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Justice O'Connor

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United States v. Olano

https://www.courtlistener.com/opinion/112848/united-states-v-olano/

to be able to step in having heard the deliberations. But we are going to ask that you not participate. "The alternates are Norman Sargent and Shirley Kinsella. I am going to ask at this time now, ladies and gentlemen, that you retire to the jury room and begin your deliberations." App. 89-90. During deliberations, one of the alternate jurors was excused at his request. The other alternate remained until the jury returned with its verdict. Both respondents were convicted on a number of charges. They appealed to the United States Court of Appeals for the Ninth Circuit. The Court of Appeals reversed certain counts for insufficient evidence and then *730 considered whether the presence of alternate jurors during jury deliberations violated Federal Rule of Criminal Procedure 24(c): "The court may direct that not more than 6 jurors in addition to the regular jury be called and impanelled to sit as alternate jurors. Alternate jurors in the order in which they are called shall replace jurors who, prior to the time the jury retires to consider its verdict, become or are found to be unable or disqualified to perform their duties. An alternate juror who does not replace a regular juror shall be discharged after the jury retires to consider its verdict." Because respondents had not objected to the alternates' presence, the court applied a "plain error" standard under Rule 52(b). Noting that "[w]e have not previously directly resolved the question of the validity of a verdict when alternate jurors are permitted to be present during the jury's deliberations," the court relied on the "language of Rule 24(c), Rule 23(b), the Advisory Committee Notes to Rule 23, and related Ninth Circuit precedent" to hold that Rule 24(c) barred alternate jurors from attending jury deliberations unless the defendant, on the record, explicitly consented to their -1437. The court found that Rule 24(c) was violated in the instant case, because "the district court did not obtain individual waivers from each defendant personally, either orally or in writing." It then held that the presence of alternates in violation of Rule 24(c) was "inherently prejudicial" and reversible per se. "We cannot fairly ascertain whether in a given case the alternate jurors followed the district court's prohibition on participation. However, even if they heeded the letter of the court's instructions and remained orally mute throughout, itis entirely possible that their attitudes, conveyed by facial expressions, gestures or the *731 like, may have had some effect upon the decision of one or more jurors." Finally, in a footnote, the court decided that "[b]ecause the violation is

Justice O'Connor

majority

United States v. Olano

https://www.courtlistener.com/opinion/112848/united-states-v-olano/

a footnote, the court decided that "[b]ecause the violation is inherently prejudicial and because it infringes upon a substantial right of the defendants, it falls within the plain error doctrine." The Court of Appeals vacated respondents' remaining convictions and did not reach the other "substantial issues" that they had raised. We granted certiorari to clarify the standard for "plain error" review by the courts of appeals under Rule 52(b). II "No procedural principle is more familiar to this Court than that a constitutional right," or a right of any other sort, "may be forfeited in criminal as well as civil cases by the failure to make timely assertion of the right before a tribunal having jurisdiction to determine it." Federal Rule of Criminal Procedure 52(b), which governs on appeal from criminal proceedings, provides a court of appeals a limited power to correct errors that were forfeited because not timely raised in district court. The Rule has remained unchanged since the original version of the Criminal Rules, and was intended as "a restatement of existing law." Advisory Committee's Notes on Fed. Rule Crim. Proc. 52, 18 U.S. C. App., p. 833. It is paired, appropriately, with Rule 52(a), which governs nonforfeited errors. Rule 52 provides: "(a) Harmless Error. Any error, defect, irregularity or variance which does not affect substantial rights shall be disregarded. "(b) Plain Error. Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court." *732 Although "[a] rigid and undeviating judicially declared practice under which courts of review would invariably and under all circumstances decline to consider all questions which had not previously been specifically urged would be out of harmony with the rules of fundamental justice," the authority created by Rule 52(b) is circumscribed. There must be an "error" that is "plain" and that "affect[s] substantial rights." Moreover, Rule 52(b) leaves the decision to correct the forfeited error within the sound discretion of the court of appeals, and the court should not exercise that discretion unless the error "`seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.' " United ). A Rule 52(b) defines a single category of forfeited-butreversible error. Although it is possible to read the Rule in the disjunctive, as creating two separate categories—"plain errors" and "defects affecting substantial rights"—that reading is surely wrong. See 470 U. S., at n. 12 As we explained in the phrase "error or defect" is more simply read as "error." The forfeited error "may be noticed" only if it is "plain" and "affect[s] substantial rights." More precisely,

Justice O'Connor

majority

United States v. Olano

https://www.courtlistener.com/opinion/112848/united-states-v-olano/

if it is "plain" and "affect[s] substantial rights." More precisely, a court of appeals may correct the error (either vacating for a new trial, or reversing outright) only if it meets these criteria. The appellate court must consider the error, putative or real, in deciding whether the judgment below should be overturned, but cannot provide that remedy unless Rule 52(b) applies (or unless some other provision authorizes the error's correction, an issue that respondents do not raise). The first limitation on appellate authority under Rule 52(b) is that there indeed be an "error." Deviation from a legal *733 rule is "error" unless the rule has been waived. For example, a defendant who knowingly and voluntarily pleads guilty in conformity with the requirements of Rule 11 cannot have his conviction vacated by a court of appeals on the ground that he ought to have had a trial. Because the right to trial is waivable, and because the defendant who enters a valid guilty plea waives that right, his conviction without a trial is not "error." Waiver is different from forfeiture. Whereas forfeiture is the failure to make the timely assertion of a right, waiver is the "intentional relinquishment or abandonment of a known right." ; see, e. g., (distinguishing between "waiver" and "forfeiture"); Spritzer, Criminal Waiver, Procedural Default and the Burger Court, ; Westen, Away from Waiver: A Rationale for the Forfeiture of Constitutional Rights in Criminal Procedure, 1214— 12 Whether a particular right is waivable; whether the defendant must participate personally in the waiver; whether certain procedures are required for waiver; and whether the defendant's choice must be particularly informed or voluntary, all depend on the right at stake. See, e. g., 2 W. LaFave & J. Israel, Criminal Procedure 11.6 (allocation of authority between defendant and counsel); Dix, Waiver in Criminal Procedure: A Brief for More Careful Analysis, 55 Texas L. Rev. 193 (waivability and standards for waiver). Mere forfeiture, as opposed to waiver, does not extinguish an "error" under Rule 52(b). Although in theory it could be argued that "[i]f the question was not presented to the trial court no error was committed by the trial court, hence there is nothing to review," Orfield, The Scope of Appeal in Criminal Cases, this is not the theory that Rule 52(b) adopts. If a legal rule was violated during the district court proceedings, *734 and if the defendant did not waive the rule, then there has been an "error" within the meaning of Rule 52(b) despite the absence of a timely objection. The second limitation on appellate authority under Rule

Justice O'Connor

majority

United States v. Olano

https://www.courtlistener.com/opinion/112848/united-states-v-olano/

timely objection. The second limitation on appellate authority under Rule 52(b) is that the error be "plain." "Plain" is synonymous with "clear" or, equivalently, "obvious." See ; United 456 U.S. 2, We need not consider the special case where the error was unclear at the time of trial but becomes clear on appeal because the applicable law has been clarified. At a minimum, a court of appeals cannot correct an error pursuant to Rule 52(b) unless the error is clear under current law. The third and final limitation on appellate authority under Rule 52(b) is that the plain error "affec[t] substantial rights." This is the same language employed in Rule 52(a), and in most cases it means that the error must have been prejudicial: It must have affected the outcome of the district court proceedings. See, e. g., Bank of Nova ; United 454- ; When the defendant has made a timely objection to an error and Rule 52(a) applies, a court of appeals normally engages in a specific analysis of the district court record—a so-called "harmless error" inquiry—to determine whether the error was prejudicial. Rule 52(b) normally requires the same kind of inquiry, with one important difference: It is the defendant rather than the Government who bears the burden of persuasion with respect to prejudice. In most cases, a court of appeals cannot correct the forfeited error unless the defendant shows that the error was prejudicial. See This burden shifting is dictated by a subtle but important *735 difference in language between the two parts of Rule 52: While Rule 52(a) precludes error correction only if the error "does not affect substantial rights" (emphasis added), Rule 52(b) authorizes no remedy unless the error does "affec[t] substantial rights." See also Note, Appellate Review in a Criminal Case of Errors Made Below Not Properly Raised and Reserved, 23 Miss. L. J. 42, 57 (1951) (summarizing existing law) ("The error must be real and such that it probably influenced the verdict"). We need not decide whether the phrase "affecting substantial rights" is always synonymous with "prejudicial." See generally (constitutional error may not be found harmless if error deprives defendant of the "`basic protections [without which] a criminal trial cannot reliably serve its function as a vehicle for determination of guilt or innocence, and no criminal punishment may be regarded as fundamentally fair' ") ). There may be a special category of forfeited errors that can be corrected regardless of their effect on the outcome, but this issue need not be addressed. Nor need we address those errors that should be presumed prejudicial

Justice O'Connor

majority

United States v. Olano

https://www.courtlistener.com/opinion/112848/united-states-v-olano/

need we address those errors that should be presumed prejudicial if the defendant cannot make a specific showing of prejudice. Normally, although perhaps not in every case, the defendant must make a specific showing of prejudice to satisfy the "affecting substantial rights" prong of Rule 52(b). B Rule 52(b) is permissive, not mandatory. If the forfeited error is "plain" and "affect[s] substantial rights," the court of appeals has authority to order correction, but is not required to do so. The language of the Rule ("may be noticed"), the nature of forfeiture, and the established appellate practice that Congress intended to continue all point to this conclusion. "[I]n criminal cases, where the life, or as in this case the liberty, of the defendant is at stake, the courts of the United States, in the exercise of a sound discretion, may *736 notice [forfeited error]." Accord, ; former Supreme Court Rule 27.6 (1939) (cited in Advisory Committee's Notes on Fed. Rule Crim. Proc. Rule 52(b), 18 U.S. C. App., p. 833) ("`[T]he court, at its option, may notice a plain error not assigned or specified' "). We previously have explained that the discretion conferred by Rule 52(b) should be employed "`in those circumstances in which a miscarriage of justice would otherwise result.' " 470 U. S., at (quoting at n. 14). In our collateral-review jurisprudence, the term "miscarriage of justice" means that the defendant is actually innocent. See, e. g., The court of appeals should no doubt correct a plain forfeited error that causes the conviction or sentencing of an actually innocent defendant, see, e. g., U.S. 632 but we have never held that a Rule 52(b) remedy is only warranted in cases of actual innocence. Rather, the standard that should guide the exercise of remedial discretion under Rule 52(b) was articulated in United 297 U.S. 7 The court of appeals should correct a plain forfeited error affecting substantial rights if the error "seriously affect[s] the fairness, integrity or public reputation of judicial proceedings." at As we explained in the "standard laid down in United [was] codified in Federal Rule of Criminal Procedure 52(b)," and we repeatedly have quoted the Atkinson language in describing plain-error review, see at ; at n. 13; ; (3); United U.S. 0, (0); see also An error may "seriously affect the fairness, integrity or public reputation of judicial proceedings" independent of the *737 defendant's innocence. Conversely, a plain error affecting substantial rights does not, without more, satisfy the Atkinson standard, for otherwise the discretion afforded by Rule 52(b) would be illusory. With these basic principles in mind,

Justice O'Connor

majority

United States v. Olano

https://www.courtlistener.com/opinion/112848/united-states-v-olano/

52(b) would be illusory. With these basic principles in mind, we turn to the instant case. III The presence of alternate jurors during jury deliberations is no doubt a deviation from Rule 24(c). The Rule explicitly states: "An alternate juror who does not replace a regular juror shall be discharged after the jury retires to consider its verdict." It is a separate question whether such deviation amounts to "error" when the defendant consents to the alternates' presence. The Government supposes that there was indeed an "error" in this case, on the premise that Rule 24(c) is nonwaivable, see Reply Brief for United States 9, n. 4, and we assume without deciding that this premise is correct. The Government also essentially concedes that the "error" was "plain." See and n. 4. We therefore focus our attention on whether the error "affect[ed] substantial rights" within the meaning of Rule 52(b), and conclude that it did not. The presence of alternate jurors during jury deliberations is not the kind of error that "affect[s] substantial rights" independent of its prejudicial impact. Nor have respondents made a specific showing of prejudice. Finally, we see no reason to presume prejudice here. Assuming arguendo that certain errors "affec[t] substantial rights" independent of prejudice, the instant violation of Rule 24(c) is not such an error. Although the presence of alternate jurors does contravene "`the cardinal principle that the deliberations of the jury shall remain private and secret,' " Advisory Committee's Notes on Fed. Rule Crim. Proc. 23(b), 18 U.S. C. App., p. 785 ), the primary if not exclusive purpose of jury privacy and secrecy *738 is to protect the jury's deliberations from improper influence. "[I]f no harm resulted from this intrusion [of an alternate juror into the jury room,] reversal would be pointless." United We generally have analyzed outside intrusions upon the jury for prejudicial impact. See, e. g., (bailiff's comments to jurors, such as "Oh that wicked fellow he is guilty," were prejudicial); ; A prime example is where an outsider had communicated with a juror during a criminal trial, appearing to offer a bribe, and the Federal Bureau of Investigation then had investigated the incident. We noted that "[t]he sending of an F. B. I. agent in the midst of a trial to investigate a juror as to his conduct is bound to impress the juror," and remanded for the District Court to "determine the circumstances, the impact thereof upon the juror, and whether or not it was prejudicial, in a hearing with all interested parties permitted to participate." This "intrusion" jurisprudence was summarized in

Justice O'Connor

majority

United States v. Olano

https://www.courtlistener.com/opinion/112848/united-states-v-olano/

parties permitted to participate." This "intrusion" jurisprudence was summarized in : "[D]ue process does not require a new trial every time a juror has been placed in a potentially compromising situation. Were that the rule, few trials would be constitutionally acceptable. [I]t is virtually impossible to shield jurors from every contact or influence that might theoretically affect their vote. Due process means a jury capable and willing to decide the case solely on the evidence before it, and a trial judge ever watchful to prevent prejudicial occurrences and to determine the effect of such occurrences when they happen." *739 There may be cases where an intrusion should be presumed prejudicial, see, e. g., ; but a presumption of prejudice as opposed to a specific analysis does not change the ultimate inquiry: Did the intrusion affect the jury's deliberations and thereby its verdict? We cannot imagine why egregious comments by a bailiff to a juror (Parker) or an apparent bribe followed by an official investigation (Remmer) should be evaluated in terms of "prejudice," while the mere presence of alternate jurors during jury deliberations should not. Of course, the issue here is whether the alternates' presence sufficed to establish remedial authority under Rule 52(b), not whether it violated the Sixth Amendment or Due Process Clause, but we see no reason to depart from the normal interpretation of the phrase "affecting substantial rights." The question, then, is whether the instant violation of Rule 24(c) prejudiced respondents, either specifically or presumptively. In theory, the presence of alternate jurors during jury deliberations might prejudice a defendant in two different ways: either because the alternates actually participated in the deliberations, verbally or through "body language"; or because the alternates' presence exerted a "chilling" effect on the regular jurors. See at ; United Conversely, "if the alternate in fact abided by the court's instructions to remain orally silent and not to otherwise indicate his views or attitude and if the presence of the alternate did not operate as a restraint upon the regular jurors' freedom of expression and action, we see little substantive difference between the presence of [the alternate] and the presence in the jury room of an unexamined book which had not been admitted into evidence." at Respondents have made no specific showing that the alternate jurors in this case either participated in the jury's deliberations or "chilled" deliberation by the regular jurors. We *740 need not decide whether testimony on this score by the alternate jurors or the regular jurors, through affidavits or at a Remmer -like hearing, would violate Federal Rule of Evidence

Justice O'Connor

majority

United States v. Olano

https://www.courtlistener.com/opinion/112848/united-states-v-olano/

a Remmer -like hearing, would violate Federal Rule of Evidence 606(b), compare at -1392, and n. 17, with United F.2d 468 or whether the courts of appeals have authority to remand for Remmer -like hearings on plain-error review. Respondents have never requested a hearing, and thus the record before us contains no direct evidence that the alternate jurors influenced the verdict. On this record, we are not persuaded that the instant violation of Rule 24(c) was actually prejudicial. Nor will we presume prejudice for purposes of the Rule 52(b) analysis here. The Court of Appeals was incorrect in finding the error "inherently prejudicial." Until the close of trial, the 2 alternate jurors were indistinguishable from the 12 regular jurors. Along with the regular jurors, they commenced their office with an oath, see Tr. 212 received the normal initial admonishment, see heard the same evidence and arguments, and were not identified as alternates until after the District Court gave a final set of instructions, see App. 89-90. In those instructions, the District Court specifically enjoined the jurors that "according to the law, the alternates must not participate in the deliberations," and reiterated, "we are going to ask that you not participate." The Court of Appeals should not have supposed that this injunction was contravened. "[It is] the almost invariable assumption of the law that jurors follow their instructions." 481 U.S. "[We] presum[e] that jurors, conscious of the gravity of their task, attend closely the particular language of the trial court's instructions in a criminal case and strive to understand, make sense of, and follow the instructions given them." See also Strick- Nor do we think that the mere presence of alternate jurors entailed a sufficient risk of "chill" to justify a presumption of prejudice on that score. In sum, respondents have not met their burden of showing prejudice under Rule 52(b). Whether the Government could have met its burden of showing the absence of prejudice, under Rule 52(a), if respondents had not forfeited their claim of error, is not at issue here. This is a plain-error case, and it is respondents who must persuade the appellate court that the deviation from Rule 24(c) was prejudicial. Because the conceded error in this case did not "affec[t] substantial rights," the Court of Appeals had no authority to correct it. We need not consider whether the error, if prejudicial, would have warranted correction under the Atkinson standard as "seriously affect[ing] the fairness, integrity or public reputation of judicial proceedings." The judgment of the Court of Appeals is reversed, and the case is remanded for

Justice O'Connor

majority

Devlin v. Scardelletti

https://www.courtlistener.com/opinion/121145/devlin-v-scardelletti/

Petitioner, a nonnamed member of a class certified under Federal Rule of Civil Procedure 23(b)(1), sought to appeal the approval of a settlement over objections he stated at the fairness hearing. The Court of Appeals for the Fourth Circuit held that he lacked the power to bring such an appeal because he was not a named class representative and because *4 he had not successfully moved to intervene in the litigation. We now reverse. I Petitioner Robert Devlin, a retired worker represented by the Transportation Communications International Union (Union), participates in a defined benefits pension plan (Plan) administered by the Union. In 1991, on the recommendation of the Plan's trustees, the Plan was amended to add a cost of living adjustment (COLA) for retired and active employees. As it turned out, however, the Plan was not able to support such a large benefits increase. To address this problem, the Plan's new trustees sought to freeze the COLA. Because they were concerned about incurring Employee Retirement Income Security Act of 1974 (ERISA) liability by eliminating the COLA for retired workers, see 29 U.S. C. 1054(g)(1) ( ed.) (providing that accrued benefits "may not be decreased by an amendment of the plan"), the trustees froze the COLA only as to active employees. Because the Plan still lacked sufficient funds, the new trustees obtained an equitable decree from the United States District Court for the District of Maryland in 1995 declaring that the former trustees had breached their fiduciary duties and that ending the COLA for retired workers would not violate ERISA. ; No. JFM-95-52 (D. Md., Sept. 8, 1997). Accordingly, in a 1997 amendment, the new trustees eliminated the COLA for all Plan members. In October 1997, those trustees filed the present class action in the United States District Court for the District of Maryland, seeking a declaratory judgment that the 1997 amendment was binding on all Plan members or, alternatively, that the 1991 COLA amendment was void. Originally, petitioner was proposed as a class representative for a subclass of retired workers because of his previous involvement in the issue. He refused to become a named representative, however, preferring to bring a separate action in *5 the United States District Court for the Southern District of New York, arguing, among other things, that the 1997 Plan amendment violated the Age Discrimination in Employment Act of 1967, as amended, 29 U.S. C. 621 et seq. ( ed. and Supp. V). The New York District Court dismissed petitioner's claim involving the 1997 amendment, which was later affirmed by the Second Circuit because: "The exact

Justice O'Connor

majority

Devlin v. Scardelletti

https://www.courtlistener.com/opinion/121145/devlin-v-scardelletti/

was later affirmed by the Second Circuit because: "The exact COLA issue that the appellants are pursuing is being addressed by the district court in Maryland. It seems eminently sensible that the Maryland district court should resolve fully the COLA amendment issue." At the time petitioner's claim was dismissed, the District Court in Maryland had already conditionally certified a class under Federal Rule of Civil Procedure 23(b)(1), dividing it into two subclasses: a subclass of active employees and a subclass of retirees. On April 20, petitioner's attorney sent a letter to the District Court informally seeking to intervene in the class action. On May 12, petitioner sent another letter repeating this request. He did not, however, formally move to intervene at that time. Also in May, the Plan's trustees and the class representatives agreed on a settlement whereby the COLA benefits would be eliminated in exchange for the addition of other benefits. On August 27, the trustees filed a motion for preliminary approval of the settlement. On September 10, petitioner formally moved to intervene pursuant to Federal Rule of Civil Procedure 24. On November 12, the District Court denied petitioner's intervention motion as "absolutely untimely." It then heard objections to the settlement, including those advanced by petitioner, and, concluding that the settlement was fair, approved it. App. C to Pet. for Cert. 1-3. *6 Shortly thereafter, petitioner noted his appeal, challenging the District Court's dismissal of his intervention motion as well as its decision to approve the settlement. The Court of Appeals for the Fourth Circuit affirmed the District Court's denial of intervention under an abuse of discretion -204. It further held that, because petitioner was not a named representative of the class and because he had been properly denied the right to intervene, he lacked to challenge the fairness of the settlement on appeal. Petitioner sought review of the Fourth Circuit's holding that he lacked the ability to appeal the District Court's approval of the settlement. We granted certiorari, to resolve a disagreement among the Circuits as to whether nonnamed class members who fail to properly intervene may bring an appeal of the approval of a settlement. Compare ; ; ; with In re PaineWebber Inc. Ltd. Partnerships Litigation, ; ; II Although the Fourth Circuit framed the issue as one of we begin by clarifying that this issue does not implicate the jurisdiction of the courts under Article III of the Constitution. As a member of the retiree class, petitioner has an interest in the settlement that creates a "case or controversy" sufficient to satisfy the constitutional *7

Justice O'Connor

majority

Devlin v. Scardelletti

https://www.courtlistener.com/opinion/121145/devlin-v-scardelletti/

a "case or controversy" sufficient to satisfy the constitutional *7 requirements of injury, causation, and redressability. ; see also In re Navigant Inc., Securities Litigation, Nor do appeals by nonnamed class members raise the sorts of concerns that are ordinarily addressed as a matter of prudential Prudential requirements include: "[T]he general prohibition on a litigant's raising another person's legal rights, the rule barring adjudication of generalized grievances more appropriately addressed in the representative branches, and the requirement that a plaintiff's complaint fall within the zone of interests protected by the law invoked." Because petitioner is a member of the class bound by the judgment, there is no question that he satisfies these three requirements. The legal rights he seeks to raise are his own, he belongs to a discrete class of interested parties, and his complaint clearly falls within the zone of interests of the requirement that a settlement be fair to all class members. Fed. Rule Civ. Proc. 23(e). What is at issue, instead, is whether petitioner should be considered a "party" for the purposes of appealing the approval of the settlement. We have held that "only parties to a lawsuit, or those that properly become parties, may appeal an adverse judgment." Respondents argue that, because petitioner is not a named class representative and did not successfully move to intervene, he is not a party for the purposes of taking an appeal. We have never, however, restricted the right to appeal to named parties to the litigation. In for instance, we allowed a bidder for property at a foreclosure sale, who was not a *8 named party in the foreclosure action, to appeal the refusal of a request he made during that action to compel the sale. In we allowed a receiver, who was an officer of the court rather than a named party to the case, to appeal from an order "relat[ing] to the settlement of his accounts," reasoning that "[f]or this purpose he occupies the position of a party to the suit." More recently, we have affirmed that "[t]he right of a nonparty to appeal an adjudication of contempt cannot be questioned," United States Catholic given the binding nature of that adjudication upon the interested nonparty. Justice Scalia attempts to distinguish these cases by characterizing them as appeals from collateral orders to which the appellants "were parties." Post, at 16 (dissenting opinion). But it is difficult to see how they were parties in the sense in which Justice Scalia uses the term—those "`named as a party to an action,' " usually "`in the caption of the summons

Justice O'Connor

majority

Devlin v. Scardelletti

https://www.courtlistener.com/opinion/121145/devlin-v-scardelletti/

an action,' " usually "`in the caption of the summons or complaint.' " Post, at 15 (quoting Restatement (Second) of Judgments 34(1), p. 345 (1980); Comment a, Reporter's Note, at 347). Because they were not named in the action, the appellants in these cases were parties only in the sense that they were bound by the order from which they were seeking to appeal. Petitioner's interest in the District Court's approval of the settlement is similar. Petitioner objected to the settlement at the District Court's fairness hearing, as nonnamed parties have been consistently allowed to do under the Federal Rules of Civil Procedure. See Fed. Rule Civ. Proc. 23(e) ("A class action shall not be dismissed or compromised without the approval of the court, and notice of the proposed dismissal or compromise shall be given to all members of the class in such manner as the court directs"); see also 2 H. Newberg & A. Conte, Class Actions 11.55, p. 11- (explaining that Rule 23(e) entitles all class members *9 to an opportunity to object). The District Court's approval of the settlement—which binds petitioner as a member of the class—amounted to a "final decision of [petitioner's] right or claim" sufficient to trigger his right to appeal. See And like the appellants in the prior cases, petitioner will only be allowed to appeal that aspect of the District Court's order that affects him—the District Court's decision to disregard his objections. Petitioner's right to appeal this aspect of the District Court's decision cannot be effectively accomplished through the named class representative—once the named parties reach a settlement that is approved over petitioner's objections, petitioner's interests by definition diverge from those of the class representative. is not to the contrary. In that case, we refused to allow an appeal of a settlement by a group of white police officers who were not members of the class of minority officers that had brought a racial discrimination claim against the New York Police Department. Although the settlement affected them, the District Court's decision did not finally dispose of any right or claim they might have had because they were not members of the class. Nor does considering nonnamed class members parties for the purposes of bringing an appeal conflict with any other aspect of class action procedure. In a related case, the Seventh Circuit has argued that nonnamed class members cannot be considered parties for the purposes of bringing an appeal because they are not considered parties for the purposes of the complete diversity requirement in suits under 28 U.S. C. 1332. See Navigant 275

Justice O'Connor

majority

Devlin v. Scardelletti

https://www.courtlistener.com/opinion/121145/devlin-v-scardelletti/

in suits under 28 U.S. C. 1332. See Navigant 275 F. 3d, 19; see also According to the Seventh Circuit, "[c]lass members cannot have it both ways, being non-parties (so that more cases can come to federal court) but still having a party's ability to litigate independently." 275 F.3d, 19. Nonnamed class members, *10 however, may be parties for some purposes and not for others. The label "party" does not indicate an absolute characteristic, but rather a conclusion about the applicability of various procedural rules that may differ based on context. Nonnamed class members are, for instance, parties in the sense that the filing of an action on behalf of the class tolls a statute of limitations against them. See American Pipe & Constr. 414 U.S. 8 Otherwise, all class members would be forced to intervene to preserve their claims, and one of the major goals of class action litigation— to simplify litigation involving a large number of class members with similar claims—would be defeated. The rule that nonnamed class members cannot defeat complete diversity is likewise justified by the goals of class action litigation. Ease of administration of class actions would be compromised by having to consider the citizenship of all class members, many of whom may even be unknown, in determining jurisdiction. See 7A C. Wright, A. Miller, & M. Kane, Federal Practice and Procedure 1755, pp. 63-64 (2d ed. 1986). Perhaps more importantly, considering all class members for these purposes would destroy diversity in almost all class actions. Nonnamed class members are, therefore, not parties in that respect. What is most important to this case is that nonnamed class members are parties to the proceedings in the sense of being bound by the settlement. It is this feature of class action litigation that requires that class members be allowed to appeal the approval of a settlement when they have objected at the fairness hearing. To hold otherwise would deprive nonnamed class members of the power to preserve their own interests in a settlement that will ultimately bind them, despite their expressed objections before the trial court. Particularly in light of the fact that petitioner had no ability to opt out of the settlement, see Fed. Rule Civ. Proc. 23(b)(1), appealing the approval of the settlement is petitioner's only *11 means of protecting himself from being bound by a disposition of his rights he finds unacceptable and that a reviewing court might find legally inadequate. Justice Scalia rightly notes that other nonnamed parties may be bound by a court's decision, in particular, those in privity with the named

Justice O'Connor

majority

Devlin v. Scardelletti

https://www.courtlistener.com/opinion/121145/devlin-v-scardelletti/

court's decision, in particular, those in privity with the named party. See post, at 18. True enough. It is not at all clear, however, that such parties may not themselves appeal. Although this Court has never addressed the issue, nonnamed parties in privity with a named party are often allowed by other courts to appeal from the order that affects them. 5 Am. Jur. 2d, Appellate Review 265 Respondents argue that, nonetheless, appeals from nonnamed parties should not be allowed because they would undermine one of the goals of class action litigation, namely, preventing multiple suits. See 815 F. 2d, 29 (arguing that allowing nonnamed class members' appeals would undermine a "fundamental purpose of the class action": "to render manageable litigation that involves numerous members of a homogenous class, who would all otherwise have access to the court through individual lawsuits"). Allowing such appeals, however, will not be as problematic as respondents claim. For one thing, the power to appeal is limited to those nonnamed class members who have objected during the fairness hearing. This limits the class of potential appellants considerably. As the long practice of allowing nonnamed class members to object at the fairness hearing demonstrates, the burden of considering the claims of this subset of class members is not onerous. III The Government, as amicus curiae, admits that nonnamed class members are parties who may appeal the approval of a settlement, but urges us nonetheless to require class members to intervene for purposes of appeal. See Brief for *12 United States et al. as Amici Curiae 12-27. To address the fairness concerns to objecting nonnamed class members bound by the settlement they wish to appeal, however, the Government also asserts that such a limited purpose intervention generally should be available to all those, like petitioner, whose objections at the fairness hearing have been disregarded. Federal Rule of Civil Procedure 24(a)(2) provides for intervention as of right: "Upon timely application when the applicant claims an interest relating to the property or transaction which isthe subject of the action and the applicant is so situated that the disposition of the action may as a practical matter impair or impede the applicant's ability to protect that interest, unless the applicant's interest is adequately represented by existing parties." According to the Government, nonnamed class members who state objections at the fairness hearing should easily meet these three criteria. For one thing, it claims, a settlement binding on them will establish the requisite interest in the action. Moreover, it argues, any intervention motion filed "within the time period in which the named

Justice O'Connor

majority

Devlin v. Scardelletti

https://www.courtlistener.com/opinion/121145/devlin-v-scardelletti/

motion filed "within the time period in which the named plaintiffs could have taken an appeal" should be considered "timely filed" for the purposes of such limited intervention. United Airlines, Finally, it asserts, the approval of a settlement over a nonnamed class member's objection, and the failure of a class representative to appeal such an approval, should "invariably" show that the class representative does not adequately represent the nonnamed class member's interests on appeal. Brief for United States et al. as Amici Curiae 20. Given the ease with which nonnamed class members who have objected at the fairness hearing could intervene for purposes of appeal, however, it is difficult to see the value of the Government's suggested requirement. It identifies only *13 a limited number of instances where the initial intervention motion would be of any use: where the objector is not actually a member of the settlement class or is otherwise not entitled to relief from the settlement, where an objector seeks to appeal even though his objection was successful, where the objection at the fairness hearing was untimely, or where there is a need to consolidate duplicative appeals from class members. In such situations, the Government argues, a district court can disallow such problematic and unnecessary appeals. This seems to us, however, of limited benefit. In the first two of these situations, the objector stands to gain nothing by appeal, so it is unlikely such situations will arise with any frequency. Justice Scalia argues that if such objectors were undeterred by this fact at the time they filed their original objections, they will be undeterred at the appellate level. See post, at 21-22. This misunderstands the point. As to the first group—those who are not actually entitled to relief—one would not expect them to have filed objections in the district court in the first place. The few irrational persons who wish to pursue one round of meaningless relief will, we agree, probably be irrational enough to pursue a second. But there should not be many of such persons in any case. As for the second—those whose objections were successful at the district court level—they were far from irrational in the filing of their initial objections, and they should not generally be expected to lose this level of sensibility when faced with the prospect of a meaningless appeal. Moreover, even if such cases did arise with any frequency, such concerns could be addressed by a inquiry at the appellate level. The third situation—dealing with untimely objections— implicates basic concerns about waiver and should be easily addressable by a court

Justice O'Connor

majority

Devlin v. Scardelletti

https://www.courtlistener.com/opinion/121145/devlin-v-scardelletti/

about waiver and should be easily addressable by a court of appeals. A court of appeals also has the ability to avoid the fourth by consolidating cases raising *14 duplicative appeals. Fed. Rule App. Proc. 3(b)(2). If the resolution of any of these issues should turn out to be complex in a given case, there is little to be gained by requiring a district court to consider these issues, which are the type of issues ( to appeal, waiver of objections below, and consolidation of appeals) typically addressed only by an appellate court. As such determinations still would most likely lead to an appeal, such a requirement would only add an additional layer of complexity before the appeal of the settlement approval may finally be heard. Nor do we agree with the Government that, regardless of the desirability of an intervention requirement for effective class management, the structure of the rules of class action procedure requires intervention for the purposes of appeal. According to the Government, intervention is the method contemplated under the rules for nonnamed class members to gain the right to participate in class action proceedings. We disagree. Just as class action procedure allows nonnamed class members to object to a settlement at the fairness hearing without first intervening, see it should similarly allow them to appeal the District Court's decision to disregard their objections. Moreover, no federal statute or procedural rule directly addresses the question of who may appeal from approval of class action settlements, while the right to appeal from an action that finally disposes of one's rights has a statutory basis. 28 U.S. C. 1291. IV We hold that nonnamed class members like petitioner who have objected in a timely manner to approval of the settlement at the fairness hearing have the power to bring an appeal without first intervening. We therefore reverse the judgment of the Court of Appeals for the Fourth Circuit and remand the case for further proceedings consistent with this opinion. It is so ordered.

Justice Powell

concurring

Smith v. United States

https://www.courtlistener.com/opinion/109663/smith-v-united-states/

I join the Court's opinion and write to express my understanding of the relative narrowness of the questions presented. At the time petitioner engaged in the conduct at issue here, Iowa law placed no limits on the distribution of obscene materials to adults. If Iowa law governs in this federal *310 prosecution, petitioner's conviction must be reversed. Our decision therefore turns on the answers to two questions, one requiring interpretation of a federal statute, the other calling for application of the constitutional standards announced in The first question, easily answered, is whether Congress intended to incorporate state obscenity statutes into 18 U.S. C. 1461. I agree with the Court's opinion, ante, at 303-304, and n. 10, that no such intent existed. The federal statute goes to the constitutional limit, reaching all pornographic materials not protected under the First Amendment. See Under Miller local community standards play an important role in defining that limit. The second question, therefore, is whether "community standards," as that concept is used in Miller, necessarily follow changes in a State's statutory law. Again, I agree with the Court's conclusion that they do not. A community may still judge that materials are patently offensive and that they appeal to the prurient interest even though its legislature has chosen, for whatever reason, not to apply state criminal sanctions to those who distribute them. The state statute is relevant evidence of evolving community standards, and it was properly brought to the attention of the jury here. But it is not controlling in a prosecution under federal law. I emphasize, however, that this case presents no question concerning the limits on a State's power to design its obscenity statutes as it sees fit or to define community standards as it chooses for purposes of applying its own laws. Within the boundaries staked out by Miller, the States retain broad latitude in this respect. MR. JUSTICE BRENNAN, with whom MR. JUSTICE STEWART and MR.

Justice Rehnquist

majority

Argentine Republic v. Amerada Hess Shipping Corp.

https://www.courtlistener.com/opinion/112174/argentine-republic-v-amerada-hess-shipping-corp/

Two Liberian corporations sued the Argentine Republic in a United States District Court to recover damages for a tort allegedly committed by its armed forces on the high seas in violation of international law. We hold that the District Court correctly dismissed the action, because the Foreign Sovereign Immunities Act of 1976 (FSIA), 28 U.S. C. 1330 et seq., does not authorize jurisdiction over a foreign state in this situation. Respondents alleged the following facts in their complaints. Respondent United Carriers, Inc., a Liberian corporation, chartered one of its oil tankers, the Hercules, to respondent Amerada Hess Shipping Corporation, also a Liberian corporation. The contract was executed in New York City. Amerada Hess used the Hercules to transport crude oil from the southern terminus of the Trans-Alaska Pipeline in Valdez, Alaska, around Cape Horn in South America, to the Hess refinery in the United States Virgin Islands. On May 25, 1982, the Hercules began a return voyage, without cargo but fully fueled, from the Virgin Islands to Alaska. At that time, Great Britain and petitioner Argentine Republic were at war over an archipelago of some 200 islands — the Falkland Islands to the British, and the Islas Malvinas to the Argentineans — in the South Atlantic off the Argentine coast. On June 3, United States officials informed the two belligerents of the location of United States vessels and Liberian tankers owned by United States interests then traversing the South Atlantic, including the Hercules, to avoid any attacks on neutral shipping. By June 8, 1982, after a stop in Brazil, the Hercules was in international waters about 600 nautical miles from Argentina and 500 miles from the Falklands; she was outside the "war zones" designated by Britain and Argentina. At 12:15 Greenwich mean time, the ship's master made a routine report by radio to Argentine officials, providing the ship's *4 name, international call sign, registry, position, course, speed, and voyage description. About 45 minutes later, an Argentine military aircraft began to circle the Hercules. The ship's master repeated his earlier message by radio to Argentine officials, who acknowledged receiving it. Six minutes later, without provocation, another Argentine military plane began to bomb the Hercules; the master immediately hoisted a white flag. A second bombing soon followed, and a third attack came about two hours later, when an Argentine jet struck the ship with an air-to-surface rocket. Disabled but not destroyed, the Hercules reversed course and sailed to Rio de Janeiro, the nearest safe port. At Rio de Janeiro, respondent United Carriers determined that the ship had suffered extensive deck and hull

Justice Rehnquist

majority

Argentine Republic v. Amerada Hess Shipping Corp.

https://www.courtlistener.com/opinion/112174/argentine-republic-v-amerada-hess-shipping-corp/

determined that the ship had suffered extensive deck and hull damage, and that an undetonated bomb remained lodged in her No. 2 tank. After an investigation by the Brazilian Navy, United Carriers decided that it would be too hazardous to remove the undetonated bomb, and on July 20, 1982, the Hercules was scuttled 250 miles off the Brazilian coast. Following unsuccessful attempts to obtain relief in Argentina, respondents commenced this action in the United States District Court for the Southern District of New York for the damage that they sustained from the attack. United Carriers sought $10 million in damages for the loss of the ship; Amerada Hess sought $1.9 million in damages for the fuel that went down with the ship. Respondents alleged that petitioner's attack on the neutral Hercules violated international law. They invoked the District Court's jurisdiction under the Alien Tort Statute, 28 U.S. C. 1350, which provides that "[t]he district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States." Amerada Hess also brought suit under the general admiralty and maritime jurisdiction, 28 U.S. C. 1333, and "the principle of universal jurisdiction, recognized in customary international law." Complaint of Amerada Hess ¶ 5, * ruling that respondents' suits were barred by the FSIA. A divided panel of the United States Court of Appeals for the Second Circuit reversed. The Court of Appeals held that the District Court had jurisdiction under the Alien Tort Statute, because respondents' consolidated action was brought by Liberian corporations, it sounded in tort ("the bombing of a ship without justification"), and it asserted a violation of international law ("attacking a neutral ship in international waters, without proper cause for suspicion or investigation"). Viewing the Alien Tort Statute as "no more than a jurisdictional grant based on international law," the Court of Appeals said that "who is within" the scope of that grant is governed by "evolving standards of international law." citing The Court of Appeals reasoned that Congress' enactment of the FSIA was not meant to eliminate "existing remedies in United States courts for violations of international law" by foreign states under the Alien Tort The dissenting judge took the view that the FSIA precluded respondents' action. We granted certiorari, and now reverse. We start from the settled proposition that the subject-matter jurisdiction of the lower federal courts is determined by Congress "in the exact degrees and character which to Congress may seem proper for the public good." ; see Insurance

Justice Rehnquist

majority

Argentine Republic v. Amerada Hess Shipping Corp.

https://www.courtlistener.com/opinion/112174/argentine-republic-v-amerada-hess-shipping-corp/

may seem proper for the public good." ; see Insurance Corp. of In the FSIA, Congress added a new chapter 97 to Title 28 of the United States Code, 28 U.S. C. 1602-1611, which is entitled "Jurisdictional Immunities of Foreign *434 States."[1] Section 1604 provides that "[s]ubject to existing international agreements to which the United States [was] a party at the time of the enactment of this Act[,] a foreign state shall be immune from the jurisdiction of the courts of the United States and of the States except as provided in sections 1605 to 1607 of this chapter." The FSIA also added 1330(a) to Title 28; it provides that "[t]he district courts shall have original jurisdiction without regard to amount in controversy of any nonjury civil action against a foreign state. as to any claim for relief in personam with respect to which the foreign state is not entitled to immunity under sections 1605-1607 of this title or under any applicable international agreement." 1330(a).[2] We think that the text and structure of the FSIA demonstrate Congress' intention that the FSIA be the sole basis for obtaining jurisdiction over a foreign state in our courts. Sections 1604 and 1330(a) work in tandem: 1604 bars federal and state courts from exercising jurisdiction when a foreign state is entitled to immunity, and 1330(a) confers jurisdiction on district courts to hear suits brought by United States citizens and by aliens when a foreign state is not entitled to immunity. As we said in Verlinden, the FSIA "must be applied by the district courts in every action against a foreign *435 sovereign, since subject-matter jurisdiction in any such action depends on the existence of one of the specified exceptions to foreign sovereign immunity." Verlinden B. V. v. Central Bank of Nigeria,[3] The Court of Appeals acknowledged that the FSIA's language and legislative history support the "general rule" that the Act governs the immunity of foreign states in federal The Court of Appeals, however, thought that the FSIA's "focus on commercial concerns" and Congress' failure to "repeal" the Alien Tort Statute indicated Congress' intention that federal courts continue to exercise jurisdiction over foreign states in suits alleging violations of international law outside the confines of the FSIA. The Court of Appeals also believed that to construe the FSIA to bar the instant suit would "fly in the face" of Congress' intention that the FSIA be interpreted pursuant to " `standards recognized under international law.' " Ibid., quoting H. R. Rep., at 14. Taking the last of these points first, Congress had violations of international law

Justice Rehnquist

majority

Argentine Republic v. Amerada Hess Shipping Corp.

https://www.courtlistener.com/opinion/112174/argentine-republic-v-amerada-hess-shipping-corp/

of these points first, Congress had violations of international law by foreign states in mind when it enacted the FSIA. For example, the FSIA specifically denies foreign states immunity in suits "in which rights in property *4 taken in violation of international law are in issue." 28 U.S. C. 1605(a)(3). Congress also rested the FSIA in part on its power under Art. I, 8, cl. 10, of the Constitution "[t]o define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations." See H. R. Rep., at 12; S. Rep., at 12. From Congress' decision to deny immunity to foreign states in the class of cases just mentioned, we draw the plain implication that immunity is granted in those cases involving alleged violations of international law that do not come within one of the FSIA's exceptions. As to the other point made by the Court of Appeals, Congress' failure to enact a pro tanto repealer of the Alien Tort Statute when it passed the FSIA in 1976 may be explained at least in part by the lack of certainty as to whether the Alien Tort Statute conferred jurisdiction in suits against foreign states. Enacted by the First Congress in 1789, the Alien Tort Statute provides that "[t]he district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States." 28 U.S. C. 1350. The Court of Appeals did not cite any decision in which a United States court exercised jurisdiction over a foreign state under the Alien Tort Statute, and only one such case has come to our attention — one which was decided after the enactment of the FSIA.[4] In this Court, respondents argue that cases were brought under the Alien Tort Statute against foreign states for the unlawful taking of a prize during wartime. Brief for Respondents 18-25. The Alien Tort Statute makes no mention *437 of prize jurisdiction, and 1333(2) now grants federal district courts exclusive jurisdiction over "all proceedings for the condemnation of property taken as a prize." In The Santissima Trinidad, we held that foreign states were not immune from the jurisdiction of United States courts in prize proceedings. That case, however, was not brought under the Alien Tort Statute but rather as a libel in admiralty. Thus there is a distinctly hypothetical cast to the Court of Appeals' reliance on Congress' failure to repeal the Alien Tort Statute, and respondents' arguments in this Court based on the principle

Justice Rehnquist

majority

Argentine Republic v. Amerada Hess Shipping Corp.

https://www.courtlistener.com/opinion/112174/argentine-republic-v-amerada-hess-shipping-corp/

and respondents' arguments in this Court based on the principle of statutory construction that repeals by implication are disfavored. We think that Congress' failure in the FSIA to enact an express pro tanto repealer of the Alien Tort Statute speaks only faintly, if at all, to the issue involved in this case. In light of the comprehensiveness of the statutory scheme in the FSIA, we doubt that even the most meticulous draftsman would have concluded that Congress also needed to amend pro tanto the Alien Tort Statute and presumably such other grants of subject-matter jurisdiction in Title 28 as 1331 (federal question), 1333 (admiralty), 1335 (interpleader), 1337 (commerce and antitrust), and 1338 (patents, copyrights, and trademarks).[5] Congress provided in the FSIA that "[c]laims of foreign states to immunity should henceforth be decided by courts of the United States in conformity with the principles set forth in this chapter," and very likely it *438 thought that should be sufficient. 1602 (emphasis added); see also H. R. Rep., at 12; S. Rep., at 11 (FSIA "intended to preempt any other State and Federal law (excluding applicable international agreements) for according immunity to foreign sovereigns"). For similar reasons we are not persuaded by respondents' arguments based upon the rule of statutory construction under which repeals by implication are disfavored. This case does not involve two statutes that readily could be seen as supplementing one another, see nor is it a case where a more general statute is claimed to have repealed by implication an earlier statute dealing with a narrower subject. See We think that Congress' decision to deal comprehensively with the subject of foreign sovereign immunity in the FSIA, and the express provision in 1604 that "a foreign state shall be immune from the jurisdiction of the courts of the United States and of the States except as provided in sections 1605-1607," preclude a construction of the Alien Tort Statute that permits the instant suit. See Red ; United The Alien Tort Statute by its terms does not distinguish among classes of defendants, and it of course has the same effect after the passage of the FSIA as before with respect to defendants other than foreign states. Respondents also argue that the general admiralty and maritime jurisdiction, 1333(1), provides a basis for obtaining jurisdiction over petitioner for violations of international law, notwithstanding the FSIA. Brief for Respondents 42-49. But Congress dealt with the admiralty jurisdiction of the federal courts when it enacted the FSIA. Section 1605(b) expressly permits an in personam suit in admiralty to enforce a maritime lien against a vessel

Justice Rehnquist

majority

Argentine Republic v. Amerada Hess Shipping Corp.

https://www.courtlistener.com/opinion/112174/argentine-republic-v-amerada-hess-shipping-corp/

in admiralty to enforce a maritime lien against a vessel or cargo of a foreign state. Unless the present case is within 1605(b) or another exception to the FSIA, the statute conferring general *439 admiralty and maritime jurisdiction on the federal courts does not authorize the bringing of this action against petitioner. Having determined that the FSIA provides the sole basis for obtaining jurisdiction over a foreign state in federal court, we turn to whether any of the exceptions enumerated in the Act apply here. These exceptions include cases involving the waiver of immunity, 1605(a)(1), commercial activities occurring in the United States or causing a direct effect in this country, 1605(a)(2), property expropriated in violation of international law, 1605(a)(3), inherited, gift, or immovable property located in the United States, 1605(a)(4), noncommercial torts occurring in the United States, 1605(a)(5), and maritime liens, 1605(b). We agree with the District Court that none of the FSIA's exceptions applies on these facts. See -77.[6] Respondents assert that the FSIA exception for noncommercial torts, 1605(a)(5), is most in point. Brief for Respondents 50-52. This provision denies immunity in a case "in which money damages are sought against a foreign state for personal injury or death, or damage to or loss of property, occurring in the United States and caused by the tortious act or omission of that foreign state or of any official or employee of that foreign state while acting within the scope of his office or employment." 28 U.S. C. 1605(a)(5). Section 1605(a)(5) is limited by its terms, however, to those cases in which the damage to or loss of property occurs in the United States. Congress' primary purpose in enacting 1605(a)(5) was to eliminate a foreign state's immunity for traffic accidents and other torts committed in the United *440 States, for which liability is imposed under domestic tort law. See H. R. Rep., at 14, 20-21; S. Rep., at 14, 20-21. In this case, the injury to respondents' ship occurred on the high seas some 5,000 miles off the nearest shores of the United States. Despite these telling facts, respondents nonetheless claim that the tortious attack on the Hercules occurred "in the United States." They point out that the FSIA defines "United States" as including all "territory and waters, continental and insular, subject to the jurisdiction of the United States," 1603(c), and that their injury occurred on the high seas, which is within the admiralty jurisdiction of the United States, see The Plymouth, They reason, therefore, that "by statutory definition" petitioner's attack occurred in the United States. Brief for Respondents 50-51. We

Justice Rehnquist

majority

Argentine Republic v. Amerada Hess Shipping Corp.

https://www.courtlistener.com/opinion/112174/argentine-republic-v-amerada-hess-shipping-corp/

occurred in the United States. Brief for Respondents 50-51. We find this logic unpersuasive. We construe the modifying phrase "continental and insular" to restrict the definition of United States to the continental United States and those islands that are part of the United States or its possessions; any other reading would render this phrase nugatory. Likewise, the term "waters" in 1603(c) cannot reasonably be read to cover all waters over which United States courts might exercise jurisdiction. When it desires to do so, Congress knows how to place the high seas within the jurisdictional reach of a statute.[7] We thus apply "[t]he canon of construction which teaches that legislation of Congress, unless contrary intent appears, is meant to apply only within the territorial jurisdiction of the United States." Foley Brothers 3 U.S. 281, ; see also Because respondents' injury unquestionably occurred well outside the 3-mile limit then in effect for the territorial waters of the United States, the exception for noncommercial torts cannot apply.[8] The result in this case is not altered by the fact that petitioner's alleged tort may have had effects in the United States. Respondents state, for example, that the Hercules was transporting oil intended for use in this country and that the loss of the ship disrupted contractual payments due in New York. Brief for Respondents 51. Under the commercial activity exception to the FSIA, 1605(a)(2), a foreign state may be liable for its commercial activities "outside the territory of the United States" having a "direct effect" inside the United States.[9] But the noncommercial tort exception, 1605(a)(5), upon which respondents rely, makes no mention of "territory outside the United States" or of "direct effects" in the United States. Congress' decision to use explicit language in 1605(a)(2), and not to do so in 1605(a)(5), indicates that the exception in 1605(a)(5) covers only torts occurring within the territorial jurisdiction of the United States. Respondents do not claim that 1605(a)(2) covers these facts. We also disagree with respondents' claim that certain international agreements entered into by petitioner and by *442 the United States create an exception to the FSIA here. Brief for Respondents 17. As noted, the FSIA was adopted "[s]ubject to international agreements to which the United States [was] a party at the time of [its] enactment." 1604. This exception applies when international agreements "expressly conflic[t]" with the immunity provisions of the FSIA, H. R. Rep., at 17; S. Rep., at 17, hardly the circumstances in this case. Respondents point to the Geneva Convention on the High Seas, Apr. 29, 1958, [1962] 13 U. S. T. 2312, T.

Justice Rehnquist

majority

Argentine Republic v. Amerada Hess Shipping Corp.

https://www.courtlistener.com/opinion/112174/argentine-republic-v-amerada-hess-shipping-corp/

Apr. 29, 1958, [1962] 13 U. S. T. 2312, T. I. A. S. No. 5200, and the Pan American Maritime Neutrality Convention, Feb. 20, 18, 1990-1991, T. S. No. 845. Brief for Respondents 31-34. These conventions, however, only set forth substantive rules of conduct and state that compensation shall be paid for certain wrongs.[10] They do not create private rights of action for foreign corporations to recover compensation from foreign states in United States courts. Cf. Head Money Cases, ; Nor do we see how a foreign state can waive its immunity under 1605(a)(1) by signing an international agreement that contains no mention of a waiver of immunity to suit in United States courts or even the availability of a cause of *443 action in the United States. We find similarly unpersuasive the argument of respondents and Amicus Curiae Republic of Liberia that the Treaty of Friendship, Commerce and Navigation, Aug. 8, 1938, United States-Liberia, T. S. No. 956, carves out an exception to the FSIA. Brief for Respondents 52-53; Brief for the Republic of Liberia as Amicus Curiae 11. Article I of this Treaty provides, in pertinent part, that the nationals of the United States and Liberia "shall enjoy freedom of access to the courts of justice of the other on conforming to the local laws." The FSIA is clearly one of the "local laws" to which respondents must "conform" before bringing suit in United States courts. We hold that the FSIA provides the sole basis for obtaining jurisdiction over a foreign state in the courts of this country, and that none of the enumerated exceptions to the Act apply to the facts of this case. The judgment of the Court of Appeals is therefore Reversed. JUSTICE BLACKMUN, with whom JUSTICE MARSHALL joins, concurring in part. I join the Court's opinion insofar as it holds that the FSIA provides the sole basis for obtaining jurisdiction over a foreign state in federal Ante, -439. I, however, do not join the latter part of the Court's opinion to the effect that none of the FSIA's exceptions to foreign sovereign immunity apply in this case. As the majority notes, the Court of Appeals did not decide this question, ante, at 439, n. 6, and, indeed, specifically reserved it. Moreover, the question was not among those presented to this Court in the petition for certiorari, did not receive full briefing, and is not necessary to the disposition of the case. Accordingly, I believe it inappropriate to decide here, in the first instance, whether any exceptions to the FSIA apply in this case. See

Justice Douglas

dissenting

Simmons v. West Haven Housing Authority

https://www.courtlistener.com/opinion/108200/simmons-v-west-haven-housing-authority/

This was a summary procedure brought by a landlord[1] to obtain possession from his tenants for nonpayment of rent. The trial court found for the landlord and the tenants appealed. Connecticut law requires one taking an appeal in such an action to post a bond with surety. The tenants showed they were financially unable to post the bond and claimed that to require a bond with surety to obtain an appeal would under those circumstances be a denial of equal *514 protection. The trial court refused to waive the requirement for a bond with surety saying that "the appeal is being taken for the purpose of delay." The Circuit Court affirmed. The Appellate Division ordered the termination of a stay of execution. 5 Conn. Cir. 282, The Supreme Court denied certification. I would reverse this judgment. A rich tenant, whatever his motives for appeal, would obtain appellate review. These tenants, because of their poverty, obtain none. I can imagine no clearer violation of the requirement of equal protection unless it be Whether the case is criminal or civil, wealth, like race, is a suspect criterion for classification of those who have rights and those who do not. ;[2] *515 What the merits of the tenants' appeal may be is not for us to say. But the appeal raised questions not easily answered. The terms of the lease stated that it could be terminated by not less than 30 days' notice, while apparently no more than five days' notice was given. A housing authority that is federally assisted has the right by 42 U.S. C. 1404a (1964 ed., Supp. V), "to maintain an action or proceeding to recover possession of any housing accommodations operated by it where such action is authorized by the statute or regulations under which such housing accommodations are administered." There is not a word in appellee's argument that indicates that the federal regulations permit eviction on five days' notice where the lease requires 30 days' notice. The case has been argued as if appellants are "cheap skates" seeking to get something for nothing. That simply is not true, for the record shows: "Mrs. Faulkner: Your Honor, may I urge upon you that if you grant our motion to have the defendants deposit the rent in court the landlord will not be hurt any further by delay in this proceedings. He will be protected because the monthly rent will be deposited. If he is successful on appeal he will be able to get the rent. "The Court: Do you suggest, if that should be the conclusion, that the

Justice Douglas

dissenting

Simmons v. West Haven Housing Authority

https://www.courtlistener.com/opinion/108200/simmons-v-west-haven-housing-authority/

you suggest, if that should be the conclusion, that the clerk could issue an execution upon failure to pay? "Mrs. Faulkner: Yes. "The Court: In other words, you will be willing to stipulate on behalf of your clients that if the rent were not paid that the clerk would, may be empowered forthwith to issue an execution? "Mrs. Faulkner: Yes, Your Honor. "The Court: That appeal to you all right? "Mr. Philbin: Frankly it doesn't. During this period of time, it could take a considerable period of *516 time, even if the tenant pays the fund into the clerk's office, they are not available to the plaintiff and we are still as a practical matter losing the rents during that period of time. Eventually if we prevail and get this money this would be an extended period of time." App. 19-20. The State of Connecticut represents that its summary eviction statue is based on an English Act of 1737, 11 Geo. 2, c. 19; and with all respect, the decisions below reflect an 18th century lawyer's approach to the task of protecting a landed interest. Every appeal of course entails delay; and in a sense all appeals are antithetical to the spirit of summary eviction. But we live today under a different regime. Unlike 1737, appellate courts are no longer closed to the poor. Eviction laws emphasize speed for the benefit of landlords. Equal protection often necessitates an opportunity for the poor as well as the affluent to be heard. I disagree with the Court that the issue is not squarely presented in this case.[3] I would reverse this judgment.

Justice O'Connor

concurring

Lawrence v. Texas

https://www.courtlistener.com/opinion/130160/lawrence-v-texas/

The Court today overrules I joined Bowers, and do not join the Court in overruling it. Nevertheless, I agree with the Court that Texas' statute banning same-sex sodomy is unconstitutional. See (2003). Rather than relying on the substantive component of the Fourteenth Amendment's Due Process Clause, as the Court does, I base my conclusion on the Fourteenth Amendment's Equal Protection Clause. The Equal Protection Clause of the Fourteenth Amendment "is essentially a direction that all persons similarly situated should be treated alike." ; see also Under our rational basis standard of review, "legislation is presumed to be valid and will be sustained if the classification drawn by the statute is rationally related to a legitimate state interest." Cleburne v. Cleburne Living ; see also Department of ; ; Laws such as economic or tax legislation that are scrutinized under rational basis review normally pass constitutional muster, since "the Constitution presumes that even improvident decisions will eventually be rectified by the *580 democratic processes." Cleburne v. Cleburne Living ; see also Fitzgerald v. Racing Assn. of Central Iowa, ante, p. 103; We have consistently held, however, that some objectives, such as "a bare desire to harm a politically unpopular group," are not legitimate state interests. Department of at See also Cleburne v. Cleburne Living ; When a law exhibits such a desire to harm a politically unpopular group, we have applied a more searching form of rational basis review to strike down such laws under the Equal Protection Clause. We have been most likely to apply rational basis review to hold a law unconstitutional under the Equal Protection Clause where, as here, the challenged legislation inhibits personal relationships. In Department of for example, we held that a law preventing those households containing an individual unrelated to any other member of the household from receiving food stamps violated equal protection because the purpose of the law was to "`discriminate against hippies.'" 413 U.S., at The asserted governmental interest in preventing food stamp fraud was not deemed sufficient to satisfy rational basis review. In we refused to sanction a law that discriminated between married and unmarried persons by prohibiting the distribution of contraceptives to single persons. Likewise, in Cleburne v. Cleburne Living we held that it was irrational for a State to require a home for the mentally disabled to obtain a special use permit when other residences—like fraternity houses and apartment buildings—did not have to obtain such a permit. And in we disallowed a state statute that "impos[ed] a broad and undifferentiated disability on a single named group"—specifically, 517 U.S., *581 The

Justice O'Connor

concurring

Lawrence v. Texas

https://www.courtlistener.com/opinion/130160/lawrence-v-texas/

disability on a single named group"—specifically, 517 U.S., *581 The statute at issue here makes sodomy a crime only if a person "engages in deviate sexual intercourse with another individual of the same sex." (a) (2003). Sodomy between opposite-sex partners, however, is not a crime in Texas. That is, Texas treats the same conduct differently based solely on the participants. Those harmed by this law are people who have a same-sex sexual orientation and thus are more likely to engage in behavior prohibited by 21.06. The Texas statute makes homosexuals unequal in the eyes of the law by making particular conduct—and only that conduct—subject to criminal sanction. It appears that prosecutions under Texas' sodomy law are rare. See (noting in 1994 that 21.06 "has not been, and in all probability will not be, enforced against private consensual conduct between adults"). This case shows, however, that prosecutions under 21.06 do occur. And while the penalty imposed on petitioners in this case was relatively minor, the consequences of conviction are not. It appears that petitioners' convictions, if upheld, would disqualify them from or restrict their ability to engage in a variety of professions, including medicine, athletic training, and interior design. See, e. g., Tex. Occ. Code Ann. 164.051(a)(2)(B) (physician); 451.251(a)(1) (athletic trainer); 1053.252(2) (interior designer). Indeed, were petitioners to move to one of four States, their convictions would require them to register as sex offenders to local law enforcement. See, e. g., Idaho Code 18-8304 (Cum. Supp. 2002); La. Stat. Ann. 15:542 ; Miss. Code Ann. 45-33-25 (West 2003); S. C. Code Ann. 23-3-430 (West Cum. Supp. 2002); cf. ante, at 575-576. And the effect of Texas' sodomy law is not just limited to the threat of prosecution or consequence of conviction. Texas' sodomy law brands all homosexuals as criminals, thereby making it more difficult for homosexuals to be treated in the same manner as everyone else. Indeed, Texas *582 itself has previously acknowledged the collateral effects of the law, stipulating in a prior challenge to this action that the law "legally sanctions discrimination against [homosexuals] in a variety of ways unrelated to the criminal law," including in the areas of "employment, family issues, and housing." Texas attempts to justify its law, and the effects of the law, by arguing that the statute satisfies rational basis review because it furthers the legitimate governmental interest of the promotion of morality. In Bowers, we held that a state law criminalizing sodomy as applied to homosexual couples did not violate substantive due process. We rejected the argument that no rational basis existed to justify the

Justice O'Connor

concurring

Lawrence v. Texas

https://www.courtlistener.com/opinion/130160/lawrence-v-texas/

the argument that no rational basis existed to justify the law, pointing to the government's interest in promoting morality. The only question in front of the Court in Bowers was whether the substantive component of the Due Process Clause protected a right to engage in homosexual sodomy. Bowers did not hold that moral disapproval of a group is a rational basis under the Equal Protection Clause to criminalize homosexual sodomy when heterosexual sodomy is not punished. This case raises a different issue than Bowers: whether, under the Equal Protection Clause, moral disapproval is a legitimate state interest to justify by itself a statute that bans homosexual sodomy, but not heterosexual sodomy. It is not. Moral disapproval of this group, like a bare desire to harm the group, is an interest that is insufficient to satisfy rational basis review under the Equal Protection Clause. See, e. g., Department of 413 U. S., at ; -635. Indeed, we have never held that moral disapproval, without any other asserted state interest, is a sufficient rationale under the Equal Protection Clause to justify a law that discriminates among groups of persons. *583 Moral disapproval of a group cannot be a legitimate governmental interest under the Equal Protection Clause because legal classifications must not be "drawn for the purpose of disadvantaging the group burdened by the law." Texas' invocation of moral disapproval as a legitimate state interest proves nothing more than Texas' desire to criminalize homosexual sodomy. But the Equal Protection Clause prevents a State from creating "a classification of persons undertaken for its own sake." And because Texas so rarely enforces its sodomy law as applied to private, consensual acts, the law serves more as a statement of dislike and disapproval against homosexuals than as a tool to stop criminal behavior. The Texas sodomy law "raise[s] the inevitable inference that the disadvantage imposed is born of animosity toward the class of persons affected." Texas argues, however, that the sodomy law does not discriminate against homosexual persons. Instead, the State maintains that the law discriminates only against homosexual conduct. While it is true that the law applies only to conduct, the conduct targeted by this law is conduct that is closely correlated with being homosexual. Under such circumstances, Texas' sodomy law is targeted at more than conduct. It is instead directed toward gay persons as a class. "After all, there can hardly be more palpable discrimination against a class than making the conduct that defines the class criminal." (internal quotation marks omitted). When a State makes homosexual conduct criminal, and not "deviate sexual intercourse" committed

Justice O'Connor

concurring

Lawrence v. Texas

https://www.courtlistener.com/opinion/130160/lawrence-v-texas/

makes homosexual conduct criminal, and not "deviate sexual intercourse" committed by persons of different sexes, "that declaration in and of itself is an invitation to subject homosexual persons to discrimination both in the public and in the private spheres." Ante, at 575. Indeed, Texas law confirms that the sodomy statute is directed toward homosexuals as a class. In Texas, calling a person a homosexual is slander per se because the word "homosexual" *584 "impute[s] the commission of a crime." ; see also The State has admitted that because of the sodomy law, being homosexual carries the presumption of being a criminal. See 826 S. W. 2d, at 202- ("[T]he statute brands lesbians and gay men as criminals and thereby legally sanctions discrimination against them in a variety of ways unrelated to the criminal law"). Texas' sodomy law therefore results in discrimination against homosexuals as a class in an array of areas outside the criminal law. See In we refused to sanction a law that singled out homosexuals "for disfavored legal status." 517 U.S., The same is true here. The Equal Protection Clause "`neither knows nor tolerates classes among citizens.'" ). A State can of course assign certain consequences to a violation of its criminal law. But the State cannot single out one identifiable class of citizens for punishment that does not apply to everyone else, with moral disapproval as the only asserted state interest for the law. The Texas sodomy statute subjects homosexuals to "a lifelong penalty and stigma. A legislative classification that threatens the creation of an underclass cannot be reconciled with" the Equal Protection Clause. Whether a sodomy law that is neutral both in effect and application, see Yick would violate the substantive component of the Due Process Clause is an issue that need not be decided today. I am confident, however, that so long as the Equal Protection Clause requires a sodomy law to apply equally to the private consensual conduct of homosexuals and heterosexuals alike, such a *585 law would not long stand in our democratic society. In the words of Justice Jackson: "The framers of the Constitution knew, and we should not forget today, that there is no more effective practical guaranty against arbitrary and unreasonable government than to require that the principles of law which officials would impose upon a minority be imposed generally. Conversely, nothing opens the door to arbitrary action so effectively as to allow those officials to pick and choose only a few to whom they will apply legislation and thus to escape the political retribution that might be visited upon

Justice O'Connor

concurring

Lawrence v. Texas

https://www.courtlistener.com/opinion/130160/lawrence-v-texas/

to escape the political retribution that might be visited upon them if larger numbers were affected." Railway Express Agency, That this law as applied to private, consensual conduct is unconstitutional under the Equal Protection Clause does not mean that other laws distinguishing between heterosexuals and homosexuals would similarly fail under rational basis review. Texas cannot assert any legitimate state interest here, such as national security or preserving the traditional institution of marriage. Unlike the moral disapproval of same-sex relations—the asserted state interest in this case— other reasons exist to promote the institution of marriage beyond mere moral disapproval of an excluded group. A law branding one class of persons as criminal based solely on the State's moral disapproval of that class and the conduct associated with that class runs contrary to the values of the Constitution and the Equal Protection Clause, under any standard of review. I therefore concur in the Court's judgment that Texas' sodomy law banning "deviate sexual intercourse" between consenting adults of the same sex, but not between consenting adults of different sexes, is unconstitutional.

Justice Breyer

majority

Wittman v. Personhuballah

https://www.courtlistener.com/opinion/3205873/wittman-v-personhuballah/

Ten Members of Congress from Virginia, intervenors in the District Court below, have appealed a judgment from a three-judge panel striking down a congressional redis- tricting plan applicable to the November 2016 election. We conclude that the intervenors now lack standing to pursue the appeal. And we consequently order the appeal dismissed. I This lawsuit began in October 2013, after the then- Governor of Virginia signed into law a new congressional redistricting plan (which we shall call the “Enacted Plan”) designed to reflect the results of the 2010 census. Three voters from Congressional District 3 brought this lawsuit against the Commonwealth. They challenged the Enacted Plan on the ground that its redrawing of their district’s lines was an unconstitutional racial gerrymander. The Members of Congress now before us intervened to help defend the Enacted Plan. After a bench trial, a divided three-judge District Court agreed with the voters. It concluded that the Common- 2 WITTMAN v. PERSONHUBALLAH Opinion of the Court wealth had used race as the predominant basis for modify- ing the boundaries of District 3. And it found that the Commonwealth’s use of race, when scrutinized strictly, was not narrowly tailored to serve a compelling governmental interest. The Commonwealth of Virginia did not appeal. Instead, the intervenor Members of Congress appealed the District Court’s judgment to this Court. See 28 U.S. C. (granting the right to directly appeal certain three-judge district court orders to the Supreme Court). Having just decided a racial gerrymandering case, Alabama Legisla- tive Black Caucus v. Alabama, 575 U. S. we vacated the District Court’s judgment and remanded for reconsideration in light of that recent decision. Cantor v. Personhuballah, 575 U. S. On remand the District Court again decided that Dis- trict 3, as modified by the Enacted Plan, was an unconsti- tutional racial gerrymander. The court’s order set forth a deadline of September 1, for the Virginia Legislature to adopt a new redis- tricting plan. Again, the Commonwealth of Virginia decided not to appeal. And again, the intervenor Members of Congress appealed to this Court. On September 28, we asked the parties to file supplemental briefs addressing whether the intervenors had standing to appeal the District Court’s decision. 576 U. S. As relevant here, the intervenors argued in their supplemental brief that they had standing because the District Court’s order, if allowed to stand, would necessarily result in a redrawing of their districts that would harm some of the intervenors’ reelection pro- spects. On November 13, we issued an order ex- plaining that the Court was “postpon[ing]” “consideration of the question of jurisdiction”

Justice Breyer

majority

Wittman v. Personhuballah

https://www.courtlistener.com/opinion/3205873/wittman-v-personhuballah/

the Court was “postpon[ing]” “consideration of the question of jurisdiction” until “the hearing of the Cite as: 578 U. S. (2016) 3 Opinion of the Court case on the merits.” In addition, our order instructed the parties to dedicate a portion of their briefs and their oral argument time to the issue of standing—specifically, “[w]hether [the intervenors] lack standing because none reside in or represent the only congressional district whose constitutionality is at issue in this case.” 577 U. S. In the meantime, the Virginia Legislature failed to meet the September 1 deadline imposed by the District Court. The District Court thus appointed a Special Master to develop a new districting plan. The Special Master did so, and on January 7, 2016, the District Court approved that plan (which we shall call the “Remedial Plan”). The inter- venor Members of Congress asked this Court to stay im- plementation of the Remedial Plan pending resolution of their direct appeal to this Court. We declined to do so. 577 U. S. (2016). On March 21, we heard oral argu- ment. That argument focused both on (1) the merits of intervenors’ claims denying any racial gerrymander and (2) the question of standing. In respect to standing, the Court focused on whether the District Court’s approval of the Remedial Plan on January 7 supported, or under- mined, the intervenors’ standing argument that, in the absence of the original Enacted Plan, they would suffer harm. Tr. of Oral Arg. 9–23. II As our request for supplemental briefing, our order postponing consideration of jurisdiction, and our questions at oral argument suggested, we cannot decide the merits of this case unless the intervenor Members of Congress challenging the District Court’s racial-gerrymandering decision have standing. We conclude that the intervenors now lack standing. We must therefore dismiss the appeal for lack of jurisdiction. Article III of the Constitution grants the federal courts the power to decide legal questions only in the presence of 4 WITTMAN v. PERSONHUBALLAH Opinion of the Court an actual “Cas[e]” or “Controvers[y].” This restriction requires a party invoking a federal court’s jurisdiction to demonstrate standing. Arizonans for Official v. Arizona, A party has standing only if he shows that he has suffered an “injury in fact,” that the injury is “fairly traceable” to the conduct being challenged, and that the injury will likely be “redressed” by a favorable decision. (internal quotation marks and ellipsis omitted). The need to satisfy these three requirements persists throughout the life of the lawsuit. Arizonans for Official The relevant parties here are the intervenor Members of Congress. Since the

Justice Breyer

majority

Wittman v. Personhuballah

https://www.courtlistener.com/opinion/3205873/wittman-v-personhuballah/

parties here are the intervenor Members of Congress. Since the Commonwealth of Virginia has not pursued an appeal, only the intervenors currently attack the District Court’s decision striking down the Enacted Plan. And an “intervenor cannot step into the shoes of the original party” (here, the Commonwealth) “unless the intervenor independently ‘fulfills the requirements of Article III.’ ” (quoting Diamond v. Charles, 476 U.S. 54, 68 (1986)). Although 10 current and former Members of Congress are technically intervenors, only 3 of the 10 now claim before this Court that they have standing. Those three Members are Representative Randy Forbes, Representa- tive Robert Wittman, and Representative David Brat. Representative Forbes, the Republican incumbent in Congressional District 4, told us in his brief that, unless the Enacted Plan is upheld, District 4 will be “completely transform[ed] from a 48% Democratic district into a safe 60% Democratic district.” Brief for Appellants 58. Accord- ing to Forbes, the threat of that kind of transformation compelled him to run in a different district, namely, Con- gressional District 2. At oral argument, Forbes’ counsel told the Court that, if the Enacted Plan were reinstated, Representative Forbes Cite as: 578 U. S. (2016) 5 Opinion of the Court would abandon his election effort in Congressional District 2 and run in his old district, namely, Congressional Dis- trict 4. Tr. of Oral Arg. 10. Soon after oral argument, however, the Court received a letter from counsel stating that Representative Forbes would “continue to seek elec- tion in District 2 regardless of whether the Enacted Plan is reinstated.” Letter from Counsel for Appellants to Scott S. Harris, Clerk of Court (Mar. 25, 2016), p. 2. Given this letter, we do not see how any injury that Forbes might have suffered “is likely to be redressed by a favorable judicial decision.” Hollingsworth v. Perry, 570 U. S. – (2013) (slip op., at 5–6). Consequently, we need not decide whether, at the time he first intervened, Repre- sentative Forbes possessed standing. Regardless, he does not possess standing now. See Arizonans for Official ; Representative Wittman and Representative Brat are Republicans representing Congressional District 1 and Congressional District 7, respectively. In their opening brief they argue that they have standing to challenge the District Court’s order because, unless the Enacted Plan is reinstated, “a portion of the[ir] ‘base electorate’ ” will necessarily be replaced with “unfavorable Democratic voters,” thereby reducing the likelihood of the Representa- tives’ reelection. Brief for Appellants 58; see also Applica- tion for Stay of Remedial Plan Pending Resolution of Direct Appeal of Liability Judgment 25. Even assuming, without

Justice Breyer

majority

Wittman v. Personhuballah

https://www.courtlistener.com/opinion/3205873/wittman-v-personhuballah/

of Direct Appeal of Liability Judgment 25. Even assuming, without deciding, that this kind of injury is legally cog- nizable, Representatives Wittman and Brat have not identified record evidence establishing their alleged harm. We have made clear that the “party invoking federal jurisdiction bears the burden of establishing” that he has suffered an injury by submitting “affidavit[s] or other evidence.” When challenged by a court (or by an opposing party) concerned about standing, 6 WITTMAN v. PERSONHUBALLAH Opinion of the Court the party invoking the court’s jurisdiction cannot simply allege a nonobvious harm, without more. Here, there is no “more.” Representatives Wittman and Brat claim that unless the Enacted Plan is reinstated, their districts will be flooded with Democratic voters and their chances of reelection will accordingly be reduced. But we have examined the briefs, looking for any evidence that an alternative to the Enacted Plan (including the Remedial Plan) will reduce the relevant intervenors’ chances of reelection, and have found none. The briefs focus on Con- gressional District 3 and Congressional District 4, districts with which Representatives Wittman and Brat are not associated. We need go no further. Given the lack of evidence that any of the three Representatives has standing, we need not decide when, or whether, evidence of the kind of injury they allege would prove sufficient for purposes of Article III’s requirements. In light of the letter we have received about Representative Forbes, and the absence of any evidence in the briefs supporting any harm to the other two Representatives, we conclude that none of the inter- venors has standing to bring an appeal in this case. We consequently lack jurisdiction and therefore dismiss this appeal. It is so ordered

Justice Rehnquist

dissenting

Wyatt v. Cole

https://www.courtlistener.com/opinion/112733/wyatt-v-cole/

The Court notes that we have recognized an immunity in the 983 context in two circumstances. The first is when a similarly situated defendant would have enjoyed an immunity at common law at the time 983 was adopted. Ante, at 63-64. The second is when important public policy concerns *76 suggest the need for an immunity. Ante, at 66-67. Because I believe that both requirements, as explained in our prior decisions, are satisfied here, I dissent. First, I think it is clear that at the time 983 was adopted, there generally was available to private parties a good-faith defense to the torts of malicious prosecution and abuse of process.[] See authorities cited ante, at 64; ; And while the Court is willing to assume as much, ante, at 65, it thinks this insufficient to sustain respondents' claim to an immunity because the "qualified immunity" respondents' seek is not equivalent to such a "defense," ante, at 65-66. But I think the Court errs in suggesting that the availability of a good-faith common-law defense at the time of 983's adoption is not sufficient to support their claim to immunity. The case on which respondents principally rely, considered whether a police officer sued under 983 for false arrest could rely on a showing of good faith in order to escape liability. And while this Court concluded that the officer could rely on his own good faith, based in large part on the fact that a good-faith defense had been available at common law, the Court was at best ambiguous as to whether it *77 was recognizing a "defense" or an "immunity." with Any initial ambiguity, however, has certainly been eliminated by subsequent cases; there can be no doubt that it is a qualified immunity to which the officer is entitled. See Similarly, in we recognized that, "[a]lthough there have been differing emphases and formulations of the common-law immunity," the general recognition under state law that public officers are entitled to a good-faith defense was sufficient to support the recognition of a 983 immunity. Thus, unlike the Court, I think our prior precedent establishes that a demonstration that a good-faith defense was available at the time 983 was adopted does, in fact, provide substantial support for a contemporary defendant claiming that he is entitled to qualified immunity in the analogous 983 context. While we refuse to recognize a common-law immunity if 983's history or purpose counsel against applying it, ante, at 64, I see no such history or purpose that would so counsel here. Indeed, I am at a loss to understand what is

Justice Rehnquist

dissenting

Wyatt v. Cole

https://www.courtlistener.com/opinion/112733/wyatt-v-cole/

Indeed, I am at a loss to understand what is accomplished by today's decision—other than a needlessly fastidious adherence to nomenclature—given that the Court acknowledges that a good-faith defense will be available for respondents to assert on remand. Respondents presumably will be required to show the traditional elements of a good-faith defense—either that they acted without malice or that they acted with probable cause. See n. 98 U.S. 87, 94 (879); W. Law of Torts 20, p. 854 (4th ed. 97). The first element, "maliciousness," encompasses an inquiry into subjective intent for bringing the suit. at 92-93; 20, at 855. This quite often includes an inquiry into the defendant's subjective belief as to whether he believed *78 success was likely. See, e. g., 2 C. Law of Torts ¶ 854 (876) ("Proof of the absence of belief in the truth of the charge by the person making it is almost always involved in the proof of malice"). But the second element, "probable cause," focuses principally on objective reasonableness. at 94; 20, at 854. Thus, respondents can successfully defend this suit simply by establishing that their reliance on the replevin statute was objectively reasonable for someone with their knowledge of the circumstances. But this is precisely the showing that entitles a public official to immunity. 88 (982)[2] Nor do I see any reason that this "defense" may not be asserted early in the proceedings on a motion for summary judgment, just as a claim to qualified immunity may be. Provided that the historical facts are not in dispute, the presence or absence of "probable cause" has long been acknowledged to be a question of law. at 93-94; 2 n. (p); J. Bishop, Commentaries on NonContract Law 240, p. 95 (889). And so I see no reason that the trial judge may not resolve a summary judgment motion premised on such a good-faith defense, just as we have encouraged trial judges to do with respect to qualified *79 immunity claims. at 88. Thus, private defendants who have invoked a state attachment law are put in the same position whether we recognize that they are entitled to qualified immunity or if we instead recognize a goodfaith defense. Perhaps the Court believes that the "defense" will be less amenable to summary disposition than will the "immunity"; perhaps it believes the defense will be an issue that must be submitted to the jury, see ante, at 68 (referring to cases such as this "proceed[ing] to trial"). While I can see no reason why this would be so (given that probable cause is a legal question),

Justice Rehnquist

dissenting

Wyatt v. Cole

https://www.courtlistener.com/opinion/112733/wyatt-v-cole/

be so (given that probable cause is a legal question), if it is true, today's decision will only manage to increase litigation costs needlessly for hapless defendants. This, in turn, leads to the second basis on which we have previously recognized a qualified immunity—reasons of public policy. Assuming that some practical difference will result from recognizing a defense but not an immunity, I think such a step is neither dictated by our prior decisions nor desirable. It is true, as the Court points out, that in abandoning a strictly historical approach to 983 immunities we have often explained our decision to recognize an immunity in terms of the special needs of public officials. But those cases simply do not answer—because the question was not at issue—whether similar (or even completely unrelated) reasons of public policy would warrant immunity for private parties as well. I believe there are such reasons. The normal presumption that attaches to any law is that society will be benefited if private parties rely on that law to provide them a remedy, rather than turning to some form of private, and perhaps lawless, relief. In denying immunity to those who reasonably rely on presumptively valid state law, and thereby discouraging such reliance, the Court expresses confidence that today's decision will not "unduly impai[r]," ib the public interest. I do not share that confidence. I would have thought it beyond peradventure that there is strong public *80 interest in encouraging private citizens to rely on valid state laws of which they have no reason to doubt the validity. 85 (CA8 983); Folsom Investment 68 F.2d 032, 037-038 (CA5 982). Second, as with the police officer making an arrest, I believe the private plaintiff's lot is "not so unhappy" that he must forgo recovery of property he believes to be properly recoverable through available legal processes or to be "mulcted in damages," 386 U. S., at if his belief turns out to be mistaken. For as one Court of Appeals has pointed out, it is at least passing strange to conclude that private individuals are acting "under color of law" because they invoke a state garnishment statute and the aid of state officers, see (982), but yet deny them the immunity to which those same state officers are entitled, simply because the private parties are not state employees. at 85. While some of the strangeness may be laid at the doorstep of our decision in Lugar, see ; and there is no reason to proceed still further down this path. Our 983 jurisprudence has gone very far afield indeed,

Justice Breyer

majority

Richardson v. McKnight

https://www.courtlistener.com/opinion/118137/richardson-v-mcknight/

The issue before us is whether prison guards who are employees of a private prison management firm are entitled to a qualified immunity from suit by prisoners charging a violation of 42 U.S. C. 1983. We hold that they are not. I Ronnie Lee McKnight, a prisoner at Tennessee's South Central Correctional Center (SCCC), brought this federal constitutional tort action against two prison guards, Darryl Richardson and John Walker. He says the guards injured him by placing upon him extremely tight physical restraints, thereby unlawfully "subject[ing]" him "to the deprivation of" a right "secured by the Constitution" of the United States. Rev. Stat. 1979, 42 U.S. C. 1983. Richardson *402 and Walker asserted a qualified immunity from 1983 lawsuits, see and moved to dismiss the action. The District Court noted that Tennessee had "privatized" the management of a number of its correctional facilities,and that consequently a private firm, not the state government, employed the guards. See Tenn. Code Ann. 41-24-101 et seq. ; see generally Cody & Bennett, The Privatization of Correctional Institutions: The Tennessee Experience, The court held that, because they worked for a private company rather than the government, the law did not grant the guards immunity from suit. It therefore denied the guards' motion to dismiss. The guards appealed to the Sixth Circuit. See ; see also ; That court also ruled against them. The Court of Appeals conceded that other courts had reached varying conclusions about whether, or the extent to which, private sector defendants are entitled to immunities of the sort the law provides governmental defendants. See, e. g., ; (CA7), cert. denied, ; But the court concluded, primarily for reasons of "public policy," that the privately employed prison guards were not entitled to the immunity provided their governmental 88 F.3d, at We granted certiorari to review this holding. We now affirm. II A We take the Court's recent case, as pertinent authority. The Court there considered whether private defendants, charged with 1983 liability *403 for "invoking state replevin, garnishment, and attachment statutes" later declared unconstitutional were "entitled to qualified immunity from suit." It held that they were not. We find four aspects of relevant here. First, as noted, 1983 basically seeks "to deter state actors from using the badge of their authority to deprive individuals of their federally guaranteed rights" and to provide related relief. ); see also It imposes liability only where a person acts "under color" of a state "statute, ordinance, regulation, custom, or usage." 42 U.S. C. 1983. Nonetheless, reaffirmed that 1983 can sometimes impose liability upon a private ; see

Justice Breyer

majority

Richardson v. McKnight

https://www.courtlistener.com/opinion/118137/richardson-v-mcknight/

1983 can sometimes impose liability upon a private ; see also Second, reiterated that after and this Court's reformulation of the qualified immunity doctrine, see a distinction exists between an "immunity from suit" and other kinds of legal -167; see also As the concurrence pointed out, a legal defense may well involve "the essence of the wrong," while an immunity frees one who enjoys it from a lawsuit whether or not he acted — 172 Third, specified the legal source of 1983 immunities. It pointed out that although 1983 "`creates a species of tort liability that on its face admits of no immunities,' " ), this Court has nonetheless accorded immunity where a "`tradition of immunity was so firmly rooted in the common law and was supported by such strong policy reasons that "Congress would have specifically so provided had it wished to abolish the doctrine."` " (quoting ). *404 The majority, in deciding whether or not the private defendants enjoyed immunity, looked both to history and to "the special policy concerns involved in suing government officials." ; see also ; at ; And in this respect—the relevant sources of the law—both the concurrence and the dissent seemed to agree. 504 U.S., -171 (existence of immunity depends upon "historical origins" and "public policy"), with ("immunity" recognized where "similarly situated defendant would have enjoyed an immunity at common law" or "when important public policy concerns suggest the need for an immunity"). Fourth, did not consider its answer to the question before it as one applicable to all private individuals—irrespective of the nature of their relation to the government, position, or the kind of liability at issue. Rather, explicitly limited its holding to what it called a "narrow" question about "private persons who conspire with state officials," and it answered that question by stating that private defendants "faced with 1983 liability for invoking a state replevin, garnishment, or attachment statute" are not entitled to immunity, -169. then, did not answer the legal question before us, whether petitioners—two employees of a private prison management firm—enjoy a qualified immunity from suit under 1983. It does tell us, however, to look both to history and to the purposes that underlie government employee immunity in order to find the answer. ; see also ; ; B History does not reveal a "firmly rooted" tradition of immunity applicable to privately employed prison guards. *405 Correctional services in the United States have undergone various transformations. See D. Shichor, Punishment for Profit 33, 36 (Shichor). Government -employed prison guards may have enjoyed a kind of immunity defense arising out

Justice Breyer

majority

Richardson v. McKnight

https://www.courtlistener.com/opinion/118137/richardson-v-mcknight/

may have enjoyed a kind of immunity defense arising out of their status as public employees at common law. See But correctional functions have never been exclusively public. Shichor 33, 36. Private individuals operated local jails in the 18th century, G. Bowman, S. Hakim, & P. Seidenstat, Privatizing the United States Justice System 271, n. 1 and private contractors were heavily involved in prison management during the 19th century. Shichor 33, 36. During that time, some States, including southern States like Tennessee, leased their entire prison systems to private individuals or companies which frequently took complete control over prison management, including inmate labor and discipline. G. Bowman, S. Hakim, & P. Seidenstat, Privatizing Correctional Institutions 42 ; see generally B. McKelvey, American Prisons: A Study in American Social History Prior to 1915, pp. 172-180 (1968) (describing 19thcentury American prison system); see also Shichor 34; G. de Beaumont & A. de Tocqueville, On the Penitentiary System in the United States and Its Application in France 35 (1833) (describing more limited prison contracting system in Massachusetts and Pennsylvania). Private prison lease agreements (like inmate suits) seem to have been more prevalent after 1983's enactment, see generally M. One Dies, Get Another but we have found evidence that the common law provided mistreated prisoners in prison leasing States with remedies against mistreatment by those private lessors. See, e. g., Dade Coal ; ; ; ; ; see also ; ; see generally Yet, we have found no evidence that the law gave purely private companies or their employees any special immunity from such suits. Cf. Almango v. Board of Supervisors of Albany County, 32 N. Y. Sup. Ct. 551 (1881) (no cause of action against private contractor where contractor designated state instrumentality by statute). The case on which the dissent rests its argument, actually supports our point. It suggests that no immunity from suit would exist for the type of intentional conduct at issue in this case. See ; see ; cf. Correctional functions in England have been more consistently public, see generally 22 Encyclopedia Brittanica, *407 "Prison" 361-368 (11th ed. 1911); S. Webb & B. Webb, English Prisons Under Local Government (1922) (Webb), but historical sources indicate that England relied upon private jailers to manage the detention of prisoners from the Middle Ages until well into the 18th century. Shichor 21; see also Webb 4-5; 1 E. Institutes 43 (1797). The common law forbade those jailers to subject "`their prisoners to any pain or torment,' " whether through harsh confinement in leg irons, or otherwise. See In re Birdsong, ; 1 ;

Justice Breyer

majority

Richardson v. McKnight

https://www.courtlistener.com/opinion/118137/richardson-v-mcknight/

irons, or otherwise. See In re Birdsong, ; 1 ; 2 C. A Treatise on the Law of Torts 1016, pp. 224-225 (1876); see also 4 Geo. IV, ch. 64, X Twelfth. And it apparently authorized prisoner lawsuits to recover damages. 2 1016. Apparently the law did provide a kind of immunity for certain private defendants, such as doctors or lawyers who performed services at the behest of the sovereign. See at ; J. Bishop, Commentaries on Non-Contract Law 704, 710 But we have found no indication of any more general immunity that might have applied to private individuals working for profit. Our research, including the sources that the parties have cited, reveals that in the 19th century (and earlier) sometimes private contractors and sometimes government itself carried on prison management activities. And we have found no conclusive evidence of a historical tradition of immunity for private parties carrying out these functions. History therefore does not provide significant support for the immunity claim. Cf. ; ; C Whether the immunity doctrine's purposes warrant immunity for private prison guards presents a closer question. consistent with earlier precedent, described the doctrine's *408 purposes as protecting "government's ability to perform its traditional functions" by providing immunity where "necessary to preserve" the ability of government officials "to serve the public good or to ensure that talented candidates were not deterred by the threat of damages suits from entering public service." Earlier precedent described immunity as protecting the public from unwarranted timidity on the part of public officials by, for example, "encouraging the vigorous exercise of official authority," by contributing to "`principled and fearless decision-making,' " (quoting ), and by responding to the concern that threatened liability would, in Judge Hand's words, "`dampen the ardour of all but the most resolute, or the most irresponsible,' " public officials, cert. denied, ; see also 472 U. S., The guards argue that those purposes support immunity whether their employer is private or public. Brief for Petitioners 35-36. Since private prison guards perform the same work as state prison guards, they say, they must require immunity to a similar degree. To say this, however, is to misread this Court's precedents. The Court has sometimes applied a functional approach in immunity cases, but only to decide which type of immunity—absolute or qualified—a public officer should receive. See, e. g., 509 U.S. ; ; ; ; And it never has held that the mere performance of a governmental function could make the difference between unlimited 1983 liability and qualified immunity, see, e. g., * -923, especially for a private person

Justice Breyer

majority

Richardson v. McKnight

https://www.courtlistener.com/opinion/118137/richardson-v-mcknight/

see, e. g., * -923, especially for a private person who performs a job without government supervision or direction. Indeed a purely functional approach bristles with difficulty, particularly since, in many areas, government and private industry may engage in fundamentally similar activities, ranging from electricity production, to waste disposal, to even mail delivery. Petitioners' argument also overlook certain important differences that, from an immunity perspective, are critical. First, the most important special government immunityproducing concern—unwarranted timidity—is less likely present, or at least is not special, when a private company subject to competitive market pressures operates a prison. Competitive pressures mean not only that a firm whose guards are too aggressive will face damages that raise costs, thereby threatening its replacement, but also that a firm whose guards are too timid will face threats of replacement by other firms with records that demonstrate their ability to do both a safer and a more effective job. These ordinary marketplace pressures are present here. The private prison guards before us work for a large, multistate private prison management firm. C. Thomas, D. Bolinger, & J. Badalamenti, Private Adult Correctional Facility Census 1 (10th ed. 1997) (listing the Corrections Corporation of America as the largest prison management concern in the United States). The firm is systematically organized to perform a major administrative task for profit. Cf. Tenn. Code Ann. 41-24-104 It performs that task independently, with relatively less ongoing direct state supervision. 41-4—140(c)(5) (exempting private jails from certain monitoring) with 41-4—116 (requiring inspectors to examine publicly operated county jails once a month or more) and 41-4—140(a) (requiring Tennessee Correctional *410 Institute to inspect public correctional facilities on an annual basis and to report findings of such inspections). It must buy insurance sufficient to compensate victims of civil rights torts. 41-24-107. And, since the firm's first contract expires after three years, 41-24-105(a), its performance is disciplined, not only by state review, see 41— 24-105(c)—(f), 41-24-109, but also by pressure from potentially competing firms who can try to take its place. Cf. 41-24-104(a)(4) (permitting State, upon notice, to cancel contract at any time after first year of operation); see also 41-24-105(c) and (d) (describing standards for renewal of contract). In other words, marketplace pressures provide the private firm with strong incentives to avoid overly timid, insufficiently vigorous, unduly fearful, or "nonarduous" employee job performance. And the contract's provisions—including those that might permit employee indemnification and avoid many civil-service restrictions—grant this private firm freedom to respond to those market pressures through rewards and penalties that operate directly upon its employees. See 41-24-111. To this extent, the employees

Justice Breyer

majority

Richardson v. McKnight

https://www.courtlistener.com/opinion/118137/richardson-v-mcknight/

upon its employees. See 41-24-111. To this extent, the employees before us resemble those of other private firms and differ from government employees. This is not to say that government employees, in their efforts to act within constitutional limits, will always, or often, sacrifice the otherwise effective performance of their duties. Rather, it is to say that government employees typically act within a different system. They work within a system that is responsible through elected officials to voters who, when they vote, rarely consider the performance of individual sub departments or civil servants specifically and in detail. And that system is often characterized by multidepartment civil service rules that, while providing employee security, may limit the incentives or the ability of individual departments or supervisors flexibly to reward, or to punish, individual *411 employees. Hence a judicial determination that "effectiveness" concerns warrant special immunity-type protection in respect to this latter (governmental) system does not prove its need in respect to the former. Consequently, we can find no special immunity-related need to encourage vigorous performance. Second, "privatization" helps to meet the immunity-related need "to ensure that talented candidates" are "not deterred by the threat of damages suits from entering public service." ; see also 472 U. S., (citing ). It does so in part because of the comprehensive insurance-coverage requirements just mentioned. The insurance increases the likelihood of employee indemnification and to that extent reduces the employment-discouraging fear of unwarranted liability potential applicants face. Because privatization law also frees the private prison-management firm from many civil service law restraints, Tenn. Code Ann. 41-24-111 (1990), it permits the private firm, unlike a government department, to offset any increased employee liability risk with higher pay or extra benefits. In respect to this second governmentimmunity-related purpose then, it is difficult to find a special need for immunity, for the guards' employer can operate like other private firms; it need not operate like a typical government department. Third, lawsuits may well "`distrac[t]' " these employees "`from their duties,' " (quoting ), but the risk of "distraction" alone cannot be sufficient grounds for an immunity. Our qualified immunity cases do not contemplate the complete elimination of lawsuit-based distractions. Cf. And it is significant that, here, Tennessee law reserves certain important discretionary tasks—those related to prison discipline, to parole, and to good time—for state officials. *412 Tenn. Code Ann. 41-24-110 (1990). Given a continual and conceded need for deterring constitutional violations and our sense that the firm's tasks are not enormously different in respect to their importance from various other publicly important tasks carried out by private

Justice Breyer

majority

Richardson v. McKnight

https://www.courtlistener.com/opinion/118137/richardson-v-mcknight/

from various other publicly important tasks carried out by private firms, we are not persuaded that the threat of distracting workers from their duties is enough virtually by itself to justify providing an immunity. Moreover, Tennessee, which has itself decided not to extend sovereign immunity to private prison operators (and arguably appreciated that this decision would increase contract prices to some degree), 41-24-107, can be understood to have anticipated a certain amount of distraction. D Our examination of history and purpose thus reveals nothing special enough about the job or about its organizational structure that would warrant providing these private prison guards with a governmental immunity. The job is one that private industry might, or might not, perform; and which history shows private firms did sometimes perform without relevant immunities. The organizational structure is one subject to the ordinary competitive pressures that normally help private firms adjust their behavior in response to the incentives that tort suits provide—pressures not necessarily present in government departments. Since there are no special reasons significantly favoring an extension of governmental immunity, and since makes clear that private actors are not automatically immune (i. e., 1983 immunity does not automatically follow 1983 liability), we must conclude that private prison guards, unlike those who work directly for the government, do not enjoy immunity from suit in a 1983 case. Cf. ; see also 438 U. S., at *413 III We close with three caveats. First, we have focused only on questions of 1983 immunity and have not addressed whether the defendants are liable under 1983 even though they are employed by a private firm. Because the Court of Appeals assumed, but did not decide, 1983 liability, it is for the District Court to determine whether, under this Court's decision in defendants actually acted "under color of state law." Second, we have answered the immunity question narrowly, in the context in which it arose. That context is one in which a private firm, systematically organized to assume a major lengthy administrative task (managing an institution) with limited direct supervision by the government, undertakes that task for profit and potentially in competition with other firms. The case does not involve a private individual briefly associated with a government body, serving as an adjunct to government in an essential governmental activity, or acting under close official supervision. Third, explicitly stated that it did not decide whether or not the private defendants before it might assert, not immunity, but a special "good-faith" defense. The Court said that it "d[id] not foreclose the possibility that private defendants faced with 1983 liability

Justice Souter

majority

Department of Interior v. Klamath Water Users Protective Assn.

https://www.courtlistener.com/opinion/118462/department-of-interior-v-klamath-water-users-protective-assn/

Documents in issue here, passing between Indian Tribes and the Department of the Interior, addressed tribal interests subject to state and federal proceedings to determine water allocations. The question is whether the documents are exempt from the disclosure requirements of the Freedom of Information Act, as "intra-agency memorandums or *5 letters" that would normally be privileged in civil discovery. 5 U.S. C. 552(b)(5). We hold they are not. I Two separate proceedings give rise to this case, the first a planning effort within the Department of the Interior's Bureau of Reclamation, and the second a state water rights adjudication in the Oregon courts. Within the Department of the Interior, the Bureau of Reclamation (Reclamation) administers the Klamath Irrigation Project (Klamath Project or Project), which uses water from the Klamath River Basin to irrigate territory in Klamath County, Oregon, and two northern California counties. In 1995, the Department began work to develop a long-term operations plan for the Project, to be known as the Klamath Project Operation Plan (Plan), which would provide for allocation of water among competing uses and competing water users. The Department asked the Klamath as well as the Hoopa Valley, Karuk, and Yurok Tribes (Basin Tribes) to consult with Reclamation on the matter, and a memorandum of understanding between the Department and the Tribes recognized that "[t]he United States Government has a unique legal relationship with Native American tribal governments," and called for "[a]ssessment, in consultation with the Tribes, of the impacts of the [Plan] on Tribal trust resources." App. 59, 61. During roughly the same period, the Department's Bureau of Indian Affairs (Bureau) filed claims on behalf of the Klamath Tribe alone in an Oregon state-court adjudication intended to allocate water rights. Since the Bureau is responsible for administering land and water held in trust for Indian tribes, 25 U.S. C. 1a; 25 CFR subch. H, pts. 150-181 it consulted with the Klamath Tribe, and the two exchanged written memorandums on the appropriate scope of the claims ultimately submitted by the United States for the benefit of the Klamath Tribe. The Bureau does not, however, *6 act as counsel for the Tribe, which has its own lawyers and has independently submitted claims on its own behalf.[1] Respondent, the Klamath Water Users Protective Association (Association), is a nonprofit association of water users in the Klamath River Basin, most of whom receive water from the Klamath Project, and whose interests are adverse to the tribal interests owing to scarcity of water. The Association filed a series of requests with the Bureau under the Freedom of Information Act (FOIA),

Justice Souter

majority

Department of Interior v. Klamath Water Users Protective Assn.

https://www.courtlistener.com/opinion/118462/department-of-interior-v-klamath-water-users-protective-assn/

with the Bureau under the Freedom of Information Act (FOIA), 5 U.S. C. 552, seeking access to communications between the Bureau and the Basin Tribes during the relevant time period. The Bureau turned over several documents but withheld others as exempt under the attorney work-product and deliberative process privileges. These privileges are said to be incorporated in FOIA Exemption 5, which exempts from disclosure "inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency." 552(b)(5). The Association then sued the Bureau under FOIA to compel release of the documents. By the time of the District Court ruling, seven documents remained in dispute, three of them addressing the Plan, three concerned with the Oregon adjudication, and the seventh relevant to both proceedings. See App. to Pet. for Cert. 41a-49a. Six of the documents were prepared by the Klamath Tribe or its representative and were submitted at the Government's behest to the Bureau or to the Department's Regional Solicitor; a Bureau official prepared the seventh document and gave it to lawyers for the Klamath and Yurok Tribes. See *7 The District Court granted the Government's motion for summary judgment. It held that each document qualified as an inter-agency or intra-agency communication for purposes of Exemption 5, and that each was covered by the deliberative process privilege or the attorney work-product privilege, as having played a role in the Bureau's deliberations about the Plan or the Oregon adjudication. See 189 F.3d, at App. to Pet. for Cert. 31a-32a, 56a-65a. The Court of Appeals for the Ninth Circuit reversed. It recognized that some Circuits had adopted a "functional" approach to Exemption 5, under which a document generated outside the Government might still qualify as an "intra-agency" communication. See The court saw no reason to go into that, however, for it ruled out any application of Exemption 5 on the ground that "the Tribes with whom the Department has a consulting relationship have a direct interest in the subject matter of the consultations." The court said that "[t]o hold otherwise would extend Exemption 5 to shield what amount to ex parte communications in contested proceedings between the Tribes and the Department." Judge Hawkins dissented, for he saw the documents as springing "from a relationship that remains consultative rather than adversarial, a relationship in which the Bureau and Department were seeking the expertise of the Tribes, rather than opposing them." He saw the proper enquiry as going not to a document's source, but to the role it plays in agency decisionmaking.

Justice Souter

majority

Department of Interior v. Klamath Water Users Protective Assn.

https://www.courtlistener.com/opinion/118462/department-of-interior-v-klamath-water-users-protective-assn/

source, but to the role it plays in agency decisionmaking. See We granted certiorari in view of the decision's significant impact on the relationship between Indian tribes and the Government, and now affirm. II Upon request, FOIA mandates disclosure of records held by a federal agency, see 5 U.S. C. 552, unless the documents fall within enumerated exemptions, see 552(b). "[T]hese *8 limited exemptions do not obscure the basic policy that disclosure, not secrecy, is the dominant objective of the Act," Department of Air Force v.Rose, ; "[c]onsistent with the Act's goal of broad disclosure, these exemptions have been consistently given a narrow compass," Department of ; see also A Exemption 5 protects from disclosure "inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency." 5 U.S. C. 552(b)(5). To qualify, a document must thus satisfy two conditions: its source must be a Government agency, and it must fall within the ambit of a privilege against discovery under judicial standards that would govern litigation against the agency that holds it. Our prior cases on Exemption 5 have addressed the second condition, incorporating civil discovery privileges. See, e. g., United ; So far as they might matter here, those privileges include the privilege for attorney workproduct and what is sometimes called the "deliberative process" privilege. Work product protects "mental processes of the attorney," United while deliberative process covers "documents reflecting advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated," Sears, Roebuck & The deliberative process privilege rests on the obvious realization that officials will not communicate candidly among themselves *9 if each remark is a potential item of discovery and front page news, and its object is to enhance "the quality of agency decisions," at by protecting open and frank discussion among those who make them within the Government, see ; see also Weber Aircraft The point is not to protect Government secrecy pure and simple, however, and the first condition of Exemption 5 is no less important than the second; the communication must be "inter-agency or intra-agency." 5 U.S. C. 552(b)(5). Statutory definitions underscore the apparent plainness of this text. With exceptions not relevant here, "agency" means "each authority of the Government of the United States," 551(1), and "includes any executive department, military department, Government corporation, Government controlled corporation, or other establishment in the executive branch of the Government or any independent regulatory agency," 552(f). Although neither the terms of the exemption nor the statutory definitions

Justice Souter

majority

Department of Interior v. Klamath Water Users Protective Assn.

https://www.courtlistener.com/opinion/118462/department-of-interior-v-klamath-water-users-protective-assn/

neither the terms of the exemption nor the statutory definitions say anything about communications with outsiders, some Courts of Appeals have held that in some circumstances a document prepared outside the Government may nevertheless qualify as an "intra-agency" memorandum under Exemption 5. See, e. g., ; Lead Industries ; In Department of Justice Scalia, joined by Justices O'Connor and White, explained that "the most natural meaning of the phrase `intra-agency memorandum' is a memorandum that is addressed both to and from employees of a single agency," But his opinion also acknowledged the more expansive reading by some Courts of Appeals: "It is textually possible and in accord with the purpose of the provision, to regard as an intra-agency memorandum *10 one that has been received by an agency, to assist it in the performance of its own functions, from a person acting in a governmentally conferred capacity other than on behalf of another agency—e. g., in a capacity as employee or consultant to the agency, or as employee or officer of another governmental unit (not an agency) that is authorized or required to provide advice to the agency." [2] Typically, courts taking the latter view have held that the exemption extends to communications between Government agencies and outside consultants hired by them. See, e. g., ; Lead Industries at ; see also Government Land In such cases, the records submitted by outside consultants played essentially the same part in an agency's process of deliberation as documents prepared by agency personnel might have done. To be sure, the consultants in these cases were independent contractors and were not assumed to be subject to the degree of control that agency employment could have entailed; nor do we read the cases as necessarily assuming that an outside consultant must be devoid of a definite point of view when the agency contracts for its services. But the fact *11 about the consultant that is constant in the typical cases is that the consultant does not represent an interest of its own, or the interest of any other client, when it advises the agency that hires it. Its only obligations are to truth and its sense of what good judgment calls for, and in those respects the consultant functions just as an employee would be expected to do. B The Department purports to rely on this consultant corollary to Exemption 5 in arguing for its application to the Tribe's communications to the Bureau in its capacity of fiduciary for the benefit of the Indian Tribes. The existence of a trust obligation is not, of course,

Justice Souter

majority

Department of Interior v. Klamath Water Users Protective Assn.

https://www.courtlistener.com/opinion/118462/department-of-interior-v-klamath-water-users-protective-assn/

The existence of a trust obligation is not, of course, in question, see United ; United (19); Seminole The fiduciary relationship has been described as "one of the primary cornerstones of Indian law," F. Cohen, Handbook of Federal Indian Law 221 and has been compared to one existing under a common law trust, with the United States as trustee, the Indian tribes or individuals as beneficiaries, and the property and natural resources managed by the United States as the trust corpus. See, e. g., at Nor is there any doubt about the plausibility of the Government's assertion that the candor of tribal communications with the Bureau would be eroded without the protections of the deliberative process privilege recognized under Exemption 5. The Department is surely right in saying that confidentiality in communications with tribes is conducive to a proper discharge of its trust obligation. From the recognition of this interest in frank communication, which the deliberative process privilege might protect, the Department would have us infer a sufficient justification for applying Exemption 5 to communications with the Tribes, in the same fashion that Courts of Appeals have found sufficient reason to favor a consultant's advice that *12 way. But the Department's argument skips a necessary step, for it ignores the first condition of Exemption 5, that the communication be "intra-agency or inter-agency." The Department seems to be saying that "intra-agency" is a purely conclusory term, just a label to be placed on any document the Government would find it valuable to keep confidential. There is, however, no textual justification for draining the first condition of independent vitality, and once the intraagency condition is applied,[3] it rules out any application of Exemption 5 to tribal communications on analogy to consultants' reports (assuming, which we do not decide, that these reports may qualify as intra-agency under Exemption 5). As mentioned already, consultants whose communications have typically been held exempt have not been communicating with the Government in their own interest or on behalf of any person or group whose interests might be affected by the Government action addressed by the consultant. In that regard, consultants may be enough like the agency's own personnel to justify calling their communications "intra-agency." The Tribes, on the contrary, necessarily communicate with the Bureau with their own, albeit entirely legitimate, interests in mind. While this fact alone distinguishes tribal communications from the consultants' examples recognized by several Courts of Appeals, the distinction is even sharper, in that the Tribes are self-advocates at the expense of others seeking benefits inadequate to satisfy everyone.[4] *13 As to those documents

Justice Souter

majority

Department of Interior v. Klamath Water Users Protective Assn.

https://www.courtlistener.com/opinion/118462/department-of-interior-v-klamath-water-users-protective-assn/

benefits inadequate to satisfy everyone.[4] *13 As to those documents bearing on the Plan, the Tribes are obviously in competition with nontribal claimants, including those irrigators represented by the respondent. App. 66-71. The record shows that documents submitted by the Tribes included, among others, "a position paper that discusses water law legal theories" and "addresses issues related to water rights of the tribes," App. to Pet. for Cert. 42a-43a, a memorandum "contain[ing] views on policy the BIA could provide to other governmental agencies," "views concerning trust resources," at 44a, and a letter "conveying the views of the Klamath Tribes concerning issues involved in the water rights adjudication," at 47a. While these documents may not take the formally argumentative form of a brief, their function is quite apparently to support the tribal claims. The Tribes are thus urging a position necessarily adverse to the other claimants, the water being inadequate to satisfy the combined demand. As the Court of Appeals said, "[t]he Tribes' demands, if satisfied, would lead to reduced water allocations to members of the Association and have been protested by Association members who fear water shortages and economic injury in dry years." The Department insists that the Klamath Tribe's consultant-like character is clearer in the circumstances of the Oregon adjudication, since the Department merely represents the interests of the Tribe before a state court that will *14 make any decision about the respective rights of the contenders. Brief for Petitioners 42-45; Reply Brief for Petitioners 4-6. But it is not that simple. Even if there were no rival interests at stake in the Oregon litigation, the Klamath Tribe would be pressing its own view of its own interest in its communications with the Bureau. Nor could that interest be ignored as being merged somehow in the fiduciary interest of the Government trustee; the Bureau in its fiduciary capacity would be obliged to adopt the stance it believed to be in the beneficiary's best interest, not necessarily the position espoused by the beneficiary itself. Cf. Restatement (Second) of Trusts 176, Comment a (1957) ("[I]t is the duty of the trustee to exercise such care and skill to preserve the trust property as a man of ordinary prudence would exercise in dealing with his own property"). But, again, the dispositive point is that the apparent object of the Tribe's communications is a decision by an agency of the Government to support a claim by the Tribe that is necessarily adverse to the interests of competitors. Since there is not enough water to satisfy everyone, the Government's position on behalf of the

Justice Souter

majority

Department of Interior v. Klamath Water Users Protective Assn.

https://www.courtlistener.com/opinion/118462/department-of-interior-v-klamath-water-users-protective-assn/

to satisfy everyone, the Government's position on behalf of the Tribe is potentially adverse to other users, and it might ask for more or less on behalf of the Tribe depending on how it evaluated the tribal claim compared with the claims of its rivals. The ultimately adversarial character of tribal submissions to the Bureau therefore seems the only fair inference, as confirmed by the Department's acknowledgment that its "obligation to represent the Klamath Tribe necessarily coexists with the duty to protect other federal interests, including in particular its interests with respect to the Klamath Project." Reply Brief for Petitioners 8; cf. (19) ("[W]here Congress has imposed upon the United States, in addition to its duty to represent Indian tribes, a duty to obtain water rights for reclamation projects, and has even authorized the inclusion of reservation lands within a project, the analogy of a faithless private fiduciary cannot be *15 controlling for purposes of evaluating the authority of the United States to represent different interests"). The position of the Tribe as beneficiary is thus a far cry from the position of the paid consultant. Quite apart from its attempt to draw a direct analogy between tribes and conventional consultants, the Department argues that compelled release of the documents would itself impair the Department's performance of a specific fiduciary obligation to protect the confidentiality of communications with tribes.[5] Because, the Department argues, traditional fiduciary standards forbid a trustee to disclose information acquired as a trustee when it should know that disclosure would be against the beneficiary's interests, excluding the Tribes' submissions to the Department from Exemption 5 would handicap the Department in doing what the law requires. Brief for Petitioners 36-37.[6] And in much the same vein, the Department presses the argument that "FOIA is intended to cast light on existing government practices; it should not be interpreted and applied so as to compel federal agencies to perform their assigned substantive functions in other than the normal manner." All of this boils down to requesting that we read an "Indian trust" exemption into the statute, a reading that is out *16 of the question for reasons already explored. There is simply no support for the exemption in the statutory text, which we have elsewhere insisted be read strictly in order to serve FOIA's mandate of broad disclosure,[7] which was obviously expected and intended to affect Government operations. In FOIA, after all, a new conception of Government conduct was enacted into law, "`a general philosophy of full agency disclosure.' " Department of 492 U. S., at "Congress believed that this philosophy,

Justice Stevens

concurring

Holmes Group, Inc. v. Vornado Air Circulation Systems, Inc.

https://www.courtlistener.com/opinion/118514/holmes-group-inc-v-vornado-air-circulation-systems-inc/

The Court correctly holds that the exclusive jurisdiction of the Court of Appeals for the Federal Circuit in patent *835 cases is "fixed with reference to that of the district court," ante, at 829. It is important to note the general rule, however, that the jurisdiction of the court of appeals is not "fixed" until the notice of appeal is filed. See ("The filing of a notice of appeal is an event of jurisdictional significance—it confers jurisdiction on the court of appeals and divests the district court of its control over those aspects of the case involved in the appeal"). Thus, if a case began as an antitrust case, but an amendment to the complaint added a patent claim that was pending or was decided when the appeal is taken, the jurisdiction of the district court would have been based "in part" on 28 U.S. C. 1338(a), and therefore 1295(a)(1) would grant the Federal Circuit jurisdiction over the appeal. Conversely, if the only patent count in a multicount complaint was voluntarily dismissed in advance of trial, it would seem equally clear that the appeal should be taken to the appropriate regional court of appeals rather than to the Federal Circuit. See Any other approach "would enable an unscrupulous plaintiff to manipulate appellate court jurisdiction by the timing of the amendments to its complaint." To the extent that the Court's opinion might be read as endorsing a contrary result by reason of its reliance on cases involving the removal jurisdiction of the district court, I do not agree with it. I also do not agree with the Court's statement that an interpretation of the "in whole or in part" language of 1295(a)(1) to encompass patent claims alleged in a compulsory counterclaim providing an independent basis for the district court's jurisdiction would be a "neologism" that would involve "an unprecedented feat of interpretive necromancy," ante, at 833. For there is well-reasoned precedent supporting precisely that conclusion. See Aerojet-General (opinion of Markey, C. J., for a unanimous court) ; Dale Electronics, ; Pioche Mines Consol., ; Lion Mfg. ).[1] I am nevertheless persuaded that a correct interpretation of 1295(a)(1) limits the Federal Circuit's exclusive jurisdiction to those cases in which the patent claim is alleged in either the original complaint or an amended pleading filed by the *837 plaintiff. In my judgment, each of the three policies that the Court has identified as supporting the "well-pleadedcomplaint" rule governing district court jurisdiction, ante, at 831-832, points in the same direction with respect to appellate jurisdiction. First, the interest in preserving the plaintiff's choice of

Justice Stevens

concurring

Holmes Group, Inc. v. Vornado Air Circulation Systems, Inc.

https://www.courtlistener.com/opinion/118514/holmes-group-inc-v-vornado-air-circulation-systems-inc/

jurisdiction. First, the interest in preserving the plaintiff's choice of forum includes not only the court that will conduct the trial but the appellate court as well. A plaintiff who has a legitimate interest in litigating in a circuit whose precedents support its theory of the case might omit a patent claim in order to avoid review in the Federal Circuit. In some cases that interest would be defeated by a rule that allowed a patent counterclaim to determine the appellate forum. Second, although I doubt that a rule that enabled the counterclaimant to be the occasional master of the appellate forum "would radically expand" the number of cases heard by the Federal Circuit, ante, at 832, we must recognize that the exclusive jurisdiction of the Federal Circuit defined in 1295(a)(1) does not comprise claims arising under the trademark and copyright laws, which are included in the district court's grant of jurisdiction under 1338(a).[2] As the instant litigation demonstrates, claims sounding in these other areas of intellectual property law are not infrequently bound up with patent counterclaims. The potential number of cases in which a counterclaim might direct to the Federal Circuit appeals that Congress specifically chose not to place within its exclusive jurisdiction is therefore significant. Third, the interest in maintaining clarity and simplicity in rules governing appellate jurisdiction will be served by limiting *838 the number of pleadings that will mandate review in the Federal Circuit. In his opinion in Aerojet, Chief Judge Markey merely held that a counterclaim for patent infringement that was "compulsory" and not "frivolous" or "insubstantial" sufficed to establish jurisdiction; he made a point of noting that there was no assertion in the case that the patent counterclaim at issue had been filed "to manipulate the jurisdiction of [the Federal Circuit]." The text of the statute, however, would not seem to distinguish between that counterclaim and those that are permissive, insubstantial, or manipulative, and there is very good reason not to make the choice of appellate forum turn on such distinctions. Requiring assessment of a defendant's motive in raising a patent counterclaim or the counterclaim's relative strength wastes judicial resources by inviting "unhappy interactions between jurisdiction and the merits." There is, of course, a countervailing interest in directing appeals in patent cases to the specialized court that was created, in part, to promote uniformity in the development of this area of the law. But we have already decided that the Federal Circuit does not have exclusive jurisdiction over all cases raising patent issues.[3]Christianson, 486 U. S., at *839 811-812. Necessarily, therefore, other circuits will

Justice Stevens

concurring

Holmes Group, Inc. v. Vornado Air Circulation Systems, Inc.

https://www.courtlistener.com/opinion/118514/holmes-group-inc-v-vornado-air-circulation-systems-inc/

U. S., at *839 811-812. Necessarily, therefore, other circuits will have some role to play in the development of this area of the law. An occasional conflict in decisions may be useful in identifying questions that merit this Court's attention. Moreover, occasional decisions by courts with broader jurisdiction will provide an antidote to the risk that the specialized court may develop an institutional bias.[4] In sum, I concur in the Court's judgment and join Parts I and II—A of its opinion. Justice Ginsburg, with whom Justice O'Connor joins, concurring in the judgment. For reasons stated by Chief Judge Markey, writing for a unanimous en banc Federal Circuit in Aerojet-General I conclude that, when the claim stated in a compulsory counterclaim "aris[es] under" federal patent law and is adjudicated on the merits by a federal district court, the Federal Circuit has exclusive appellate jurisdiction over that adjudication and other determinations made in the same case. See in which this Court affirmed the jurisdictional decision of the Federal Circuit; in discussing the "well-pleaded complaint rule," the Federal Circuit observed that a patent infringement *840 counterclaim, unlike a patent issue raised only as a defense, has as its own, independent jurisdictional base 28 U.S. C. 1338, i. e., such a claim discretely "arises under the patent laws"). The question now before this Court bears not at all on a plaintiff's choice of trial forum. The sole question presented here concerns Congress' allocation of adjudicatory authority among the federal courts of appeals. At that appellate level, Congress sought to eliminate forum shopping and to advance uniformity in the interpretation and application of federal patent law. See generally The Federal Circuit: A Case Study in Specialized Courts, 64 N. Y. U. L. Rev. 1, 30-37 (1989). The Court's opinion dwells on district court authority. See ante, at 829-832. But, all agree, Congress left that authority entirely untouched. I would attend, instead, to the unique context at issue, and give effect to Congress' endeavor to grant the Federal Circuit exclusive appellate jurisdiction at least over district court adjudications of patent claims. See In the instant case, however, no patent claim was actually adjudicated. For that sole reason, I join the Court's judgment.

Justice Stewart

dissenting

Minnick v. California Dept. of Corrections

https://www.courtlistener.com/opinion/110509/minnick-v-california-dept-of-corrections/

I would not dismiss the writ of certiorari. I would, to the contrary, reverse the judgment before us because the California Court of Appeal has wrongly held that the State may consider a person's race in making promotion decisions.[1] So far as the Constitution goes, a private person may engage in any racial discrimination he wants, cf. but under the Equal Protection Clause of the Fourteenth Amendment a sovereign State may never do so.[2] And it is wholly irrelevant whether the State gives a "plus" or "minus" value to a person's race, whether the discrimination occurs in a decision to hire or fire or promote, or whether the discrimination is called "affirmative action" or by some less euphemistic term.[3] A year ago I stated my understanding of the Constitution in this respect, and I repeat now a little of what I said then: "The equal protection standard of the Constitution has one clear and central meaning—it absolutely prohibits invidious discrimination by government. That standard must be met by every State under the Equal Protection Clause of the Fourteenth Amendment. "Under our Constitution, the government may never act to the detriment of a person solely because of that person's race. The color of a person's skin and the country *129 of his origin are immutable facts that bear no relation to ability, disadvantage, moral culpability, or any other characteristics of constitutionally permissible interest to government. In short, racial discrimination is by definition invidious discrimination. "The rule cannot be any different when the persons injured are not members of a racial minority. ". Most importantly, by making race a relevant criterion,. the Government implicitly teaches the public that the apportionment of rewards and penalties can legitimately be made according to race—rather than according to merit or ability—and that people can, and perhaps should, view themselves and others in terms of their racial characteristics. "There are those who think that we need a new Constitution, and their views may someday prevail. But under the Constitution we have, one practice in which government may never engage is the practice of racism." (dissenting opinion) (footnote omitted). I respectfully dissent.

Justice Brennan

majority

Dukes v. Warden, Conn. State Prison

https://www.courtlistener.com/opinion/108531/dukes-v-warden-conn-state-prison/

On May 16, 1967, petitioner, on advice of counsel, pleaded guilty in the Superior Court of Hartford County, Connecticut, to charges of narcotics violation and larceny of goods. On June 16, 1967, before being sentenced, he informed the court that he had retained new counsel and desired to withdraw his plea and stand trial. The court refused to permit him to withdraw his plea and sentenced him to a term of five to 10 years on the narcotics charge and to a term of two years on the larceny charge. The Connecticut Supreme Court affirmed this conviction on his direct appeal challenging the voluntariness of his plea, and the United States District *251 Court for the District of Connecticut denied his application for federal habeas corpus relief sought in Civil Action No. 13029. He then brought this state habeas corpus action in the Superior Court for Hartford County, and attacked the voluntariness of his plea under the Federal Constitution on a ground not raised either on his direct appeal or in his action for federal habeas corpus relief. He alleged that a conflict of interest arising from his lawyer's representation of two girls with whom petitioner had been charged in an unrelated false pretenses case was known to the judge who sentenced him and rendered his plea involuntary and unintelligent. After a full hearing, the Superior Court denied relief. The Supreme Court of Connecticut affirmed, The Supreme Court stated that, although the petition for state habeas relief alleged that the guilty plea was not voluntary and intelligent on several grounds, "[o]n appeal, however, [petitioner] has asserted in essence only that he was denied the effective assistance of counsel, which rendered his plea involuntary." We granted certiorari. The two girls were represented by Mr. Zaccagnino of the firm of Zaccagnino, Linardos, & Delaney in the false pretenses case, and petitioner by another lawyer, when petitioner retained the firm to defend him in the narcotics and larceny case. There were also charges pending against petitioner in New Haven and Fairfield counties. He also faced the possibility of prosecution as a second offender, having been convicted in state court in 1961 of breaking and entry and assault. Petitioner, accompanied by Mr. Zaccagnino, appeared on May 9, 1967, to plead to the narcotics and larceny charges. The lawyer advised him to plead guilty if a plea bargain could be negotiated whereby the State's Attorney would consolidate all outstanding charges in and out of Hartford County and agree not to prosecute *252 petitioner as a second offender, but to recommend a sentence of five to

Justice Brennan

majority

Dukes v. Warden, Conn. State Prison

https://www.courtlistener.com/opinion/108531/dukes-v-warden-conn-state-prison/

second offender, but to recommend a sentence of five to 10 years on the narcotics charge, two years on the larceny charge, and concurrent sentences on all the other charges. Under Conn. Gen. Stat. Rev. 54-17a (1958) the New Haven County and Fairfield County charges would be transferred to Hartford County for disposition only if the State's Attorney of the counties consented and petitioner pleaded guilty to the charges. When petitioner refused to accept this advice, Mr. Zaccagnino asked the court to be relieved as petitioner's counsel. The court denied the request but accepted petitioner's plea of not guilty and continued the trial to the next day so that petitioner might try to retain another lawyer. As petitioner went to the corridor outside the courtroom, however, Hartford police officers arrested him on still another charge. Petitioner attempted suicide at the police station to which he was taken and was hospitalized for several days. Accordingly the trial date was postponed to May 16. Petitioner did not engage new counsel but appeared for trial on May 16 represented by Mr. Delaney, partner of Mr. Zaccagnino who was engaged in another court. Petitioner now showed interest in a plea bargain, and Mr. Delaney and the State's Attorney engaged in negotiations, which were interrupted from time to time while Mr. Delaney consulted with petitioner. A plea bargain on the terms Mr. Zaccagnino had urged petitioner on May 9 to accept was finally struck, and petitioner withdrew his not-guilty plea and entered the guilty plea he now attacks. The State's Attorney had misgivings because of petitioner's expressed dissatisfaction with Mr. Zaccagnino the week before, and the following occurred: "[State's Attorney]: The record also ought to appear that Mr. Delaney is here with him today and he is in the office of Mr. Zaccagnino. I think *253 the Court might inquire with respect to the representation since there had been some indication that counsel had asked to withdraw the other day. "The Court: Well now, Mr. Dukes, I want to be sure that everything is in order here. Now I want, now Mr. Delaney is here, are you fully satisfied with the services he is rendering you, Mr. Dukes? "The Accused: Yes, sir. "The Court: You are. And now you know of course, Mr. Dukes, that—you know of course that the State of Connecticut has the burden of proving you guilty on the charge and you are free to go to trial but you still wish to change your plea, is that correct? "The Accused: Yes, sir. "The Court: And do you do this of your

Justice Brennan

majority

Dukes v. Warden, Conn. State Prison

https://www.courtlistener.com/opinion/108531/dukes-v-warden-conn-state-prison/

sir. "The Court: And do you do this of your own free will, Mr. Dukes? "The Accused: Yes, sir. "The Court: And you know the probable consequences of it? "The Accused: Yes, sir. "The Court: Very well, and no one has induced you to do this, influenced you one way or the other? You are doing this of your own free will? "The Accused: Yes. "The Court: Very well then. We will accept the change of plea." The court set June 2, 1967, for sentencing petitioner. But the documents transferring the New Haven County and Fairfield County charges had not arrived, and the presentence report had not been completed, on that day, and the date was therefore continued to June 16, 1967. By coincidence, however, the judge's calendar for June 2 also listed the case of the two girls who, on Mr. Zaccagnino's advice, had pleaded guilty to the false pretenses charges and were to be sentenced. That proceeding *254 did not involve petitioner because the disposition of the charges as to him was part of the plea bargain. In urging leniency for the two girls, Mr. Zaccagnino made statements putting the blame on petitioner for the girls' plight. These statements are the primary basis of petitioner's claim of divided loyalty on the part of Mr. Zaccagnino that he alleges rendered his guilty plea of May 16 involuntary and unintelligent. Mr. Zaccagnino : "[B]oth of them came under the influence of Charles Dukes. Now how they could get in a position to come under the influence of somebody like him, if Your Honor pleases, creates the problem here that I think is the cause of the whole situation. "Both these girls left their homes, came under the influence of Dukes and got involved. I think, Your Honor, though, that the one thing that should stand in their good stead, as a result of their willingness to cooperate with the State Police they capitulated Dukes into making a plea. I think, Your Honor, since I was on both sides of the case, having been on the other side on the other case I can tell Your Honor that it was these girls that because of their refusal to cooperate with Dukes and to testify against him that capitulated him into taking a plea on which he will shortly be removed from society" Mr. Zaccagnino appeared on June 16 to represent petitioner in the proceedings to complete the plea bargain. He was surprised to be told by petitioner that petitioner had obtained new counsel and intended to withdraw his guilty plea and

Justice Brennan

majority

Dukes v. Warden, Conn. State Prison

https://www.courtlistener.com/opinion/108531/dukes-v-warden-conn-state-prison/

new counsel and intended to withdraw his guilty plea and stand trial. It appears from petitioner's cross-examination at the state habeas hearing that he had learned on June 2 of Mr. Zaccagnino's statements *255 about him when the girls were sentenced.[1] Yet he did not tell Mr. Zaccagnino that this was why he was changing lawyers, nor did he tell the court that this was why he wanted to withdraw his plea. When pressed by the court to give a reason, he answered, "At the time I pleaded, I just came out of the hospital, I think it was a day, and I was unconscious for three days, and I didn't realize at the time actually what I was pleading to."[2] His explanation for wanting another lawyer was that he thought an out-of-town lawyer would give him better service: "I would rather have an attorney out of town for certain reasons of the case." The court refused to permit petitioner to withdraw the plea and heard counsel on the question of the sentence to be imposed. The State's attorney, despite the collapse of the plea bargain, recommended, and the court imposed, a first offender's sentence of five to 10 years on the narcotics count and two years on the larceny count; that is the precise sentence the State's Attorney had agreed to recommend as part of the plea bargain. Mr. Zaccagnino, however, was concerned that petitioner's unwillingness to go through with the plea bargain left *256 petitioner vulnerable to the prosecution on the outstanding charges in the various counties: "[I]t was a matter that Your Honor would normally in a situation like this, enter concurrent sentences, if, in fact, it was so recommended by the State's Attorney; but since [petitioner] doesn't want to plea to these other matters, I would like to make that note for the record, because I feel at some later date he may have to come back to this court and see Your Honor or see another judge on these other matters now pending before it."[3] On this state of facts, the Connecticut Supreme Court concluded that petitioner had not sustained his claim that a conflict of interest on the part of Mr. Zaccagnino rendered his plea involuntary and unintelligent. The court : "There is nothing in the record before us which would indicate that the alleged conflict resulted in ineffective assistance of counsel and did in fact render the plea in question involuntary and unintelligent. [Petitioner] does not claim, and it is nowhere indicated in the finding, nor could it be inferred from the finding,

Justice Brennan

majority

Dukes v. Warden, Conn. State Prison

https://www.courtlistener.com/opinion/108531/dukes-v-warden-conn-state-prison/

the finding, nor could it be inferred from the finding, that either Attorney Zaccagnino or Attorney Delaney induced [petitioner] to plead guilty in furtherance of a plan to obtain more favorable consideration from the court for other clients. Neither does the finding in any way disclose, nor is it claimed, that [petitioner] received misleading advice from Attorney Zaccagnino or Attorney Delaney which led him to plead guilty. Moreover, the trial court specifically found that when [petitioner] engaged Zaccagnino as *257 his counsel, he knew that Zaccagnino was representing two defendants in the unrelated case in which he was a codefendant, that he never complained to the court that he was not satisfied with Attorney Zaccagnino because of this dual representation, that he was not represented at the entry of his plea by Attorney Zaccagnino, that he was represented by Attorney Delaney at the entry of his plea, that he had a lengthy conversation with Attorney Delaney prior to entering his plea which he recalled completely, and that on specific inquiry by the court before he pleaded guilty, he told the court that he was satisfied with the representation by Attorney Delaney. The court did not err in concluding that [petitioner's] plea was not rendered involuntary and unintelligent by the alleged conflict of interest." We fully agree with this reasoning and conclusion of the Connecticut Supreme Court. Since there is thus no merit in petitioner's sole contention in this proceeding— that Mr. Zaccagnino's alieged conflict of interest affected his plea—that conflict of interest is not "a reason for vacating his plea." Affirmed. MR.

Justice Scalia

majority

Gonzalez v. Crosby

https://www.courtlistener.com/opinion/799985/gonzalez-v-crosby/

After the federal courts denied petitioner habeas corpus relief from his state conviction, he filed a motion for relief from that judgment, pursuant to Federal Rule of Civil Procedure 60(b) The question presented is whether, in a habeas case, such motions are subject to the additional restrictions that apply to "second or successive" habeas corpus petitions under the provisions of the Antiterrorism and Effective Death Penalty Act of 6 (AEDPA), codified at 28 US C 2244(b) I Petitioner Aurelio Gonzalez pleaded guilty in Florida Circuit Court to one count of robbery with a firearm He filed no appeal and began serving his 99-year sentence in 1982 Some 12 years later, petitioner began to seek relief from his conviction He filed two motions for state postconviction relief, which the Florida courts denied Thereafter, in June 7, petitioner filed a federal habeas petition in the United States District Court for the Southern District of Florida, *527 alleging that his guilty plea had not been entered knowingly and voluntarily Upon the State's motion, the District Court dismissed petitioner's habeas petition as barred by AEDPA's statute of limitations, 28 US C 2244(d) Under Eleventh Circuit precedent, petitioner's filing deadline, absent tolling, was April 23, 7, one year after AEDPA's statute of limitations took effect Adopting a Magistrate Judge's recommendation, the District Court concluded that the limitations period was not tolled during the 163-day period while petitioner's second motion for state postconviction relief was pending Section 2244(d)(2) tolls the statute of limitations during the pendency of "properly filed" applications only, and the District Court thought petitioner's motion was not "properly filed" because it was both untimely and successive Without tolling, petitioner's federal habeas petition was two months late, so the District Court dismissed it as time barred A judge of the Eleventh Circuit denied a certificate of appealability (COA) on April 6, 2000, and petitioner did not file for rehearing or review of that decision On November 7, 2000, we held in that an application for state postconviction relief can be "properly filed" even if the state courts dismiss it as procedurally barred See Almost nine months later, petitioner filed in the District Court a pro se "Motion to Amend or Alter Judgment," contending that the District Court's time-bar ruling was incorrect under Artuz's construction of 2244(d), and invoking Federal Rule of Civil Procedure 60(b)(6), which permits a court to relieve a party from the effect of a final judgment[1] The District Court denied the motion, and petitioner appealed *528 A judge of the Court of Appeals for the Eleventh Circuit granted petitioner a COA,

Justice Scalia

majority

Gonzalez v. Crosby

https://www.courtlistener.com/opinion/799985/gonzalez-v-crosby/

of Appeals for the Eleventh Circuit granted petitioner a COA, but a panel quashed the certificate as improvidently granted The full court vacated that order and reheard the case en banc It granted petitioner a COA but held, by a vote of 7 to 4, that the District Court was correct to deny his Rule 60(b) motion The en banc majority determined that petitioner's motion—indeed, any postjudgment motion under Rule 60(b) save one alleging fraud on the court under Rule 60(b)(3)—was in substance a second or successive habeas corpus petition A state prisoner may not file such a petition without precertification by the court of appeals that the petition meets certain stringent criteria 2244(b) Because petitioner's motion did not satisfy these requirements, the Eleventh Circuit affirmed its denial We granted certiorari II Rule 60(b) allows a party to seek relief from a final judgment, and request reopening of his case, under a limited set of circumstances including fraud, mistake, and newly discovered evidence[2] Rule 60(b)(6), the particular provision *529 under which petitioner brought his motion, permits reopening when the movant shows "any reason justifying relief from the operation of the judgment" other than the more specific circumstances set out in Rules 60(b)(1)-(5) See ; The mere recitation of these provisions shows why we give little weight to respondent's appeal to the virtues of finality That policy consideration, standing alone, is unpersuasive in the interpretation of a provision whose whole purpose is to make an exception to finality The issue here is whether the text of Rule 60(b) itself, or of some other provision of law, limits its application in a manner relevant to the case before us AEDPA did not expressly circumscribe the operation of Rule 60(b) (By contrast, AEDPA directly amended other provisions of the Federal Rules See, e g, AEDPA, 103, ) The new habeas restrictions introduced by AEDPA are made indirectly relevant, however, by the fact that Rule 60(b), like the rest of the Rules of Civil Procedure, applies in habeas corpus proceedings under 28 US C 2254[3] only "to the extent that [it is] not inconsistent with" applicable federal statutory provisions and rules 28 US C 2254 Rule 11; see Fed Rule Civ Proc 81(a)(2) The relevant provisions of the AEDPA-amended habeas statutes, 28 US C 2244(b)(1)-(3), impose three requirements on second or successive habeas petitions: First, any claim that has already *530 been adjudicated in a previous petition must be dismissed 2244(b)(1) Second, any claim that has not already been adjudicated must be dismissed unless it relies on either a new and retroactive rule of

Justice Scalia

majority

Gonzalez v. Crosby

https://www.courtlistener.com/opinion/799985/gonzalez-v-crosby/

it relies on either a new and retroactive rule of constitutional law or new facts showing a high probability of actual innocence 2244(b)(2) Third, before the district court may accept a successive petition for filing, the court of appeals must determine that it presents a claim not previously raised that is sufficient to meet 2244(b)(2)'s new-rule or actual-innocence provisions 2244(b)(3) We proceed to consider whether these provisions limit the application of Rule 60(b) to the present case A "As a textual matter, 2244(b) applies only where the court acts pursuant to a prisoner's `application'" for a writ of habeas corpus We therefore must decide whether a Rule 60(b) motion filed by a habeas petitioner is a "habeas corpus application" as the statute uses that term Under 2244(b), the first step of analysis is to determine whether a "claim presented in a second or successive habeas corpus application" was also "presented in a prior application" If so, the claim must be dismissed; if not, the analysis proceeds to whether the claim satisfies one of two narrow exceptions In either event, it is clear that for purposes of 2244(b) an "application" for habeas relief is a filing that contains one or more "claims" That definition is consistent with the use of the term "application" in the other habeas statutes in chapter 153 of title 28 See, e g, (for purposes of 2254(d), an application for habeas corpus relief is a filing that seeks "an adjudication on the merits of the petitioner's claims") These statutes, and our own decisions, make clear that a "claim" as used in 2244(b) is an asserted federal basis for relief from a state court's judgment of conviction In some instances, a Rule 60(b) motion will contain one or more "claims" For example, it might straightforwardly *531 assert that owing to "excusable neglect," Fed Rule Civ Proc 60(b)(1), the movant's habeas petition had omitted a claim of constitutional error, and seek leave to present that claim Cf Similarly, a motion might seek leave to present "newly discovered evidence," Fed Rule Civ Proc 60(b)(2), in support of a claim previously denied E g, Or a motion might contend that a subsequent change in substantive law is a "reason justifying relief," Fed Rule Civ Proc 60(b)(6), from the previous denial of a claim E g, Virtually every Court of Appeals to consider the question has held that such a pleading, although labeled a Rule 60(b) motion, is in substance a successive habeas petition and should be treated accordingly E g, ; at We think those holdings are correct A habeas petitioner's

Justice Scalia

majority

Gonzalez v. Crosby

https://www.courtlistener.com/opinion/799985/gonzalez-v-crosby/

at We think those holdings are correct A habeas petitioner's filing that seeks vindication of such a claim is, if not in substance a "habeas corpus application," at least similar enough that failing to subject it to the same requirements would be "inconsistent with" the statute 28 US C 2254 Rule 11 Using Rule 60(b) to present new claims for relief from a state court's judgment of conviction—even claims couched in the language of a true Rule 60(b) motion—circumvents AEDPA's requirement that a new claim be dismissed unless it relies on either a new rule of constitutional law or newly discovered facts 2244(b)(2) The same is true of a Rule 60(b)(2) motion presenting new evidence in support of a claim already litigated: Even assuming that reliance on a new factual predicate causes that motion to escape 2244(b)(1)'s prohibition of claims "presented in a prior application," 2244(b)(2)(B) requires a more convincing factual showing than does Rule 60(b) Likewise, a Rule 60(b) motion based on a purported change in the substantive law governing the claim could be used to circumvent 2244(b)(2)(A)'s *532 dictate that the only new law on which a successive petition may rely is "a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable" In addition to the substantive conflict with AEDPA standards, in each of these three examples use of Rule 60(b) would impermissibly circumvent the requirement that a successive habeas petition be precertified by the court of appeals as falling within an exception to the successive-petition bar 2244(b)(3) In most cases, determining whether a Rule 60(b) motion advances one or more "claims" will be relatively simple A motion that seeks to add a new ground for relief, as in will of course qualify A motion can also be said to bring a "claim" if it attacks the federal court's previous resolution of a claim on the merits,[4] since alleging that the court erred in denying habeas relief on the merits is effectively indistinguishable from alleging that the movant is, under the substantive provisions of the statutes, entitled to habeas relief That is not the case, however, when a Rule 60(b) motion attacks, not the substance of the federal court's resolution of a claim on the merits, but some defect in the integrity of the federal habeas proceedings[5] *533 B When no "claim" is presented, there is no basis for contending that the Rule 60(b) motion should be treated like a habeas corpus application If neither the motion itself nor the federal judgment from which it seeks relief

Justice Scalia

majority

Gonzalez v. Crosby

https://www.courtlistener.com/opinion/799985/gonzalez-v-crosby/

itself nor the federal judgment from which it seeks relief substantively addresses federal grounds for setting aside the movant's state conviction, allowing the motion to proceed as denominated creates no inconsistency with the habeas statute or rules Petitioner's motion in the present case, which alleges that the federal courts misapplied the federal statute of limitations set out in 2244(d), fits this description[6] Like the Court of Appeals, respondent relies heavily on our decision in In that case we reversed the Ninth Circuit's decision to recall its mandate and reconsider the denial of Thompson's first federal habeas petition; the recall was, we held, an abuse of discretion because of its inconsistency with the policies embodied in AEDPA Analogizing an appellate court's recall of its mandate to a district court's grant of relief from judgment, the Eleventh Circuit thought that Calderon's disposition applied to Rule 60(b) -1277 We think otherwise To begin with, as the opinion said, compliance with the actual text of AEDPA's *534 successive-petition provision was not at issue in Calderon— because the Court of Appeals considered only the claims and evidence presented in Thompson's first federal habeas petition 523 U S, at 554 Calderon did state, however, that "a prisoner's motion to recall the mandate on the basis of the merits of the underlying decision can be regarded as a second or successive application" But that is entirely consonant with the proposition that a Rule 60(b) motion that seeks to revisit the federal court's denial on the merits of a claim for relief should be treated as a successive habeas petition The problem for respondent is that this case does not present a revisitation of the merits The motion here, like some other Rule 60(b) motions in 2254 cases, confines itself not only to the first federal habeas petition, but to a nonmerits aspect of the first federal habeas proceeding Nothing in Calderon suggests that entertaining such a filing is "inconsistent with" AEDPA Rule 60(b) has an unquestionably valid role to play in habeas cases The Rule is often used to relieve parties from the effect of a default judgment mistakenly entered against them, e g, 335 U S, at 615 a function as legitimate in habeas cases as in run-of-the-mine civil cases The Rule also preserves parties' opportunity to obtain vacatur of a judgment that is void for lack of subject-matter jurisdiction—a consideration just as valid in habeas cases as in any other, since absence of jurisdiction altogether deprives a federal court of the power to adjudicate the rights of the parties Steel Co v Citizens for Better

Justice Scalia

majority

Gonzalez v. Crosby

https://www.courtlistener.com/opinion/799985/gonzalez-v-crosby/

rights of the parties Steel Co v Citizens for Better Environment, 523 US 83, In some instances, we may note, it is the State, not the habeas petitioner, that seeks to use Rule 60(b), to reopen a habeas judgment granting the writ See, e g, Ritter v Smith, 811 F2d 1398, Moreover, several characteristics of a Rule 60(b) motion limit the friction between the Rule and the successive-petition prohibitions of AEDPA, ensuring that our harmonization of the two will not expose federal courts to an avalanche *535 of frivolous postjudgment motions First, Rule 60(b) contains its own limitations, such as the requirement that the motion "be made within a reasonable time" and the more specific 1-year deadline for asserting three of the most open-ended grounds of relief (excusable neglect, newly discovered evidence, and fraud) Second, our cases have required a movant seeking relief under Rule 60(b)(6) to show "extraordinary circumstances" justifying the reopening of a final judgment Ackermann v United States, 340 US 193, ; accord, ; 486 U S, at 864; (REHNQUIST, C J, dissenting) ("This very strict interpretation of Rule 60(b) is essential if the finality of judgments is to be preserved") Such circumstances will rarely occur in the habeas context Third, Rule 60(b) proceedings are subject to only limited and deferential appellate review Browder v Director, Dept of Corrections of Ill, 434 US 257, 263, n 7 Many Courts of Appeals have construed 28 US C 2253 to impose an additional limitation on appellate review by requiring a habeas petitioner to obtain a COA as a prerequisite to appealing the denial of a Rule 60(b) motion[7] Because petitioner's Rule 60(b) motion challenges only the District Court's previous ruling on the AEDPA statute of limitations, it is not the equivalent of a successive habeas *536 petition The Eleventh Circuit therefore erred in holding that petitioner did not qualify even to seek Rule 60(b) relief III Although the Eleventh Circuit's reasoning is inconsistent with our holding today, we nonetheless affirm its denial of petitioner's Rule 60(b) motion Petitioner's only ground for reopening the judgment denying his first federal habeas petition is that our decision in Artuz showed the error of the District Court's statute-of-limitations ruling We assume for present purposes that the District Court's ruling was incorrect[8] As we noted above, however, relief under Rule 60(b)(6)—the only subsection petitioner invokes—requires a showing of "extraordinary circumstances" Petitioner contends that Artuz's change in the interpretation of the AEDPA statute of limitations meets this description We do not agree The District Court's interpretation was by all appearances correct under the Eleventh Circuit's

Justice Scalia

majority

Gonzalez v. Crosby

https://www.courtlistener.com/opinion/799985/gonzalez-v-crosby/

interpretation was by all appearances correct under the Eleventh Circuit's then-prevailing interpretation of 28 US C 2244(d)(2) It is hardly extraordinary that subsequently, after petitioner's case was no longer pending, this Court arrived at a different interpretation Although our constructions of federal statutes customarily apply to all cases then pending on direct review, see, e g, Harper v Virginia Dept of Taxation, 509 US 86, (3), not every interpretation of the federal statutes setting forth the requirements for habeas provides cause for reopening cases long since final[9] If Artuz justified reopening long-ago dismissals *537 based on a lower court's unduly parsimonious interpretation of 2244(d)(2), then Pace v DiGuglielmo, 544 US 408 would justify reopening long-ago grants of habeas relief based on a lower court's unduly generous interpretation of the same tolling provision The change in the law worked by Artuz is all the less extraordinary in petitioner's case, because of his lack of diligence in pursuing review of the statute-of-limitations issue At the time Artuz was decided, petitioner had abandoned any attempt to seek review of the District Court's decision on this statute-of-limitations issue Although the District Court relied on Eleventh Circuit precedent holding that a state postconviction application is not "properly filed" if it is procedurally defaulted, and although that precedent was at odds with the rule in several other Circuits, petitioner neither raised that issue in his application for a COA, nor filed a petition for rehearing of the Eleventh Circuit's denial of a COA, nor sought certiorari review of that denial[10] This lack of diligence confirms that Artuz is not an extraordinary circumstance justifying relief from the judgment in petitioner's case Indeed, in one of the cases in which we explained Rule 60(b)(6)'s extraordinary-circumstances requirement, the movant had failed to appeal an adverse ruling by the District Court, whereas another party to the same judgment had *538 appealed and won reversal Ackermann, 340 U S, at 195 Some years later, the petitioner sought Rule 60(b) relief, which the District Court denied We affirmed the denial of Rule 60(b) relief, noting that the movant's decision not to appeal had been free and voluntary, although the favorable ruling in the companion case made it appear mistaken in hindsight See Under the Rule 60(b) standards that properly govern petitioner's motion, the District Court was correct to deny relief * * * We hold that a Rule 60(b)(6) motion in a 2254 case is not to be treated as a successive habeas petition if it does not assert, or reassert, claims of error in the movant's state conviction A motion that,

Justice Powell

second_dissenting

Bender v. Williamsport Area School Dist.

https://www.courtlistener.com/opinion/111617/bender-v-williamsport-area-school-dist/

I agree with THE CHIEF JUSTICE that respondent Youngman has standing to appeal, and also agree with much of his dissenting opinion. I write briefly to say that on its merits, this case is controlled by As in that case, respondent School District simply had "created a forum generally open for use by student groups." The School District provided 30-minute periods on Tuesdays and Thursdays for high school students to meet in groups in separate school rooms for extracurricular activities, including discussion or debate on any subject of their choosing. A religious group was formed for reading passages of scripture and for prayer. Although there were no complaints by students, faculty, or parents, on the basis of a legal opinion the Principal advised the group that it could not meet during these periods. As THE CHIEF JUSTICE observes in his dissent, this is "a student-initiated and student-led group seeking the same forum available to other student extracurricular activity groups." Ante, at 553. At the time of this suit, there was a total of 25 identified groups, each organized by students. All of these groups were free to discuss any subject other than a religious one. In Widmar, under essentially the same circumstances, we held that the University of Missouri at Kansas City had "discriminated against student groups and speakers based on their desire to use a generally open forum to engage in religious worship and discussion. These are forms of speech and association protected by the First Amendment." The only arguable distinction between Widmar and this case is that Widmar involved university students while the groups here are composed of high school *556 students. We did note in Widmar that university students are "less impressionable than younger students and should be able to appreciate that the University's policy is one of neutrality toward religion." Other decisions, however, have recognized that the First Amendment rights of speech and association extend also to high school students. See, e. g., Board of ; I do not believe — particularly in this age of massive media information — that the few years difference in age between high school and college students justifies departing from Widmar. I accordingly dissent.

Justice Stevens

dissenting

Ralston v. Robinson

https://www.courtlistener.com/opinion/110585/ralston-v-robinson/

At common law a sentence could be amended during the term in which it was imposed subject to the limitation that "a punishment already partly suffered be not increased."[1] "The distinction that the court during the same term may amend a sentence so as to mitigate the punishment, but not so as to increase it," United *224 07, has been recognized by this Court over and over again.[2] Whether the well-settled rule prohibiting judges from increasing the severity of a sentence after it has become final is constitutionally mandated,[] it is unquestionably the sort of rule that judges may not disregard without express authorization from Congress.[4] *225 That rule requires a firm rejection of the argument that a second sentencing judge has power to convert an unexpired YCA sentence into an adult sentence. For there can be no question about the fact that an adult sentence is more severe than a YCA sentence.[5] Nor can we "assume Congress to have intended such a departure from well-established doctrine without a clear expression to disavow it." It is undisputed that the Youth Corrections Act contains no such clear expression of congressional intent. Indeed, the Court's opinion repeatedly confirms this proposition.[6] The Court's novel holding is *226 supported by nothing more than inferences drawn from the "history and structure of the YCA." See ante, at 214. Manifestly, such inferences are insufficient to justify a judicial rewriting of what "has been accurately described as the most comprehensive federal statute concerned with sentencing." The Court's first argument rests on the premise that Congress did not intend either that corrigible youth offenders be housed with incorrigible youth offenders or that futile YCA treatment be continued. The Court reasons that continued YCA treatment is in derogation of such congressional intent whenever a youth offender, while serving his YCA sentence, commits another crime sufficiently serious to convince the second sentencing judge that the youth will no longer benefit from YCA treatment. Ante, at 214-215. All of this may *227 well be true, but it does not follow that the second sentencing judge may impose a consecutive adult sentence and also confine the offender as an adult under the unexpired YCA sentence. A much less drastic solution will accomplish the objectives ascribed to Congress. The second judge simply may impose a concurrent adult sentence and thereby end the offender's YCA treatment.[7] Moreover, even if, as in this case, the second sentencing judge imposes a consecutive rather than a concurrent sentence, prison officials nonetheless can effectuate these objectives by exercising their authority to terminate the YCA confinement and allow the

Justice Stevens

dissenting

Ralston v. Robinson

https://www.courtlistener.com/opinion/110585/ralston-v-robinson/

their authority to terminate the YCA confinement and allow the consecutive adult sentence to commence. See 18 U.S. C. 5017. It is therefore clear that the Court's premise does not support its conclusion that Congress must have intended that the second sentencing judge may modify the first sentence by increasing its severity.[8] *228 The Court's second argument is no better. The Court notes that, "in several circumstances, the YCA permits a youth offender initially sentenced under the YCA to be treated as an adult for what would otherwise be the remainder of the YCA sentence." Ante, at 215. The Court's examples are set forth in the margin.[9] I do not disagree with the Court that the imposition of a YCA sentence does not entitle an offender to YCA treatment for the full length of that sentence no matter what crimes he commits in the interim, or that respondent could have been subjected to immediate adult confinement in each of the Court's examples. I do not agree, however, that a second judge may impose adult treatment on an offender who continues to be incarcerated not on the basis of a subsequent adult sentence but on the basis of the original YCA sentence. None of the Court's examples *229 poses that situation; hence there is no reason to suppose that Congress intended that any authority, even a court, may increase the severity of a sentence after that sentence has become final. In fact, as the Court points out in a footnote, the only statutory authorization for a judicial modification of a YCA sentence permits "a judge [to] reduce the severity of the terms of commitment in light of changed circumstances." Ante, at 215, n. 7 (emphasis in original); see 18 U.S. C. 5021, 502. There is, therefore, nothing in the text, history, or structure of the Youth Corrections Act that supports the Court's holding that a judge may increase the severity of a YCA sentence after it has become final.[10] Even apart from the constitutional problem with such a holding, see n. this absence of statutory support is fatal.[11] Not only did Congress *20 not intend the result reached by the Court today, there is good reason to believe that Congress intended just the opposite. In enacting the Youth Corrections Act, Congress recognized that a YCA sentence of a given number of years is qualitatively less severe than an adult sentence of equal length.[12] Indeed, 5010(b) authorizes a district court to impose a longer YCA sentence (up to six years) than would be authorized if the offender were sentenced as an adult.

Justice Stevens

dissenting

Ralston v. Robinson

https://www.courtlistener.com/opinion/110585/ralston-v-robinson/

be authorized if the offender were sentenced as an adult. The federal courts unanimously have upheld 5010(b) against constitutional challenges on the reasoning early expressed by THE CHIEF JUSTICE when a Circuit Judge and often quoted thereafter: "[T]he basic theory of that Act is rehabilitative and in a sense this rehabilitation may be regarded as comprising the quid pro quo for a longer confinement but under different conditions and terms than a defendant would undergo in an ordinary prison. [T]he Youth Corrections Act `provides for and affords youthful offenders, in the discretion of the judge, not heavier penalties and punishment than are imposed upon adult offenders, but the opportunity to escape from the physical and psychological shocks and traumas attendant upon serving an ordinary penal sentence while obtaining the benefits of corrective treatment, looking to rehabilitation and social redemption and restoration.' " Carter v. United States, 11 U. S. App. D. C. 12, 125, 06, F. 2d 28, 285 (1962) ).[1] *21 It is of no consequence that respondent was sentenced not under 5010(b), but under 5010(c), for the same quid pro quo theory that justifies longer YCA terms than maximum adult terms for a given offense also justifies YCA terms within the statutory adult maximum but longer than an adult would generally receive. See 651 F.2d 154,. 165 ; United States ex rel. It is no coincidence that the Youth Corrections Act vests broad authority in the district judge to impose lengthy YCA sentences and also vests broad authority in prison officials to order early releases of youth offenders from their YCA sentences.[14] The proponents of the Youth Corrections Act repeatedly emphasized that prison officials must be given sufficient time to rehabilitate youth offenders and sufficient authority to release rehabilitated offenders from their custodial sentences.[15] As the then Director of the Bureau of Prisons explained before the Senate Subcommittee studying the proposed Youth Corrections Act in 1949, the imposition of ordinary adult-length sentences on youth offenders was completely unrelated to the *22 rehabilitative effort; the sentence were either far too long or far too short.[16] The promises of treatment and of early release justified the imposition of longer YCA sentences. If a second sentencing judge is able to convert an unexpired YCA sentence into an adult sentence, the quid pro quo vanishes. The youth offender who is sentenced to a longer term of confinement when sentenced under the YCA than if he were sentenced as an adult may end up, as respondent will under the Court's holding, serving that lengthier sentence under the adult conditions he paid a price

Justice Stevens

dissenting

Ralston v. Robinson

https://www.courtlistener.com/opinion/110585/ralston-v-robinson/

lengthier sentence under the adult conditions he paid a price to avoid. Furthermore, he is not entitled for the duration of that sentence to the good-time allowances available to offenders sentenced as adults.[17] The humanitarian objectives of *2 the Youth Corrections Act do not justify fundamental unfairness.[18] If the original sentencing judge had known that a subsequent adult sentence could result in expiration of YCA treatment but not of the YCA sentence, he might well have discounted the length of the YCA sentence to reflect this possibility.[19] Moreover, if respondent had known of this possibility, he might have elected to stand trial rather than to plead guilty.[20] Speculation of this kind[21] would be unnecessary if the Court declined to enlarge upon the statute that Congress has written. If an amendment to the statute is needed to deal with a problem that Congress did not foresee, it is Congress — not this Court — that must perform that task. I do not purport to know whether YCA treatment is effective for youthful offenders in general, or would serve any *24 useful purpose for this particular offender.[22] No such question is relevant to the legal issue raised by this case. The only question presented is whether a federal judge confronted with the task of sentencing an inmate for an offense committed while he is serving a sentence for an earlier crime may not only impose the punishment authorized by law for the later offense but may also take it upon himself to enhance the earlier sentence as well. The answer to that question seems to obvious to me that I shall not further belabor it. I respectfully dissent.

Justice Stevens

dissenting

Snepp v. United States

https://www.courtlistener.com/opinion/110183/snepp-v-united-states/

In 1968, Frank W. Snepp signed an employment agreement with the CIA in which he agreed to submit to the Agency any information he intended to publish about it for prepublication review.[1] The purpose of such an agreement, as the Fourth Circuit held, is not to give the CIA the power to censor its employees' critical speech, but rather to ensure that classified, nonpublic information is not disclosed without the Agency's permission. ; see also United cert. denied, In this case Snepp admittedly breached his duty to submit the manuscript of his book, Decent Interval, to the CIA for prepublication review. However, the Government has conceded that the book contains no classified, nonpublic material.[2] Thus, by definition, the interest in confidentiality *517 that Snepp's contract was designed to protect has not been compromised. Nevertheless, the Court today grants the Government unprecedented and drastic relief in the form of a constructive trust over the profits derived by Snepp from the sale of the book. Because that remedy is not authorized by any applicable law and because it is most inappropriate for the Court to dispose of this novel issue summarily on the Government's conditional cross-petition for certiorari, I respectfully dissent. I The rule of law the Court announces today is not supported by statute, by the contract, or by the common law. Although Congress has enacted a number of criminal statutes punishing the unauthorized dissemination of certain types of classified information,[3] it has not seen fit to authorize the constructive trust remedy the Court creates today. Nor does either of the contracts Snepp signed with the Agency provide for any such remedy in the event of a breach.[4] The Court's per curiam *518 opinion seems to suggest that its result is supported by a blend of the law of trusts and the law of contracts.[5] But neither of these branches of the common law supports the imposition of a constructive trust under the circumstances of this case. Plainly this is not a typical trust situation in which a settlor has conveyed legal title to certain assets to a trustee for the use and benefit of designated beneficiaries. Rather, it is an employment relationship in which the employee possesses fiduciary obligations arising out of his duty of loyalty to his employer. One of those obligations, long recognized by the common law even in the absence of a written employment agreement, is the duty to protect confidential or "classified" information. If Snepp had breached that obligation, the common law would support the implication of a constructive trust upon the benefits derived from his

Justice Stevens

dissenting

Snepp v. United States

https://www.courtlistener.com/opinion/110183/snepp-v-united-states/

of a constructive trust upon the benefits derived from his misuse of confidential information.[6] But Snepp did not breach his duty to protect confidential information. Rather, he breached a contractual duty, imposed in aid of the basic duty to maintain confidentiality, to *519 obtain prepublication clearance. In order to justify the imposition of a constructive trust, the majority attempts to equate this contractual duty with Snepp's duty not to disclose, labeling them both as "fiduciary." I find nothing in the common law to support such an approach. Employment agreements often contain covenants designed to ensure in various ways that an employee fully complies with his duty not to disclose or misuse confidential information. One of the most common is a covenant not to compete. Contrary to the majority's approach in this case, the courts have not construed such covenants broadly simply because they support a basic fiduciary duty; nor have they granted sweeping remedies to enforce them. On the contrary, because such covenants are agreements in restraint of an individual's freedom of trade, they are enforceable only if they can survive scrutiny under the "rule of reason." That rule, originally laid down in the seminal case of Mitchel v. Reynolds, 1 P. Wms. 181, 24 Eng. Rep. 347 (1711), requires that the covenant be reasonably necessary to protect a legitimate interest of the employer (such as an interest in confidentiality), that the employer's interest not be outweighed by the public interest,[7] and that the covenant not be of any longer duration or wider geographical scope than necessary to protect the employer's interest.[8] *520 The Court has not persuaded me that a rule of reason analysis should not be applied to Snepp's covenant to submit to prepublication review. Like an ordinary employer, the CIA has a vital interest in protecting certain types of information; at the same time, the CIA employee has a countervailing interest in preserving a wide range of work opportunities (including work as an author) and in protecting his First Amendment rights. The public interest lies in a proper accommodation that will preserve the intelligence mission of the Agency while not abridging the free flow of unclassified information. When the Government seeks to enforce a harsh restriction on the employee's freedom,[9] despite its admission that the interest the agreement was designed to protect—the confidentiality of classified information—has not been compromised, an equity court might well be persuaded that the case is not one in which the covenant should be enforced.[10] *521 But even assuming that Snepp's covenant to submit to prepublication review should be enforced, the constructive trust

Justice Stevens

dissenting

Snepp v. United States

https://www.courtlistener.com/opinion/110183/snepp-v-united-states/

submit to prepublication review should be enforced, the constructive trust imposed by the Court is not an appropriate remedy. If an employee has used his employer's confidential information for his own personal profit, a constructive trust over those profits is obviously an appropriate remedy because the profits are the direct result of the breach. But Snepp admittedly did not use confidential information in his book; nor were the profits from his book in any sense a product of his failure to submit the book for prepublication review. For, even if Snepp had submitted the book to the Agency for prepublication review, the Government's censorship authority would surely have been limited to the excision of classified material. In this case, then, it would have been obliged to clear the book for publication in precisely the same form as it now stands.[11] Thus, Snepp has not gained any profits as a result of his breach; the Government, rather than Snepp, will be unjustly enriched if he is required to disgorge profits attributable entirely to his own legitimate activity. Despite the fact that Snepp has not caused the Government the type of harm that would ordinarily be remedied by *522 the imposition of a constructive trust, the Court attempts to justify a constructive trust remedy on the ground that the Government has suffered some harm. The Court states that publication of "unreviewed material" by a former CIA agent "can be detrimental to vital national interests even if the published information is unclassified." Ante, at 511-512. It then seems to suggest that the injury in such cases stems from the Agency's inability to catch "harmful" but unclassified information before it is published. I do not believe, however, that the Agency has any authority to censor its employees' publication of unclassified information on the basis of its opinion that publication may be "detrimental to vital national interests" or otherwise "identified as harmful." The CIA never attempted to assert such power over Snepp in either of the contracts he signed; rather, the Agency itself limited its censorship power to preventing the disclosure of "classified" information. Moreover, even if such a wide-ranging prior restraint would be good national security policy, I would have great difficulty reconciling it with the demands of the First Amendment. The Court also relies to some extent on the Government's theory at trial that Snepp caused it harm by flouting his prepublication review obligation and thus making it appear that the CIA was powerless to prevent its agents from publishing any information they chose to publish, whether classified or not. The Government theorized

Justice Stevens

dissenting

Snepp v. United States

https://www.courtlistener.com/opinion/110183/snepp-v-united-states/

chose to publish, whether classified or not. The Government theorized that this appearance of weakness would discourage foreign governments from cooperating with the CIA because of a fear that their secrets might also be compromised. In support of its position that Snepp's book had in fact had such an impact, the Government introduced testimony by the Director of the CIA, Admiral Stansfield Turner, stating that Snepp's book and others like it had jeopardized the CIA's relationship with foreign intelligence services by making them unsure of the Agency's ability to maintain confidentiality. Admiral Turner's truncated testimony does not explain, however, whether these unidentified *523 "other" books actually contained classified information.[12] If so, it is difficult to believe that the publication of a book like Snepp's which does not reveal classified information, has significantly weakened the Agency's position. Nor does it explain whether the unidentified foreign agencies who have stopped cooperating with the CIA have done so because of a legitimate fear that secrets will be revealed or because they merely disagree with our Government's classification policies.[13] In any event, to the extent that the Government seeks to punish Snepp for the generalized harm he has caused by failing to submit to prepublication review and to deter others from following in his footsteps, punitive damages is, as the Court of Appeals held, clearly the preferable remedy "since a constructive trust depends on the concept of unjust enrichment rather than deterrence and punishment. See D. Dobbs, Law of Remedies 3.9 at 205 and 4.3 at 246 (1973)."[14] *524 II The Court's decision to dispose of this case summarily on the Government's conditional cross-petition for certiorari is just as unprecedented as its disposition of the merits. Snepp filed a petition for certiorari challenging the Fourth Circuit's decision insofar as it affirmed the entry of an injunction requiring him to submit all future manuscripts for prepublication review and remanded for a determination of whether punitive damages would be appropriate for his failure to submit Decent Interval to the Agency prior to its publication. The Government filed a brief in opposition as well as a cross-petition for certiorari; the Government specifically stated, however, that it was cross petitioning only to bring the entire case before the Court in the event that the Court should decide to grant Snepp's petition. The Government explained that "[b]ecause the contract remedy provided by the court of appeals appears to be sufficient in this case to protect the Agency's interest, the government has not independently sought review in this Court." In its concluding paragraph the Government stated: "If this Court grants

Justice Stevens

dissenting

Snepp v. United States

https://www.courtlistener.com/opinion/110183/snepp-v-united-states/

its concluding paragraph the Government stated: "If this Court grants [Snepp's] petition for a writ of certiorari in No. 78-1871, it should also grant this cross-petition. If the petition in No. 78-1871 is denied, this petition should also be denied." Pet. for Cert. in No. 79-265, p. 5. Given the Government's position, it would be highly inappropriate, and perhaps even beyond this Court's jurisdiction, to grant the Government's petition while denying Snepp's. Yet that is in essence what has been done.[15] The majority obviously does not believe that Snepp's claims merit this Court's consideration, for they are summarily dismissed in a *525 footnote. Ante, at 509, n. 3. It is clear that Snepp's petition would not have been granted on its own merits. The Court's opinion is a good demonstration of why this Court should not reach out to decide a question not necessarily presented to it, as it has done in this case. Despite the fact that the Government has specifically stated that the punitive damages remedy is "sufficient" to protect its interests, the Court forges ahead and summarily rejects that remedy on the grounds that (a) it is too speculative and thus would not provide the Government with a "reliable deterrent against similar breaches of security." ante, at 514, and (b) it might require the Government to reveal confidential information in court, the Government might forgo damages rather than make such disclosures, and the Government might thus be left with "no remedy at all," ante, at 515. It seems to me that the Court is foreclosed from relying upon either ground by the Government's acquiescence in the punitive damages remedy. Moreover, the second rationale[16] is entirely speculative and, in this case at least, almost certainly wrong. The Court states that "[p]roof of the tortious conduct necessary to sustain an award of punitive damages might force the Government to disclose some of the very confidences that Snepp promised to protect." Ante, at 514. Yet under the Court of Appeals' opinion the Government would be entitled to punitive damages simply by proving that Snepp deceived it into believing that he was going to comply with his duty to submit the manuscript for prepublication review and that the Government relied on these misrepresentations to its detriment. I fail to see how such a showing would require the Government to reveal any confidential information or to expose itself to "probing discovery into the Agency's highly confidential affairs." Ante, at 515. *526 III The uninhibited character of today's exercise in lawmaking is highlighted by the Court's disregard of two venerable principles that favor

Justice Stevens

dissenting

Snepp v. United States

https://www.courtlistener.com/opinion/110183/snepp-v-united-states/

by the Court's disregard of two venerable principles that favor a more conservative approach to this case. First, for centuries the English-speaking judiciary refused to grant equitable relief unless the plaintiff could show that his remedy at law was inadequate. Without waiting for an opportunity to appraise the adequacy of the punitive damages remedy in this case, the Court has jumped to the conclusion that equitable relief is necessary. Second, and of greater importance, the Court seems unaware of the fact that its drastic new remedy has been fashioned to enforce a species of prior restraint on a citizen's right to criticize his government.[17] Inherent in this prior restraint is the risk that the reviewing agency will misuse its authority to delay the publication of a critical work or to persuade an author to modify the contents of his work beyond the demands of secrecy. The character of the covenant as a prior restraint on free speech surely imposes an especially heavy burden on the censor to justify the remedy it seeks. It would take more than the Court has written to persuade me that that burden has been met. I respectfully dissent.

Justice Breyer

majority

Indiana v. Edwards

https://www.courtlistener.com/opinion/145786/indiana-v-edwards/

This case focuses upon a criminal defendant whom a state court found mentally competent to stand trial if represented by counsel but not mentally competent to conduct that trial himself. We must decide whether in these circumstances the Constitution forbids a State from insisting that the defendant proceed to trial with counsel, the State thereby denying the defendant the right to represent himself. See U.S. Const., Amdt. 6; We conclude that the Constitution does not forbid a State so to insist. *2382 I In July 1999 Ahmad Edwards, the respondent, tried to steal a pair of shoes from an Indiana department store. After he was discovered, he drew a gun, fired at a store security officer, and wounded a bystander. He was caught and then charged with attempted murder, battery with a deadly weapon, criminal recklessness, and theft. His mental condition subsequently became the subject of three competency proceedings and two self-representation requests, mostly before the same trial judge: 1. First Competency Hearing: August Five months after Edwards' arrest, his court-appointed counsel asked for a psychiatric evaluation. After hearing psychiatrist and neuropsychologist witnesses the court found Edwards incompetent to stand trial, App. 365a, and committed him to Logansport State Hospital for evaluation and treatment, see at 48a-53a. 2. Second Competency Hearing: March 2002. Seven months after his commitment, doctors found that Edwards' condition had improved to the point where he could stand trial. at 63a-64a. Several months later, however, but still before trial, Edwards' counsel asked for another psychiatric evaluation. In March 2002, the judge held a competency hearing, considered additional psychiatric evidence, and (in April) found that Edwards, while "suffer[ing] from mental illness," was "competent to assist his attorneys in his defense and stand trial for the charged crimes." at 114a. 3. Third Competency Hearing: April Seven months later but still before trial, Edwards' counsel sought yet another psychiatric evaluation of his client. And, in April the court held yet another competency hearing. Edwards' counsel presented further psychiatric and neuropsychological evidence showing that Edwards was suffering from serious thinking difficulties and delusions. A testifying psychiatrist reported that Edwards could understand the charges against him, but he was "unable to cooperate with his attorney in his defense because of his schizophrenic illness"; "[h]is delusions and his marked difficulties in thinking make it impossible for him to cooperate with his attorney." a. In November the court concluded that Edwards was not then competent to stand trial and ordered his recommitment to the state hospital. at 206a-211a. 4. First Self-Representation Request and First Trial: June 2005. About eight months after his commitment,

Justice Breyer

majority

Indiana v. Edwards

https://www.courtlistener.com/opinion/145786/indiana-v-edwards/

First Trial: June 2005. About eight months after his commitment, the hospital reported that Edwards' condition had again improved to the point that he had again become competent to stand trial. at 228a-236a. And almost one year after that Edwards' trial began. Just before trial, Edwards asked to represent himself. at 509a, 520a. He also asked for a continuance, which, he said, he needed in order to proceed pro se. at 519a-520a. The court refused the continuance. at 520a. Edwards then proceeded to trial represented by The jury convicted him of criminal recklessness and theft but failed to reach a verdict on the charges of attempted murder and battery. 5. Second Self-Representation Request and Second Trial: December 2005. The State decided to retry Edwards on the attempted murder and battery charges. Just before the retrial, Edwards again asked the court to permit him to represent himself. at 279a-282a. Referring to the lengthy record of psychiatric reports, the trial court noted that Edwards still suffered from schizophrenia and concluded that "[w]ith these findings, he's competent *2383 to stand trial but I'm not going to find he's competent to defend himself." at 527a. The court denied Edwards' self-representation request. Edwards was represented by appointed counsel at his retrial. The jury convicted Edwards on both of the remaining counts. Edwards subsequently appealed to Indiana's intermediate appellate court. He argued that the trial court's refusal to permit him to represent himself at his retrial deprived him of his constitutional right of self-representation. U.S. Const., Amdt. 6; The court agreed and ordered a new trial. The matter then went to the Indiana Supreme Court. That court found that "[t]he record in this case presents a substantial basis to agree with the trial court," but it nonetheless affirmed the intermediate appellate court on the belief that this Court's precedents, namely, required the State to allow Edwards to represent himself. At Indiana's request, we agreed to consider whether the Constitution required the trial court to allow Edwards to represent himself at trial. II Our examination of this Court's precedents convinces us that those precedents frame the question presented, but they do not answer it. The two cases that set forth the Constitution's "mental competence" standard, and specify that the Constitution does not permit trial of an individual who lacks "mental competency." Dusky defines the competency standard as including both (1) "whether" the defendant has "a rational as well as factual understanding of the proceedings against him" and (2) whether the defendant "has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding."

Justice Breyer

majority

Indiana v. Edwards

https://www.courtlistener.com/opinion/145786/indiana-v-edwards/

with his lawyer with a reasonable degree of rational understanding." (emphasis added; internal quotation marks omitted). repeats that standard, stating that it "has long been accepted that a person whose mental condition is such that he lacks the capacity to understand the nature and object of the proceedings against him, to consult with counsel, and to assist in preparing his defense may not be subjected to a trial." (emphasis added). Neither case considered the mental competency issue presented here, namely, the relation of the mental competence standard to the right of self-representation. The Court's foundational "self-representation" case, held that the Sixth and Fourteenth Amendments include a "constitutional right to proceed without counsel when" a criminal defendant "voluntarily and intelligently elects to do so." (emphasis in original). The Court implied that right from: (1) a "nearly universal conviction," made manifest in state law, that "forcing a lawyer upon an unwilling defendant is contrary to his basic right to defend himself if he truly wants to do so," ; (2) Sixth Amendment language granting rights to the "accused;" (3) Sixth Amendment structure indicating that the rights it sets forth, related to the "fair administration of American justice," are "persona[l]" to the accused, ; (4) the absence of historical examples of forced representation, ; and (5) "`respect for the individual,'" (a knowing and intelligent waiver of counsel "must be honored out of `that respect for the individual which is the lifeblood of the law'")). does not answer the question before us both because it did not consider the problem of mental competency ( ( was "literate, competent, and understanding")), and because itself and later cases have made clear that the right of self-representation is not absolute. See ; ; n. 46, (no right "to abuse the dignity of the courtroom"); ; n. 46 (no right to "engag[e] in serious and obstructionist misconduct," referring to The question here concerns a mental-illness-related limitation on the scope of the self-representation right. The sole case in which this Court considered mental competence and self-representation together, presents a question closer to that at issue here. The case focused upon a borderline-competent criminal defendant who had asked a state trial court to permit him to represent himself and to change his pleas from not guilty to guilty. The state trial court had found that the defendant met Dusky's mental competence standard, that he "knowingly and intelligently" waived his right to assistance of counsel, and that he "freely and voluntarily" chose to plead guilty. (internal quotation marks omitted). And the state trial court had consequently granted the defendant's self-representation and

Justice Breyer

majority

Indiana v. Edwards

https://www.courtlistener.com/opinion/145786/indiana-v-edwards/

state trial court had consequently granted the defendant's self-representation and change-of-plea requests. See A federal appeals court, however, had vacated the defendant's guilty pleas on the ground that the Constitution required the trial court to ask a further question, namely, whether the defendant was competent to waive his constitutional right to See Competence to make that latter decision, the appeals court said, required the defendant to satisfy a higher mental competency standard than the standard set forth in Dusky. See -394, Dusky's more general standard sought only to determine whether a defendant represented by counsel was competent to stand trial, not whether he was competent to waive his right to -395, This Court, reversing the Court of Appeals, "reject[ed] the notion that competence to plead guilty or to waive the right to counsel must be measured by a standard that is higher than (or even different from) the Dusky standard." The decision to plead guilty, we said, "is no more complicated than the sum total of decisions that a [represented] defendant may be called upon to make during the course of a trial." Hence "there is no reason to believe that the decision to waive counsel requires an appreciably higher level of mental functioning than the decision to waive other constitutional rights." And even assuming that self-representation might pose special trial-related difficulties, "the competence that is required of a defendant seeking to waive his right to counsel is the competence to waive the right, not the competence to represent himself." For this reason, we concluded, "the defendant's `technical legal knowledge' is `not relevant' to the determination." (quoting ). We concede that bears certain similarities with the present case. Both involve mental competence and self-representation. Both involve a defendant who wants to represent himself. Both involve a mental condition that falls in a gray area between Dusky's minimal constitutional requirement that measures a defendant's ability to stand trial and a somewhat higher standard that measures mental fitness for another legal purpose. We nonetheless conclude that does not answer the question before us now. In part that is because the Court of Appeals higher standard at issue in differs in a critical way from the higher standard at issue here. In the higher standard sought to measure the defendant's ability to proceed on his own to enter a guilty plea; here the higher standard seeks to measure the defendant's ability to conduct trial proceedings. To put the matter more specifically, the defendant sought only to change his pleas to guilty, he did not seek to conduct trial proceedings, and his ability to

Justice Breyer

majority

Indiana v. Edwards

https://www.courtlistener.com/opinion/145786/indiana-v-edwards/

not seek to conduct trial proceedings, and his ability to conduct a defense at trial was expressly not at issue. Thus we emphasized in that we needed to consider only the defendant's "competence to waive the right." 509 U.S., (emphasis in original). And we further emphasized that we need not consider the defendant's "technical legal knowledge" about how to proceed at trial. (internal quotation marks omitted). We found our holding consistent with this Court's earlier statement in that "[o]ne might not be insane in the sense of being incapable of standing trial and yet lack the capacity to stand trial without benefit of " See -400, n. 10, (quoting and noting that it dealt with "a question that is quite different from the question presented" in ). In this case, the very matters that we did not consider in are directly before us. For another thing, involved a State that sought to permit a gray-area defendant to represent himself. 's constitutional holding is that a State may do so. But that holding simply does not tell a State whether it may deny a gray-area defendant the right to represent himself—the matter at issue here. One might argue that 's grant (to a State) of permission to allow a gray-area defendant self-representation must implicitly include permission to deny self-representation. ("States are free to adopt competency standards that are more elaborate than the Dusky formulation"). Yet one could more forcefully argue that simply did not consider whether the Constitution requires self-representation by gray-area defendants even in circumstances where the State seeks to disallow it (the question here). The upshot is that, in our view, the question before us is an open one. III We now turn to the question presented. We assume that a criminal defendant has sufficient mental competence to stand trial (i.e., the defendant meets Dusky's standard) and that the defendant insists on representing himself during that trial. We ask whether the Constitution permits a State to limit that defendant's self-representation right by insisting upon representation by counsel at trial—on the ground that the defendant lacks the mental capacity *2386 to conduct his trial defense unless represented. Several considerations taken together lead us to conclude that the answer to this question is yes. First, the Court's precedent, while not answering the question, points slightly in the direction of our affirmative answer. as we have just said, simply leaves the question open. But the Court's "mental competency" cases set forth a standard that focuses directly upon a defendant's "present ability to consult with his lawyer," Dusky, (internal quotation marks omitted); a

Justice Breyer

majority

Indiana v. Edwards

https://www.courtlistener.com/opinion/145786/indiana-v-edwards/

consult with his lawyer," Dusky, (internal quotation marks omitted); a "capacity to consult with counsel," and an ability "to assist [counsel] in preparing his defense," See These standards assume representation by counsel and emphasize the importance of They thus suggest (though do not hold) that an instance in which a defendant who would choose to forgo counsel at trial presents a very different set of circumstances, which in our view, calls for a different standard. At the same time the foundational self-representation case, rested its conclusion in part upon pre-existing state law set forth in cases all of which are consistent with, and at least two of which expressly adopt, a competency limitation on the self-representation right. See and n. 9, (citing 16 state-court decisions and two secondary sources). See, e.g., (Fla.App.1967), rev'd on other grounds, (Fla.1968), cited in (assuring a "mentally competent" defendant the right "to conduct his own defense" provided that "no unusual circumstances exist" such as, e.g., "mental derangement" that "would depriv[e]" the defendant "of a fair trial if allowed to conduct his own defense," 204 So. 2d, at ); (noting that "whether unusual circumstances are evident is a matter resting in the sound discretion granted to the trial judge"); v. Commonwealth, Second, the nature of the problem before us cautions against the use of a single mental competency standard for deciding both (1) whether a defendant who is represented by counsel can proceed to trial and (2) whether a defendant who goes to trial must be permitted to represent himself. Mental illness itself is not a unitary concept. It varies in degree. It can vary over time. It interferes with an individual's functioning at different times in different ways. The history of this case (set forth in Part I, illustrates the complexity of the problem. In certain instances an individual may well be able to satisfy Dusky's mental competence standard, for he will be able to work with counsel at trial, yet at the same time he may be unable to carry out the basic tasks needed to present his own defense without the help of See, e.g., N. Poythress, R. Bonnie, J. Monahan, R. Otto, & S. Hoge, Adjudicative Competence: The MacArthur Studies 103 (2002) ("Within each domain of adjudicative competence (competence to assist counsel; decisional competence) the data indicate that understanding, reasoning, and appreciation [of the charges against a defendant] are separable and somewhat independent aspects of functional *2387 legal ability"). See also (describing trial tasks as including organization of defense, making motions, arguing points of law, participating in voir dire, questioning witnesses, and

Justice Breyer

majority

Indiana v. Edwards

https://www.courtlistener.com/opinion/145786/indiana-v-edwards/

points of law, participating in voir dire, questioning witnesses, and addressing the court and jury). The American Psychiatric Association (APA) tells us (without dispute) in its amicus brief filed in support of neither party that "[d]isorganized thinking, deficits in sustaining attention and concentration, impaired expressive abilities, anxiety, and other common symptoms of severe mental illnesses can impair the defendant's ability to play the significantly expanded role required for self-representation even if he can play the lesser role of represented defendant." Brief for APA et al. as Amici Curiae 26. Motions and other documents that the defendant prepared in this case (one of which we include in the Appendix, infra) suggest to a layperson the common sense of this general conclusion. Third, in our view, a right of self-representation at trial will not "affirm the dignity" of a defendant who lacks the mental capacity to conduct his defense without the assistance of ("Dignity" and "autonomy" of individual underlie self-representation right). To the contrary, given that defendant's uncertain mental state, the spectacle that could well result from his self-representation at trial is at least as likely to prove humiliating as ennobling. Moreover, insofar as a defendant's lack of capacity threatens an improper conviction or sentence, self-representation in that exceptional context undercuts the most basic of the Constitution's criminal law objectives, providing a fair trial. As Justice Brennan put it, "[t]he Constitution would protect none of us if it prevented the courts from acting to preserve the very processes that the Constitution itself prescribes." (concurring opinion). See ("Even at the trial level the government's interest in ensuring the integrity and efficiency of the trial at times outweighs the defendant's interest in acting as his own lawyer"). See also Further, proceedings must not only be fair, they must "appear fair to all who observe them." S. Ct. 1692, An amicus brief reports one psychiatrist's reaction to having observed a patient (a patient who had satisfied Dusky) try to conduct his own defense: "[H]ow in the world can our legal system allow an insane man to defend himself?" Brief for Ohio et al. as Amici Curiae 24 (internal quotation marks omitted). See 348 U.S., at ("No trial can be fair that leaves the defense to a man who is insane, unaided by counsel, and who by reason of his mental condition stands helpless and alone before the court"). The application of Dusky's basic mental competence standard can help in part to avoid this result. But given the different capacities needed to proceed to trial without counsel, there is little reason to believe that Dusky alone

Justice Breyer

majority

Indiana v. Edwards

https://www.courtlistener.com/opinion/145786/indiana-v-edwards/

counsel, there is little reason to believe that Dusky alone is sufficient. At the same time, the trial judge, particularly one such as the trial judge in this case, who presided over one of Edwards' competency hearings and his two trials, will often prove best able to make more fine-tuned mental capacity decisions, tailored to the individualized circumstances of a particular defendant. We consequently conclude that the Constitution permits judges to take realistic account of the particular defendant's *2388 mental capacities by asking whether a defendant who seeks to conduct his own defense at trial is mentally competent to do so. That is to say, the Constitution permits States to insist upon representation by counsel for those competent enough to stand trial under Dusky but who still suffer from severe mental illness to the point where they are not competent to conduct trial proceedings by themselves. IV Indiana has also asked us to adopt, as a measure of a defendant's ability to conduct a trial, a more specific standard that would "deny a criminal defendant the right to represent himself at trial where the defendant cannot communicate coherently with the court or a jury." Brief for Petitioner 20 (emphasis deleted). We are sufficiently uncertain, however, as to how that particular standard would work in practice to refrain from endorsing it as a federal constitutional standard here. We need not now, and we do not, adopt it. Indiana has also asked us to overrule We decline to do so. We recognize that judges have sometimes expressed concern that contrary to its intent, has led to trials that are unfair. See (BREYER, J., concurring) (noting practical concerns of trial judges). But recent empirical research suggests that such instances are not common. See, e.g., Hashimoto, Defending the Right of Self-Representation: An Empirical Look at the Pro Se Felony Defendant, 85 N.C.L.Rev. 423, 427, 447, 428 (noting that of the small number of defendants who chose to proceed pro se—"roughly 0.3% to 0.5%" of the total, state felony defendants in particular "appear to have achieved higher felony acquittal rates than their represented counterparts in that they were less likely to have been convicted of felonies"). At the same time, instances in which the trial's fairness is in doubt may well be concentrated in the 20 percent or so of self-representation cases where the mental competence of the defendant is also at issue. See If so, today's opinion, assuring trial judges the authority to deal appropriately with cases in the latter category, may well alleviate those fair trial concerns. For these reasons, the judgment of

Justice Breyer

majority

Indiana v. Edwards

https://www.courtlistener.com/opinion/145786/indiana-v-edwards/

those fair trial concerns. For these reasons, the judgment of the Supreme Court of Indiana is vacated, and the case is remanded for further proceedings not inconsistent with this opinion. So ordered. APPENDIX Excerpt from respondent's filing entitled "`Defendant's Version of the Instant Offense,'" which he had attached to his presentence investigation report: "`The appointed motion of permissive intervention filed therein the court superior on, 6-26-01 caused a stay of action and apon it's expiration or thereafter three years the plan to establish a youth program to and for the coordination of aspects of law enforcement to prevent and reduce crime amoung young people in Indiana became a diplomatic act as under the Safe Streets Act of 1967, "A omnibuc considerate agent: I membered clients within the public and others that at/production of the courts actions showcased causes. The costs of the stay (Trial Rule 60) has a derivative property that is: my knowledged events as not unexpended to contract the membered clients is the commission of finding a facilitie for this plan or project to become organization of administrative recommendations conditioned by governors.'" *2389 n. 4

Justice Powell

dissenting

Garcia v. San Antonio Metropolitan Transit Authority

https://www.courtlistener.com/opinion/111308/garcia-v-san-antonio-metropolitan-transit-authority/

The Court today, in its -4 decision, overrules National League of a case in which we held that Congress lacked authority to impose the requirements of the Fair Labor Standards Act on state and local governments. Because I believe this decision substantially alters the federal system embodied in the Constitution, I dissent. I There are, of course, numerous examples over the history of this Court in which prior decisions have been reconsidered and overruled. There have been few cases, however, in which the principle of stare decisis and the rationale of recent *8 decisions were ignored as abruptly as we now witness.[1] The reasoning of the Court in National League of and the principle applied there, have been reiterated consistently over the past eight years. Since its decision in 1976, National League of has been cited and quoted in opinions joined by every Member of the present Court. ; Transportation ; Less than three years ago, in Long Island R. a unanimous Court reaffirmed the principles of National League of but found them inapplicable to the regulation of a railroad heavily engaged in interstate commerce. The Court stated: "The key prong of the National League of test applicable to this case is the third one [repeated and reformulated in ], which examines whether `the ' compliance with the federal law would directly impair their ability "to structure integral operations in areas of traditional governmental functions." ' " The Court in that case recognized that the test "may at times be a difficult one," ibid., but it was considered in that unanimous decision as settled constitutional doctrine. As recently as June 1, 1982, the five Justices who constitute the majority in these cases also were the majority in In that case, the Court said: "In National League of for example, the Court made clear that the State's regulation of its relationship with its is an `undoubted attribute of state ' Yet, *9 by holding `unimpaired' which upheld a federal labor regulation as applied to state railroad n. 18, National League of acknowledged that not all aspects of a State's sovereign authority are immune from federal control." n. 28. The Court went on to say that even where the requirements of the National League of standard are met, " `[t]here are situations in which the nature of the federal interest advanced may be such that it justifies state submission.' " quoting The joint federal/state system of regulation in FERC was such a "situation," but there was no hint in the Court's opinion that National League of — or its basic standard —

Justice Powell

dissenting

Garcia v. San Antonio Metropolitan Transit Authority

https://www.courtlistener.com/opinion/111308/garcia-v-san-antonio-metropolitan-transit-authority/

that National League of — or its basic standard — was subject to the infirmities discovered today. Although the doctrine is not rigidly applied to constitutional questions, "any departure from the doctrine of stare decisis demands special justification." See also In the present cases, the five Justices who compose the majority today participated in National League of and the cases reaffirming it.[2] The stability of judicial decision, and with it respect for the authority of this Court, are not served by the precipitate overruling of multiple precedents that we witness in these cases.[3] Whatever effect the Court's decision may have in weakening the application of stare decisis, it is likely to be less *60 important than what the Court has done to the Constitution itself. A unique feature of the United is the federal system of government guaranteed by the Constitution and implicit in the very name of our country. Despite some genuflecting in the Court's opinion to the concept of federalism, today's decision effectively reduces the Tenth Amendment to meaningless rhetoric when Congress acts pursuant to the Commerce Clause. The Court holds that the Fair Labor Standards Act (FLSA) "contravened no affirmative limit on Congress' power under the Commerce Clause" to determine the wage rates and hours of employment of all state and local Ante, at 6. In rejecting the traditional view of our federal system, the Court states: "Apart from the limitation on federal authority inherent in the delegated nature of Congress' Article I powers, the principal means chosen by the Framers to ensure the role of the in the federal system lies in the structure of the Federal Government itself." Ante, at 0 To leave no doubt about its intention, the Court renounces its decision in National League of because it "inevitably invites an unelected federal judiciary to make decisions about which state policies its favors and which ones it dislikes." Ante, at 46. In other words, the extent to which the may exercise their authority, when Congress purports to act under the Commerce Clause, henceforth is to be determined from time to time by political decisions made by members of the Federal Government, decisions the Court says will not be subject to judicial review. I note that it does not seem to have occurred to the Court that it — an unelected majority of five Justices — today rejects almost 200 years of the understanding of the constitutional status of federalism. In doing so, there is only a single passing reference to the Tenth Amendment. Nor is so much as a dictum of any court cited

Justice Powell

dissenting

Garcia v. San Antonio Metropolitan Transit Authority

https://www.courtlistener.com/opinion/111308/garcia-v-san-antonio-metropolitan-transit-authority/

is so much as a dictum of any court cited in support of the view that the role of the in the federal system may depend upon *61 the grace of elected federal officials, rather than on the Constitution as interpreted by this Court. In my opinion that follows, Part II addresses the Court's criticisms of National League of Part III reviews briefly the understanding of federalism that ensured the ratification of the Constitution and the extent to which this Court, until today, has recognized that the retain a significant measure of sovereignty in our federal system. Part IV considers the applicability of the FLSA to the indisputably local service provided by an urban transit system. II The Court finds that the test of state immunity approved in National League of and its progeny is unworkable and unsound in principle. In finding the test to be unworkable, the Court begins by mischaracterizing National League of and subsequent cases. In concluding that efforts to define state immunity are unsound in principle, the Court radically departs from long-settled constitutional values and ignores the role of judicial review in our system of government. A Much of the Court's opinion is devoted to arguing that it is difficult to define a priori "traditional governmental functions." National League of neither engaged in, nor required, such a task.[4] The Court discusses and condemns *62 as standards "traditional governmental functions," "purely historical" functions, " `uniquely' governmental functions," and " `necessary' governmental services." Ante, at 9, 43, 4. But nowhere does it mention that National League of adopted a familiar type of balancing test for determining whether Commerce Clause enactments transgress constitutional limitations imposed by the federal nature of our system of government. This omission is noteworthy, since the author of today's opinion joined National League of and concurred separately to point out that the Court's opinion in that case "adopt[s] a balancing approach [that] does not outlaw federal power in areas where the federal interest is demonstrably greater and where state compliance with imposed federal standards would be essential." In reading National League of to embrace a balancing approach, JUSTICE BLACKMUN quite correctly cited the part of the opinion that reaffirmed The Court's analysis reaffirming Fry explicitly weighed the seriousness of the problem addressed by the federal legislation at issue in that case, against the effects of compliance on state -8. Our subsequent decisions also adopted this approach of weighing the respective interests of the and Federal *63 Government.[] In for example, the Court stated that "[t]he principle of immunity articulated in National League of is a

Justice Powell

dissenting

Garcia v. San Antonio Metropolitan Transit Authority

https://www.courtlistener.com/opinion/111308/garcia-v-san-antonio-metropolitan-transit-authority/

principle of immunity articulated in National League of is a functional doctrine whose ultimate purpose is not to create a sacred province of state autonomy, but to ensure that the unique benefits of a federal system not be lost through undue federal interference in certain core state functions." See also In overruling National League of the Court incorrectly characterizes the mode of analysis established therein and developed in subsequent cases.[6] *64 Moreover, the statute at issue in this case, the FLSA, is the identical statute that was at issue in National League of Although JUSTICE BLACKMUN's concurrence noted that he was "not untroubled by certain possible implications of the Court's opinion" in National League of it also stated that "the result with respect to the statute under challenge here [the FLSA] is necessarily correct." His opinion for the Court today does not discuss the statute, nor identify any changed circumstances that warrant the conclusion today that National League of is necessarily wrong. B Today's opinion does not explain how the ' role in the electoral process guarantees that particular exercises of the Commerce Clause power will not infringe on residual state [7] Members of Congress are elected from the various but once in office they are Members of the *6 Federal Government.[8] Although the participate in the Electoral College, this is hardly a reason to view the President as a representative of the ' interest against federal encroachment. We noted recently "[t]he hydraulic pressure inherent within each of the separate Branches to exceed the outer limits of its power" The Court offers no reason to think that this pressure will not operate when Congress seeks to invoke its powers under the Commerce Clause, notwithstanding the electoral role of the[9] *66 The Court apparently thinks that the ' success at obtaining federal funds for various projects and exemptions from the obligations of some federal statutes is indicative of the "effectiveness of the federal political process in preserving the ' interests." Ante, at 2.[10] But such political success is not relevant to the question whether the political processes are the proper means of enforcing constitutional limitations.[11] The fact that Congress generally *67 does not transgress constitutional limits on its power to reach state activities does not make judicial review any less necessary to rectify the cases in which it does do so.[12] The ' role in our system of government is a matter of constitutional law, not of legislative grace. "The powers not delegated to the United by the Constitution, nor prohibited by it to the are reserved to the respectively, or

Justice Powell

dissenting

Garcia v. San Antonio Metropolitan Transit Authority

https://www.courtlistener.com/opinion/111308/garcia-v-san-antonio-metropolitan-transit-authority/

by it to the are reserved to the respectively, or to the people." U. S. Const., Amdt. 10. More troubling than the logical infirmities in the Court's reasoning is the result of its holding, i. e., that federal political officials, invoking the Commerce Clause, are the sole judges of the limits of their own power. This result is inconsistent with the fundamental principles of our constitutional system. See, e. g., The Federalist No. 78 (Hamilton). At least since it has been the settled province of the federal judiciary "to say what the law is" with respect to the constitutionality of Acts of Congress. In rejecting the role of the judiciary in protecting the from federal overreaching, the Court's opinion offers no explanation for ignoring the teaching of the most famous case in our history.[13] *68 III A In our federal system, the have a major role that cannot be pre-empted by the National Government. As contemporaneous writings and the debates at the ratifying conventions make clear, the ' ratification of the Constitution was predicated on this understanding of federalism. Indeed, the Tenth Amendment was adopted specifically to ensure that the important role promised the by the proponents of the Constitution was realized. Much of the initial opposition to the Constitution was rooted in the fear that the National Government would be too powerful and eventually would eliminate the as viable political entities. This concern was voiced repeatedly until proponents of the Constitution made assurances that a Bill of including a provision explicitly reserving powers in the would be among the first business of the new Congress. Samuel Adams argued, for example, that if the several were to be joined in "one entire Nation, under one Legislature, the Powers of which shall extend to every Subject of Legislation, and its Laws be supreme & controul the whole, the Idea of Sovereignty in these must be lost." Letter from Samuel Adams to Richard Henry Lee (Dec. 3, 1787), reprinted in Anti- versus *69 19 (J. Lewis ed. 1967). Likewise, George Mason feared that "the general government being paramount to, and in every respect more powerful than the state governments, the latter must give way to the former." Address in the Ratifying Convention of Virginia (June 4-12, 1788), reprinted in Anti- versus Antifederalists raised these concerns in almost every state ratifying convention.[14] See generally 1-4 Debates in the Several State Conventions on the Adoption of the Federal Constitution (J. Elliot 2d. ed. 1876). As a result, eight voted for the Constitution only after proposing amendments to be adopted after ratification.[1] All eight of

Justice Powell

dissenting

Garcia v. San Antonio Metropolitan Transit Authority

https://www.courtlistener.com/opinion/111308/garcia-v-san-antonio-metropolitan-transit-authority/

proposing amendments to be adopted after ratification.[1] All eight of these included among their recommendations some version of what later became the Tenth Amendment. So strong was the concern that the proposed Constitution was seriously defective without a specific bill of rights, including a provision reserving powers to the that in order to secure the votes for ratification, the eventually conceded that such provisions were necessary. See 1 B. Schwartz, The Bill of : A Documentary History 0 and passim (1971). It was thus generally agreed that consideration of a bill of rights would be among the first business of the new Congress. See generally 1 Annals of Cong. 432-437 (1789) (remarks of James Madison). Accordingly, the 10 Amendments that we know as the Bill of were proposed and adopted early in the first session of the First Congress. 2 Schwartz, The Bill of *70 This history, which the Court simply ignores, documents the integral role of the Tenth Amendment in our constitutional theory. It exposes as well, I believe, the fundamental character of the Court's error today. Far from being "unsound in principle," ante, at 46, judicial enforcement of the Tenth Amendment is essential to maintaining the federal system so carefully designed by the Framers and adopted in the Constitution. B The Framers had definite ideas about the nature of the Constitution's division of authority between the Federal and State Governments. In The Federalist No. 39, for example, Madison explained this division by drawing a series of contrasts between the attributes of a "national" government and those of the government to be established by the Constitution. While a national form of government would possess an "indefinite supremacy over all persons and things," the form of government contemplated by the Constitution instead consisted of "local or municipal authorities [which] form distinct and independent portions of the supremacy, no more subject within their respective spheres to the general authority, than the general authority is subject to them, within its own sphere." Under the Constitution, the sphere of the proposed government extended to jurisdiction of "certain enumerated objects only, leav[ing] to the several a residuary and inviolable sovereignty over all other objects." Madison elaborated on the content of these separate spheres of sovereignty in The Federalist No. 4: "The powers delegated by the proposed Constitution to the Federal Government, are few and defined. Those which are to remain in the State Governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negociation, and foreign commerce The powers *71 reserved to the several will extend to

Justice Powell

dissenting

Garcia v. San Antonio Metropolitan Transit Authority

https://www.courtlistener.com/opinion/111308/garcia-v-san-antonio-metropolitan-transit-authority/

The powers *71 reserved to the several will extend to all the objects, which, in the ordinary course of affairs, concern the lives, liberties and properties of the people; and the internal order, improvement, and prosperity of the State." Madison considered that the operations of the Federal Government would be "most extensive and important in times of war and danger; those of the State Governments in times of peace and security." As a result of this division of powers, the state governments generally would be more important than the Federal Government. The Framers believed that the separate sphere of sovereignty reserved to the would ensure that the would serve as an effective "counterpoise" to the power of the Federal Government. The would serve this essential role because they would attract and retain the loyalty of their citizens. The roots of such loyalty, the Founders thought, were found in the objects peculiar to state government. For example, Hamilton argued that the "regulat[e] all those personal interests and familiar concerns to which the sensibility of individuals is more immediately awake" The Federalist No. 17, p. 107 Thus, he maintained that the people would perceive the as "the immediate and visible guardian of life and property," a fact which "contributes more than any other circumstance to impressing upon the minds of the people affection, esteem and reverence towards the government." Madison took the same position, explaining that "the people will be more familiarly and minutely conversant" with the business of state governments, and "with the members of these, will a greater proportion of the people have the ties of personal acquaintance and friendship, and of family and party attachments" The Federalist No. 46, p. 316 Like Hamilton, Madison saw the ' involvement in the everyday concerns of the people as the source of *72 their citizens' loyalty. See also Nagel, Federalism as a Fundamental Value: National League of in Perspective, 1981 S. Ct. Rev. 81. Thus, the harm to the that results from federal overreaching under the Commerce Clause is not simply a matter of dollars and cents. National League of -81. Nor is it a matter of the wisdom or folly of certain policy choices. Cf. ante, at 46. Rather, by usurping functions traditionally performed by the federal overreaching under the Commerce Clause undermines the constitutionally mandated balance of power between the and the Federal Government, a balance designed to protect our fundamental liberties. C The emasculation of the powers of the that can result from the Court's decision is predicated on the Commerce Clause as a power "delegated to the United

Justice Powell

dissenting

Garcia v. San Antonio Metropolitan Transit Authority

https://www.courtlistener.com/opinion/111308/garcia-v-san-antonio-metropolitan-transit-authority/

the Commerce Clause as a power "delegated to the United " by the Constitution. The relevant language states: "Congress shall have power To regulate Commerce with foreign Nations, and among the several and with the Indian Tribes." Art. I, 8, cl. 3. Section 8 identifies a score of powers, listing the authority to lay taxes, borrow money on the credit of the United pay its debts, and provide for the common defense and the general welfare before its brief reference to "Commerce." It is clear from the debates leading up to the adoption of the Constitution that the commerce to be regulated was that which the themselves lacked the practical capability to regulate. See, e. g., 1 M. Farrand, The Records of the Federal Convention of 1787 (rev. ed. 1937); The Federalist Nos. 7, 11, 22, 42, 4. See also Indeed, the language of the Clause itself focuses on activities that only a National Government could regulate: commerce with foreign nations and Indian tribes and "among" the several *73 To be sure, this Court has construed the Commerce Clause to accommodate unanticipated changes over the past two centuries. As these changes have occurred, the Court has had to decide whether the Federal Government has exceeded its authority by regulating activities beyond the capability of a single State to regulate or beyond legitimate federal interests that outweighed the authority and interests of the In so doing, however, the Court properly has been mindful of the essential role of the in our federal system. The opinion for the Court in National League of was faithful to history in its understanding of federalism. The Court observed that "our federal system of government imposes definite limits upon the authority of Congress to regulate the activities of as by means of the commerce power." The Tenth Amendment was invoked to prevent Congress from exercising its " `power in a fashion that impairs the ' integrity or their ability to function effectively in a federal system.' " (quoting n. 7). This Court has recognized repeatedly that state sovereignty is a fundamental component of our system of government. More than a century ago, in Lane the Court stated that the Constitution recognized "the necessary existence of the and, within their proper spheres, the independent authority of the" It concluded, as Madison did, that this authority extended to "nearly the whole charge of interior regulation. ; to [the ] and to the people all powers not expressly delegated to the national government are reserved." Recently, in Community Communications v. Boulder, the Court recognized that the state action exemption

Justice Powell

dissenting

Garcia v. San Antonio Metropolitan Transit Authority

https://www.courtlistener.com/opinion/111308/garcia-v-san-antonio-metropolitan-transit-authority/

v. Boulder, the Court recognized that the state action exemption from the antitrust laws was based on state Similarly, in Transportation although finding the Railway Labor Act applicable to a state-owned railroad, the *74 unanimous Court was careful to say that the possess constitutionally preserved sovereign powers. Again, in in determining the constitutionality of the Public Utility Regulatory Policies Act, the Court explicitly considered whether the Act impinged on state sovereignty in violation of the Tenth Amendment. These represent only a few of the many cases in which the Court has recognized not only the role, but also the importance, of state See also, e. g., Metcalf & ; As Justice Frankfurter noted, the are not merely a factor in the "shifting economic arrangements" of our country, but also constitute a "coordinate element in the system established by the Framers for governing our Federal Union." National League of D In contrast, the Court today propounds a view of federalism that pays only lipservice to the role of the Although it says that the "unquestionably do `retai[n] a significant measure of sovereign authority,' " ante, at 49 (quoting ), it fails to recognize the broad, yet specific areas of sovereignty that the Framers intended the to retain. Indeed, the Court barely acknowledges that the Tenth Amendment exists.[16] That Amendment states explicitly that "[t]he powers not delegated to the United are reserved to the" The Court recasts this language to say that the retain their sovereign powers "only to the extent that the Constitution has not divested them of their original powers and transferred those powers to the Federal *7 Government." Ante, at 49. This rephrasing is not a distinction without a difference; rather, it reflects the Court's unprecedented view that Congress is free under the Commerce Clause to assume a State's traditional sovereign power, and to do so without judicial review of its action. Indeed, the Court's view of federalism appears to relegate the to precisely the trivial role that opponents of the Constitution feared they would occupy.[17] In National League of we spoke of fire prevention, police protection, sanitation, and public health as "typical of [the services] performed by state and local governments in discharging their dual functions of administering the public law and furnishing public services." Not only are these activities remote from any normal concept of interstate commerce, they are also activities that epitomize the concerns of local, democratic self-government. See n. In emphasizing the need to protect traditional governmental functions, we identified the kinds of activities engaged in by state and local governments that affect the everyday

Justice Powell

dissenting

Garcia v. San Antonio Metropolitan Transit Authority

https://www.courtlistener.com/opinion/111308/garcia-v-san-antonio-metropolitan-transit-authority/

in by state and local governments that affect the everyday lives of citizens. These are services that people are in a position to understand and evaluate, and in a democracy, have the right to oversee.[18] We recognized that "it is *76 functions such as these which governments are created to provide" and that the and local governments are better able than the National Government to perform The Court maintains that the standard approved in National League of "disserves principles of democratic self-governance." Ante, at 47. In reaching this conclusion, the Court looks myopically only to persons elected to positions in the Federal Government. It disregards entirely the far more effective role of democratic self-government at the state and local levels. One must compare realistically the operation of the state and local governments with that of the Federal Government. Federal legislation is drafted primarily by the staffs of the congressional committees. In view of the hundreds of bills introduced at each session of Congress and the complexity of many of them, it is virtually impossible for even the most conscientious legislators to be truly familiar with many of the statutes enacted. Federal departments and agencies customarily are authorized to write regulations. Often these are more important than the text of the statutes. As is true of the original legislation, these are drafted largely by staff personnel. The administration and enforcement of federal laws and regulations necessarily are largely in the hands of staff and civil service These may have little or no knowledge of the and localities that will be affected by the statutes and regulations for which they are responsible. In any case, they hardly are as accessible and responsive *77 as those who occupy analogous positions in state and local governments. In drawing this contrast, I imply no criticism of these federal or the officials who are ultimately in charge. The great majority are conscientious and faithful to their duties. My point is simply that members of the immense federal bureaucracy are not elected, know less about the services traditionally rendered by and localities, and are inevitably less responsive to recipients of such services, than are state legislatures, city councils, boards of supervisors, and state and local commissions, boards, and agencies. It is at these state and local levels — not in Washington as the Court so mistakenly thinks — that "democratic self-government" is best exemplified. IV The question presented in these cases is whether the extension of the FLSA to the wages and hours of of a city-owned transit system unconstitutionally impinges on fundamental state The Court's sweeping

Justice Powell

dissenting

Garcia v. San Antonio Metropolitan Transit Authority

https://www.courtlistener.com/opinion/111308/garcia-v-san-antonio-metropolitan-transit-authority/

transit system unconstitutionally impinges on fundamental state The Court's sweeping holding does far more than simply answer this question in the negative. In overruling National League of today's opinion apparently authorizes federal control, under the auspices of the Commerce Clause, over the terms and conditions of employment of all state and local Thus, for purposes of federal regulation, the Court rejects the distinction between public and private employers that had been drawn carefully in National League of The Court's action reflects a serious misunderstanding, if not an outright rejection, of the history of our country and the intention of the Framers of the Constitution.[19] *78 I return now to the balancing test approved in National League of and accepted in Long Island R. and See n. The Court does not find in these cases that the "federal interest is demonstrably greater." No such finding could have been made, for the state interest is compelling. The financial impact on and localities of displacing their control over wages, hours, overtime regulations, pensions, and labor relations with their could have serious, as well as unanticipated, effects on state and local planning, budgeting, and the levying of taxes.[20] As we said in National League of federal control of the terms and conditions of employment of state also inevitably "displaces state policies regarding the manner in which [] will structure delivery of those governmental services that citizens require." The Court emphasizes that municipal operation of an intracity mass transit system is relatively new in the life of our country. It nevertheless is a classic example of the type of service traditionally provided by local government. It is local by definition. It is indistinguishable in principle from the traditional services of providing and maintaining streets, public lighting, traffic control, water, and sewerage systems.[21] Services of this kind are precisely those with which citizens are more "familiarly and minutely conversant." The Federalist No. 46, p. 316 State and local officials of course must be intimately familiar with these services and sensitive to their quality as well as cost. Such *79 officials also know that their constituents and the press respond to the adequacy, fair distribution, and cost of these services. It is this kind of state and local control and accountability that the Framers understood would insure the vitality and preservation of the federal system that the Constitution explicitly requires. See National League of 426 U. S., -82. V Although the Court's opinion purports to recognize that the retain some sovereign power, it does not identify even a single aspect of state authority that would remain when