaintiff had by his prior action given the defendant timely notice in a manner that "fulfilled the policies of repose and certainty inherent in the limitation provisions and tolled the running of the period." American Pipe & Construction v. Although the length of the limitation in these cases was fixed by federal statute, the tolling rationale is equally adaptable to protect subsequent litigation when the duration period is established by state statute. The federal policy in favor of continuing availability of multiple remedies for persons subject to employment discrimination is inconsistent with the majority's decision not to suspend the operation of the statute. As long as the claim arising under 1981 is essentially limited to the Title VII claim, staleness and unfair surprise disappear as justification for applying the statute.[3] Additionally, the difference in statutory origin for the right asserted under the EEOC charge and the subsequent 1981 suit is of no consequence since the claims are *476 essentially equivalent in substance. Cf. Alexander v. Since the EEOC charge gives notice that petitioner also has a grievance under 1981, that filing, like the initial litigation in Burnett and American Pipe, satisfied the equitable policies underlying the limitation provision. American Pipe & Construction v. Neither the legislative history of these Acts nor the avowed purposes of statutes of limitations foreclose goodfaith resort to the administrative procedures of the EEOC. Adoption of the tolling theory avoids the Draconian choice of losing |
Justice Rehnquist | 1,993 | 19 | majority | United States v. Texas | https://www.courtlistener.com/opinion/112841/united-states-v-texas/ | In this case we decide the question left open in West : whether Congress intended the Debt Collection Act of 198 to abrogate the United ' federal common-law right to collect prejudgment interest on debts owed to it by the We hold that it did not. Texas incurred the instant debts as a result of participation in the Food Stamp Program, as amended, *531 7 U.S. C. 011 et seq. Under that program, the Food and Nutrition Service (FNS) of the United Department of Agriculture provides food stamp coupons to participating and the then distribute the coupons to qualified individuals and households. (a), . Regulations implementing the Food Stamp Program permit participating to distribute the coupons either over the counter or through the mail. 7 CFR 74.3(a) (1986); 7 CFR 74.3(a)(3) While mail issuance generally is cheaper and more convenient, that choose to use that distribution method must reimbue the Federal Government for a portion of the replacement cost for any lost or stolen coupons. 7 U.S. C. 016(f). Specifically, a State must reimbue the Government for all such losses above a "tolerance level" set by regulation.[1] Texas, through its Department of Human Services, contractually bound itself to comply with all federal regulations governing the program. See 7 CFR 7.(a)(), 7.(b)(1) (1986).[] Texas incurred substantial mail issuance *53 losses, in part because United Postal employees stole food stamps that had been mailed by the Texas Department of Human Services to qualified households. Because those losses exceeded the applicable tolerance level, Texas was bound to reimbue the Federal Government for the excess losses. The FNS notified Texas of its debt in the amount of $41,385, and informed it that prejudgment interest would begin to accrue on the balance unless payment was made within 30 days. Texas sought administrative relief in the form of a waiver of liability. After the Food Stamp Appeals Board denied the requested relief, Texas sued the United in the United District Court for the Western District of Texas. In addition to challenging the Appeals Board's refusal to grant a waiver of liability, Texas argued that the Debt Collection Act precluded the imposition of prejudgment interest on any amount it owed the Federal Government. The District Court granted summary judgment in favor of the United on both issues. With respect to the prejudgment interest issue, the District Court adopted the approach taken by the Court of Appeals for the Tenth Circuit in which held that the Government's common-law right to prejudgment interest on debts owed to it by the survived enactment of the Debt Collection Act. See Civ. |
Justice Rehnquist | 1,993 | 19 | majority | United States v. Texas | https://www.courtlistener.com/opinion/112841/united-states-v-texas/ | the survived enactment of the Debt Collection Act. See Civ. Action Nos. A-87CA-774, A-88CA-80 (WD Tex., Nov. 13, 1990). The Court of Appeals for the Fifth Circuit affirmed the District Court's decision concerning waiver, but reveed its *533 decision concerning prejudgment interest. Relying on the language of the Debt Collection Act, the court held that the "Act is not silent concerning whether or not state obligations should be subject to prejudgment interest. The Act specifically excludes states from the payment of interest." Because Congress did not impose interest through the specific provisions of the Food Stamp Act "during the time period relevant in this case, the Courts are not free to `supplement' Congress' enactment." ). The court rejected the argument that abrogation is inconsistent with the Act's purpose of enhancing the Government's ability to collect its debts. In the court's view, the Federal Government could enforce its claims for unpaid mail issuance losses through the offset procedures built into the Food Stamp Act. Because of a split among the Courts of Appeals on this question, we granted certiorari, and now revee.[3] It is a "longstanding rule that parties owing debts to the Federal Government must pay prejudgment interest where the underlying claim is a contractual obligation to pay money." West ). In Board of Comm' of Jackson County v. United we held that this common-law right extends to debts owed by state and local governments, but cautioned that a federal court considering the question in an individual case should weigh the federal and state interests involved. We reaffirmed Board of *534 Comm' in West and upheld the assessment of prejudgment interest on a debt owed by West to the United Just as longstanding is the principle that "[s]tatutes which invade the common law are to be read with a presumption favoring the retention of long-established and familiar principles, except when a statutory purpose to the contrary is evident." ; Federal Savings & Loan In such cases, Congress does not write upon a clean slate. at In order to abrogate a common-law principle, the statute must "speak directly" to the question addressed by the common law. Mobil Oil at ; Texas argues that this presumption favoring retention of existing law is appropriate only with respect to state common law or federal maritime law. Although a different standard applies when analyzing the effect of federal legislation on state law, there is no support in our cases for the proposition that the presumption has no application to federal common law, or for a distinction between general federal common law and federal maritime law |
Justice Rehnquist | 1,993 | 19 | majority | United States v. Texas | https://www.courtlistener.com/opinion/112841/united-states-v-texas/ | distinction between general federal common law and federal maritime law in this regard. We agree with Texas that Congress need not "affirmatively proscribe" the common-law doctrine at issue. Brief for Respondents 3-4; see at But as we stated in "courts may take it as a given that Congress has legislated with an expectation that the [common law] principle will apply except `when a statutory purpose to the contrary is evident.' " 501 U.S., at (quoting at ). The Debt Collection Act does not speak directly to the Federal Government's right to collect prejudgment interest on debts owed to it by the The Act states that "[t]he head of an executive or legislative agency shall charge a minimum annual rate of interest on an outstanding debt on a *535 United Government claim owed by a peon" 31 U.S. C. 3717(a)(1) (emphasis added). Section 3701, in turn, provides that the term "`peon' does not include an agency of the United Government, of a State government, or of a unit of general local government." 3701(c). Texas argues that this exemption clearly establishes Congress' intent to relieve the of their common-law obligation to pay prejudgment interest. We disagree. The only obligation from which 3701 exempts the is the obligation to pay prejudgment interest in accordance with the mandatory provisions of the Act. These impose a stringent minimum interest requirement upon private peons owing money to the Federal Government. The statute is silent as to the obligation of the to pay prejudgment interest on such debts. We agree with the Solicitor General that "Congress's mere refusal to legislate with respect to the prejudgment-interest obligations of state and local governments falls far short of an expression of legislative intent to supplant the existing common law in that area." Brief for Petitione 16.[4] *536 Our conclusion that the remain subject to commonlaw prejudgment interest liability is supported by the fact that the Debt Collection Act is more onerous than the common law. Section 3717(a) requires federal agencies to collect prejudgment interest against peons and specifies the interest rate.[5] The duty to pay prejudgment interest under the common law, however, is by no means automatic. Before imposing prejudgment interest, the courts must weigh the competing federal and state interests. West -311; Board of Comm', And instead of imposing a preestablished rate of interest, the district courts retain discretion to choose the appropriate rate in a given case. Unlike the common law, 3717 also imposes processing fees and penalty charges, 31 U.S. C. 3717(e)(1), (e)(). Given these differences, it is logical to conclude that the Act was intended to |
Justice Rehnquist | 1,993 | 19 | majority | United States v. Texas | https://www.courtlistener.com/opinion/112841/united-states-v-texas/ | is logical to conclude that the Act was intended to reach only one subset of potential debtopeonsand to leave the other subset alone. It is reasonable to apply more stringent requirements to debts owed by private peons and to keep the more flexible common law in place for debts owed by state and local governments. The evident purpose of the Debt Collection Act reinforces our reading of the plain language. The Act was designed "[t]o increase the efficiency of Government-wide efforts to collect debts owed the United and to provide additional procedures for the collection of debts owed the United" ; S. Rep. No. 97-378, p. (198) (the Act responded to "increasing concern expressed in Congress *537 and elsewhere over the increasing backlog of unpaid debts owed the federal government"). This suggests that Congress passed the Act in order to strengthen the Government's hand in collecting its debts. Yet under the reading proposed by Texas and the Court of Appeals, the Act would have the anomalous effect of placing delinquent in a position where they had less incentive to pay their debts to the Federal Government than they had prior to its passage. The Court of Appeals reasoned that the would not have an incentive to delay payment of their debts because the Food Stamp Act makes state agencies liable for actual losses caused by coupon shortages or unauthorized issuances, and permits the Federal Government to recover these debts through an administrative offset But the Debt Collection Act applies to all federal agencies, not just the FNS. Thus, the existence of a mechanism in the Food Stamp Act allowing the FNS to collect its debts does nothing to encourage prompt payment of debts governmentwide. That the FNS may have already possessed adequate sanctions to compel payment is not a reason to conclude that the generic language in the Debt Collection Act was meant to abrogate the existing common-law obligation of the generally. Texas concedes that Congress intended to enhance the Government's debt collection efforts by passing the Act. It argues, however, that Congress was concerned primarily with debts owed by private peons. Accordingly, runs the argument, Congress meant to relieve the of their duty to pay interest because the were not the root of the debt collection problem. Part of this argument peuades; Congress in the Act tightened the screws, so to speak, on the prejudgment interest obligations of private debto to the Government, and not on the It may be inferred from this fact that the former were the root of the Government's debt collection problems which inspired the |
Justice Rehnquist | 1,993 | 19 | majority | United States v. Texas | https://www.courtlistener.com/opinion/112841/united-states-v-texas/ | root of the Government's debt collection problems which inspired the Act. But it does not at all follow *538 that because Congress did not tighten the screws on the it therefore intended that the screws be entirely removed. The more logical conclusion is that it left the screws in place, untightened. As a last-ditch argument, Texas contends that its liability for losses in the mail is not a contractual debt for which it owes prejudgment interest, but rather a penalty unilaterally imposed by Congress. See Rodge v. United This argument fails because the obligation of Texas to reimbue the Government for a portion of the stamps lost in the mail is quite different from that involved in Rodge. There the penalties in question were unilaterally imposed by the Agricultural Adjustment Act on farme who exceeded their production quotas; there was no suggestion that the farme ever consented to such penalties. Here, on the other hand, Texas signed a Federal/State Agreement, the express terms of which bound the State to act in accordance with the implementing regulations. 7 CFR 7.(a)() (1986); see also n. Thus, 7 CFR 74.3(c)(4) (1986), which imposed liability for mail issuance losses above a specified tolerance level, was incorporated into Texas' Federal/State Agreement. The requirement that the reimbue the Federal Government for a certain portion of mail issuance losses is not a penalty, but a contractual obligation which the State assumed.[6] *539 For these reasons, we hold that the Debt Collection Act left in place the federal common law governing the obligation of the to pay prejudgment interest on debts owed to the Federal Government. The judgment of the Court of Appeals to the contrary is accordingly Reveed. |
Justice O'Connor | 1,993 | 14 | majority | United States v. Olano | https://www.courtlistener.com/opinion/112848/united-states-v-olano/ | The question in this case is whether the presence of alternate jurors during jury deliberations was a "plain error" that the Court of Appeals was authorized to correct under Federal Rule of Criminal Procedure 52(b). I Each of the respondents, Guy W. Olano, Jr., and Raymond M. Gray, served on the board of directors of a savings and loan association. In 1986, the two were indicted in the Western District of Washington on multiple federal charges for their participation in an elaborate loan "kickback" scheme. Their joint jury trial with five other codefendants commenced in March 1987. All of the parties agreed that 14 jurors would be selected to hear the case, and that the 2 alternates would be identified before deliberations began. On May 26, shortly before the end of the 3-month trial, the District Court suggested to the defendants that the two alternate jurors, soon to be identified, might be allowed to attend deliberations along with the regular jurors: ". I'd just like you to think about it, you have a day, let me know, it's just a suggestion and you canif there is even one person who doesn't like it we won't do it, but it is a suggestion that other courts have followed in long cases where jurors have sat through a lot of testimony, and that is to let the alternates go in but not participate, but just to sit in on deliberations. "It's strictly a matter of courtesy and I know many judges have done it with no objections from counsel. One of the other things it does is if they don't participate but they're there, if an emergency comes up and people decide they'd rather go with a new alternate rather than 11, which the rules provide, it keeps that option open. It also keeps people from feeling they've sat here for three months and then get just kind of kicked out. But it's certainly not worthunless it's something you all *728 agree to, it's not worth your spending time hassling about, you know what I mean? You've got too much else on your mind. I don't want it to be a big issue; it's just a suggestion. Think about it and let me know." App. 79. The matter arose again the next day, inan ambiguous exchange between Gray's counsel and the District Court: "THE COURT: [H]ave you given any more thought as to whether you want the alternates to go in and not participate, or do you want them out? "MR. ROBISON [counsel for Gray]: We would ask they not. "THE COURT: |
Justice O'Connor | 1,993 | 14 | majority | United States v. Olano | https://www.courtlistener.com/opinion/112848/united-states-v-olano/ | [counsel for Gray]: We would ask they not. "THE COURT: Not." App. 82. One day later, on May 28, the last day oftrial, the District Court for a third time asked the defendants whether they wanted the alternate jurors to retire into the jury room. Counsel for defendant Davy Hilling gave an unequivocal, affirmative answer. "THE COURT: Well, Counsel, I received your alternates. Do I understand that the defendants nowit's hard to keep up with you, Counsel. It's sort of a day by daybut that's all right. You do allagree that all fourteen deliberate? "Okay. Do you want me to instruct the two alternates not to participate in deliberation? "MR. KELLOGG [counsel for Hilling]: That's what I was on my feet to say. It's my understanding that the conversation was the two alternates go back there instructed that they are not to take part in any fashion in the deliberations." App. 86. This discussion, like the preceding two, took place outside the hearing of the jurors. As before, both Gray's counsel and Olano's counsel were present. Gray, too, attended all three discussions. Olano may not have attended the third *729 he claims that the Marshal failed to return him to the courtroom in timebut he was present at the first two. The District Court concluded that Hilling's counsel was speaking for the other defendants as well as his own client. None of the other counsel intervened during the colloquy between the District Court and Hilling's counsel on May 28, nor did anyone object later the same day when the court instructed the jurors that the two alternates would be permitted to attend deliberations. The court instructed: "We have indicated to you that the parties would be selecting alternates at this time. I am going to inform you who those alternates are, but before I do, let me tell you, I think it was a difficult selection for all concerned, and since the law requires that there be a jury of twelve, it is only going to be a jury of twelve. But what we would like to do in this case is have all of you go back so that even the alternates can be there for the deliberations, but according to the law, the alternates must not participate in the deliberations. It's going to be hard, but if you are an alternate, we think you should be there because things do happen in the course of lengthy jury deliberations, and if you need to step in, we want you to be able to step in having heard the deliberations. |
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