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Justice Kagan | 2,015 | 3 | dissenting | Yates v. United States | https://www.courtlistener.com/opinion/2781925/yates-v-united-states/ | material or tangible object that could harbor a pest or disease”); 15 U.S. C. (authorizing investigative demands for “documentary material or tangible things”); 18 U.S. C. (defining “museum” as entity that owns “tangible objects that are exhibited to the public”); 28 U.S. C. (allowing discovery of “relevant facts, books, papers, doc- uments or tangible things”).1 To my knowledge, no court —————— 1 From Alabama and Alaska through Wisconsin and Wyoming (and Cite as: 574 U. S. (2015) 3 KAGAN, J., dissenting has ever read any such provision to exclude things that don’t record or preserve data; rather, all courts have ad- hered to the statutory language’s ordinary (i.e., expansive) meaning. For example, courts have understood the phrases “tangible objects” and “tangible things” in the Federal Rules of Criminal and Civil Procedure to cover everything from guns to drugs to machinery to ani- mals. See, e.g., United 819 (CA6 1994) (per curiam) (handgun); United States v. Acarino, ; In re Newman, (energy generation system); No sur- prise, then, that—until today—courts have uniformly applied the term “tangible object” in in the same way. See, e.g., United 834–838 (CA5 2012) (corpse); United States v. 695 F.3d 227, 243–244 (CA3 2012) (cement mixer). That is not necessarily the end of the matter; I agree with the plurality (really, who does not?) that context matters in interpreting statutes. We do not “construe the meaning of statutory terms in a vacuum.” Rather, we interpret particular words “in their context and with a view to their place in the overall statutory scheme.” And sometimes that —————— trust me—in all that come between), States similarly use the terms “tangible objects” and “tangible things” in statutes and rules of all sorts. See, e.g., –17–1(3) (defining “landscape architecture” to include the design of certain “tangible objects and features”); Alaska Rule Civ. Proc. 34(a)(1) (2014) (allowing litigants to “inspect, copy, test, or sample any tangible things” that constitute or contain discoverable material); (1) (2014) (requiring the production of “designated tangible things” in civil proceedings); Wyo. Rule Crim. Proc. 41(h) (2014) (defining “property” for purposes of a search-and-seizure statute to include “documents, books, papers and any other tangible objects”). 4 YATES v. UNITED STATES KAGAN, J., dissenting means, as the plurality says, that the dictionary definition of a disputed term cannot control. See, e.g., Bloate v. United States, But this is not such an occasion, for here the text and its context point the same way. Stepping back from the words “tan- gible object” provides only further evidence that Congress said what it meant and meant what it said. Begin with the |
Justice Kagan | 2,015 | 3 | dissenting | Yates v. United States | https://www.courtlistener.com/opinion/2781925/yates-v-united-states/ | it meant and meant what it said. Begin with the way the surrounding words in reinforce the breadth of the term at issue. Section 1519 refers to “any” tangible object, thus indicating (in line with that word’s plain meaning) a tangible object “of whatever kind.” Webster’s Third New International Dictionary 97 This Court has time and again recognized that “any” has “an expansive meaning,” bringing within a statute’s reach all types of the item (here, “tangible ob- ject”) to which the law refers. Department of Housing and Urban ; see, e.g., Republic of (2009); 219–220 (2008). And the adjacent laundry list of verbs in (“alters, destroys, mutilates, conceals, covers up, falsifies, or makes a false entry”) further shows that Con- gress wrote a statute with a wide scope. Those words are supposed to ensure—just as “tangible object” is meant to— that covers the whole world of evidence-tampering, in all its prodigious variety. See United (rejecting a “narrow, technical definition” of a statutory term when it “clashes strongly” with “sweeping” language in the same sentence). Still more, “tangible object” appears as part of a three- noun phrase (including also “records” and “documents”) common to evidence-tampering laws and always under- stood to embrace things of all kinds. The Model Penal Code’s evidence-tampering section, drafted more than 50 years ago, similarly prohibits a person from “alter[ing], destroy[ing], conceal[ing] or remov[ing] any record, docu- Cite as: 574 U. S. (2015) 5 KAGAN, J., dissenting ment or thing” in an effort to thwart an official investiga- tion or proceeding. ALI, Model Penal Code p. 175 (1962) (emphasis added). The Code’s commentary emphasizes that the offense described in that provision is “not limited to conduct that [alters] a written instrument.” Comment 3, at 179. Rather, the language extends to “any physical object.” Consistent with that statement—and, of course, with ordinary meaning— courts in the more than 15 States that have laws based on the Model Code’s tampering provision apply them to all tangible objects, including drugs, guns, vehicles and yes, animals. See, e.g., 859–861 (cocaine); ; 519–, 1122–1123 (1996) (bicycle, skeleton, blood stains); State v. Crites, (deer antlers). Not a one has limited the phrase’s scope to objects that record or preserve information. The words “record, document, or tangible object” in also track language in 18 U.S. C. the federal witness-tampering law covering (as even the plurality accepts, see ante, at 12) physical evidence in all its forms. Section 1512, both in its original version (preceding ) and today, repeatedly uses the phrase “record, document, or other object”—most notably, in a provision prohibiting the use of |
Justice Kagan | 2,015 | 3 | dissenting | Yates v. United States | https://www.courtlistener.com/opinion/2781925/yates-v-united-states/ | other object”—most notably, in a provision prohibiting the use of force or threat to induce another person to withhold any of those materials from an official proceed- ing. of the Victim and Witness Protection Act of 1982, as amended, 18 U.S. C. That language, which itself likely derived from the Model Penal Code, encompasses no less the bloody knife than the incriminating letter, as all courts have for decades agreed. See, e.g., United (boat); United States v. Applewhaite, 195 F.3d 679, 688 (CA3 1999) (stone wall). And typically “only the 6 YATES v. UNITED STATES KAGAN, J., dissenting most compelling evidence” will persuade this Court that Congress intended “nearly identical language” in provi- sions dealing with related subjects to bear different mean- ings. Communication (1988); see A. Scalia & B. Garner, Reading Law: The Interpretation of Legal Texts 252 (2012). Context thus again confirms what text indicates. And legislative history, for those who care about it, puts extra icing on a cake already frosted. Section 1519, as the plurality notes, see ante, at 2, 6, was enacted after the Enron Corporation’s collapse, as part of the Sarbanes- Oxley Act of 2002, But the provision began its life in a separate bill, and the drafters emphasized that Enron was “only a case study exposing the shortcomings in our current laws” relating to both “corporate and crimi- nal” fraud. S. Rep. No. 107–146, pp. 2, 11 The primary “loophole[ ]” Congress identified, see arose from limits in the part of just described: That provision, as uniformly construed, prohibited a person from inducing another to destroy “record[s], document[s], or other object[s]”—of every type—but not from doing so himself. (b)(2); see Congress (as even the plurality agrees, see ante, at 6) enacted to close that yawning gap. But could fully achieve that goal only if it covered all the records, documents, and objects did, as well as all the means of tampering with them. And so was written to do exactly that—“to apply broadly to any acts to destroy or fabricate physical evidence,” as long as performed with the requisite intent. S. Rep. No. 107–146, “When a person destroys evidence,” the drafters explained, “overly technical legal distinctions should neither hinder nor prevent prosecu- tion.” Ah well: Congress, meet today’s Court, which here invents just such a distinction with just such an effect. See United (“[C]reat[ing] a large loophole in Cite as: 574 U. S. (2015) 7 KAGAN, J., dissenting a statute designed to close a loophole” is “illogical and disrespectful of congressional purpose”). As Congress recognized in using a broad term, giving immunity to |
Justice Kagan | 2,015 | 3 | dissenting | Yates v. United States | https://www.courtlistener.com/opinion/2781925/yates-v-united-states/ | Congress recognized in using a broad term, giving immunity to those who destroy non-documentary evidence has no sensible basis in penal policy. A person who hides a murder victim’s body is no less culpable than one who burns the victim’s diary. A fisherman, like John Yates, who dumps undersized fish to avoid a fine is no less blameworthy than one who shreds his vessel’s catch log for the same reason. Congress thus treated both offenders in the same way. It understood, in enacting that destroying evidence is destroying evidence, whether or not that evidence takes documentary form. II A The plurality searches far and wide for anything— anything—to support its interpretation of But its fishing expedition comes up empty. The plurality’s analysis starts with ’s title: “De- struction, alteration, or falsification of records in Federal investigations and bankruptcy.” See ante, at 10; see also ante, at 3–4 (opinion of ALITO, J.). That’s already a sign something is amiss. I know of no other case in which we have begun our interpretation of a statute with the title, or relied on a title to override the law’s clear terms. In- stead, we have followed “the wise rule that the title of a statute and the heading of a section cannot limit the plain meaning of the text.” The reason for that “wise rule” is easy to see: A title is, almost necessarily, an abridgment. Attempting to men- tion every term in a statute “would often be ungainly as well as useless”; accordingly, “matters in the text are frequently unreflected in the headings.” 28. Just last year, this Court observed that two titles in a nearby 8 YATES v. UNITED STATES KAGAN, J., dissenting section of Sarbanes-Oxley serve as “but a short-hand reference to the general subject matter” of the provision at issue, “not meant to take the place of the detailed provi- sions of the text.” Lawson v. FMR LLC, 571 U. S. (2014) (slip op., at 16) (quoting 331 U.S., at 528). The “under-inclusiveness” of the headings, we stated, was “apparent.” Lawson, 571 U. S., at (slip op., at 16). So too for ’s title, which refers to “destruction, alteration, or falsification” but not to mutilation, conceal- ment, or covering up, and likewise mentions “records” but not other documents or objects. Presumably, the plurality would not refuse to apply when a person only con- ceals evidence rather than destroying, altering, or falsify- ing it; instead, the plurality would say that a title is just a title, which cannot “undo or limit” more specific statutory text. (quoting 331 U. S., 29). |
Justice Kagan | 2,015 | 3 | dissenting | Yates v. United States | https://www.courtlistener.com/opinion/2781925/yates-v-united-states/ | limit” more specific statutory text. (quoting 331 U. S., 29). The same holds true when the evidence in question is not a “record” but something else whose destruction, alteration, etc., is intended to obstruct justice. The plurality next tries to divine meaning from ’s “position within Chapter 73 of Title 18.” Ante, at 10. But that move is yet odder than the last. As far as I can tell, this Court has never once suggested that the section num- ber assigned to a law bears upon its meaning. Cf. Scalia, at xi–xvi (listing more than 50 interpretive princi- ples and canons without mentioning the plurality’s new number-in-the-Code theory). And even on its own terms, the plurality’s argument is hard to fathom. The plurality claims that if applied to objects generally, Congress would not have placed it “after the pre-existing and because those are “specialized provi- sions.” Ante, at 11. But search me if I can find a better place for a broad ban on evidence-tampering. The plural- ity seems to agree that the law properly goes in Chapter 73—the criminal code’s chapter on “obstruction of justice.” But the provision does not logically fit into any of that Cite as: 574 U. S. (2015) 9 KAGAN, J., dissenting chapter’s pre-existing sections. And with the first 18 numbers of the chapter already taken (starting with and continuing through the law naturally took the 19th place. That is standard operating procedure. Prior to the Sarbanes-Oxley Act of 2002, all of Chapter 73 was ordered chronologically: Section 1518 was later enacted than which was later enacted than which was well, you get the idea. And after Sarbanes-Oxley, Congress has continued in the same vein. Section 1519 is thus right where you would expect it (as is the contempo- raneously passed (added in 1996) and (added in 2008).2 The plurality’s third argument, relying on the surplus- age canon, at least invokes a known tool of statutory construction—but it too comes to nothing. Says the plu- rality: If read naturally, “would render superfluous” (c)(1), which Congress passed “as part of the same act.” Ante, But that is not so: Although the two provisions significantly overlap, each applies to conduct the other does not. The key difference between the two is that protects the integrity of “matter[s] within the jurisdiction of any [federal] department or agency” whereas (c)(1) safeguards “official proceeding[s]” as defined in Section 1519’s language often applies more broadly than (c)(1)’s, as the plurality notes. —————— 2 The lonesome exception to Chapter 73’s chronological order is added in Sarbanes-Oxley to create a civil action to |
Justice Kagan | 2,015 | 3 | dissenting | Yates v. United States | https://www.courtlistener.com/opinion/2781925/yates-v-united-states/ | is added in Sarbanes-Oxley to create a civil action to protect whistleblowers. Congress decided to place that provision right after the only other section in Chapter 73 to authorize a civil action (that one to protect victims and witnesses). The plurality, seizing on the example, says it likewise “would have made more sense for Congress to codify the substance of within or in a new A.” Ante, at 12, n. 4. But is titled “Tampering with a witness, victim, or an informant,” and its provisions almost all protect witnesses from intimi- dation and harassment. It makes perfect sense that Congress wanted a broad ban on evidence-spoliation to stand on its own rather than as part of—or an appendage to—a witness-tampering provision. 10 YATES v. UNITED STATES KAGAN, J., dissenting For example, an FBI investigation counts as a matter within a federal department’s jurisdiction, but falls out- side the statutory definition of “official proceeding” as construed by courts. See, e.g., United But conversely, (c)(1) sometimes reaches more widely than For example, because an “official proceeding” includes any “proceeding before a judge or court of the United States,” (c)(1) prohibits tampering with evidence in federal litigation between private parties. See United 808–810 (CA7 2013); United 185–187 (Sotomayor, J.). By contrast, wouldn’t ordi- narily operate in that context because a federal court isn’t a “department or agency.” See3 So the surplusage canon doesn’t come into play.4 Overlap—even significant over- lap—abounds in the criminal law. See Loughrin v. United —————— 3 The plurality’s objection to this statement is difficult to understand. It cannot take issue with Hubbard’s holding that “a federal court is neither a ‘department’ nor an ‘agency’ ” in a statute referring, just as does, to “any matter within the jurisdiction of any department or agency of the United States.” So the plurality suggests that the phrase “in relation to any such matter” in somehow changes Hubbard’s result. See ante, at 12–13, and n. 5. But that phrase still demands that evidence-tampering relate to a “matter within the jurisdiction of any department or agency”—excluding courts, as Hubbard commands. That is why the federal government, as far as I can tell, has never once brought a prosecution under for evidence-tampering in litigation between private parties. It instead uses (c)(1) for that purpose. 4 Section 1512(c)(1) also applies more broadly than in proceed- ings relating to insurance regulation. The term “official proceeding” in (c)(1) is defined to include “proceeding[s] involving the business of insurance whose activities affect interstate commerce before any insurance regulatory official or agency.” But wouldn’t usually apply in that context because |
Justice Kagan | 2,015 | 3 | dissenting | Yates v. United States | https://www.courtlistener.com/opinion/2781925/yates-v-united-states/ | or agency.” But wouldn’t usually apply in that context because state, not federal, agencies handle most insurance regulation. Cite as: 574 U. S. (2015) 11 KAGAN, J., dissenting States, 573 U. S. – n. 4 (2014) (slip op., at 6–7, n. 4). This Court has never thought that of such ordinary stuff surplusage is made. See ibid.; Connecticut Nat. Bank v. Germain, And the legislative history to which the plurality ap- peals, see ante, at 6, only cuts against it because those materials show that lawmakers knew that and (c)(1) share much common ground. Minority Leader Lott introduced the amendment that included (c)(1) (along with other criminal and corporate fraud provisions) late in the legislative process, explaining that he did so at the specific request of the President. See 148 Cong. Rec. 12509, 12512 (remarks of Sen. Lott). Not only Lott but several other Senators noted the overlap between the President’s package and provisions already in the bill, most notably See (remarks of Sen. Lott); ; (remarks of Sens. Hatch and Gramm). The presence of both and (c)(1) in the final Act may have reflected belt-and-suspenders caution: If contained some flaw, (c)(1) would serve as a backstop. Or the addition of (c)(1) may have derived solely from legis- lators’ wish “to satisfy audiences other than courts”—that is, the President and his Justice Department. Gluck & Bressman, Statutory Interpretation from the Inside, 65 Stan. L. Rev. 901, 935 (2013) (emphasis deleted). Which- ever the case, Congress’s consciousness of overlap between the two provisions removes any conceivable reason to cast aside ’s ordinary meaning in service of preventing some statutory repetition. Indeed, the inclusion of (c)(1) in Sarbanes-Oxley creates a far worse problem for the plurality’s construction of than for mine. Section 1512(c)(1) criminalizes the destruction of any “record, document, or other object”; of any “record, document, or tangible object.” On the plurality’s view, one “object” is really an object, where- 12 YATES v. UNITED STATES KAGAN, J., dissenting as the other is only an object that preserves or stores information. But “[t]he normal rule of statutory construc- tion assumes that identical words used in different parts of the same act,” passed at the same time, “are intended to have the same meaning.” (internal quotation marks omitted). And that is especially true when the different provisions pertain to the same subject. See –6. The plurality doesn’t—really, can’t—explain why it in- stead interprets the same words used in two provisions of the same Act addressing the same basic problem to mean fundamentally different things. Getting nowhere with surplusage, the plurality switches canons, hoping |
Justice Kagan | 2,015 | 3 | dissenting | Yates v. United States | https://www.courtlistener.com/opinion/2781925/yates-v-united-states/ | things. Getting nowhere with surplusage, the plurality switches canons, hoping that noscitur a sociis and ejusdem generis will save it. See ante, –16; see also ante, at 1–2 (opin- ion of ALITO, J.). The first of those related canons advises that words grouped in a list be given similar meanings. The second counsels that a general term following specific words embraces only things of a similar kind. According to the plurality, those Latin maxims change the English meaning of “tangible object” to only things, like records and documents, “used to record or preserve information.” Ante,5 But understood as this Court always has, the canons have no such transformative effect on the worka- —————— 5 The plurality seeks support for this argument in the Sentencing Commission’s construction of the phrase “records, documents, or tangible objects,” ante, but to no avail. The plurality cites a note in the Commission’s Manual clarifying that this phrase, as used in the Sentencing Guidelines, “includes” various electronic information, communications, and storage devices. United States Sentencing Commission, Guidelines Manual comment., n. 1 (Nov. 2014) (USSG). But “includes” (following its ordinary definition) “is not exhaustive,” as the Commission’s commentary makes explicit. USSG comment., n. 2. Otherwise, the Commission’s construction wouldn’t encompass paper documents. All the note does is to make plain that “records, documents, or tangible objects” embraces stuff relating to the digital (as well as the material) world. Cite as: 574 U. S. (2015) 13 KAGAN, J., dissenting day language Congress chose. As an initial matter, this Court uses noscitur a sociis and ejusdem generis to resolve ambiguity, not create it. Those principles are “useful rule[s] of construction where words are of obscure or doubtful meaning.” Russell Motor Car But when words have a clear definition, and all other contex- tual clues support that meaning, the canons cannot properly defeat Congress’s decision to draft broad legisla- tion. See, e.g., (rejecting the invoca- tion of these canons as an “attempt to create ambiguity where the statute’s text and structure suggest none”). Anyway, assigning “tangible object” its ordinary mean- ing comports with noscitur a sociis and ejusdem generis when applied, as they should be, with attention to ’s subject and purpose. Those canons require identifying a common trait that links all the words in a statutory phrase. See, e.g., Graham County Soil and Water Conser- vation 289, n. 7 ; –226. In responding to that demand, the plurality characterizes records and documents as things that preserve information—and so they are. But just as much, they are things that provide information, and thus potentially serve as evidence rele- vant to |
Justice Kagan | 2,015 | 3 | dissenting | Yates v. United States | https://www.courtlistener.com/opinion/2781925/yates-v-united-states/ | information, and thus potentially serve as evidence rele- vant to matters under review. And in a statute pertaining to obstruction of federal investigations, that evidentiary function comes to the fore. The destruction of records and documents prevents law enforcement agents from gather- ing facts relevant to official inquiries. And so too does the destruction of tangible objects—of whatever kind. Whether the item is a fisherman’s ledger or an undersized fish, throwing it overboard has the identical effect on the ad- ministration of justice. See For purposes of records, documents, and (all) tangible objects are therefore alike. Indeed, even the plurality can’t fully credit its nosci- 14 YATES v. UNITED STATES KAGAN, J., dissenting tur/ejusdem argument. The same reasoning would apply to every law placing the word “object” (or “thing”) after “record” and “document.” But as noted earlier, such stat- utes are common: The phrase appears (among other places) in many state laws based on the Model Penal Code, as well as in multiple provisions of See at 4–5. The plurality accepts that in those laws “object” means object; its argument about superfluity positively depends on giving (c)(1) that broader reading. See ante, at 13, 16. What, then, is the difference here? The plurality proposes that some of those statutes describe less serious offenses than See ante, at 17. How and why that distinction affects application of the noscitur a sociis and ejusdem generis canons is left obscure: Count it as one more of the plurality’s never-before-propounded, not-readily-explained interpretive theories. See 8–9, 11–12. But in any event, that rationale cannot sup- port the plurality’s willingness to give “object” its natural meaning in which (like ) sets out felonies with penalties of up to 20 years. See §(a)(3)(C), (b), (c). The canons, in the plurality’s interpretive world, apparently switch on and off whenever convenient. And the plurality’s invocation of ’s verbs does nothing to buttress its canon-based argument. See ante, –15; ante, at 2–3 (opinion of ALITO, J.). The plurality observes that prohibits “falsif[ying]” or “mak[ing] a false entry in” a tangible object, and no one can do those things to, say, a murder weapon (or a fish). Ante, But of course someone can alter, destroy, mutilate, con- ceal, or cover up such a tangible object, and prohibits those actions too. The Court has never before suggested that all the verbs in a statute need to match up with all the nouns. See Robers v. United States, 572 U. S. (2014) (slip op., at 4) (“[T]he law does not require legisla- tors to write extra language specifically exempting, phrase by phrase, applications |
Justice Kagan | 2,015 | 3 | dissenting | Yates v. United States | https://www.courtlistener.com/opinion/2781925/yates-v-united-states/ | to write extra language specifically exempting, phrase by phrase, applications in respect to which a portion of a Cite as: 574 U. S. (2015) 15 KAGAN, J., dissenting phrase is not needed”). And for good reason. It is exactly when Congress sets out to draft a statute broadly—to include every imaginable variation on a theme—that such mismatches will arise. To respond by narrowing the law, as the plurality does, is thus to flout both what Congress wrote and what Congress wanted. Finally, when all else fails, the plurality invokes the rule of lenity. See ante, at 18. But even in its most robust form, that rule only kicks in when, “after all legitimate tools of interpretation have been exhausted, ‘a reasonable doubt persists’ regarding whether Congress has made the defendant’s conduct a federal crime.” Abramski v. United States, 573 U. S. (2014) (SCALIA, J., dissenting) (slip op., at 12) (quoting Moskal v. United States, 498 U.S. 103, 108 (1990)). No such doubt lingers here. The plural- ity points to the breadth of see ante, at 18, as though breadth were equivalent to ambiguity. It is not. Section 1519 is very broad. It is also very clear. Every traditional tool of statutory interpretation points in the same direction, toward “object” meaning object. Lenity offers no proper refuge from that straightforward (even though capacious) construction.6 —————— 6 As part of its lenity argument, the plurality asserts that Yates did not have “fair warning” that his conduct amounted to a felony. Ante, at 18; see ante, at 17 (stating that “Yates would have had scant reason to anticipate a felony prosecution” when throwing fish overboard). But even under the plurality’s view, the dumping of fish is potentially a federal felony—just under (c)(1), rather than See ante, at 12–13. In any event, the plurality itself acknowledges that the ordi- nary meaning of covers Yates’s conduct, see ante, : That provision, no less than (c)(1), announces its broad scope in the clearest possible terms. And when an ordinary citizen seeks notice of a statute’s scope, he is more likely to focus on the plain text than (as the plurality would have it) on the section number, the superfluity princi- ple, and the noscitur and ejusdem canons. 16 YATES v. UNITED STATES KAGAN, J., dissenting B The concurring opinion is a shorter, vaguer version of the plurality’s. It relies primarily on the noscitur a sociis and ejusdem generis canons, tries to bolster them with ’s “list of verbs,” and concludes with the section’s title. See –8, 12–13, 14–15 (addressing each of those arguments). (Notably, even the |
Justice Kagan | 2,015 | 3 | dissenting | Yates v. United States | https://www.courtlistener.com/opinion/2781925/yates-v-united-states/ | 12–13, 14–15 (addressing each of those arguments). (Notably, even the concurrence puts no stock in the plurality’s section-number and superfluity claims.) From those familiar materials, the concurrence arrives at the following definition: “ ‘tangible object’ should mean something similar to records or documents.” Ante, at 4 (opinion of ALITO, J.). In amplifying that purported guidance, the concurrence suggests applying the term “tangible object” in keeping with what “a neighbor, when asked to identify something similar to record or docu- ment,” might answer. Ante, at 1. “[W]ho wouldn’t raise an eyebrow,” the concurrence wonders, if the neighbor said “crocodile”? Ante, at 1–2. Courts sometimes say, when explaining the Latin maxims, that the “words of a statute should be interpreted consistent with their neighbors.” See, e.g., United The concurrence takes that expression literally. But ’s meaning should not hinge on the odd game of Mad Libs the concurrence proposes. No one reading needs to fill in a blank after the words “records” and “documents.” That is because Congress, quite helpfully, already did so—adding the term “tangible object.” The issue in this case is what that term means. So if the con- currence wishes to ask its neighbor a question, I’d recom- mend a more pertinent one: Do you think a fish (or, if the concurrence prefers, a crocodile) is a “tangible object”? As to that query, “who wouldn’t raise an eyebrow” if the neighbor said “no”? In insisting on its different question, the concurrence neglects the proper function of catchall phrases like “or tangible object.” The reason Congress uses such terms is Cite as: 574 U. S. (2015) 17 KAGAN, J., dissenting precisely to reach things that, in the concurrence’s words, “do[ ] not spring to mind”—to my mind, to my neighbor’s, or (most important) to Congress’s. Ante, at 1 (opinion of ALITO, J.). As this Court recently explained: “[T]he whole value of a generally phrased residual [term] is that it serves as a catchall for matters not specifically contem- plated—known unknowns.” 556 U.S., at Congress realizes that in a game of free association with “record” and “document,” it will never think of all the other things—including crocodiles and fish—whose de- struction or alteration can (less frequently but just as effectively) thwart law enforcement. Cf. United States v. Stubbs, (dead crocodiles used as evidence to support smuggling conviction). And so Congress adds the general term “or tangible object”— again, exactly because such things “do[ ] not spring to mind.”7 The concurrence suggests that the term “tangible object” serves not as a catchall for physical evidence but to “en- sure beyond question” that |
Justice Kagan | 2,015 | 3 | dissenting | Yates v. United States | https://www.courtlistener.com/opinion/2781925/yates-v-united-states/ | for physical evidence but to “en- sure beyond question” that e-mails and other electronic files fall within ’s compass. Ante, at 2. But that claim is eyebrow-raising in its own right. Would a Con- gress wishing to make certain that applies to e-mails add the phrase “tangible object” (as opposed, say, to “electronic communications”)? Would a judge or jury member predictably find that “tangible object” encom- passes something as virtual as e-mail (as compared, say, —————— 7 The concurrence contends that when the noscitur and ejusdem can- ons are in play, “ ‘known unknowns’ should be similar to known knowns, i.e., here, records and documents.” Ante, at 2. But as noted above, records and documents are similar to crocodiles and fish as far as is concerned: All are potentially useful as evidence in an investigation. See The concurrence never explains why that similarity isn’t the relevant one in a statute aimed at evidence- tampering. 18 YATES v. UNITED STATES KAGAN, J., dissenting with something as real as a fish)? If not (and the answer is not), then that term cannot function as a failsafe for e-mails. The concurrence acknowledges that no one of its argu- ments can carry the day; rather, it takes the Latin canons plus ’s verbs plus ’s title to “tip the case” for Yates. Ante, at 1. But the sum total of three mistaken arguments is three mistaken arguments. They do not get better in the combining. And so the concurrence ends up right where the plurality does, except that the concur- rence, eschewing the rule of lenity, has nothing to fall back on. III If none of the traditional tools of statutory interpreta- tion can produce today’s result, then what accounts for it? The plurality offers a clue when it emphasizes the dispro- portionate penalties imposes if the law is read broadly. See ante, at 17–18. Section 1519, the plurality objects, would then “expose[ ] individuals to 20-year prison sentences for tampering with any physical object that might have evidentiary value in any federal investigation into any offense.” Ante, at 18. That brings to the surface the real issue: overcriminalization and excessive punish- ment in the U. S. Code. Now as to this statute, I think the plurality somewhat— though only somewhat—exaggerates the matter. The plurality omits from its description of the require- ment that a person act “knowingly” and with “the intent to impede, obstruct, or influence” federal law enforcement. And in highlighting ’s maximum penalty, the plural- ity glosses over the absence of any prescribed minimum. (Let’s not forget that Yates’s sentence was |
Justice Kagan | 2,015 | 3 | dissenting | Yates v. United States | https://www.courtlistener.com/opinion/2781925/yates-v-united-states/ | any prescribed minimum. (Let’s not forget that Yates’s sentence was not 20 years, but 30 days.) Congress presumably enacts laws with high maximums and no minimums when it thinks the prohibited conduct may run the gamut from major to minor. That Cite as: 574 U. S. (2015) 19 KAGAN, J., dissenting is assuredly true of acts obstructing justice. Compare this case with the following, all of which properly come within, but now fall outside, : –838 (burning human body to thwart murder investigation); –244 (altering cement mixer to impede inquiry into amputation of employee’s fingers); United States v. Natal, 2014 U. S. Dist. LEXIS 52, *24–*26 (D Conn., Aug. 7, 2014) (repainting van to cover up evidence of fatal arson). Most district judges, as Con- gress knows, will recognize differences between such cases and prosecutions like this one, and will try to make the punishment fit the crime. Still and all, I tend to think, for the reasons the plurality gives, that is a bad law— too broad and undifferentiated, with too-high maximum penalties, which give prosecutors too much leverage and sentencers too much discretion. And I’d go further: In those ways, is unfortunately not an outlier, but an emblem of a deeper pathology in the federal criminal code. But whatever the wisdom or folly of this Court does not get to rewrite the law. “Resolution of the pros and cons of whether a statute should sweep broadly or narrowly is for Congress.” If judges disagree with Congress’s choice, we are perfectly entitled to say so—in lectures, in law review articles, and even in dicta. But we are not entitled to replace the stat- ute Congress enacted with an alternative of our own design. I respectfully dissent |
Justice Rehnquist | 1,985 | 19 | majority | Garrett v. United States | https://www.courtlistener.com/opinion/111440/garrett-v-united-states/ | This case requires us to examine the double jeopardy implications of a prosecution for engaging in a "continuing criminal enterprise" (CCE), in violation of the Comprehensive Drug Abuse Prevention and Control Act of 1970, 21 U.S. C. 848, when facts underlying a prior conviction are offered to prove one of three predicate offenses that must be shown to make out a CCE violation. Petitioner Jonathan Garrett contends that his prior conviction is a lesser included offense of the CCE charge, and, therefore, that the CCE prosecution is barred under Between 1976 and 1981, Garrett directed an extensive marihuana importation and distribution operation involving off-loading, transporting, and storing boatloads of marihuana. These activities and related meetings and telephone calls occurred in several including Arkansas, Florida, Georgia, Louisiana, Massachusetts, Michigan, Texas, and Washington. In March 1981, Garrett was charged in three substantive counts of an indictment in the Western District of Washington for his role in the off-loading and landing of approximately 12,000 pounds of marihuana from a "mother ship" at Neah Bay, Washington. He was named as a co-conspirator, but not indicted, in a fourth count charging conspiracy to import marihuana. Having learned that he was being investigated on CCE charges in Florida, Garrett moved to consolidate in the Washington proceedings "all charges anticipated, investigated and currently pending against [him]." The Government opposed the motion on the ground that no other charges had then been filed against Garrett, and the District Court denied it. Garrett pleaded guilty to one count of importation of marihuana in violation of 21 U.S. C. 952, 960(a)(1), 960(b)(2) and 18 U.S. C. 2. He was sentenced to five years' imprisonment and a $15,000 fine; and the remaining counts against him, including possession of marihuana with intent to distribute, *776 were dismissed without prejudice to the Government's right to prosecute him on any other offenses he may have committed. Approximately two months after his guilty plea in Washington, Garrett was indicted in the Northern District of Florida for conspiring to import marihuana, 21 U.S. C. 952, 960, 963, conspiring to possess marihuana with intent to distribute, 21 U.S. C. 841, 846, using a telephone to facilitate illegal drug activities, 21 U.S. C. 963, 846, 843(b), and engaging in a continuing criminal enterprise, 21 U.S. C. 848. The District Court denied Garrett's pretrial motion to dismiss the CCE charge, made on the ground that it encompassed the Washington importation operation in violation of the Double Jeopardy Clause. In the Florida trial, the Government introduced extensive evidence of Garrett's ongoing and widespread drug activities, including proof of the marihuana |
Justice Rehnquist | 1,985 | 19 | majority | Garrett v. United States | https://www.courtlistener.com/opinion/111440/garrett-v-united-states/ | ongoing and widespread drug activities, including proof of the marihuana smuggling operation at Neah Bay, Washington. The court instructed the jury on the CCE count that it had to find beyond a reasonable doubt that Garrett had committed "a felony under Title 21 of the United State Code" that "was a part of a continuing series of violations," defined to be "three or more successive violations of Title 21 over a definite period of time with a single or substantially similar purpose." The court further instructed the jury that it had to find that Garrett acted "in concert with five or more other persons," that with respect to them Garrett occupied "a position of organizer, supervisor, or any position of management," and that he "received substantial income from this operation." As to the predicate violations making up the "series," the court instructed the jury that in addition to the offenses charged as substantive counts in the Florida indictment, the felony offenses of possession of marihuana with intent to distribute it, distribution of marihuana, and importation of marihuana would qualify as predicate offenses. 14 Record 16-20. The Washington evidence, as *777 well as other evidence introduced in the Florida trial, tended to prove these latter three offenses. The jury convicted Garrett on the CCE count, the two conspiracy counts, and the telephone facilitation count. He received consecutive prison terms totaling 14 years and a $45,000 fine on the latter three counts, and 40 years' imprisonment and a $100,000 fine on the CCE count. The CCE prison term was made concurrent with the prison terms on the other counts, but consecutive to the prison term from the Washington conviction. The CCE fine was in addition to the fine on the other counts and the Washington fine. On appeal, the Court of Appeals for the Eleventh Circuit rejected Garrett's contention that his conviction in Washington for importing marihuana barred the subsequent prosecution in Florida for engaging in a continuing criminal enterprise. The court held that the Washington importation offense and the CCE offense were not the same under the Double Jeopardy Clause; hence successive prosecutions and cumulative sentences for these offenses were permissible. We granted certiorari to consider this question. I This case presents two of the three aspects of the Double Jeopardy Clause identified in North : protection against a second prosecution for the Washington importation conviction; and protection against multiple punishments for that conviction. Garrett focuses primarily on the former protection, which we address first. The heart of Garrett's argument entails two steps: First, notwithstanding CCE is a separate substantive offense |
Justice Rehnquist | 1,985 | 19 | majority | Garrett v. United States | https://www.courtlistener.com/opinion/111440/garrett-v-united-states/ | two steps: First, notwithstanding CCE is a separate substantive offense and not a conspiracy offense because it requires completion of the criminal objective and not merely an agreement. *778 Thus CCE is not distinct from its underlying predicates in the way that conspiracy is a distinct offense from the completed object of the conspiracy. Cf. Second, applying the test of each of the predicate offenses is the "same" for double jeopardy purposes as the CCE offense because the predicate offense does not require proof of any fact not necessary to the CCE offense. Because the latter requires proof of additional facts, including concerted activity with five other persons, a supervisory role, and substantial income, the predicates are lesser included offenses of the CCE provision. The relationship is the same, Garrett argues, as the relationship between the joyriding and auto theft statutes involved in and thus a subsequent prosecution for the greater CCE offense is barred by the earlier conviction of the lesser marihuana importation offense. Where the same conduct violates two statutory provisions, the first step in the double jeopardy analysis is to determine whether the legislature in this case Congress intended that each violation be a separate offense. If Congress intended that there be only one offense that is, a defendant could be convicted under either statutory provision for a single act, but not under both there would be no statutory authorization for a subsequent prosecution after conviction of one of the two provisions, and that would end the double jeopardy analysis. Cf. This question of legislative intent arose in Blockburger in the context of multiple punishments imposed in a single prosecution. Based on one drug sale, Blockburger was convicted of both selling a drug not in the original stamped package and selling it not in pursuance of a written order of the purchaser. The sale violated two separate statutory provisions, and the question was whether "the accused committed two offenses or only one." -304. The rule stated in Blockburger was applied as a rule of statutory construction to *779 help determine legislative intent. Significantly, after setting out the rule, the Court cited a paragraph in at which included the following statement: "There is nothing in the Constitution which prevents Congress from punishing separately each step leading to the consummation of a transaction which it has power to prohibit and punishing also the completed transaction" (emphasis added). We have recently indicated that the Blockburger rule is not controlling when the legislative intent is clear from the face of the statute or the legislative history. ; |
Justice Rehnquist | 1,985 | 19 | majority | Garrett v. United States | https://www.courtlistener.com/opinion/111440/garrett-v-united-states/ | the face of the statute or the legislative history. ; ; Indeed, it would be difficult to contend otherwise without converting what is essentially a factual inquiry as to legislative intent into a conclusive presumption of law. In the present case the application of the Blockburger rule as a conclusive determinant of legislative intent, rather than as a useful canon of statutory construction, would lead to the conclusion urged by Garrett: that Congress intended the conduct at issue to be punishable either as a predicate offense, or as a CCE offense, but not both. The language, structure, and legislative history of the Comprehensive Drug Abuse, Prevention and Control Act of 1970, however, show in the plainest way that Congress intended the CCE provision to be a separate criminal offense which was punishable in addition to, and not as a substitute for, the predicate offenses. Insofar as the question is one of legislative intent, the Blockburger presumption must of course yield to a plainly expressed contrary view on the part of Congress. The language of 21 U.S. C. 848, which is set out in full in the margin,[1] affirmatively states an offense for which punishment will be imposed. It begins: *780 "Any person who engages in a continuing criminal enterprise shall be sentenced to a term of imprisonment which may not be less than 10 years and which may be *781 up to life imprisonment, to a fine of not more than $100,000, and to the forfeiture prescribed in paragraph (2)." 848(a)(1). At this point there is no reference to other statutory offenses, and a separate penalty is set out, rather than a multiplier of the penalty established for some other offense. This same paragraph then incorporates its own recidivist provision, providing for twice the penalty for repeat violators of this section. Significantly the language expressly refers to "one or more prior convictions under this section." Next, subparagraph (2), which sets out various forfeiture provisions, also refers to any person "who is convicted under paragraph (1) of engaging in a continuing criminal enterprise," again suggesting that 848 is a distinct offense for which one is separately convicted. Subsection (b) of 848 defines the conduct that constitutes being "engaged in a continuing criminal enterprise": "(1) he violates any provision of this subchapter or subchapter II of this chapter [establishing various drug offenses] the punishment for which is a felony, and "(2) such violation is a part of a continuing series of violations of this subchapter or subchapter II of this chapter "(A) which are undertaken by such person in concert with |
Justice Rehnquist | 1,985 | 19 | majority | Garrett v. United States | https://www.courtlistener.com/opinion/111440/garrett-v-united-states/ | "(A) which are undertaken by such person in concert with five or more other persons with respect to whom such person occupies a position of organizer, a supervisory position, or any other position of management, and "(B) from which such person obtains substantial income or resources." A common-sense reading of this definition reveals a carefully crafted prohibition aimed at a special problem. This language is designed to reach the "top brass" in the drug rings, not the lieutenants and foot soldiers. The definition of a continuing criminal enterprise is not drafted in the way that a recidivist provision would be *782 drafted. Indeed 848(a)(1), as already noted, contains language that is typical of that sort of provision. Moreover, the very next section of the statute entitled "Dangerous Special Drug Offender Sentencing" is a recidivist provision. It is drafted in starkly contrasting language which plainly is not intended to create a separate offense. For example, it provides for a special hearing before the court sitting without a jury to consider the evidence of prior offenses, and the determination that a defendant is a dangerous special drug offender is made on a preponderance of the information by the court. See 21 U.S. C. 849. This conclusion as to Congress' intent is fortified by the legislative history. H. R. 18583 is the bill that was enacted to become the Comprehensive Drug Abuse Prevention and Control Act of 1970. In its section-by-section analysis, the House Committee Report states: "Section 408(a) [21 U.S. C. 848(a)] provides that any person who engages in a continuing criminal enterprise shall upon conviction for that offense be sentenced to a term of imprisonment for not less than 10 years and up to life If the person engages in this activity subsequent to one or more convictions under this section, he shall receive a penalty of not less than 20 years' imprisonment." H. R. Rep. No. 91-1444, pt. 1, p. 50 (1970) (emphasis added). The intent to create a separate offense could hardly be clearer. As originally introduced in the House, H. R. 18583 had a section entitled "Continuing Criminal Enterprises" which in reality was a recidivist provision, like the current 21 U.S. C. 849, that provided for enhanced sentences for "a special offender," who "committed [a drug] felony as part of a pattern of conduct which was criminal under applicable laws of any jurisdiction, which constituted a substantial source of his income, and in which he manifested special skill or expertise." The House Committee substituted for this provision *783 an amendment offered by Representative Dingell that ultimately became the |
Justice Rehnquist | 1,985 | 19 | majority | Garrett v. United States | https://www.courtlistener.com/opinion/111440/garrett-v-united-states/ | an amendment offered by Representative Dingell that ultimately became the current 848. "Instead of providing a post-conviction-presentencing procedure, [the Dingell amendment] made engagement in a continuing criminal enterprise a new and distinct offense with all its elements triable in court." H. R. Rep. No. 91-1444, pt. 1, pp. 83-84 (1970) (additional views); see 6 Cong. Rec. 33302 (1970) (remarks of Rep. Eckhardt). During consideration of the bill by the full House, Representative Poff offered an amendment which would restore the recidivist provision to the bill in addition to the Dingell provision. Explaining the differences between the two approaches, Representative Eckhardt stated: "[T]he Dingell amendment created a new offense which would have to be triable in all its parts by admissible evidence brought before the court, whereas the postconviction presentence [procedure] of the original bill similar to the Poff provisions provided that some report upon which sentence would be based would be available to the judge, cross-examination would be available of those who presented the report, but not of those who may have contributed to it." Later in the debate, Representative Poff explained his proposed amendment further: "Mr. Chairman, the most dangerous criminal in the criminal drug field is the organized crime offender, the habitual offender, the professional criminal. "Mr. Chairman, we need special penalties in my opinion for these special criminals. Constitutional scholars have suggested two approaches to deal with such offenders. The first is the creation of a separate crime with separate penalties. The second approach is the imposition of longer sentences upon those convicted first of the basic crime and then shown to be dangerous offenders. "Mr. Chairman, the first approach, the separate crime approach, is the approach taken by section 408 of the *784 Committee bill [21 U.S. C. 848]. The second is found in the amendment which I have just offered which adds two new sections to the bill, sections 409 and 410 [21 U.S. C. 849 and 850]." The distinction between the two approaches was emphasized in the continuing debate. For example, Representative Eckhardt stated: "Under the Dingell amendment, if you are going to prove a man guilty, you have to come into court and prove every element of the continuing criminal offense." Representative Poff concurred in this characterization of the CCE provision "which embodies a new separate criminal offense with a separate criminal penalty." Representative Poff distinguished this approach from his proposed amendment which "authorizes the judge to impose the extended sentence upon the defendant in the dock who has already been found guilty by the jury of the basic charge." The Poff amendment |
Justice Rehnquist | 1,985 | 19 | majority | Garrett v. United States | https://www.courtlistener.com/opinion/111440/garrett-v-united-states/ | by the jury of the basic charge." The Poff amendment was adopted, and both approaches are contained in the statute, 21 U.S. C. 848, 849, and 850. In view of this legislative history, it is indisputable that Congress intended to create a separate CCE offense. One could still argue, however, that having created the separate offense, Congress intended it, where applicable, to be a substitute for the predicate offenses. Nowhere in the legislative history is it stated that a big-time drug operator could be prosecuted and convicted for the separate predicate offenses as well as the CCE offense. The absence of such a statement, however, is not surprising; given the motivation behind the legislation and the temper of the debate, such a statement would merely have stated the obvious. Congress was seeking to add a new enforcement tool to the substantive drug offenses already available to prosecutors. During the debate on the Poff amendment, for example, Representative Fascell stated: "I see no reason to treat a drug trafficker any less harshly than an organized crime racketeer. Their acts are equally heinous, the consequences equally severe, *785 and their punishment equally justified." Representative Weicker stated: "The penalty structure has been designed to accommodate all types of drug offenders, from the casual drug user and experimenter to the organized crime syndicates engaged in unlawful transportation and distribution of illicit drugs." He continued, "This bill goes further in providing those persons charged with enforcing it a wide variety of enforcement tools which will enable them to more effectively combat the illicit drug trafficker and meet the increased demands we have imposed on them." Representative Taft stated: "[T]his amendment will do much at least to help a coordinated attack on the organized crime problem within the purview of this legislation. Hopefully, we will see other legislation coming along broadening the attack on the crime syndicates even further." 6 Cong. Rec. 33630-33631 (1970). It runs counter to common sense to infer from comments such as these, which pervade the entire debate and which stand unrebutted, that Congress intended to substitute the CCE offense for the underlying predicate offenses in the case of a big-time drug dealer rather than to permit prosecution for CCE in addition to prosecution for the predicate offenses. Finally, it would be illogical for Congress to intend that a choice be made between the predicate offenses and the CCE offense in pursuing major drug dealers. While in the instant case Garrett claims that the Government was aware of the possibility of bringing the CCE charge before he was indicted on the Washington |
Justice Rehnquist | 1,985 | 19 | majority | Garrett v. United States | https://www.courtlistener.com/opinion/111440/garrett-v-united-states/ | the CCE charge before he was indicted on the Washington offenses, in many cases the Government would catch a drug dealer for one offense before it was aware of or had the evidence to make a case for other drug offenses he had committed or in the future would commit. The Government would then be forced to choose between prosecuting the dealer on the offense of which it could prove him guilty or releasing him with the idea that he would continue his drug-dealing activities so that the Government might catch him twice more and then be able to prosecute him on the CCE *786 offense. Such a situation is absurd and clearly not what Congress intended. II Having determined that Congress intended CCE to be a separate offense and that it intended to permit prosecution for both the predicate offenses and the CCE offense, we must now determine whether prosecution for a CCE offense after an earlier prosecution for a predicate offense is constitutional under the Double Jeopardy Clause of the Fifth Amendment. The Double Jeopardy Clause provides: "[N]or shall any person be subject for the same offence to be twice put in jeopardy of life or limb." The critical inquiry is whether a CCE offense is considered the "same offense" as one or more of its predicate offenses within the meaning of the Double Jeopardy Clause. Quite obviously the CCE offense is not, in any commonsense or literal meaning of the term, the "same" offense as one of the predicate offenses. The CCE offense requires the jury to find that the defendant committed a predicate offense, and in addition that the predicate offense was part of a continuing series of predicate offenses undertaken by the defendant in concert with five or more other persons, that the defendant occupied the position of an organizer or manager, and that the defendant obtained substantial income or resources from the continuing series of violations. In order to properly analyze the successive prosecution issue, we must examine not only the statute which Congress has enacted, but also the charges which form the basis of the Government's prosecution here. Petitioner pleaded guilty in the Western District of Washington in May 1981 to a count charging importation of 12,000 pounds of marihuana at Neah Bay, Washington, on August 26, 1980. He was indicted in the Northern District of Florida in July 1981, on charges of conspiring to import "multi-ton quantities of marihuana and marihuana `Thai sticks' " from January 1976 to July 16, 1981; *787 of conspiring to possess with intent to distribute marihuana over |
Justice Rehnquist | 1,985 | 19 | majority | Garrett v. United States | https://www.courtlistener.com/opinion/111440/garrett-v-united-states/ | of conspiring to possess with intent to distribute marihuana over the same period of time; and of engaging in a continuing criminal enterprise over the same period of time. Thus at the very moment he made his motion to require "consolidation" of all the charges against him in the Western District of Washington, he was engaging in criminal conduct of which he was later found guilty by a jury in the Northern District of Florida. Petitioner contends that the marihuana importation charge to which he pleaded guilty in Washington was a "lesser included offense" of the CCE offense of which he was convicted in Florida. He points out that evidence of the Washington offense was introduced at the Florida trial, and that the jury was permitted to find that the Washington violation was one of the "predicate offenses" for the CCE charge in Florida. He relies on for his conclusion that the use of the Washington offense as an element of the Florida charge placed him twice in jeopardy in violation of the Fifth Amendment to the United Constitution. held that, where the misdemeanor of joyriding was a lesser included offense in the felony of auto theft, a prosecution for the misdemeanor barred a second prosecution for the felony. We think there is a good deal of difference between the classic relation of the "lesser included offense" to the greater offense presented in Brown, on the one hand, and the relationship between the Washington marihuana offense and the CCE charge involved in this case, on the other, The defendant in Brown had stolen an automobile and driven it for several days. He had engaged in a single course of conduct driving a stolen car. The very same conduct would support a misdemeanor prosecution for joyriding or a felony prosecution for auto theft, depending only on the defendant's state of mind while he engaged in the conduct in question. Every moment of his conduct was as relevant to the joyriding charge as it was to the auto theft charge. *788 In the case before us the situation is quite different. The count in the Washington indictment to which Garrett pleaded guilty charged importation of 12,000 pounds of marihuana at Neah Bay on August 26, 1980. The Washington indictment was returned on March 17, 1981, and a guilty plea entered on May 18, 1981. Two other counts of the indictment, including causing interstate travel to facilitate importation of marihuana on or about October 24, 1979, were dismissed without prejudice to the Government's right subsequently to prosecute any other offense Garrett may |
Justice Rehnquist | 1,985 | 19 | majority | Garrett v. United States | https://www.courtlistener.com/opinion/111440/garrett-v-united-states/ | Government's right subsequently to prosecute any other offense Garrett may have committed. The CCE indictment returned against Garrett in Florida was returned on July 16, 1981. It charged that he had, from January 1976, "up to and including [July 16, 1981]," conspired in that district and "divers other districts" to import multiton quantities of marihuana and marihuana "Thai sticks" in violation of applicable federal law. Another count charged conspiracy to possess with intent to distribute marihuana over the same period of more than five years. A third count of the Florida indictment charged that Garrett had engaged in the Northern District of Florida and in "divers other districts" in a continuing criminal enterprise over the same 51/2-year period. Obviously the conduct in which Garrett was charged with engaging in the Florida indictment, when compared with that with which he was charged in the Washington indictment, does not lend itself to the simple analogy of a single course of conduct stealing a car comprising a lesser included misdemeanor within a felony. Here the continuing criminal enterprise was alleged to have spanned more than five years; the acts charged in the Washington indictment were alleged to have occurred on single days in 1979 and 1980, respectively. Whenever it was during the 5 1/2-year period alleged in the indictment that Garrett committed the first of the three predicate offenses required to form the basis for a CCE prosecution, it could not then have been said with any certainty that he would necessarily go ahead and commit the *789 other violations required to render him liable on a CCE charge. Every minute that Nathaniel Brown drove or possessed the stolen automobile he was simultaneously committing both the lesser included misdemeanor and the greater felony, but the same simply is not true of Garrett. His various boatload smuggling operations in Louisiana, for example, obviously involved incidents of conduct wholly separate from his "mother boat" operations in Washington. These significant differences caution against ready transposition of the "lesser included offense" principles of double jeopardy from the classically simple situation presented in Brown to the multilayered conduct, both as to time and to place, involved in this case. Were we to sustain Garrett's claim, the Government would have been able to proceed against him in either one of only two ways. It would have to have withheld the Washington charges, alleging crimes committed in October 1979 and August 1980, from the grand jury which indicted Garrett in March 1981, until it was prepared to present to a grand jury the CCE charge which was alleged |
Justice Rehnquist | 1,985 | 19 | majority | Garrett v. United States | https://www.courtlistener.com/opinion/111440/garrett-v-united-states/ | to a grand jury the CCE charge which was alleged to have been, and found by a jury to be, continuing on each of those dates; or it would have to have submitted the CCE charge to the Washington grand jury in March 1981, even though the indictment ultimately returned against Garrett on that charge alleged that the enterprise had continued until July 1981.[2] We do not *790 think that the Double Jeopardy Clause may be employed to force the Government's hand in this manner, however we were to resolve Garrett's lesser-included-offense argument. One who insists that the music stop and the piper be paid at a particular point must at least have stopped dancing himself before he may seek such an accounting. Petitioner urges that "[w]here the charges arise from a single criminal act, occurrence, episode, or transaction, they must be tried in a single proceeding." We have steadfastly refused to adopt the "single transaction" view of the Double Jeopardy Clause. But it would seem to strain even that doctrine to describe Garrett's multifarious multistate activities as a "single transaction." For the reasons previously stated, we also have serious doubts as to whether the offense to which Garrett pleaded guilty in Washington was a "lesser included offense" within the CCE charge so that the prosecution of the former would bar a prosecution of the latter. But we may assume, for purposes of decision here, that the Washington offense was a lesser included offense, because in our view Garrett's claim of double jeopardy would still not be sustainable. *791 In the Court had before it an initial prosecution for assault and battery, followed by a prosecution for homicide when the victim eventually died from injuries inflicted in the course of the assault. The Court rejected the defendant's claim of double jeopardy, holding that the two were not the "same offense": "The homicide charged against the accused in the Court of First Instance and the assault and battery for which he was tried before the justice of the peace, although identical in some of their elements, were distinct offenses both in law and in fact. The death of the injured person was the principal element of the homicide, but was no part of the assault and battery. At the time of the trial for the latter the death had not ensued, and not until it did ensue was the homicide committed. Then, and not before, was it possible to put the accused in jeopardy for that offense." In the present case, as in Diaz, the continuing criminal enterprise charged against Garrett |
Justice Rehnquist | 1,985 | 19 | majority | Garrett v. United States | https://www.courtlistener.com/opinion/111440/garrett-v-united-states/ | as in Diaz, the continuing criminal enterprise charged against Garrett in Florida had not been completed at the time that he was indicted in Washington. The latter event took place in March 1981, whereas the continuing criminal enterprise charged in the Florida indictment and found by the trial jury extended from January 1976 to July 1981. The evidence at trial showed, for example, that Garrett was arrested for traffic offenses and other violations on July 23, 1981, while out on bail pending sentencing for the Washington conviction. He told the arresting officer that the officer had caught "somebody big" and that he was a "smuggler." At the time of the arrest, Garrett was carrying $6,253 in cash. About $30 of this was in quarters. He explained that he needed them to make long-distance phone calls, on which he sometimes spent $25 to $50 a day. He also told the arresting officer and a federal agent who interviewed him the next morning that he had just bought the truck he *792 had been driving for $13,000 cash and that he used it for smuggling. He further stated that he had a yacht in Hawaii which he had purchased for $160,000 cash. This evidence is consistent with the jury's verdict that Garrett continued his CCE activities into July 1981. We think this evidence not only permits but requires the conclusion that the CCE charged in Florida, alleged to have begun in January 1976, and continued up to mid-July 1981, was under Diaz a different offense from that charged in the Washington indictment. We cannot tell, without considerable sifting of the evidence and speculating as to what juries might do, whether the Government could in March 1981 have successfully indicted and prosecuted Garrett for a different continuing criminal enterprise one ending in March 1981. But we do not think any such sifting or speculation is required at the behest of one who at the time the first indictment is returned is continuing to engage in other conduct found criminal by the jury which tried the second indictment. It may well be, as JUSTICE STEVENS suggests in his dissenting opinion, that the Florida indictment did not by its terms indicate that the Neah Bay importation would be used as evidence to support it, post, at 804-805, and therefore at the time the pretrial motion to dismiss on double jeopardy grounds was made the District Court in Florida could not have rendered an informed decision on petitioner's motion. But there can be no doubt that by the time the evidence had all been presented |
Justice Rehnquist | 1,985 | 19 | majority | Garrett v. United States | https://www.courtlistener.com/opinion/111440/garrett-v-united-states/ | that by the time the evidence had all been presented in the Florida trial, and the jury was charged, only one reasonable conclusion could be drawn by the District Court: the Government's evidence with respect to the CCE charge included acts which took place after March 1981, the date of the Washington indictment, and up to and including July 1981. Therefore, the continuing criminal enterprise charged by the Government had not been completed at the time the Washington indictment was returned, and under the Diaz rule evidence of the Neah *793 Bay importation might be used to show one of the predicate offenses.[3] Having concluded that Congress intended CCE to be a separate offense and that it does not violate the Double Jeopardy Clause under the facts of this case to prosecute the CCE offense after a prior conviction for one of the predicate offenses, the only remaining issue is whether the Double Jeopardy Clause bars cumulative punishments. Garrett's sentence on the CCE conviction was consecutive to his sentence on the Washington conviction. In this connection, "the Double Jeopardy Clause does no more than prevent the sentencing court from prescribing greater punishment than the legislature intended." ; As discussed above, Congress intended to create a separate offense. The presumption when Congress creates two distinct offenses is that it intends to permit cumulative sentences, and legislative silence on this specific issue does not establish an ambiguity or rebut this presumption: "[T]he defendants] read much into nothing. Congress cannot be expected to specifically address each issue of statutory construction which may arise. But, as we have previously noted, Congress is `predominantly a lawyer's body,' and it is appropriate for us `to assume that our elected representatives know the law.' As a result if anything is to be assumed from the congressional silence on this point, it is that Congress was aware of the Blockburger rule and legislated with it in mind. It is not a function of this Court to presume that *794 `Congress was unaware of what it accomplished.' " Here, of course, Congress was not silent as to its intent to create separate offenses notwithstanding Blockburger, and we can assume it was aware that doing so would authorize cumulative punishments absent some indication of contrary intent. Moreover, disallowing cumulative sentences would have the anomalous effect in many cases of converting the large fines provided by 848 into ceilings. Congress established the large fines in 848 in an effort to deprive big-time drug dealers of some of their enormous profits, which often cannot be traced directly to their crimes for forfeiture |
Justice Rehnquist | 1,985 | 19 | majority | Garrett v. United States | https://www.courtlistener.com/opinion/111440/garrett-v-united-states/ | often cannot be traced directly to their crimes for forfeiture purposes. The fines for a three-time offender who has been previously convicted of a drug felony could amount to $150,000 for the predicate offenses standing alone an amount that exceeds the ceiling for a first-time CCE fine. Compare 841(b)(1)(A) with 848(a)(1). Congress was bent on depriving the big-time drug dealer of his profits; it is doubtful that Congress intended to force an election of a lower maximum fine in such a situation in order to attempt to obtain the life imprisonment penalty available under the CCE provision. In -157, a plurality of this Court stated that 848 "reflects a comprehensive penalty structure that leaves little opportunity for pyramiding of penalties from other sections of the Comprehensive Drug Abuse Prevention and Control Act of 1970." The focus of the analysis in Jeffers was the permissibility of cumulative punishments for conspiracy under 846 and for CCE under 848, and the plurality reasonably concluded that the dangers posed by a conspiracy and a CCE were similar and thus there would be little purpose in cumulating the penalties. The same is not true of the substantive offenses created by the Act and conspiracy, and by the same logic, it is not true of the substantive offenses and CCE. We have been required in the present case, as we were not in Jeffers, to consider the relationship between substantive predicate offenses and a *795 CCE. We think here logic supports the conclusion, also indicated by the legislative history, that Congress intended separate punishments for the underlying substantive predicates and for the CCE offense. Congress may, of course, so provide if it wishes. The judgment of the Court of Appeals is affirmed. It is so ordered. JUSTICE POWELL took no part in the decision of this case. |
Justice Stevens | 2,001 | 16 | majority | Ferguson v. Charleston | https://www.courtlistener.com/opinion/118414/ferguson-v-charleston/ | In this case, we must decide whether a state hospital's performance of a diagnostic test to obtain evidence of a patient's criminal conduct for law enforcement purposes is an *70 unreasonable search if the patient has not consented to the procedure. More narrowly, the question is whether the interest in using the threat of criminal sanctions to deter pregnant women from using cocaine can justify a departure from the general rule that an official nonconsensual search is unconstitutional if not authorized by a valid warrant. I In the fall of 1988, staff members at the public hospital operated in the city of Charleston by the Medical University of South Carolina (MUSC) became concerned about an apparent increase in the use of cocaine by patients who were receiving prenatal treatment.[1] In response to this perceived increase, as of April 1989, MUSC began to order drug screens to be performed on urine samples from maternity patients who were suspected of using cocaine. If a patient tested positive, she was then referred by MUSC staff to the county substance abuse commission for counseling and treatment. However, despite the referrals, the incidence of cocaine use among the patients at MUSC did not appear to change. Some four months later, Nurse Shirley Brown, the case manager for the MUSC obstetrics department, heard a news broadcast reporting that the police in Greenville, South Carolina, were arresting pregnant users of cocaine on the theory that such use harmed the fetus and was therefore child abuse.[2] Nurse Brown discussed the story with MUSC's general counsel, Joseph C. Good, Jr., who then contacted *71 Charleston Solicitor Charles Condon in order to offer MUSC's cooperation in prosecuting mothers whose children tested positive for drugs at birth.[3] After receiving Good's letter, Solicitor Condon took the first steps in developing the policy at issue in this case. He organized the initial meetings, decided who would participate, and issued the invitations, in which he described his plan to prosecute women who tested positive for cocaine while pregnant. The task force that Condon formed included representatives of MUSC, the police, the County Substance Abuse Commission and the Department of Social Services. Their deliberations led to MUSC's adoption of a 12-page document entitled "POLICY M-7," dealing with the subject of "Management of Drug Abuse During Pregnancy." App. to Pet. for Cert. A-53. The first three pages of Policy M-7 set forth the procedure to be followed by the hospital staff to "identify/assist pregnant patients suspected of drug abuse." at A-53 to A-56. The first section, entitled the "Identification of Drug Abusers," provided that a patient |
Justice Stevens | 2,001 | 16 | majority | Ferguson v. Charleston | https://www.courtlistener.com/opinion/118414/ferguson-v-charleston/ | entitled the "Identification of Drug Abusers," provided that a patient should be tested for cocaine through a urine drug screen if she met one or more of nine criteria.[4] It also stated that a chain of custody should *72 be followed when obtaining and testing urine samples, presumably to make sure that the results could be used in subsequent criminal proceedings. The policy also provided for education and referral to a substance abuse clinic for patients who tested positive. Most important, it added the threat of law enforcement intervention that "provided the necessary `leverage' to make the [p]olicy effective." Brief for Respondents 8. That threat was, as respondents candidly acknowledge, essential to the program's success in getting women into treatment and keeping them there. The threat of law enforcement involvement was set forth in two protocols, the first dealing with the identification of drug use during pregnancy, and the second with identification of drug use after labor. Under the latter protocol, the police were to be notified without delay and the patient promptly arrested. Under the former, after the initial positive drug test, the police were to be notified (and the patient arrested) only if the patient tested positive for cocaine a second time or if she missed an appointment with a substance abuse counselor.[5] In 1990, however, the policy was modified at the behest of the solicitor's office to give the patient who tested positive during labor, like the patient who tested positive during a prenatal care visit, an opportunity to avoid arrest by consenting to substance abuse treatment. The last six pages of the policy contained forms for the patients to sign, as well as procedures for the police to follow when a patient was arrested. The policy also prescribed in detail the precise offenses with which a woman could be charged, depending on the stage of her pregnancy. If the pregnancy was 27 weeks or less, the patient was to be charged with simple possession. If it was 28 weeks or more, she was to be charged with possession and distribution to a person under the age of 18in this case, the fetus. If she *73 delivered "while testing positive for illegal drugs," she was also to be charged with unlawful neglect of a child. App. to Pet. for Cert. A-62. Under the policy, the police were instructed to interrogate the arrestee in order "to ascertain the identity of the subject who provided illegal drugs to the suspect." at A-63. Other than the provisions describing the substance abuse treatment to be offered to women who tested positive, |
Justice Stevens | 2,001 | 16 | majority | Ferguson v. Charleston | https://www.courtlistener.com/opinion/118414/ferguson-v-charleston/ | abuse treatment to be offered to women who tested positive, the policy made no mention of any change in the prenatal care of such patients, nor did it prescribe any special treatment for the newborns. II Petitioners are 10 women who received obstetrical care at MUSC and who were arrested after testing positive for cocaine. Four of them were arrested during the initial implementation of the policy; they were not offered the opportunity to receive drug treatment as an alternative to arrest. The others were arrested after the policy was modified in 1990; they either failed to comply with the terms of the drug treatment program or tested positive for a second time. Respondents include the city of Charleston, law enforcement officials who helped develop and enforce the policy, and representatives of MUSC. Petitioners' complaint challenged the validity of the policy under various theories, including the claim that warrantless and nonconsensual drug tests conducted for criminal investigatory purposes were unconstitutional searches. Respondents advanced two principal defenses to the constitutional claim: (1) that, as a matter of fact, petitioners had consented to the searches; and (2) that, as a matter of law, the searches were reasonable, even absent consent, because they were justified by special non-law-enforcement purposes. The District Court rejected the second defense because the searches in question "were not done by the medical university for independent purposes. [Instead,] the police came in and there was an agreement reached that the positive *74 screens would be shared with the police." App. 1248-1249. Accordingly, the District Court submitted the factual defense to the jury with instructions that required a verdict in favor of petitioners unless the jury found consent.[6] The jury found for respondents. Petitioners appealed, arguing that the evidence was not sufficient to support the jury's consent finding. The Court of Appeals for the Fourth Circuit affirmed, but without reaching the question of consent. Disagreeing with the District Court, the majority of the appellate panel held that the searches were reasonable as a matter of law under our line of cases recognizing that "special needs" may, in certain exceptional circumstances, justify a search policy designed to serve non-law-enforcement ends.[7]*75 On the understanding "that MUSC personnel conducted the urine drug screens for medical purposes wholly independent of an intent to aid law enforcement efforts,"[8] at 477, the majority applied the balancing test used in Treasury and Vernonia School Dist. and concluded that the interest in curtailing the pregnancy complications and medical costs associated with maternal cocaine use outweighed what the majority termed a minimal intrusion on the privacy of the patients. |
Justice Stevens | 2,001 | 16 | majority | Ferguson v. Charleston | https://www.courtlistener.com/opinion/118414/ferguson-v-charleston/ | termed a minimal intrusion on the privacy of the patients. In dissent, Judge Blake concluded that the "special needs" doctrine should not apply and *76 that the evidence of consent was insufficient to sustain the jury's verdict. -488. We granted certiorari, to review the appellate court's holding on the "special needs" issue. Because we do not reach the question of the sufficiency of the evidence with respect to consent, we necessarily assume for purposes of our decisionas did the Court of Appealsthat the searches were conducted without the informed consent of the patients. We conclude that the judgment should be reversed and the case remanded for a decision on the consent issue. III Because MUSC is a state hospital, the members of its staff are government actors, subject to the strictures of the Fourth Amendment. New Moreover, the urine tests conducted by those staff members were indisputably searches within the meaning of the Fourth Amendment.[9] Neither the District Court nor the Court of Appeals concluded that any of the nine criteria used to identify the women to be searched provided either probable cause to believe that they were using cocaine, or even the basis for a reasonable suspicion of such use. Rather, the District Court and the Court of Appeals viewed the case as one involving MUSC's right *77 to conduct searches without warrants or probable cause.[10] Furthermore, given the posture in which the case comes to us, we must assume for purposes of our decision that the tests were performed without the informed consent of the patients.[11] Because the hospital seeks to justify its authority to conduct drug tests and to turn the results over to law enforcement agents without the knowledge or consent of the patients, this case differs from the four previous cases in which we have considered whether comparable drug tests "fit within the closely guarded category of constitutionally permissible suspicionless searches." In three of those cases, we sustained drug tests for railway employees involved in train accidents, for United States Customs Service employees seeking promotion to certain sensitive positions, Treasury and for high school students participating in interscholastic sports, Vernonia School Dist. In the fourth case, we struck down such testing for candidates for designated state offices as unreasonable. *78 In each of those cases, we employed a balancing test that weighed the intrusion on the individual's interest in privacy against the "special needs" that supported the program. As an initial matter, we note that the invasion of privacy in this case is far more substantial than in those In the previous four cases, there |
Justice Stevens | 2,001 | 16 | majority | Ferguson v. Charleston | https://www.courtlistener.com/opinion/118414/ferguson-v-charleston/ | substantial than in those In the previous four cases, there was no misunderstanding about the purpose of the test or the potential use of the test results, and there were protections against the dissemination of the results to third parties.[12] The use of an adverse test result to disqualify one from eligibility for a particular benefit, such as a promotion or an opportunity to participate in an extracurricular activity, involves a less serious intrusion on privacy than the unauthorized dissemination of such results to third parties. The reasonable expectation of privacy enjoyed by the typical patient undergoing diagnostic tests in a hospital is that the results of those tests will not be shared with nonmedical personnel without her consent. See Brief for American Medical Association as Amicus Curiae 11; Brief for American Public Health Association et al. as Amici Curiae 6, 17-19.[13] In none of our prior cases was there any intrusion upon that kind of expectation.[14] *79 The critical difference between those four drug-testing cases and this one, however, lies in the nature of the "special need" asserted as justification for the warrantless searches. In each of those earlier cases, the "special need" that was advanced as a justification for the absence of a warrant or individualized suspicion was one divorced from the State's general interest in law enforcement.[15] This point was emphasized *80 both in the majority opinions sustaining the programs in the first three cases,[16] as well as in the dissent in the case.[17] In this case, however, the central and indispensable feature of the policy from its inception was the use of law enforcement to coerce the patients into substance abuse treatment. This fact distinguishes this case from circumstances in which physicians or psychologists, in the *81 course of ordinary medical procedures aimed at helping the patient herself, come across information that under rules of law or ethics is subject to reporting requirements, which no one has challenged here. See, e. g., Council on Ethical and Judicial Affairs, American Medical Association, PolicyFinder, Current Opinions E-5.05 (requiring reporting where "a patient threatens to inflict serious bodily harm to another person or to him or herself and there is a reasonable probability that the patient may carry out the threat"); ;[18] Respondents argue in essence that their ultimate purposenamely, protecting the health of both mother and childis a beneficent one. In however, we did not simply accept the State's invocation of a "special need." Instead, we carried out a "close review" of the scheme at issue before concluding that the need in question was not "special," as that |
Justice Stevens | 2,001 | 16 | majority | Ferguson v. Charleston | https://www.courtlistener.com/opinion/118414/ferguson-v-charleston/ | that the need in question was not "special," as that term has been defined in our In this case, a review of the M-7 policy plainly reveals that the purpose actually served by the MUSC searches "is ultimately indistinguishable from the general interest in crime control." In looking to the programmatic purpose, we consider all the available evidence in order to determine the relevant primary purpose. See, e. g., In this case, as *82 Judge Blake put it in her dissent below, "it is clear from the record that an initial and continuing focus of the policy was on the arrest and prosecution of drug-abusing mothers" Tellingly, the document codifying the policy incorporates the police's operational guidelines. It devotes its attention to the chain of custody, the range of possible criminal charges, and the logistics of police notification and arrests. Nowhere, however, does the document discuss different courses of medical treatment for either mother or infant, aside from treatment for the mother's addiction. Moreover, throughout the development and application of the policy, the Charleston prosecutors and police were extensively involved in the day-to-day administration of the policy. Police and prosecutors decided who would receive the reports of positive drug screens and what information would be included with those reports. App. 78-80, 145-146, 1058-1060. Law enforcement officials also helped determine the procedures to be followed when performing the screens.[19] at 1052-1053. See also In the course of the policy's administration, they had access to Nurse Brown's medical files on the women who tested positive, routinely attended the substance abuse team's meetings, and regularly received copies of team documents discussing the women's progress. Police took pains to coordinate the timing and circumstances of the arrests with MUSC staff, and, in particular, Nurse Brown. While the ultimate goal of the program may well have been to get the women in question into substance abuse treatment *83 and off of drugs, the immediate objective of the searches was to generate evidence for law enforcement purposes[20] in order to reach that goal.[21] The threat of law enforcement *84 may ultimately have been intended as a means to an end, but the direct and primary purpose of MUSC's policy was to ensure the use of those means. In our opinion, this distinction is critical. Because law enforcement involvement always serves some broader social purpose or objective, under respondents' view, virtually any nonconsensual suspicionless search could be immunized under the special needs doctrine by defining the search solely in terms of its ultimate, rather than immediate, purpose.[22] Such an approach is inconsistent with the Fourth Amendment. Given |
Justice Stevens | 2,001 | 16 | majority | Ferguson v. Charleston | https://www.courtlistener.com/opinion/118414/ferguson-v-charleston/ | Such an approach is inconsistent with the Fourth Amendment. Given the primary purpose of the Charleston program, which was to use the threat of arrest and prosecution in order to force women into treatment, and given the extensive involvement of law enforcement officials at every stage of the policy, this case simply does not fit within the closely guarded category of "special needs."[23] The fact that positive test results were turned over to the police does not merely provide a basis for distinguishing our prior cases applying the "special needs" balancing approach to the determination of drug use. It also provides an affirmative reason for enforcing the strictures of the Fourth Amendment. While state hospital employees, like other citizens, may have a duty to provide the police with evidence *85 of criminal conduct that they inadvertently acquire in the course of routine treatment, when they undertake to obtain such evidence from their patients for the specific purpose of incriminating those patients, they have a special obligation to make sure that the patients are fully informed about their constitutional rights, as standards of knowing waiver require.[24] Cf. As respondents have repeatedly insisted, their motive was benign rather than punitive. Such a motive, however, cannot justify a departure from Fourth Amendment protections, given the pervasive involvement of law enforcement with the development and application of the MUSC policy. The stark *86 and unique fact that characterizes this case is that Policy M-7 was designed to obtain evidence of criminal conduct by the tested patients that would be turned over to the police and that could be admissible in subsequent criminal prosecutions. While respondents are correct that drug abuse both was and is a serious problem, "the gravity of the threat alone cannot be dispositive of questions concerning what means law enforcement officers may employ to pursue a given purpose." -43. The Fourth Amendment's general prohibition against nonconsensual, warrantless, and suspicionless searches necessarily applies to such a policy. See, e. g., ; Accordingly, the judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. Justice Kennedy, concurring in the judgment. |
Justice White | 1,973 | 6 | majority | Kern County Land Co. v. Occidental Petroleum Corp. | https://www.courtlistener.com/opinion/108776/kern-county-land-co-v-occidental-petroleum-corp/ | Section 16 (b) of the Securities Exchange Act of 1934, 15 U.S. C. 78p (b),[1] provides that officers, *584 directors, and holders of more than 10% of the listed stock of any company shall be liable to the company for any profits realized from any purchase and sale or sale and purchase of such stock occurring within a period of six months. Unquestionably, one or more statutory purchases occur when one company, seeking to gain control of another, acquires more than 10% of the stock of the latter through a tender offer made to its shareholders. But is it a 16 (b) "sale" when the target of the tender offer defends itself by merging into a third company and the tender offeror then exchanges his stock for the stock of the surviving company and also grants an option to purchase the latter stock that is not exercisable within the statutory six-month period? This is the question before us in this case. I On May 8, 1967, after unsuccessfully seeking to merge with Kern County Land (Old Kern),[2] Occidental Petroleum Corp. (Occidental)[3] announced an offer, to expire on June 8, 1967, to purchase on a first-come, first-served basis 500,000 shares of Old Kern common stock[4] at a price of $83.50 per share plus a brokerage *585 commission of $1.50 per share.[5] By May 10, 1967, 500,000 shares, more than 10% of the outstanding shares of Old Kern,[6] had been tendered. On May 11, Occidental extended its offer to encompass an additional 500,000 shares. At the close of the tender offer, on June 8, 1967, Occidental owned 887,549 shares of Old Kern.[7] Immediately upon the announcement of Occidental's tender offer, the Old Kern management undertook to frustrate Occidental's takeover attempt. A management letter to all stockholders cautioned against tender and indicated that Occidental's offer might not be the best available, since the management was engaged in merger discussions with several companies. When Occidental extended its tender offer, the president of Old Kern sent a telegram to all stockholders again advising against tender. In addition, Old Kern undertook merger discussions *586 with Tenneco, Inc. (Tenneco),[8] and, on May 19, 1967, the Board of Directors of Old Kern announced that it had approved a merger proposal advanced by Tenneco.[9] Under the terms of the merger, Tenneco would acquire the assets, property, and goodwill of Old Kern, subject to its liabilities, through "Kern County Land " (New Kern),[10] a new corporation to be formed by Tenneco to receive the assets and carry on the business of Old Kern. The shareholders of Old Kern would receive |
Justice White | 1,973 | 6 | majority | Kern County Land Co. v. Occidental Petroleum Corp. | https://www.courtlistener.com/opinion/108776/kern-county-land-co-v-occidental-petroleum-corp/ | of Old Kern. The shareholders of Old Kern would receive a share of Tenneco cumulative convertible preference stock in exchange for each share of Old Kern common stock which they owned. On the same day, May 19, Occidental, in a quarterly report to stockholders, appraised the value of the new Tenneco stock at $105 per share.[11] *587 Occidental, seeing its tender offer and takeover attempt being blocked by the Old Kern-Tenneco "defensive" merger, countered on May 25 and 31 with two mandamus actions in the California courts seeking to obtain extensive inspection of Old Kern books and records.[12] Realizing that, if the Old Kern-Tenneco merger were approved and successfully closed, Occidental would have to exchange its Old Kern shares for Tenneco stock and would be locked into a minority position in Tenneco, Occidental took other steps to protect itself. Between May 30 and June 2, it negotiated an arrangement with Tenneco whereby Occidental granted Tenneco Corp., a subsidiary of Tenneco, an option to purchase at $105 per share all of the Tenneco preference stock to which Occidental would be entitled in exchange for its Old Kern stock when and if the Old Kern-Tenneco merger was closed.[13] The premium to secure the option, at $10 per share, totaled $8,866,230 and was to be paid immediately upon the signing of the option agreement.[14] If the option were exercised, the premium was to be applied to the purchase price. By the terms of the option agreement, the option could not be exercised prior to December *588 9, 1967, a date six months and one day after expiration of Occidental's tender offer. On June 2, 1967, within six months of the acquisition by Occidental of more than 10% ownership of Old Kern, Occidental and Tenneco Corp. executed the option.[15] Soon thereafter, Occidental announced that it would not oppose the Old Kern-Tenneco merger and dismissed its state court suits against Old Kern.[16] The Old Kern-Tenneco merger plan was presented to and approved by Old Kern shareholders at their meeting on July 17, 1967. Occidental refrained from voting its Old Kern shares, but in a letter read at the meeting Occidental stated that it had determined prior to June 2 not to oppose the merger and that it did not consider the plan unfair or inequitable.[17] Indeed, Occidental indicated that, had it been voting, it would have voted in favor of the merger. Meanwhile, the Securities and Exchange Commission had refused Occidental's request to exempt from possible 16 (b) liability Occidental's exchange of its Old Kern stock for the Tenneco preference shares that would take *589 |
Justice White | 1,973 | 6 | majority | Kern County Land Co. v. Occidental Petroleum Corp. | https://www.courtlistener.com/opinion/108776/kern-county-land-co-v-occidental-petroleum-corp/ | stock for the Tenneco preference shares that would take *589 place when and if the merger transaction were closed. Various Old Kern stockholders, with Occidental's interests in mind, thereupon sought to delay consummation of the merger by instituting various lawsuits in the state and federal courts.[18] These attempts were unsuccessful, however, and preparations for the merger neared completion with an Internal Revenue Service ruling that consummation of the plan would result in a tax-free exchange with no taxable gain or loss to Old Kern shareholders, and with the issuance of the necessary approval of the merger closing by the California Commissioner of Corporations. The Old Kern-Tenneco merger transaction was closed on August 30. Old Kern shareholders thereupon became irrevocably entitled to receive Tenneco preference stock, share for share in exchange for their Old Kern stock. Old Kern was dissolved and all of its assets, including "all claims, demands, rights and chooses in action accrued or to accrue under and by virtue of the Securities Exchange Act of 1934" were transferred to New Kern. The option granted by Occidental on June 2, 1967, was exercised on December 11, 1967. Occidental, not having previously availed itself of its right, exchanged certificates representing 887,549 shares of Old Kern stock for a certificate representing a like number of shares of Tenneco preference stock. The certificate was then endorsed over to the optionee-purchaser, and in return $84,229,185 was credited to Occidental's accounts at various banks. Adding to this amount the $8,886,230 premium paid in June, Occidental received $93,905,415 for its Old Kern stock (including the 1,900 shares acquired prior to issuance of its tender offer). In addition, Occidental received dividends totaling $1,793,439.22. Occidental's *590 total profit was $19,506,419.22 on the shares obtained through its tender offer. On October 17, 1967, New Kern instituted a suit under 16 (b) against Occidental to recover the profits which Occidental had realized as a result of its dealings in Old Kern stock. The complaint alleged that the execution of the Occidental-Tenneco option on June 2, 1967, and the exchange of Old Kern shares for shares of Tenneco to which Occidental became entitled pursuant to the merger closed on August 30, 1967, were both "sales" within the coverage of 16 (b). Since both acts took place within six months of the date on which Occidental became the owner of more than 10% of the stock of Old Kern, New Kern asserted that 16 (b) required surrender of the profits realized by Occidental.[19] New Kern eventually moved for summary judgment, and, on December 27, the District Court granted summary judgment in |
Justice White | 1,973 | 6 | majority | Kern County Land Co. v. Occidental Petroleum Corp. | https://www.courtlistener.com/opinion/108776/kern-county-land-co-v-occidental-petroleum-corp/ | on December 27, the District Court granted summary judgment in favor of New Kern. The District Court held that the execution of the option on June 2, 1967, and the exchange of Old Kern shares for shares of Tenneco on August 30, 1967, were "sales" under 16 (b). The Court ordered Occidental to disgorge its profits plus interest. In a supplemental opinion, Occidental was also ordered to refund the dividends which it had received plus interest. On appeal, the Court of Appeals reversed and ordered summary judgment entered in favor of Occidental. The Court held that neither the option nor the exchange constituted a "sale" within the purview of *591 16 (b).[20] We granted certiorari. We affirm. II Section 16 (b) provides, inter alia, that a statutory insider[21] must surrender to the issuing corporation "any profit realized by him from any purchase and sale, or any sale and purchase, of any equity security[22] of such issuer within any period of less than six months." As specified in its introductory clause, 16 (b) was enacted "[f]or the purpose of preventing the unfair use of information which may have been obtained by [a statutory insider] by reason of his relationship to the issuer." Congress recognized that short-swing speculation by stockholders with advance, inside information would threaten the goal of the Securities Exchange Act to "insure the maintenance of fair and honest markets." *592 15 U.S. C. 78b. Insiders could exploit information not generally available to others to secure quick profits. As we have noted, "the only method Congress deemed effective to curb the evils of insider trading was a flat rule taking the profits out of a class of transactions in which the possibility of abuse was believed to be intolerably great." Reliance Electric As stated in the report of the Senate Committee, the bill aimed at protecting the public "by preventing directors, officers, and principal stockholders of a corporation from speculating in the stock on the basis of information not available to others." S. Rep. No. 792, 73d Cong., 2d Sess., 9 (1934).[23] *593 Although traditional cash-for-stock transactions that result in a purchase and sale or a sale and purchase within the six-month, statutory period are clearly within the purview of 16 (b), the courts have wrestled with the question of inclusion or exclusion of certain "unorthodox" transactions.[24] The statutory definitions of "purchase" *594 and "sale" are broad and, at least arguably, reach many transactions not ordinarily deemed a sale or purchase.[25] In deciding whether borderline transactions are within the reach of the statute, the courts have come to inquire whether |
Justice White | 1,973 | 6 | majority | Kern County Land Co. v. Occidental Petroleum Corp. | https://www.courtlistener.com/opinion/108776/kern-county-land-co-v-occidental-petroleum-corp/ | of the statute, the courts have come to inquire whether the transaction may serve as a vehicle for the evil which Congress sought to preventthe realization of short-swing profits based upon access to inside information[26]thereby endeavoring to implement congressional *595 objectives without extending the reach of the statute beyond its intended limits. The statute requires the inside, short-swing trader to disgorge all profits realized on all "purchases" and "sales" within the specified time period, without proof of actual abuse of insider information, and without proof of intent to profit on the basis of such information. Under these strict terms, the prevailing view is to apply the statute only when its application would serve its goals. "[W]here alternative constructions of the terms of 16 (b) are possible, those terms are to be given the construction that best serves the congressional purpose of curbing short-swing speculation by corporate insiders." Reliance Electric See cert. denied, Thus, "[i]n interpreting the terms `purchase' and `sale,' courts have properly asked whether the particular type of transaction involved is one that gives rise to speculative abuse." Reliance Electric at 424 n. 4.[27] In the present case, it is undisputed that Occidental became a "beneficial owner" within the terms of 16 (b) when, pursuant to its tender offer, it "purchased" more than 10% of the outstanding shares of Old Kern. We must decide, however, whether a "sale" within the ambit of the statute took place either when Occidental became irrevocably bound to exchange its shares of Old Kern for shares of Tenneco pursuant to the terms of the merger agreement between Old Kern and Tenneco or *596 when Occidental gave an option to Tenneco to purchase from Occidental the Tenneco shares so acquired.[28] III On August 30, 1967, the Old Kern-Tenneco merger agreement was signed, and Occidental became irrevocably entitled to exchange its shares of Old Kern stock for shares of Tenneco preference stock. Concededly, the transaction must be viewed as though Occidental had made the exchange on that day. But, even so, did the exchange involve a "sale" of Old Kern shares within the meaning of 16 (b)? We agree with the Court of Appeals that it did not, for we think it totally unrealistic to assume or infer from the facts before us that Occidental either had or was likely to have access to inside information, by reason of its ownership of more than 10% of the outstanding shares of Old Kern, so as to afford it an opportunity to reap speculative, short-swing profits from its disposition within six months of its tender-offer purchases. It cannot |
Justice White | 1,973 | 6 | majority | Kern County Land Co. v. Occidental Petroleum Corp. | https://www.courtlistener.com/opinion/108776/kern-county-land-co-v-occidental-petroleum-corp/ | disposition within six months of its tender-offer purchases. It cannot be contended that Occidental was an insider when, on May 8, 1967, it made an irrevocable offer to purchase 500,000 shares of Old Kern stock at a price substantially above market. At that time, it owned only 1,900 shares of Old Kern stock, far fewer than the 432,000 shares needed to constitute the 10% ownership required by the statute. There is no basis for finding *597 that, at the time the tender offer was commenced, Occidental enjoyed an insider's opportunity to acquire information about Old Kern's affairs. It is also wide of the mark to assert that Occidental, as a sophisticated corporation knowledgeable in matters of corporate affairs and finance, knew that its tender offer would either succeed or would be met with a "defensive merger." If its takeover efforts failed, it is argued, Occidental knew it could sell its stock to the target company's merger partner at a substantial profit. Calculations of this sort, however, whether speculative or not and whether fair or unfair to other stockholders or to Old Kern, do not represent the kind of speculative abuse at which the statute is aimed, for they could not have been based on inside information obtained from substantial stockholdings that did not yet exist. Accepting both that Occidental made this very prediction and that it would recurringly be an accurate forecast in tender-offer situations,[29] we nevertheless fail to perceive how the fruition of such anticipated events would require, or in any way depend upon, the receipt and use of inside information. If there are evils to be redressed by way of deterring those who would make tender offers, *598 16 (b) does not appear to us to have been designed for this task. By May 10, 1967, Occidental had acquired more than 10% of the outstanding shares of Old Kern. It was thus a statutory insider when, on May 11, it extended its tender offer to include another 500,000 shares. We are quite unconvinced, however, that the situation had changed materially with respect to the possibilities of speculative abuse of inside information by Occidental. Perhaps Occidental anticipated that extending its offer would increase the likelihood of the ultimate success of its takeover attempt or the occurrence of a defensive merger. But, again, the expectation of such benefits was unrelated to the use of information unavailable to other stockholders or members of the public with sufficient funds and the intention to make the purchases Occidental had offered to make before June 8, 1967. The possibility that Occidental had, or had |
Justice White | 1,973 | 6 | majority | Kern County Land Co. v. Occidental Petroleum Corp. | https://www.courtlistener.com/opinion/108776/kern-county-land-co-v-occidental-petroleum-corp/ | June 8, 1967. The possibility that Occidental had, or had the opportunity to have, any confidential information about Old Kern before or after May 11, 1967, seems extremely remote. Occidental was, after all, a tender offeror, threatening to seize control of Old Kern, displace its management, and use the company for its own ends. The Old Kern management vigorously and immediately opposed Occidental's efforts. Twice it communicated with its stockholders, advising against acceptance of Occidental's offer and indicating prior to May 11 and prior to Occidental's extension of its offer, that there was a possibility of an imminent merger and a more profitable exchange. Old Kern's management refused to discuss with Occidental officials the subject of an Old Kern-Occidental merger. Instead, it undertook negotiations with Tenneco and forthwith concluded an agreement, announcing the merger terms on May 19. Requests by Occidental for inspection of Old Kern records were sufficiently frustrated *599 by Old Kern's management to force Occidental to litigate to secure the information it desired. There is, therefore, nothing in connection with Occidental's acquisition of Old Kern stock pursuant to its tender offer to indicate either the possibility of inside information being available to Occidental by virtue of its stock ownership or the potential for speculative abuse of such inside information by Occidental. Much the same can be said of the events leading to the exchange of Occidental's Old Kern stock for Tenneco preferred, which is one of the transactions that is sought to be classified a "sale" under 16 (b). The critical fact is that the exchange took place and was required pursuant to a merger between Old Kern and Tenneco. That merger was not engineered by Occidental but was sought by Old Kern to frustrate the attempts of Occidental to gain control of Old Kern. Occidental obviously did not participate in or control the negotiations or the agreement between Old Kern and Tenneco. Cf. (CA2), cert. denied, ; Park & (CA2), cert. denied, Once agreement between those two companies crystallized, the course of subsequent events was out of Occidental's hands. Old Kern needed the consent of its stockholders, but as it turned out, Old Kern's management had the necessary votes without the affirmative vote of Occidental. The merger agreement was approved by a majority of the stockholders of Old Kern, excluding the votes to which Occidental was entitled by virtue of its ownership of Old Kern shares. See generally cert. denied, ; Occidental, although registering its opinion that the merger would be beneficial to Old Kern shareholders, did not in fact vote at the *600 stockholders' meeting |
Justice White | 1,973 | 6 | majority | Kern County Land Co. v. Occidental Petroleum Corp. | https://www.courtlistener.com/opinion/108776/kern-county-land-co-v-occidental-petroleum-corp/ | did not in fact vote at the *600 stockholders' meeting at which merger approval was obtained. Under California law, its abstention was tantamount to a vote against approval of the merger. Moreover, at the time of stockholder ratification of the merger, Occidental's previous dealing in Old Kern stock was, as it had always been, fully disclosed. Once the merger and exchange were approved, Occidental was left with no real choice with respect to the future of its shares of Old Kern. Occidental was in no position to prevent the issuance of a ruling by the Internal Revenue Service that the exchange of Old Kern stock for Tenneco preferred would be tax free; and, although various lawsuits were begun in state and federal courts seeking to postpone the merger closing beyond the statutory six-month period, those efforts were futile. The California Corporation Commissioner issued the necessary permits for the closing that took place on August 30, 1967. The merger left no right in dissenters to secure appraisal of their stock. Occidental could, of course, have disposed of its shares of Old Kern for cash before the merger was closed. Such an act would have been a 16 (b) sale and would have left Occidental with a prima facie 16 (b) liability. It was not, therefore, a realistic alternative for Occidental as long as it felt that it could successfully defend a suit like the present one. See generally cert. denied, ; ; We do not suggest that an exchange of stock pursuant to a merger may never result in 16 (b) liability. But the involuntary nature of Occidental's exchange, when coupled with the absence of the possibility of speculative abuse of inside information, convinces us that 16 (b) should not apply to transactions such as this one. *601 IV Petitioner also claims that the Occidental-Tenneco option agreement should itself be considered a sale, either because it was the kind of transaction the statute was designed to prevent or because the agreement was an option in form but a sale in fact. But the mere execution of an option to sell is not generally regarded as a "sale." See cert. denied, ; Allis-Chalmers Mfg. v. Gulf & Western Industries, ; Marquette Cement Mfg. v. Andreas, And we do not find in the execution of the Occidental-Tenneco option agreement a sufficient possibility for the speculative abuse of inside information with respect to Old Kern's affairs to warrant holding that the option agreement was itself a "sale" within the meaning of 16 (b). The mutual advantages of the arrangement appear quite clear. As the |
Justice White | 1,973 | 6 | majority | Kern County Land Co. v. Occidental Petroleum Corp. | https://www.courtlistener.com/opinion/108776/kern-county-land-co-v-occidental-petroleum-corp/ | mutual advantages of the arrangement appear quite clear. As the District Court found, Occidental wanted to avoid the position of a minority stockholder with a huge investment in a company over which it had no control and in which it had not chosen to invest. On the other hand, Tenneco did not want a potentially troublesome minority stockholder that had just been vanquished in a fight for the control of Old Kern. Motivations like these do not smack of insider trading; and it is not clear to us, as it was not to the Court of Appeals, how the negotiation and execution of the option agreement gave Occidental any possible opportunity to trade on inside information it might have obtained from its position as a major stockholder of Old Kern. Occidental wanted to get out, but only at a date more than six months thence. It was willing to get out at a price of $105 per share, a price at which it had publicly valued Tenneco preferred on May 19 when the Tenneco-Old Kern agreement was announced. *602 In any event, Occidental was dealing with the putative new owners of Old Kern, who undoubtedly knew more about Old Kern and Tenneco's affairs than did Occidental. If Occidental had leverage in dealing with Tenneco, it is incredible that its source was inside information rather than the fact of its large stock ownership itself. Neither does it appear that the option agreement, as drafted and executed by the parties, offered measurable possibilities for speculative abuse. What Occidental granted was a "call" option. Tenneco had the right to buy after six months, but Occidental could not force Tenneco to buy. The price was fixed at $105 for each share of Tenneco preferred. Occidental could not share in a rising market for the Tenneco stock See 306 F.2d If the stock fell more than $10 per share, the option might not be exercised, and Occidental might suffer a loss if the market further deteriorated to a point where Occidental was forced to sell. Thus, the option, by its very form, left Occidental with no choice but to sell if Tenneco exercised the option, which it was almost sure to do if the value of Tenneco stock remained relatively steady. On the other hand, it is difficult to perceive any speculative value to Occidental if the stock declined and Tenneco chose not to exercise its option. See generally Note, Put and Call Options Under Section 16 of the Securities Exchange Act, 69 Yale L. J. 868 (1960); H. Filer, Understanding Put and Call Options |
Justice White | 1,973 | 6 | majority | Kern County Land Co. v. Occidental Petroleum Corp. | https://www.courtlistener.com/opinion/108776/kern-county-land-co-v-occidental-petroleum-corp/ | J. 868 (1960); H. Filer, Understanding Put and Call Options 96-111 ; G. Leffler, The Stock Market 363-378 (2d ed. 1957). The option, therefore, does not appear to have been an instrument with potential for speculative abuse, whether or not Occidental possessed inside information about the affairs of Old Kern. In addition, the option covered Tenneco preference stock, a stock as yet unissued, unregistered, and untraded. It was the value of this *603 stock that underlay the option and that determined whether the option would be exercised, whether Occidental would be able to profit from the exercise, and whether there was any real likelihood of the exploitation of inside information. If Occidental had inside information when it negotiated and signed the option agreement, it was inside information with respect to Old Kern. Whatever it may have known or expected as to the future value of Old Kern stock, Occidental had no ownership position in Tenneco giving it any actual or presumed insights into the future value of Tenneco stock. That was the critical item of intelligence if Occidental was to use the option for purposes of speculation. Also, the date for exercise of the option was over six months in the future, a period that, under the statute itself, is assumed to dissipate whatever trading advantage might be imputed to a major stockholder with inside information. See Comment, Stock Exchanges Pursuant to Corporate Consolidation: A Section 16 (b) "Purchase or Sale?," ; By enshrining the statutory period into the option. Occidental also, at least if the statutory period is taken to accomplish its intended purpose, limited its speculative possibilities. Nor should it be forgotten that there was no absolute assurance that the merger, which was not controlled by Occidental, would be consummated. In the event the merger did not close, the option itself would become null and void. Nor can we agree that we must reverse the Court of Appeals on the ground that the option agreement was in fact a sale because the premium paid was so large as to make the exercise of the option almost inevitable, particularly when coupled with Tenneco's desire to rid itself of a potentially troublesome stockholder. The argument has force, but resolution of the question is very much a matter of judgment, economic and otherwise, and the *604 Court of Appeals rejected the argument. That court emphasized that the premium paid was what experts had said the option was worth, the possibility that the market might drop sufficiently in the six months following execution of the option to make exercise unlikely, and the |
Justice Scalia | 1,998 | 9 | concurring | United States v. Estate of Romani | https://www.courtlistener.com/opinion/118201/united-states-v-estate-of-romani/ | I join the opinion of the Court except that portion which takes seriously, and thus encourages in the future, an argument that should be laughed out of court. The Government contended that 31 U.S. C. 3713(a) must have priority over the Federal Tax Lien Act of 1966, because in 1966 and again in 1970 Congress "failed to enact" a proposal put forward by the American Bar Association that would have subordinated 3713(a) to the Tax Lien Act, citing hearings before the House Committee on Ways and Means, and a bill proposed in, but not passed by, the Senate. See Brief for United States 25-27, and n. 10 (citing American Bar Association, Final Report of the Committee on Federal Liens 7, 122-124 (1959), contained in Hearings on H. R. 11256 and 11290 before the House Committee on Ways and Means, 89th Cong., 2d Sess., 85, 199 (1966); S. 2197, 92d Cong., 1st Sess. (1971)). The Court responds that these rejected proposals "provide no support for the hypothesis that both Houses of Congress silently endorsed" the supremacy of 3713, ante, at 534, because those proposals contained other provisions as well, and might have been rejected because of those other provisions, or because Congress thought the existing law already made 3713 supreme. This implies that, if the proposals had not contained those additional features, or if Members of Congress (or some part of them) had somehow made clear in the course of rejecting them that they wanted the existing supremacy of the Tax Lien Act to subsist, the rejection would "provide support" for the Government's case. That is not so, for several reasons. First and most obviously, Congress cannot express its will by a failure to legislate. The act of refusing to enact a law (if that can be called an act) has utterly no legal effect, and thus has utterly no place in a serious discussion of the law. The Constitution sets forth the only manner in which the Members of Congress have the power to impose their will upon the country: *536 by a bill that passes both Houses and is either signed by the President or repassed by a supermajority after his veto. Art. I, 7. Everything else the Members of Congress do is either prelude or internal organization. Congress can no more express its will by not legislating than an individual Member can express his will by not voting. Second, even if Congress could express its will by not legislating, the will of a later Congress that a law enacted by an earlier Congress should bear a particular meaning |
Justice Scalia | 1,998 | 9 | concurring | United States v. Estate of Romani | https://www.courtlistener.com/opinion/118201/united-states-v-estate-of-romani/ | enacted by an earlier Congress should bear a particular meaning is of no effect whatever. The Constitution puts Congress in the business of writing new laws, not interpreting old ones. "[L]ater enacted laws do not declare the meaning of earlier law." Almendarez-Torres v. United States, ante, at 237; ante, at 269-270 (Scalia, J., dissenting) ("This later amendment can of course not cause [the statute] to have meant, at the time of petitioner's conviction, something different from what it then said"). If the enacted intent of a later Congress cannot change the meaning of an earlier statute, then it should go without saying that the later unenacted intent cannot possibly do so. It should go without saying, and it should go without arguing as well. I have in the past been critical of the Court's using the so-called legislative history of an enactment (hearings, committee reports, and floor debates) to determine its meaning. See, e. g., ; United ; Today, however, the Court's fascination with the files of Congress (we must consult them, because they are there) is carried to a new silly extreme. Today's opinion ever-so-carefully analyzes, not legislative history, but the history of legislation-that-never-was. If we take this sort of material seriously, we require conscientious counsel to investigate (at clients' expense) not only the hearings, *537 committee reports, and floor debates pertaining to the history of the law at issue (which is bad enough), but to find, and then investigate the hearings, committee reports, and floor debates pertaining to, later bills on the same subject that were never enacted. This is beyond all reason, and we should say so. |
Justice White | 1,971 | 6 | dissenting | US Bulk Carriers, Inc. v. Arguelles | https://www.courtlistener.com/opinion/108226/us-bulk-carriers-inc-v-arguelles/ | Respondent Arguelles is a seaman who signed onto the SS U S Pecos, a merchant ship owned by petitioner, on August 3, for six months' employment at a stated monthly wage The employment relationship was *367 governed by the collective-bargaining agreement between petitioner and the National Maritime Union, AFL-CIO, of which respondent is a member On February 3, the day after respondent's shipping papers expired by their terms, the Pecos anchored off Cape St Jacques, South Vietnam, awaiting authorization to proceed to Saigon harbor Respondent concedes that congestion in the harbor was the cause of the extended wait offshore[1] During this time, Saigon port officials refused to grant pratique, or quarantine clearance, to crew members Nonetheless, respondent demanded discharge or shore leave, both of which were refused[2] On February 13, the Pecos was authorized to, and did, proceed to the harbor and tie up at a designated location Unloading of cargo began February 16, and the following day respondent and other crew members were discharged and given a voucher for their wages at the American Consulate in Saigon[3] The voucher called for payment in American currency at petitioner's headquarters in Galveston, Texas On February 18, respondent departed Saigon by air for Galveston, where he was paid in cash on February 22 *368 While in Galveston, respondent notified the union's local office that he was dissatisfied with the company's refusal to honor certain wage, penalty, and miscellaneous claims[4] The respondent was advised to contact his union representative with details, but instead of doing so, he brought this suit in the District Court under its admiralty and maritime jurisdiction, 28 US C 1333 Respondent sought recovery on three claims which survive here: (a) overtime for work allegedly performed prior to February 3, ; (b) overtime for wrongful restriction to the ship for 11 days between arrival at Cape St Jacques on February 3 and tying up in the port of Saigon on February 13 despite requests for shore leave;[5] (c) a statutory penalty of $25495 under 46 US C 596,[6] based on two days' pay for each day between *369 February 3 and February 22, when respondent was paid at Galveston Petitioner answered by alleging the failure of respondent to exhaust the grievance and arbitration procedures of the collective-bargaining agreement[7] Petitioner contends that (a) the master did not *370 authorize any overtime work before February 3; (b) the restriction to ship between February 3 and February 13 was due to the failure of Saigon port officials to lift quarantine restrictions, and (c) because respondent was paid promptly by voucher at the American |
Justice White | 1,971 | 6 | dissenting | US Bulk Carriers, Inc. v. Arguelles | https://www.courtlistener.com/opinion/108226/us-bulk-carriers-inc-v-arguelles/ | because respondent was paid promptly by voucher at the American Consulate on the day of discharge, no penalty obtains The collective-bargaining agreement provides in relevant part that (a) no overtime work shall be performed without the authorization of the master (Art IV, 2); (b) with exceptions not relevant here, no overtime will be paid for restriction to ship when such restriction is *371 due to the regulation of government authorities (Art III, 2), and (c) a ship shall not be deemed to have arrived in port while it is awaiting quarantine clearance (Art III, 1 (c)) The merits of respondent's nonstatutory claims depend entirely on interpretation and application of the bargaining agreement Specifically, the threshold questions involved are (a) whether the respondent performed overtime work with the authorization of the master; (b) whether the crew was confined to ship because of the actions of government officials and if so whether respondent can base his claim on the alleged failure of the master to show the required documents to the crew, and (c) whether the ship had arrived "in port" on February 3, so that respondent was entitled to discharge and payment, or, in the alternative, whether the fact that respondent's shipping articles expired by their terms on February 2 entitled him to discharge against petitioner's claim that where the cargo is still aboard in such cases the articles are automatically extended An additional question is whether respondent was "paid" on February 17 or February 22, since the penalty accrues only until the date of payment Most importantly, for purposes of this case, it is clear that the question of whether respondent was entitled to the statutory penalty depends entirely on a resolution of these questions If it develops that petitioner has paid respondent all wages due him in a timely manner, the statutory penalty claim also disappears These questions are particularly within the competence of the contractually established grievance procedure of the collective-bargaining agreement They are all questions of fact or interpretation of various provisions of the agreement There is not the slightest indication or contention that the grievance machinery would be unable *372 to determine these questions, or that it would be inferior to a federal court in so doing It is clear from the face of the claims that a familiarity with the customs and practices of shipping would be distinctly helpful in assessing the validity of the claims This familiarity is, of course, one of the prime attributes of an arbitrator As the Court said in United : "The labor arbitrator is usually chosen because of the |
Justice White | 1,971 | 6 | dissenting | US Bulk Carriers, Inc. v. Arguelles | https://www.courtlistener.com/opinion/108226/us-bulk-carriers-inc-v-arguelles/ | : "The labor arbitrator is usually chosen because of the parties' confidence in his knowledge of the common law of the shop and their trust in his personal judgment to bring to bear considerations which are not expressed in the contract as criteria for judgment The parties expect that his judgment of a particular grievance will reflect not only what the contract says but, insofar as the collective bargaining agreement permits, such factors as the effect upon productivity of a particular result, its consequence to the morale of the shop, his judgment whether tensions will be heightened or diminished For the parties' objective in using the arbitration process is primarily to further their common goal of uninterrupted production under the agreement, to make the agreement serve their specialized needs The ablest judge cannot be expected to bring the same experience and competence to bear upon the determination of a grievance, because he cannot be similarly informed" In Textile it was held that federal courts have jurisdiction to specifically enforce the arbitration provisions of the collective-bargaining agreement And it has been clear at least since Republic Steel that absent extraordinary circumstances not *373 alleged here, contractual grievance procedures must be exhausted before suit can be brought[8] The collective agreement reveals that the parties intended all disputes and grievances, not merely those based on the contract, to be resolved if possible through the contractual procedure Article II provides a threestep on-board grievance procedure for "[a]ny employee who feels that he has been unjustly treated or been subjected to an unfair consideration" If no satisfactory solution is reached on board, the parties are directed to proceed "through the grievance machinery of this agreement at the port where shipping articles are closed or at a continental American port where the Company maintains an operating office and the Union maintains an *374 agent" Provisions are made for any party to a "dispute or grievance" to seek expeditious determination from the arbitrator Art XII, 3 The parties made no provision whatever for excepting statutory penalty claims from the grievance machinery Prior decisions unmistakably limit the role of the courts to determining whether a dispute is arguably covered under the arbitration clause "In the absence of any express provision excluding a particular grievance from arbitration, we think only the most forceful evidence of a purpose to exclude the claim from arbitration can prevail, particularly where, as here, the exclusion clause is vague and the arbitration clause quite broad" United Nor until now has there been any principle that requires contract rights to be resolved internally but directs |
Justice White | 1,971 | 6 | dissenting | US Bulk Carriers, Inc. v. Arguelles | https://www.courtlistener.com/opinion/108226/us-bulk-carriers-inc-v-arguelles/ | that requires contract rights to be resolved internally but directs statutorily created remedies to be presented to the court, at least where, as here, the availability of the statutory remedy rests on disputed issues that are cognizable under the arbitration clause In fact, this Court and lower federal courts have endorsed the suitability of arbitration to resolve federally created rights In the Court expressed "hope for [arbitration's] usefulness in controversies based on statutes " And courts of appeals both before and after passage of 301 have required that Fair Labor Standards Act employees' claims for liquidated damages under 29 US C 216 (b) for failure to pay overtime wages be referred to contractual grievance procedures before being presented to the court Donahue v Susquehanna Collieries ; Evans v Hudson Coal ; Cf ; Old Dutch ; *375 United States Steel That the question of penalties or liquidated damages should be referred in the first instance to applicable grievance procedures is especially proper where, as here, there are also underlying wage claims based on factual disputes, and whose resolution will determine whether, and to what extent, the penalty is due Neither do I see any reason why the issue of the penalty would be unsuitable for arbitration even if the owner paid off all disputed underlying wage claims, leaving only the question of the statutory penalty On the contrary, if respondent's claims are not reached by his promise to arbitrate, or if the promise to arbitrate is unenforceable, a master or owner could pay off wages in full, but grossly late, secure in the knowledge that the obligation to pay the penalty would not be susceptible of the quick and informal arbitration process, but must await the attention of a federal district court which may be thousands of miles away Overreaching and delay were precisely the evils that 596 was designed to reach The Court tries to avoid this problem by holding that grievance procedures are available to the seaman to pursue if he chooses The effect of this is to hold contractual remedies enforceable by the employee but not by the employer This is not only a curious application of 301 and contract principles but an unwise departure from past cases In Republic Steel the Court foresaw that under such circumstances the employer, "to limit the modes of redress that could be used against him," would simply insist in future bargaining that suits for overtime pay[9] be eliminated from *376 the grievance procedure The Court was entirely correct in surmising that "[t]he union would hardly favor the elimination, for it |
Justice White | 1,971 | 6 | dissenting | US Bulk Carriers, Inc. v. Arguelles | https://www.courtlistener.com/opinion/108226/us-bulk-carriers-inc-v-arguelles/ | that "[t]he union would hardly favor the elimination, for it is in the union's interest to afford comprehensive protection to those it represents, to participate in interpretations of the contract, and to have an arbitrator rather than a court decide such questions " Nothing in the words of the statute warrants dispensing with contractual procedures Section 596 provides that the penalty "shall be recoverable as wages in any claim made before the court" (Emphasis added) The statute on its face makes the penalty a wage claim; it would in no way be in derogation of the statute to require this claim to be presented like any other wage claim Under the principles of Republic Steel this means that the internal remedies must first be exhausted Even assuming, without conceding, that 596 provides a direct route to federal courts on penalty claims, 301 should at least require that the contractual bases for the penalty claim be settled by contractual methods before penalty claims may be adjudicated by the courts The penalty statute is a direct descendant of 1 Stat 133, passed in 1790 Section 596 has existed unchanged since 1915 Section 301, on the other hand, was enacted in 1947 as a farreaching measure designed to secure the enforcement of arbitration agreements in the federal courts in the belief that "industrial peace can be best obtained only in that way" Textile Section 301 did away with common-law rules against enforcing executory promises to arbitrate, and there should be no reluctance to accommodate 596 and the policy of 301 by withholding judicial relief until contractual remedies are exhausted It should also be recalled that even though a dispute also involves an unfair labor practice or a representation *377 or jurisdictional dispute it is nevertheless not removed from the arbitral process Smith v Evening News Assn, 371 US 195 ; Carey v Westinghouse Corp, 375 US 261 [10] Both the National Labor Relations Board and this Court have shown a high regard for the informed opinion of the arbitrator in such cases International Harvester 138 N L R B 923, 925-926 ; Carey v Westinghouse Corp, Moreover, prior to the passage of 301, nonmaritime employees, like seamen, could go to court to resolve disputes over the meaning of the collective-bargaining agreement Given the basis for federal jurisdiction, they could go to federal court In this respect they were no different from seamen When 301 provided for the enforcement of arbitration agreements and, as interpreted in for exhaustion of internal remedies, there is not the slightest indication that Congress intended that seamen should be |
Justice White | 1,991 | 6 | majority | Cohen v. Cowles Media Co. | https://www.courtlistener.com/opinion/112638/cohen-v-cowles-media-co/ | The question before us is whether the First Amendment prohibits a plaintiff from recovering damages, under state promissory estoppel law, for a newspaper's breach of a promise of confidentiality given to the plaintiff in exchange for information. We hold that it does not. During the closing days of the 1982 Minnesota gubernatorial race, Dan Cohen, an active Republican associated with Wheelock Whitney's Independent-Republican gubernatorial campaign, approached reporters from the St. Paul Pioneer Press Dispatch (Pioneer Press) and the Minneapolis Star and Tribune (Star Tribune) and offered to provide documents relating to a candidate in the upcoming election. Cohen made clear to the reporters that he would provide the information only if he was given a promise of confidentiality. Reporters from both papers promised to keep Cohen's identity anonymous and Cohen turned over copies of two public court records concerning Marlene Johnson, the Democratic-Farmer-Labor candidate for Lieutenant Governor. The first record indicated that Johnson had been charged in 1969 with three counts of unlawful assembly, and the second that she had been convicted in 1970 of petit theft. Both newspapers interviewed Johnson for her explanation and one reporter tracked down the person who had found the records for Cohen. As it turned out, the unlawful assembly charges arose out of Johnson's participation in a protest of an alleged failure to hire minority workers on municipal construction projects, and the charges were eventually dismissed. The petit theft conviction was for leaving a store without paying *666 for $6 worth of sewing materials. The incident apparently occurred at a time during which Johnson was emotionally distraught, and the conviction was later vacated. After consultation and debate, the editorial staffs of the two newspapers independently decided to publish Cohen's name as part of their stories concerning Johnson. In their stories, both papers identified Cohen as the source of the court records, indicated his connection to the Whitney campaign, and included denials by Whitney campaign officials of any role in the matter. The same day the stories appeared, Cohen was fired by his employer. Cohen sued respondents, the publishers of the Pioneer Press and Star Tribune, in Minnesota state court, alleging fraudulent misrepresentation and breach of contract. The trial court rejected respondents' argument that the First Amendment barred Cohen's lawsuit. A jury returned a verdict in Cohen's favor, awarding him $200,000 in compensatory damages and $500,000 in punitive damages. The Minnesota Court of Appeals, in a split decision, reversed the award of punitive damages after concluding that Cohen had failed to establish a fraud claim, the only claim which would support such an award. However, |
Justice White | 1,991 | 6 | majority | Cohen v. Cowles Media Co. | https://www.courtlistener.com/opinion/112638/cohen-v-cowles-media-co/ | the only claim which would support such an award. However, the court upheld the finding of liability for breach of contract and the $200,000 compensatory damages award. A divided Minnesota Supreme Court reversed the compensatory damages award. After affirming the Court of Appeals' determination that Cohen had not established a claim for fraudulent misrepresentation, the court considered his breach-of-contract claim and concluded that "a contract cause of action is inappropriate for these particular circumstances." The court then went on to address the question whether Cohen could establish a cause of action under Minnesota law on a promissory estoppel theory. Apparently, a promissory estoppel theory was never tried to the jury, nor briefed nor argued by *667 the parties; it first arose during oral argument in the Minnesota Supreme Court when one of the justices asked a question about equitable estoppel. See App. 38. In addressing the promissory estoppel question, the court decided that the most problematic element in establishing such a cause of action here was whether injustice could be avoided only by enforcing the promise of confidentiality made to Cohen. The court stated: "Under a promissory estoppel analysis there can be no neutrality towards the First Amendment. In deciding whether it would be unjust not to enforce the promise, the court must necessarily weigh the same considerations that are weighed for whether the First Amendment has been violated. The court must balance the constitutional rights of a free press against the common law interest in protecting a promise of anonymity." After a brief discussion, the court concluded that "in this case enforcement of the promise of confidentiality under a promissory estoppel theory would violate defendants' First Amendment rights." We granted certiorari to consider the First Amendment implications of this case. Respondents initially contend that the Court should dismiss this case without reaching the merits because the promissory estoppel theory was not argued or presented in the courts below and because the Minnesota Supreme Court's decision rests entirely on the interpretation of state law. These contentions do not merit extended discussion. It is irrelevant to this Court's jurisdiction whether a party raised below and argued a federal-law issue that the state supreme court actually considered and decided. ; Dun & Bradstreet, ; ; ; Moreover, that the Minnesota Supreme Court rested its holding on federal law could not be made *668 more clear than by its conclusion that "in this case enforcement of the promise of confidentiality under a promissory estoppel theory would violate defendants' First Amendment rights." It can hardly be said that there is no First Amendment issue |
Justice White | 1,991 | 6 | majority | Cohen v. Cowles Media Co. | https://www.courtlistener.com/opinion/112638/cohen-v-cowles-media-co/ | hardly be said that there is no First Amendment issue present in the case when respondents have defended against this suit all along by arguing that the First Amendment barred the enforcement of the reporters' promises to Cohen. We proceed to consider whether that Amendment bars a promissory estoppel cause of action against respondents. The initial question we face is whether a private cause of action for promissory estoppel involves "state action" within the meaning of the Fourteenth Amendment such that the protections of the First Amendment are triggered. For if it does not, then the First Amendment has no bearing on this case. The rationale of our decision in New York Times and subsequent cases compels the conclusion that there is state action here. Our cases teach that the application of state rules of law in state courts in a manner alleged to restrict First Amendment freedoms constitutes "state action" under the Fourteenth Amendment. See, e. g., ; ; Philadelphia Newspapers, In this case, the Minnesota Supreme Court held that if Cohen could recover at all it would be on the theory of promissory estoppel, a state-law doctrine which, in the absence of a contract, creates obligations never explicitly assumed by the parties. These legal obligations would be enforced through the official power of the Minnesota courts. Under our cases, that is enough to constitute "state action" for purposes of the Fourteenth Amendment. Respondents rely on the proposition that "if a newspaper lawfully obtains truthful information about a matter of public significance then state officials may not constitutionally punish publication of the information, absent a need to further a *669 state interest of the highest order." That proposition is unexceptionable, and it has been applied in various cases that have found insufficient the asserted state interests in preventing publication of truthful, lawfully obtained information. See, e. g., Florida ; Smith v. Daily Landmark Communications, This case, however, is not controlled by this line of cases but, rather, by the equally well-established line of decisions holding that generally applicable laws do not offend the First Amendment simply because their enforcement against the press has incidental effects on its ability to gather and report the news. As the cases relied on by respondents recognize, the truthful information sought to be published must have been lawfully acquired. The press may not with impunity break and enter an office or dwelling to gather news. Neither does the First Amendment relieve a newspaper reporter of the obligation shared by all citizens to respond to a grand jury subpoena and answer questions relevant to a |
Justice White | 1,991 | 6 | majority | Cohen v. Cowles Media Co. | https://www.courtlistener.com/opinion/112638/cohen-v-cowles-media-co/ | a grand jury subpoena and answer questions relevant to a criminal investigation, even though the reporter might be required to reveal a confidential source. The press, like others interested in publishing, may not publish copyrighted material without obeying the copyright laws. See Similarly, the media must obey the National Labor Relations Act, Associated 301 U.S. and the Fair Labor Standards Act, Oklahoma Press Publishing ; may not restrain trade in violation of the antitrust laws, Associated ; Citizen Publishing ; and must pay nondiscriminatory taxes, ; Minneapolis Star & Tribune *670 Cf. University of It is, therefore, beyond dispute that "[t]he publisher of a newspaper has no special immunity from the application of general laws. He has no special privilege to invade the rights and liberties of others." Associated Accordingly, enforcement of such general laws against the press is not subject to stricter scrutiny than would be applied to enforcement against other persons or organizations. There can be little doubt that the Minnesota doctrine of promissory estoppel is a law of general applicability. It does not target or single out the press. Rather, insofar as we are advised, the doctrine is generally applicable to the daily transactions of all the citizens of Minnesota. The First Amendment does not forbid its application to the press. JUSTICE BLACKMUN suggests that applying Minnesota promissory estoppel doctrine in this case will "punish" respondents for publishing truthful information that was lawfully obtained. Post, at 675-676. This is not strictly accurate because compensatory damages are not a form of punishment, as were the criminal sanctions at issue in Smith v. Daily If the contract between the parties in this case had contained a liquidated damages provision, it would be perfectly clear that the payment to petitioner would represent a cost of acquiring newsworthy material to be published at a profit, rather than a punishment imposed by the State. The payment of compensatory damages in this case is constitutionally indistinguishable from a generous bonus paid to a confidential news source. In any event, as indicated above, the characterization of the payment makes no difference for First Amendment purposes when the law being applied is a general law and does not single out the press. Moreover, JUSTICE BLACKMUN'S reliance on cases like Florida and Smith v. Daily is misplaced. In those cases, the State itself defined the content of publications that would trigger liability. Here, by contrast, *671 Minnesota law simply requires those making promises to keep them. The parties themselves, as in this case, determine the scope of their legal obligations, and any restrictions that may be |
Justice White | 1,991 | 6 | majority | Cohen v. Cowles Media Co. | https://www.courtlistener.com/opinion/112638/cohen-v-cowles-media-co/ | of their legal obligations, and any restrictions that may be placed on the publication of truthful information are self-imposed. Also, it is not at all clear that respondents obtained Cohen's name "lawfully" in this case, at least for purposes of publishing it. Unlike the situation in Florida Star, where the rape victim's name was obtained through lawful access to a police report, respondents obtained Cohen's name only by making a promise that they did not honor. The dissenting opinions suggest that the press should not be subject to any law, including copyright law for example, which in any fashion or to any degree limits or restricts the press' right to report truthful information. The First Amendment does not grant the press such limitless protection. Nor is Cohen attempting to use a promissory estoppel cause of action to avoid the strict requirements for establishing a libel or defamation claim. As the Minnesota Supreme Court observed here, "Cohen could not sue for defamation because the information disclosed [his name] was true." Cohen is not seeking damages for injury to his reputation or his state of mind. He sought damages in excess of $50,000 for breach of a promise that caused him to lose his job and lowered his earning capacity. Thus, this is not a case like Hustler Magazine, where we held that the constitutional libel standards apply to a claim alleging that the publication of a parody was a state-law tort of intentional infliction of emotional distress. Respondents and amici argue that permitting Cohen to maintain a cause of action for promissory estoppel will inhibit truthful reporting because news organizations will have legal incentives not to disclose a confidential source's identity even when that person's identity is itself newsworthy. JUSTICE SOUTER makes a similar argument. But if this is the case, *672 it is no more than the incidental, and constitutionally insignificant, consequence of applying to the press a generally applicable law that requires those who make certain kinds of promises to keep them. Although we conclude that the First Amendment does not confer on the press a constitutional right to disregard promises that would otherwise be enforced under state law, we reject Cohen's request that in reversing the Minnesota Supreme Court's judgment we reinstate the jury verdict awarding him $200,000 in compensatory damages. See Brief for Petitioner 31. The Minnesota Supreme Court's incorrect conclusion that the First Amendment barred Cohen's claim may well have truncated its consideration of whether a promissory estoppel claim had otherwise been established under Minnesota law and whether Cohen's jury verdict could be upheld on a |
Justice Stewart | 1,976 | 18 | dissenting | Cantor v. Detroit Edison Co. | https://www.courtlistener.com/opinion/109542/cantor-v-detroit-edison-co/ | The Court today holds that a public utility company, pervasively regulated by a state utility commission, *615 may be held liable for treble damages under the Sherman Act for engaging in conduct which, under the requirements of its tariff, it is obligated to perform. I respectfully dissent from this unprecedented application of the federal antitrust laws, which will surely result in disruption of the operation of every state-regulated public utility company in the Nation and in the creation of "the prospect of massive treble damage liabilities"[1] payable ultimately by the companies' customers. The starting point in analyzing this case is While Parker did not create the "so-called state-action exemption"[2] from the federal antitrust laws,[3] it is the case that is most frequently *616 cited for the proposition that the "[Sherman] Act was intended to regulate private practices and not to prohibit a State from imposing a restraint as an act of government." The plurality opinion would hold that that case decided only that "the sovereign State itself," ante, at 591, could not be sued under the Sherman Act. This view of Parker, which would trivialize that case to the point of overruling it,[4] flies in the face of the decisions of *617 this Court that have interpreted or applied Parker's "state action" doctrine, and is unsupported by the sources on which the plurality relies. As to those sources, I would have thought that except in rare instances an analysis of the positions taken by the parties in briefs submitted to this Court should play no role in interpreting its written opinions.[5] A *618 contrary rule would permit the "plain meaning" of our decisions to be qualified or even overridden by their "legislative history"i. e., briefs submitted by the contending parties. The legislative history of congressional enactments is useful in discerning legislative intent, because that history emanates from the same source as the legislation itself and is thus directly probative of the intent of the draftsmen. The conflicting views presented in the adversary briefs and arguments submitted to this Court do not bear an analogous relationship to the Court's final product. But assuming, arguendo, that it is appropriate to look behind the language of I think it is apparent that the plurality has distorted the positions taken by the State of California and the United States as amici curiae. The question presented on reargument in Parker was "whether the state statute involved is rendered invalid by the action of Congress in passing the Sherman Act" Ante, at 587 n. 16. This phrasing indicates that the precise issue on which the Court |
Justice Stewart | 1,976 | 18 | dissenting | Cantor v. Detroit Edison Co. | https://www.courtlistener.com/opinion/109542/cantor-v-detroit-edison-co/ | phrasing indicates that the precise issue on which the Court sought reargument was whether the California statute was pre-empted by the Sherman Act, not whether sovereign States were immune from suit under the Sherman Act. The State of California and the Solicitor General certainly understood this to be the principal issue. As the plurality opinion correctly notes, the supplemental brief filed by the State of California in response to the question posed by this Court advanced three basic arguments. And as it further notes, this Court's decision in Parker rested on the first of those arguments. But what the plurality fails to acknowledge is that California's first argument was in principal part a straightforward contention *619 that the Sherman Act was not intended to pre-empt state regulation of intrastate commerce.[6] With respect to the amicus brief of the United States, *620 the plurality opinion states that the "Solicitor General did not take issue with the appellants' first argument." Ante, at 588. Indeed, the plurality says, the Solicitor General "expressly disclaimed any argument that the State of California or its officials had violated federal law." In support of this assertion, the plurality opinion quotes the following language from p. 59 of the Solicitor General's brief in Parker: " `[T]he question we face here is not whether California or its officials have violated the Sherman Act, but whether the state program interferes with the accomplishment of the objectives of the federal statute.' " Ante, at 589 n. 19. This statement by the Solicitor General was indeed correct, because the question on which the Court had requested supplemental briefing was "whether the state statute involved is rendered invalid by the action of Congress in passing the Sherman Act," not "whether California or its officials have violated the Sherman Act." As the Solicitor General noted in the very next sentence, "[a] state law may be superseded as conflicting with a federal statute irrespective of whether its administrators are subject to prosecution for violation of the paramount federal enactment."[7] The Solicitor General then proceeded *621 to take strenuous issue with the principal contention advanced in the first part of the relevant section of California's briefthat the framers of the federal legislation had not intended to pre-empt state legislation like the California Agricultural Prorate Act.[8] Thus, it is clear that the plurality has misread the positions taken by the State of California and the Solicitor General in The question presented to the Court in Parker was whether the restraint on trade effected by the California statute was exempt *622 from the operation of the Sherman Act. |
Justice Stewart | 1,976 | 18 | dissenting | Cantor v. Detroit Edison Co. | https://www.courtlistener.com/opinion/109542/cantor-v-detroit-edison-co/ | was exempt *622 from the operation of the Sherman Act. That was the question addressed by the Solicitor General and, in principal part, by the State of California. And it was the question resolved by this Court in its holding that "[t]he state in adopting and enforcing the prorate program made no contract or agreement and entered into no conspiracy in restraint of trade or to establish monopoly but, as sovereign, imposed the restraint as an act of government which the Sherman Act did not undertake to prohibit." The notion that Parker decided only that "action taken by state officials pursuant to express legislative command did not violate the Sherman Act," ante, at 589, and that that "narrow holding avoided any question about the applicability of the antitrust laws to private action" taken under command of state law, ante, at 590, is thus refuted by the very sources on which the plurality opinion relies. That narrow view of the Parker decision is also refuted by the subsequent cases in this Court that have interpreted and applied the Parker doctrine. In Eastern R. for instance, the Court held that no violation of the Sherman Act could be predicated on the attempt by private persons to influence the passage or enforcement of state laws regulating competition in the trucking industry.[9] The Court took as its starting point the ruling in that "where a restraint upon trade or monopolization is the result of valid governmental action, as opposed to private action, no violation of the Act can be made out." The Court *623 viewed it as "equally clear that the Sherman Act does not prohibit two or more persons from associating together in an attempt to persuade the legislature or the executive to take particular action with respect to a law that would produce a restraint or monopoly." A contrary ruling, the Court held, "would substantially impair the power of government to take actions through its legislature and executive that operate to restrain trade." Surely, if a rule permitting Sherman Act liability to arise from lobbying by private parties for state rules restricting competition would impair the power of state governments to impose restraints, then a fortiori a rule permitting Sherman Act liability to arise from private parties' compliance with such rules would impair the exercise of the States' power. But as the Court in Noerr correctly noted, the latter result was foreclosed by Parker's holding that "where a restraint upon trade or monopolization is the result of valid governmental action, as opposed to private action, no violation of the Act can be |
Justice Stewart | 1,976 | 18 | dissenting | Cantor v. Detroit Edison Co. | https://www.courtlistener.com/opinion/109542/cantor-v-detroit-edison-co/ | to private action, no violation of the Act can be made out." Litigation testing the limits of the state-action exemption has focused on whether alleged anticompetitive conduct by private parties is indeed "the result of" state action. Thus, in the question was whether price fixing practiced by the respondents was "required by the State acting as sovereign. -352." The Court held that the "so-called state-action exemption," at did not protect the respondents because it "cannot fairly be said that the State of Virginia through its Supreme Court Rules required the anticompetitive activities of either respondent. Respondents' arguments, at most, constitute the contention that their activities complemented the objective *624 of the ethical codes. In our view that is not state action for Sherman Act purposes. It is not enough that, as the County Bar puts it, anticompetitive conduct is `prompted' by state action; rather, anticompetitive activities must be compelled by direction of the State acting as a sovereign." -791. The plurality's view that Parker does not cover state-compelled private conduct flies in the face of this carefully drafted language in the Goldfarb opinion. Parker, Noerr, and Goldfarb point unerringly to the proper disposition of this case. The regulatory process at issue has three principal stages. First, the utility company proposes a tariff. Second, the Michigan Public Service Commission investigates the proposed tariff and either approves it or rejects it. Third, if the tariff is approved, the utility company must, under command of state law, provide service in accord with its requirements until or unless the Commission approves a modification. The utility company thus engages in two distinct activities: It proposes a tariff and, if the tariff is approved, it obeys its terms. The first action cannot give rise to antitrust liability under Noerr and the second compliance with the terms of the tariff under the command of state lawis immune from antitrust liability under Parker and Goldfarb.[10] *625 The plurality's contrary view would effectively overrule not only Parker but the entire body of post-Parker case law in this area, including Noerr. With the Parker holding reduced to the trivial proposition that the Sherman Act was not intended to run directly against state officials or governmental entities, the Court would fashion a new two-part test for determining whether state utility regulation creates immunity from the federal antitrust law. The first part of the test would focus on whether subjecting state-regulated utilities to antitrust liability would be "unjust." The second part of the test would look to whether the draftsmen of the Sherman Act intended to "superimpose" antitrust standards, and thus exposure |
Justice Stewart | 1,976 | 18 | dissenting | Cantor v. Detroit Edison Co. | https://www.courtlistener.com/opinion/109542/cantor-v-detroit-edison-co/ | Sherman Act intended to "superimpose" antitrust standards, and thus exposure to treble damages, on conduct compelled by state regulatory laws. THE CHIEF JUSTICE accedes to the new two-part test, at least where the State "purports, without any independent regulatory purpose, to control [a] utility's activities in separate, competitive *626 markets." Ante, at 604. The new immunity test thus has the approval of a majority of the Court in instances where state-compelled anticompetitive practices are deemed "ancillary" to the State's regulatory goals.[11] With scarcely a backward glance at the Noerr case, the Court concludes that because the utility company's "participation" in the decision to incorporate the lamp-exchange program into the tariff was "sufficiently significant," there is nothing "unjust" in concluding that the company is required to conform its conduct to federal antitrust law "like comparable conduct by unregulated businesses" Ante, at 594. This attempt to distinguish between the exemptive force of mandatory state rules adopted at the behest of private parties and those adopted pursuant to the State's unilateral decision is flatly inconsistent with the rationale of Noerr. There the Court pointedly rejected "[a] construction of the Sherman Act that would disqualify people from taking a public position on matters in which they are financially interested" because such a construction "would deprive the government of a valuable source of information and, at the same time, deprive the people of their right to petition in the very instances in which that right may be of the most importance to them."[12] *627 Today's holding will not only penalize the right to petition but may very well strike a crippling blow at state utility regulation. As the Court seems to acknowledge, such regulation is heavily dependent on the active participation of the regulated parties, who typically propose tariffs which are either adopted, rejected, or modified by utility commissions. But if a utility can escape the unpredictable consequences of the second arm of the Court's new test, see infra, this page, only by playing possum by exercising no "option" in the Court's terminology, ante, at 594then it will surely be tempted to do just that, posing a serious threat to efficient and effective regulation. The second arm of the Court's new immunity test, which apparently comes into play only if the utility's own activity does not exceed a vaguely defined threshold of "sufficient freedom of choice," purports to be aimed at answering the basic question of whether "Congress intended to superimpose antitrust standards on conduct already being regulated" by state utility regulation laws. Ante, at 595. Yet analysis of the Court's opinion reveals that the |
Justice Stewart | 1,976 | 18 | dissenting | Cantor v. Detroit Edison Co. | https://www.courtlistener.com/opinion/109542/cantor-v-detroit-edison-co/ | 595. Yet analysis of the Court's opinion reveals that the three factors to which the Court pays heed have little or nothing to do with discerning congressional intent. Rather, the second arm of the new test simply creates a vehicle for ad hoc judicial determinations of the substantive validity of state regulatory goals, which closely resembles the discarded doctrine of substantive due process. See The Court's delineation of the second arm of the new test proceeds as follows. Apart from the "fairness" question, the Court states, there are "at least three reasons" why the light-bulb program should not enjoy Sherman Act immunity. Ante, at 595. "First," the Court observes, "merely because certain conduct may be subject both to state regulation and to the federal antitrust laws does not necessarily mean that it must satisfy *628 inconsistent standards." That is true enough as an abstract proposition, but the very question is whether the utility's alleged "tie" of light-bulb sales to the provision of electric service is immune from antitrust liability, assuming it would constitute an antitrust violation in the absence of regulation.[13] Second, the Court states, "even assuming inconsistency, we could not accept the view that the federal interest must inevitably be subordinated to the State's" The Court goes on to amplify this rationale as follows: "The mere possibility of conflict between state regulatory policy and federal antitrust policy is an insufficient basis for implying an exemption from the federal antitrust laws. Congress could hardly have intended state regulatory agencies to have broader power than federal agencies to exempt private conduct from the antitrust laws. Therefore, *629 assuming that there are situations in which the existence of state regulation should give rise to an implied exemption, the standards for ascertaining the existence and scope of such an exemption surely must be at least as severe as those applied to federal regulatory legislation. "The Court has consistently refused to find that regulation gave rise to an implied exemption without first determining that exemption was necessary in order to make the regulatory act work, `and even then only to the minimum extent necessary.' "The application of that standard to this case inexorably requires rejection of respondent's claim." Ante, at 596-598 (footnotes omitted). The Court's analysis rests on a mistaken premise. The "implied immunity" doctrine employed by this Court to reconcile the federal antitrust laws and federal regulatory statutes cannot, rationally, be put to the use for which the Court would employ it. That doctrine, a species of the basic rule that repeals by implication are disfavored, comes into play only when two arguably |
Justice Stewart | 1,976 | 18 | dissenting | Cantor v. Detroit Edison Co. | https://www.courtlistener.com/opinion/109542/cantor-v-detroit-edison-co/ | implication are disfavored, comes into play only when two arguably inconsistent federal statutes are involved. " `Implied repeal' " of federal antitrust laws by inconsistent state regulatory statutes is not only " `not favored,' " ante, at 597-598, n. 37, it is impossible. See U. S. Const., Art. VI, cl. 2. A closer scrutiny of the Court's holding reveals that its reference to the inapposite "implied repeal" doctrine is simply window dressing for a type of judicial review radically different from that engaged in by this Court in and United Those cases turned exclusively on issues of statutory construction and involved no judicial scrutiny of the abstract "necessity" or "centrality" of particular *630 regulatory provisions. Instead, the federal regulatory statute was accepted as a given, as was the federal antitrust law. The Court's interpretative effort was aimed at accommodating these arguably inconsistent bodies of law, not at second-guessing legislative judgments concerning the "necessity" for including particular provisions in the regulatory statute. The Court's approach here is qualitatively different. The State of Michigan, through its Public Service Commission, has decided that requiring Detroit Edison to provide "free" light bulbs as a term and condition of service is in the public interest. Yet the Court is prepared to set aside that policy determination: "The lamp-supply program is by no means imperative in the continued effective functioning of Michigan's regulation of the utilities industry." Ante, at 597 n. 36 (emphasis added). Even "if the federal antitrust laws should be construed to outlaw respondent's light-bulb-exchange program, there is no reason to believe that Michigan's regulation of its electric utilities will no longer be able to function effectively. Regardless of the outcome of this case, Michigan's interest in regulating its utilities' distribution of electricity will be almost entirely unimpaired." Ante, at 598 (emphasis added). The emphasized language in these passages shows that the Court is adopting an interpretation of the Sherman Act which will allow the federal judiciary to substitute its judgment for that of state legislatures and administrative agencies with respect to whether particular anticompetitive regulatory provisions are " `sufficiently central.' " ante, at 597 n. 37, to a judicial conception of the proper scope of state utility regulation. The content of those " `purposes,' " ib which the Court will suffer the States to promote derives presumably from the mandate of the Sherman Act. On this assumption and no other is plausibleit becomes apparent *631 that the Court's second reason for extending the Sherman Act to cover the light-bulb program, when divested of inapposite references to the federal implied repeal doctrine, is merely |
Justice Stewart | 1,976 | 18 | dissenting | Cantor v. Detroit Edison Co. | https://www.courtlistener.com/opinion/109542/cantor-v-detroit-edison-co/ | inapposite references to the federal implied repeal doctrine, is merely a restatement of the third rationale, which the Court phrases as follows: "[F]inally, even if we were to assume that Congress did not intend the antitrust laws to apply to areas of the economy primarily regulated by a State, that assumption would not foreclose the enforcement of the antitrust laws in an essentially unregulated area such as the market for electric light bulbs." Ante, at 595. This statement raises at last the only legitimate question, which is whether Parker erred in holding that Congress, in enacting the Sherman Act, did not intend to vitiate state regulation of the sort at issue here by creating treble-damages exposure for activities performed in compliance therewith. The Court's rationale appears to be that the draftsmen of the Sherman Act intended to exempt state-regulated utilities from treble damages only to the extent those utilities are complying with state rules which narrowly reflect the "typica[l] assum[ption] that the [utility] is a natural monopoly" and which regulate the utility's "natural monopoly powers" as opposed to its "business activity in competitive areas of the economy." Ante, at 595-596 (footnotes omitted). Furthermore, such regulation must be " `sufficiently central' " to the regulation of natural monopoly powers if it is to shield the regulated party from antitrust liability. Ante, at 597 n. 37. This Delphic reading of the Sherman Act, which is unaided by any reference to the language or legislative history of that Act, is, of course, inconsistent with Parker involved a state scheme aimed at artificially raising the market price of raisins. Raisin production is not a "natural monopoly." If the limits of *632 the state-action exemption from the Sherman Act are congruent with the boundaries of "natural monopoly" power, then Parker was wrongly decided. But the legislative history of the Sherman Act shows conclusively that Parker was correctly decided. The floor debates and the House Report on the proposed legislation clearly reveal, as at least one commentator has noted, that "Congress fully understood the narrow scope given to the commerce clause" in 1890.[14] This understanding is, in many ways, of historic interest only, because subsequent decisions of this Court have "permitted the reach of the Sherman Act to expand along with expanding notions of congressional power."[15] But the narrow view taken by the Members of Congress in 1890 remains relevant for the limited purpose of assessing their intention regarding the interaction of the Sherman Act and state economic regulation. The legislative history reveals very clearly that Congress' perception of the limitations of its power under the |
Justice Stewart | 1,976 | 18 | dissenting | Cantor v. Detroit Edison Co. | https://www.courtlistener.com/opinion/109542/cantor-v-detroit-edison-co/ | Congress' perception of the limitations of its power under the Commerce Clause was coupled with an intent not to intrude upon the authority of the several States to regulate "domestic" commerce. As the House Report stated: "It will be observed that the provisions of the bill are carefully confined to such subjects of legislation as are clearly within the legislative authority of Congress. "No attempt is made to invade the legislative authority *633 of the several States or even to occupy doubtful grounds. No system of laws can be devised by Congress alone which would effectually protect the people of the United States against the evils and oppression of trusts and monopolies. Congress has no authority to deal, generally, with the subject within the States, and the States have no authority to legislate in respect of commerce between the several States or with foreign nations. "It follows, therefore, that the legislative authority of Congress and that of the several States must be exerted to secure the suppression of restraints upon trade and monopolies. Whatever legislation Congress may enact on this subject, within the limits of its authority, will prove of little value unless the States shall supplement it by such auxiliary and proper legislation as may be within their legislative authority."[16] Similarly, the floor debates on the proposed legislation reveal an intent to "g[o] as far as the Constitution permits Congress to go,"[17] in the words of Senator Sherman, conjoined with an intent not to "interfere with" state-law efforts to "prevent and control combinations within the limit of the State."[18] Far from demonstrating an intent to pre-empt state laws aimed at preventing or controlling combinations or monopolies, the legislative debates show that Congress' goal was to supplement such state efforts, themselves restricted to the geographic boundaries of the several States. As Senator Sherman stated: "Each State can deal with a combination within the State, but only the General Government can deal *634 with combinations reaching not only the several States, but the commercial world. This bill does not include combinations within a State"[19] Indeed a pre-existing body of state law forbidding combinations in restraint of trade provided the model for the federal Act. As Senator Sherman stated with respect to the proposed legislation: "It declares that certain contracts are against public policy, null and void. It does not announce a new principle of law, but applies old and well-recognized principles of the common law to the complicated jurisdiction of our State and Federal Government. Similar contracts in any State in the Union are now, by common or statute law, null |
Justice Stewart | 1,976 | 18 | dissenting | Cantor v. Detroit Edison Co. | https://www.courtlistener.com/opinion/109542/cantor-v-detroit-edison-co/ | the Union are now, by common or statute law, null and void."[20] It is noteworthy that the body of state jurisprudence which formed the model for the Sherman Act coexisted with state laws permitting regulated industries to operate under governmental control in the public interest. Indeed, state regulatory laws long antedated the passage of the Sherman Act and had, prior to its passage, been upheld by this Court against constitutional attack.[21] Such laws were an integral part of state efforts to regulate *635 competition to which Congress turned for guidance in barring restraints of interstate commerce, and it is clear that those laws were left undisturbed by the passage of the Sherman Act in 1890. For, as congressional spokesmen expressly stated, there was no intent to "interfere with" state laws regulating domestic commerce or "invade the legislative authority of the several States." As previously noted, the intent of the draftsmen of the Sherman Act not to intrude on the sovereignty of the States was coupled with a full and precise understanding of the narrow scope of congressional power under the Commerce Clause, as it was then interpreted by decisions of this Court. Subsequent decisions of the Court, however, have permitted the "jurisdictional" reach of the Sherman Act to expand along with an expanding view of the commerce power of Congress. See Hospital Building 743 n. 2, and cases cited therein. These decisions, based on a determination that Congress intended to exercise all the power it possessed when it enacted the Sherman Act,[22] have in effect allowed the Congress of 1890 the retroactive benefit of an enlarged judicial conception of the commerce power.[23] It was this retroactive expansion of the jurisdictional reach of the Sherman Act that was in large part responsible for the advent of the Parker doctrine. Parker involved a program regulating the production of raisins *636 within the State of California. Under the original understanding of the draftsmen of the Sherman Act, such in-state production, like in-state manufacturing, would not have been subject to the regulatory power of Congress under the Commerce Clause and thus not within the "jurisdictional" reach of the Sherman Act. See United If the state of the law had remained static, the Parker problem would rarely, if ever, have arisen. As stated in Northern Securities the operative premise would have been that the "Anti-Trust Act prescribe[d] a rule for interstate and international commerce, (not for domestic commerce,)" The relevant question would have been whether the anticompetitive conduct required or permitted by the state statute was in restraint of domestic or interstate commerce. If the |
Justice Stewart | 1,976 | 18 | dissenting | Cantor v. Detroit Edison Co. | https://www.courtlistener.com/opinion/109542/cantor-v-detroit-edison-co/ | was in restraint of domestic or interstate commerce. If the former, the conduct would have been beyond the reach of the Sherman Act; if the latter, the conduct would probably have violated the Sherman Act, regardless of contrary state law, on the theory that "[n]o State can, by any mode, project its authority into other States, and across the continent, so as to prevent Congress from exerting the power it possesses under the Constitution over interstate and international commerce, or to exempt its corporation engaged in interstate commerce from obedience to any rule lawfully established by Congress for such commerce." But the law did not remain static. As one commentator has put it: "By 1942, when was decided, the interpretation and scope of the commerce clause had changed substantially. With the development of the `affection doctrine' purely intrastate events"like state-mandated anticompetitive arrangements with respect to in-state agricultural production or in-state provision of utility services"could be regulated *637 under the commerce clause if these events had the requisite impact on interstate commerce."[24] This development created a potential for serious conflict between state statutes regulating commerce which, in 1890, would have been considered "domestic" but which, in 1942, were viewed as falling within the jurisdictional reach of the Sherman Act. To have held that state statutes requiring anticompetitive arrangements with respect to such commerce were pre-empted by the Sherman Act would, in effect, have transformed a generous principle of judicial constructionnamely the "retroactive" expansion of the jurisdictional reach of the Sherman Act to the limits of an expanded judicial conception of the commerce powerinto a transgression of the clearly expressed congressional intent not to intrude on the regulatory authority of the States. The "state action" doctrine of as clarified by Goldfarb, represents the best possible accommodation of this limiting intent and the post-1890 judicial expansion of the jurisdictional reach of the Sherman Act. Parker's basic holdingthat the Sherman Act did not intend to displace restraints imposed by the State acting as sovereigncoincides with the expressed legislative goal not to "invade the legislative authority of the several States" Goldfarb clarified Parker by holding that private conduct, if it is to come within the state-action exemption, must be not merely "prompted" but "compelled" by state action. Thus refined, the doctrine performs the salutary function of isolating those areas of state regulation where the State's sovereign interest is, by the State's own judgment, at its strongest, and limits the exemption to those areas.[25] *638 Beyond this the Court cannot go without disregarding the purpose of the Sherman Act not to disrupt state regulatory laws.[26] Congress, |
Justice Stewart | 1,976 | 18 | dissenting | Cantor v. Detroit Edison Co. | https://www.courtlistener.com/opinion/109542/cantor-v-detroit-edison-co/ | the Sherman Act not to disrupt state regulatory laws.[26] Congress, of course, can alter its *639 original intent and expand or contract the categories of state law which may permissibly impose restraints on competition. For example, in 1937 Congress passed the Miller-Tydings Act which attached a proviso to 1 of the Sherman Act permitting resale price maintenance contracts where such contracts were permitted by applicable state law. This proviso was interpreted in Schwegmann not to permit a State to enforce a law providing that all retailers within a State were bound by a resale price maintenance contract executed by any one retailer in the State. As the Court today notes, Parkerand the legislative judgment embodied in the 1890 version of the Sherman Actwould, standing alone, have seemed to immunize the state scheme. Ante, at 593. But Congress was thought to have struck a new balance in 1937 with respect to a specific category of state-imposed restraints. Accordingly, the Court in Schwegmann determined congressional intent concerning the permissible limits of state restraints with respect to resale price maintenance by reference to the later, and more specific, expression of congressional purpose.[27] *640 There has been no analogous alteration of the original intent regarding the area of state regulation at issue here. Indeed, to the extent subsequent congressional action is probative at all, it shows a continuing intent to defer to the regulatory authority of the States over the terms and conditions of in-state electric utility service. Thus, 201 (a) of the Federal Power Act, 16 U.S. C. 824 (a), provides in relevant part that "Federal regulation. [is] to extend only to those matters which are not subject to regulation by the States." The Court's opinion simply ignores the clear evidence of congressional intent and substitutes its own policy judgment about the desirability of disregarding any facet of state economic regulation that it thinks unwise or of no great importance. In adopting this freewheeling approach to the language of the Sherman Act the Court creates a statutory simulacrum of the substantive due process doctrine I thought had been put to rest long ago. See[28] For the Court's approach contemplates the selective interdiction of those anticompetitive state regulatory measures that are deemed not "central" to the limited range of regulatory goals considered "imperative" by the federal judiciary. Henceforth, a state-regulated public utility company must at its peril successfully divine which of its countless and interrelated tariff provisions a federal court will ultimately consider "central" or "imperative." If it guesses wrong, it may be subjected to treble damages as a penalty for its compliance with |
Justice White | 1,970 | 6 | majority | Williams v. Florida | https://www.courtlistener.com/opinion/108186/williams-v-florida/ | Prior to his trial for robbery in the State of Florida, petitioner filed a "Motion for a Protective Order," seeking to be excused from the requirements of Rule 1.200 of the Florida Rules of Criminal Procedure. That rule requires a defendant, on written demand of the prosecuting attorney, to give notice in advance of trial if the defendant intends to claim an alibi, and to furnish the prosecuting attorney with information as to the place where he claims to have been and with the names and addresses of the alibi witnesses he intends to use.[1] In his motion petitioner openly declared his intent to claim an alibi, but objected to the further disclosure requirements on the ground that the rule "compels the Defendant in a criminal case to be a witness against himself" in violation of his Fifth and Fourteenth Amendment rights.[2] The motion was denied. Petitioner also filed a pretrial motion to impanel a 12-man jury instead of the six-man *80 jury provided by Florida law in all but capital cases.[3] That motion too was denied. Petitioner was convicted as charged and was sentenced to life imprisonment.[4] The District Court of Appeal affirmed, rejecting petitioner's claims that his Fifth and Sixth Amendment rights had been violated. We granted certiorari.[5] I Florida's notice-of-alibi rule is in essence a requirement that a defendant submit to a limited form of pretrial discovery by the State whenever he intends to rely at trial on the defense of alibi. In exchange for the defendant's disclosure of the witnesses he proposes to use to establish that defense, the State in turn is required to notify the defendant of any witnesses it proposes to offer in rebuttal to that defense. Both sides are under a continuing duty promptly to disclose the names and addresses of additional witnesses bearing on the alibi as they become available. The threatened sanction for failure to comply is the exclusion at trial of the defendant's alibi evidenceexcept for his own testimonyor, in the case of the State, the exclusion of the State's evidence offered in rebuttal of the alibi.[6] In this case, following the denial of his Motion for a Protective Order, petitioner complied with the alibi *81 rule and gave the State the name and address of one Mary Scotty. Mrs. Scotty was summoned to the office of the State Attorney on the morning of the trial, where she gave pretrial testimony. At the trial itself, Mrs. Scotty, petitioner, and petitioner's wife all testified that the three of them had been in Mrs. Scotty's apartment during the time of the |
Justice White | 1,970 | 6 | majority | Williams v. Florida | https://www.courtlistener.com/opinion/108186/williams-v-florida/ | been in Mrs. Scotty's apartment during the time of the robbery. On two occasions during cross-examination of Mrs. Scotty, the prosecuting attorney confronted her with her earlier deposition in which she had given dates and times that in some respects did not correspond with the dates and times given at trial. Mrs. Scotty adhered to her trial story, insisting that she had been mistaken in her earlier testimony.[7] The State also offered in rebuttal the testimony of one of the officers investigating the robbery who claimed that Mrs. Scotty had asked him for directions on the afternoon in question during the time when she claimed to have been in her apartment with petitioner and his wife.[8] We need not linger over the suggestion that the discovery permitted the State against petitioner in this case deprived him of "due process" or a "fair trial." Florida law provides for liberal discovery by the defendant against the State,[9] and the notice-of-alibi rule is itself carefully hedged with reciprocal duties requiring state disclosure to the defendant. Given the ease with which an alibi can be fabricated, the State's interest in protecting itself against an eleventh-hour defense is both obvious and legitimate. Reflecting this interest, notice-of-alibi provisions, dating at least from 1927,[10]*82 are now in existence in a substantial number of States.[11] The adversary system of trial is hardly an end in itself; it is not yet a poker game in which players enjoy an absolute right always to conceal their cards until played.[12] We find ample room in that system, at least as far as "due process" is concerned, for the instant Florida rule, which is designed to enhance the search for truth in the criminal trial by insuring both the defendant and the State ample opportunity to investigate certain facts crucial to the determination of guilt or innocence. Petitioner's major contention is that he was "compelled. to be a witness against himself" contrary to the commands of the Fifth and Fourteenth Amendments because the notice-of-alibi rule required him to give the State the name and address of Mrs. Scotty in advance of trial and thus to furnish the State with information useful in convicting him. No pretrial statement of petitioner was introduced at trial; but armed with Mrs. Scotty's name and address and the knowledge *83 that she was to be petitioner's alibi witness, the State was able to take her deposition in advance of trial and to find rebuttal testimony. Also, requiring him to reveal the elements of his defense is claimed to have interfered with his right to wait until after |
Justice White | 1,970 | 6 | majority | Williams v. Florida | https://www.courtlistener.com/opinion/108186/williams-v-florida/ | to have interfered with his right to wait until after the State had presented its case to decide how to defend against it. We conclude, however, as has apparently every other court that has considered the issue,[13] that the privilege against self-incrimination is not violated by a requirement that the defendant give notice of an alibi defense and disclose his alibi witnesses.[14] The defendant in a criminal trial is frequently forced to testify himself and to call other witnesses in an effort to reduce the risk of conviction. When he presents his witnesses, he must reveal their identity and submit them to cross-examination which in itself may prove incriminating or which may furnish the State with leads to *84 incriminating rebuttal evidence. That the defendant faces such a dilemma demanding a choice between complete silence and presenting a defense has never been thought an invasion of the privilege against compelled self-incrimination. The pressures generated by the State's evidence may be severe but they do not vitiate the defendant's choice to present an alibi defense and witnesses to prove it, even though the attempted defense ends in catastrophe for the defendant. However "testimonial" or "incriminating" the alibi defense proves to be, it cannot be considered "compelled" within the meaning of the Fifth and Fourteenth Amendments. Very similar constraints operate on the defendant when the State requires pretrial notice of alibi and the naming of alibi witnesses. Nothing in such a rule requires the defendant to rely on an alibi or prevents him from abandoning the defense; these matters are left to his unfettered choice.[15] That choice must *85 be made, but the pressures that bear on his pretrial decision are of the same nature as those that would induce him to call alibi witnesses at the trial: the force of historical fact beyond both his and the State's control and the strength of the State's case built on these facts. Response to that kind of pressure by offering evidence or testimony is not compelled self-incrimination transgressing the Fifth and Fourteenth Amendments. In the case before us, the notice-of-alibi rule by itself in no way affected petitioner's crucial decision to call alibi witnesses or added to the legitimate pressures leading to that course of action. At most, the rule only compelled petitioner to accelerate the timing of his disclosure, forcing him to divulge at an earlier date information that the petitioner from the beginning planned to divulge at trial. Nothing in the Fifth Amendment privilege entitles a defendant as a matter of constitutional right to await the end of the State's case |
Justice White | 1,970 | 6 | majority | Williams v. Florida | https://www.courtlistener.com/opinion/108186/williams-v-florida/ | constitutional right to await the end of the State's case before announcing the nature of his defense, any more than it entitles him to await the jury's verdict on the State's case-in-chief before deciding whether or not to take the stand himself. Petitioner concedes that absent the notice-of-alibi rule the Constitution would raise no bar to the court's granting the State a continuance at trial on the ground of surprise as soon as the alibi witness is called.[16] Nor *86 would there be self-incrimination problems if, during that continuance, the State was permitted to do precisely what it did here prior to trial: take the deposition of the witness and find rebuttal evidence. But if so utilizing a continuance is permissible under the Fifth and Fourteenth Amendments, then surely the same result may be accomplished through pretrial discovery, as it was here, avoiding the necessity of a disrupted trial.[17] We decline to hold that the privilege against compulsory self-incrimination guarantees the defendant the right to surprise the State with an alibi defense. II In we held that the Fourteenth Amendment guarantees a right to trial by jury in all criminal cases thatwere they to be tried in a federal courtwould come within the Sixth Amendment's guarantee. Petitioner's trial for robbery on July 3, 1968, clearly falls within the scope of that holding. See Baldwin v. New York, ante, p. 66; The question in this case then is whether the constitutional guarantee of a trial by "jury" necessarily requires trial by exactly 12 persons, rather than some lesser numberin this case six. We hold that the 12-man panel is not a necessary ingredient of "trial by jury," and that respondent's refusal to impanel more than the six members provided for by Florida law did not violate petitioner's Sixth Amendment rights as applied to the States through the Fourteenth. We had occasion in to review briefly the oft-told history of the development *87 of trial by jury in criminal cases.[18] That history revealed a long tradition attaching great importance to the concept of relying on a body of one's peers to determine guilt or innocence as a safeguard against arbitrary law enforcement. That same history, however, affords little insight into the considerations that gradually led the size of that body to be generally fixed at 12.[19] Some have suggested that the number 12 was fixed upon simply because that was the number of the presentment jury from the hundred, from which the petit jury developed.[20]*88 Other, less circular but more fanciful reasons for the number 12 have been given, "but they were |
Justice White | 1,970 | 6 | majority | Williams v. Florida | https://www.courtlistener.com/opinion/108186/williams-v-florida/ | for the number 12 have been given, "but they were all brought forward after the number was fixed,"[21] and rest on little more than mystical or superstitious insights into the significance of "12." Lord Coke's explanation that the "number of twelve is much respected in holy writ, as 12 apostles, 12 stones, 12 tribes, etc.,"[22] is typical.[23] In *89 short, while sometime in the 14th century the size of the jury at common law came to be fixed generally at 12,[24] that particular feature of the jury system appears to have been a historical accident, unrelated to the great *90 purposes which gave rise to the jury in the first place.[25] The question before us is whether this accidental feature of the jury has been immutably codified into our Constitution. This Court's earlier decisions have assumed an affirmative answer to this question. The leading case so construing the Sixth Amendment is There the defendant had been tried and convicted by a 12-man jury for a crime committed in the Territory of Utah. A new trial was granted, but by that time Utah had been admitted as a State. The defendant's new trial proceeded under Utah's Constitution, providing for a jury of only eight members. This Court reversed the resulting conviction, holding that Utah's constitutional provision was an ex post facto law as applied to the defendant. In reaching its conclusion, the Court announced that the Sixth Amendment was applicable to the defendant's trial when Utah was a Territory, and that the jury referred to in the Amendment was a jury "constituted, as it was at common law, of twelve persons, neither more nor less." Arguably unnecessary for the result,[26]*91 this announcement was supported simply by referring to the Magna Carta,[27] and by quoting passages from treatises which notedwhat has already been seen that at common law the jury did indeed consist of 12. Noticeably absent was any discussion of the essential step in the argument: namely, that every feature of the jury as it existed at common lawwhether incidental or essential to that institutionwas necessarily included in the Constitution wherever that document referred to a "jury."[28] Subsequent decisions have reaffirmed the *92 announcement in Thompson, often in dictum[29] and usually by relyingwhere there was any discussion of the issue at allsolely on the fact that the common-law jury consisted of 12.[30] See ;[31]Rassmussen v. United States, ; While "the intent of the Framers" is often an elusive quarry, the relevant constitutional history casts considerable doubt on the easy assumption in our past decisions that if a given feature existed in |
Justice White | 1,970 | 6 | majority | Williams v. Florida | https://www.courtlistener.com/opinion/108186/williams-v-florida/ | our past decisions that if a given feature existed in a jury at common law in 1789, then it was necessarily preserved in the Constitution. *93 Provisions for jury trial were first placed in the Constitution in Article III's provision that "[t]he Trial of all Crimes shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed."[32] The "very scanty history [of this provision] in the records of the Constitutional Convention"[33] sheds little light either way on the intended correlation between Article III's "jury" and the features of the jury at common law.[34] Indeed, pending and after the adoption of the Constitution, fears were expressed that Article III's provision failed to preserve the common-law right to be tried by a "jury of the vicinage."[35] That concern, as well as the concern *94 to preserve the right to jury in civil as well as criminal cases, furnished part of the impetus for introducing amendments to the Constitution that ultimately resulted in the jury trial provisions of the Sixth and Seventh Amendments. As introduced by James Madison in the House, the Amendment relating to jury trial in criminal cases would have provided that: "The trial of all crimes shall be by an impartial jury of freeholders of the vicinage, with the requisite of unanimity for conviction, of the right of challenge, and other accustomed requisites"[36] The Amendment passed the House in substantially this form, but after more than a week of debate in the Senate it returned to the House considerably altered.[37] While records of the actual debates that occurred in *95 the Senate are not available,[38] a letter from Madison to Edmund Pendleton on September 14, 1789, indicates that one of the Senate's major objections was to the "vicinage" requirement in the House version.[39] A conference committee was appointed. As reported in a second letter by Madison on September 23, 1789, the Senate remained opposed to the vicinage requirement, partly because in its view the then-pending judiciary billwhich was debated at the same time as the Amendments adequately preserved the common-law vicinage feature, making it unnecessary to freeze that requirement into the Constitution. "The Senate," wrote Madison: "are inflexible in opposing a definition of the locality of Juries. The vicinage they contend is either too vague or too strict a term; too vague if depending on limits to be fixed by the pleasure of the law, too strict if limited to the county. It was proposed to insert after the word Juries, `with the accustomed requisites,' leaving the definition to be |
Justice White | 1,970 | 6 | majority | Williams v. Florida | https://www.courtlistener.com/opinion/108186/williams-v-florida/ | Juries, `with the accustomed requisites,' leaving the definition to be construed according to the judgment of professional *96 men. Even this could not be obtained The Senate suppose, also, that the provision for vicinage in the Judiciary bill will sufficiently quiet the fears which called for an amendment on this point."[40] The version that finally emerged from the Committee was the version that ultimately became the Sixth Amendment, ensuring an accused: "the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law" Gone were the provisions spelling out such common-law features of the jury as "unanimity," or "the accustomed requisites." And the "vicinage" requirement itself had been replaced by wording that reflected a compromise between broad and narrow definitions of that term, and that left Congress the power to determine the actual size of the "vicinage" by its creation of judicial districts.[41] Three significant features may be observed in this sketch of the background of the Constitution's jury trial provisions. First, even though the vicinage requirement was as much a feature of the common-law jury as was the 12-man requirement,[42] the mere reference to "trial by jury" in Article III was not interpreted to include that feature. Indeed, as the subsequent debates over the Amendments indicate, disagreement arose over whether the feature should be included at all in its common-law sense, resulting in the compromise described above. Second, provisions that would have explicitly *97 tied the "jury" concept to the "accustomed requisites" of the time were eliminated. Such action is concededly open to the explanation that the "accustomed requisites" were thought to be already included in the concept of a "jury." But that explanation is no more plausible than the contrary one: that the deletion had some substantive effect. Indeed, given the clear expectation that a substantive change would be effected by the inclusion or deletion of an explicit "vicinage" requirement, the latter explanation is, if anything, the more plausible. Finally, contemporary legislative and constitutional provisions indicate that where Congress wanted to leave no doubt that it was incorporating existing common-law features of the jury system, it knew how to use express language to that effect. Thus, the Judiciary bill, signed by the President on the same day that the House and Senate finally agreed on the form of the Amendments to be submitted to the States, provided in certain cases for the narrower "vicinage" requirements that the House had wanted to include in the Amendments.[43] And the |
Justice White | 1,970 | 6 | majority | Williams v. Florida | https://www.courtlistener.com/opinion/108186/williams-v-florida/ | House had wanted to include in the Amendments.[43] And the Seventh Amendment, providing for jury trial in civil cases, explicitly added that "no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law."[44] *98 We do not pretend to be able to divine precisely what the word "jury" imported to the Framers, the First Congress, or the States in 1789. It may well be that the usual expectation was that the jury would consist of 12,[45] and that hence, the most likely conclusion *99 to be drawn is simply that little thought was actually given to the specific question we face today. But there is absolutely no indication in "the intent of the Framers" of an explicit decision to equate the constitutional and common-law characteristics of the jury. Nothing in this history suggests, then, that we do violence to the letter of the Constitution by turning to other than purely historical considerations to determine which features of the jury system, as it existed at common law, were preserved in the Constitution. The relevant inquiry, as we see it, must be the function that the particular feature performs and its relation to the *100 purposes of the jury trial. Measured by this standard, the 12-man requirement cannot be regarded as an indispensable component of the Sixth Amendment. The purpose of the jury trial, as we noted in Duncan, is to prevent oppression by the Government. "Providing an accused with the right to be tried by a jury of his peers gave him an inestimable safeguard against the corrupt or overzealous prosecutor and against the compliant, biased, or eccentric judge." Given this purpose, the essential feature of a jury obviously lies in the interposition between the accused and his accuser of the commonsense judgment of a group of laymen, and in the community participation and shared responsibility that results from that group's determination of guilt or innocence. The performance of this role is not a function of the particular number of the body that makes up the jury. To be sure, the number should probably be large enough to promote group deliberation, free from outside attempts at intimidation, and to provide a fair possibility for obtaining a representative cross-section of the community. But we find little reason to think that these goals are in any meaningful sense less likely to be achieved when the jury numbers six, than when it numbers 12particularly if the requirement of unanimity is retained.[46] And, certainly the reliability of the jury *101 |
Justice White | 1,970 | 6 | majority | Williams v. Florida | https://www.courtlistener.com/opinion/108186/williams-v-florida/ | is retained.[46] And, certainly the reliability of the jury *101 as a factfinder hardly seems likely to be a function of its size. It might be suggested that the 12-man jury gives a defendant a greater advantage since he has more "chances" of finding a juror who will insist on acquittal and thus prevent conviction. But the advantage might just as easily belong to the State, which also needs only one juror out of twelve insisting on guilt to prevent acquittal.[47] What few experiments have occurredusually in the civil areaindicate that there is no discernible difference between the results reached by the two different-sized juries.[48] In short, neither currently available evidence nor theory[49] suggests that the 12-man *102 jury is necessarily more advantageous to the defendant than a jury composed of fewer members. Similarly, while in theory the number of viewpoints represented on a randomly selected jury ought to increase as the size of the jury increases, in practice the difference between the 12-man and the six-man jury in terms of the cross-section of the community represented seems likely to be negligible. Even the 12-man jury cannot insure representation of every distinct voice in the community, particularly given the use of the peremptory challenge. As long as arbitrary exclusions of a particular class from the jury rolls are forbidden, see, e. g., the concern that the cross-section will be significantly diminished if the jury is decreased in size from 12 to six seems an unrealistic one. We conclude, in short, as we began: the fact that the jury at common law was composed of precisely 12 is a historical accident, unnecessary to effect the purposes of the jury system and wholly without significance "except to mystics." To read the Sixth Amendment as *103 forever codifying a feature so incidental to the real purpose of the Amendment is to ascribe a blind formalism to the Framers which would require considerably more evidence than we have been able to discover in the history and language of the Constitution or in the reasoning of our past decisions. We do not mean to intimate that legislatures can never have good reasons for concluding that the 12-man jury is preferable to the smaller jury, or that such conclusionsreflected in the provisions of most States and in our federal system[50] are in any sense unwise. Legislatures may well have their own views about the relative value of the larger and smaller juries, and may conclude that, wholly apart from the jury's primary function, it is desirable to spread the collective responsibility for the determination of guilt |
Justice White | 1,970 | 6 | majority | Williams v. Florida | https://www.courtlistener.com/opinion/108186/williams-v-florida/ | to spread the collective responsibility for the determination of guilt among the larger group. In capital cases, for example, it appears that no State provides for less than 12 jurors a fact that suggests implicit recognition of the value of the larger body as a means of legitimating society's decision to impose the death penalty. Our holding does no more than leave these considerations to Congress and the States, unrestrained by an interpretation of the Sixth Amendment that would forever dictate the precise number that can constitute a jury. Consistent with this holding, we conclude that petitioner's Sixth Amendment rights, as applied to the States through the Fourteenth Amendment, were not violated by Florida's decision to provide a six-man rather than a 12-man jury. The judgment of the Florida District Court of Appeal is Affirmed. MR. JUSTICE BLACKMUN took no part in the consideration or decision of this case. *104 APPENDIX TO OPINION OF THE COURT Fla. Rule Crim. Proc. 1.200: "Upon the written demand of the prosecuting attorney, specifying as particularly as is known to such prosecuting attorney, the place, date and time of the commission of the crime charged, a defendant in a criminal case who intends to offer evidence of an alibi in his defense shall, not less than ten days before trial or such other time as the court may direct, file and serve upon such prosecuting attorney a notice in writing of his intention to claim such alibi, which notice shall contain specific information as to the place at which the defendant claims to have been at the time of the alleged offense and, as particularly as is known to defendant or his attorney, the names and addresses of the witnesses by whom he proposes to establish such alibi. Not less than five days after receipt of defendant's witness list, or such other times as the court may direct, the prosecuting attorney shall file and serve upon the defendant the names and addresses (as particularly as are known to the prosecuting attorney) of the witnesses the State proposes to offer in rebuttal to discredit the defendant's alibi at the trial of the cause. Both the defendant and the prosecuting attorney shall be under a continuing duty to promptly disclose the names and addresses of additional witnesses which come to the attention of either party subsequent to filing their respective witness lists as provided in this rule. If a defendant fails to file and serve a copy of such notice as herein required, the court may exclude evidence offered by such defendant for the purpose of |
Justice White | 1,970 | 6 | majority | Williams v. Florida | https://www.courtlistener.com/opinion/108186/williams-v-florida/ | exclude evidence offered by such defendant for the purpose of proving an alibi, except the testimony of the defendant himself. If such notice is given by a *105 defendant, the court may exclude the testimony of any witness offered by the defendant for the purpose of proving an alibi if the name and address of such witness as particularly as is known to defendant or his attorney is not stated in such notice. If the prosecuting attorney fails to file and serve a copy on the defendant of a list of witnesses as herein provided, the court may exclude evidence offered by the state in rebuttal to the defendant's alibi evidence. If such notice is given by the prosecuting attorney, the court may exclude the testimony of any witness offered by the prosecuting attorney for the purpose of rebutting the defense of alibi if the name and address of such witness as particularly as is known to the prosecuting attorney is not stated in such notice. For good cause shown the court may waive the requirements of this rule." MR. |
Justice Rehnquist | 1,995 | 19 | dissenting | United States v. Williams | https://www.courtlistener.com/opinion/117926/united-states-v-williams/ | The Court, in an unusual departure from the bedrock principle that waivers of sovereign immunity must be "unequivocally expressed," holds that respondent may sue for a refund of a tax which was not assessed against her. In so doing, it *542 outlines in some detail what it conceives to be the equities of respondent's situationa factor not usually of great significance in construing the Internal Revenue Code. I believe that the Court's picture of the equities is misleadingly inaccurate, and that its effort to stretch the law to avoid these perceived inequities is quite contrary to established doctrine. The legal question at hand is whether the Government has waived its sovereign immunity in 28 U.S. C. 1346(a)(1) to authorize respondent, who conceded that she "is not the taxpayer," App. 16, to file a refund suit. In answering that question, it must be remembered that 1346(a)(1) is "a jurisdictional provision which is a keystone in a carefully articulated and quite complicated structure of tax laws." Section "1346(a)(1) must be read in conformity with other statutory provisions [26 U.S. C. 7422(a) and 6511(a)] which qualify a taxpayer's right to bring a refund suit." United Section 1346(a)(1) provides: "The district courts shall have original jurisdiction, concurrent with the United States Court of Federal Claims, of: "(1) Any civil action against the United States for the recovery of any internal-revenue tax alleged to have been erroneously or illegally assessed or collected, or any penalty claimed to have been collected without authority or any sum alleged to have been excessive or in any manner wrongfully collected under the internalrevenue laws." 28 U.S. C. 1346(a)(1) (1988 ed. and Supp V). The jurisdiction conferred by 1346(a)(1) is limited by 26 U.S. C. 7422(a). Like 1346(a)(1), 7422(a) contains no language limiting a refund suit to the "taxpayer," but its "express language conditions a district court's authority *543 to hear a refund suit." It requires that "a claim for refund or credit [first be] filed with the Secretary, according to the provisions of law in that regard." 26 U.S. C. 7422(a). There are two "provisions of law" dealing with such claims. Title 26 U.S. C. 6511(a) provides in part that a "[c]laim for credit or refund of an overpayment of any tax imposed by this title in respect of which tax the taxpayer is required to file a return shall be filed by the taxpayer within 3 years from the time the return was filed or 2 years from the time the tax was paid." (Emphasis added.) Title 26 U.S. C. 6532(a), which imposes a period of limitations on |
Justice Rehnquist | 1,995 | 19 | dissenting | United States v. Williams | https://www.courtlistener.com/opinion/117926/united-states-v-williams/ | U.S. C. 6532(a), which imposes a period of limitations on suits for refunds in court and is entitled "Suits by taxpayers for refund," states that "[n]o suit or proceeding under section 7422(a) shall be begun before the expiration of 6 months from the date of filing the claim required under such section nor after the expiration of 2 years from the date of mailing by certified mail or registered mail by the Secretary to the taxpayer of a notice of the disallowance" (emphasis added). Both 6511(a) and 6532(a) clearly are limited to the "taxpayer," and the term "taxpayer" is in turn defined in 7701(a)(14) to mean "any person subject to any internal revenue tax." Reading these provisions as a whole, the conclusion is inescapable that only a "taxpayer" ( 7701(a)(14)) who has filed a timely claim for refund (under 6511(a)) and a timely suit for refund (under 6532(a)) is authorized to maintain a suit for refund in any court ( 7422(a)) for an "erroneously or illegally assessed or collected" tax (28 U.S. C. 1346(a)(1)). The Court describes 26 U.S. C. 6511(a) as providing "only a deadline for filing for administrative relief, not a limit on who may file." Ante, at 534. But the "plain terms" of *544 6511(a), ibid., do impose such a limita refund claim may be filed only "by the taxpayer." The Court discounts the notion that the term "taxpayer" limits administrative relief to the party assessed by concluding that such a construction "is inconsistent with other provisions of the refund scheme." The "other provisions" cited by the Court, however, are in no way inconsistent with the above construction of 6511(a): the fact that the Secretary is authorized to refund any overpayment to "the person who made the overpayment," 6402(a), or to "the person who paid the tax," 6416(a), 6419(a), does not mean that such a person may bring suit if she disagrees with the Secretary's calculation of the amount of the overpayment. And even if such an inconsistency did exist, an "inconsistency" is not enough to carry the day when dealing with a waiver of sovereign immunity; "inconsistency" simply means ambiguity, and because a waiver of sovereign immunity must be "`unequivocally expressed,' " any ambiguity is construed in favor of immunity. United The Court proceeds to argue that, even if only "taxpayers" could seek administrative relief under 6511, respondent qualifies as a "taxpayer." Ante, at 535. That term is defined in the Code as "any person subject to any internal revenue tax." 7701(a)(14). The Court says this phrase is "broad enough to include [respondent]" because the Government |
Justice Rehnquist | 1,995 | 19 | dissenting | United States v. Williams | https://www.courtlistener.com/opinion/117926/united-states-v-williams/ | phrase is "broad enough to include [respondent]" because the Government "place[d] a lien on her home and then accept[ed] her tax payment." Ante, at 535. This is remarkably imprecise reasoning. Respondent was subjected to a tax lien, but this does not mean she was "subject to any internal revenue tax" in the normal sense of that phrase as used in the Code. The tax was assessed against Rabin, not respondent, and respondent has equivocated as to whether she is simply challenging the lien or also challenging Rabin's underlying tax assessment. The underlying tax, and the lien to enforce liability for that tax, are obviously two different things. One may have a tax *545 assessed against him, and if he pays it in a timely manner he will never be subject to a lien. Conversely, one against whom the tax was not assessed may nonetheless be subject to a lien to enforce collection of that tax. The Court says it will decide here only the challenge to the lien, thereby leaving the tax totally unchallenged in this proceeding. Ante, at 539-540, and n. 10. This is quite contrary to the language quoted above, which allows only the person "subject to any internal revenue tax " to file the claim for refund which is the necessary prerequisite for bringing a refund suit under 1346(a)(1). The Court believes its position is reinforced by its conclusion that respondent is left without a remedy if she cannot bring a refund suit under 1346(a)(1). Equities ordinarily do not assume such a dominant role when dealing with questions of sovereign immunity, but if they are to play that role, the equities ought to be those which can be confirmed on the record before us. The undisputed facts of record which evoke the Court's sympathy are these. Rabin and respondent owned the property in question as joint tenants. In June 1987, and in March 1988, the Government made federal employment tax assessments totaling nearly $15,000 against Rabin. A federal tax lien securing the taxes and interest owed by Rabin arose "at the time the assessment [was] made," 26 U.S. C. 6322, and reached "all property and rights to property, whether real or personal, belonging to" Rabin at that time. 6321. In October 1988, Rabin and respondent entered into a "transfer agreement," whereby Rabin agreed to convey his interest in the property to respondent and to indemnify her for the payment of any liens on the property. Rabin transferred his interest in the property to respondent by executing a quitclaim deed. The deed, recorded nearly three months before any |
Justice Rehnquist | 1,995 | 19 | dissenting | United States v. Williams | https://www.courtlistener.com/opinion/117926/united-states-v-williams/ | quitclaim deed. The deed, recorded nearly three months before any divorce proceedings had commenced, described respondent as "`an unmarried woman.' " App. 14. This misrepresentationstating that respondent was "`an *546 unmarried woman' " at the time of the transferraises the question whether the property was conveyed to respondent "in contemplation of divorce," as the Court says, ante, at 530, or whether it was done in an attempt to shield Rabin's assets from the tax lien. In November 1988, the Government recorded notice of the federal tax lien. Respondent commenced divorce proceedings against Rabin in January 1989, and in May 1989, while the divorce petition was pending, respondent entered into an agreement to sell the property. In June 1989, the Government filed notice of additional tax liens, including a lien in respondent's name as nominee, agent, alter ego, and holder of a beneficial interest in the property for Rabin. The closing date for the sale of the property was July 3, 1989. Respondent thus faced a situation not uncommon to those who seek to transfer a clear title to real property: Her property was subject to federal tax liens. But despite the Court's suggestion to the contrary, respondent clearly had available to her at least two remedies. She could have brought an action to "quiet title" under 28 U.S. C. 2410(a)(1), or she could have sought from the Secretary a "certificate of discharge" of the property under 26 U.S. C. 6325(b)(3). The Court, relying on respondent's bald assertion that she had no notice of the liens until the week before the closing, concludes that a quiet title action under 2410(a) would not have afforded respondent meaningful relief because only "a refund suit would allow her to sell the property and simultaneously pay off the lien, leaving her free to litigate with the Government without tying up her real property." Ante, at 537. This simply begs the question. Obviously, a quiet title action brought at the time respondent agreed to sell the property could not have proceeded to judgment before the closing date, but that is true of lawsuits to quiet title against all sorts of other liens that may prevent the conveyance of clear title. The existence of outstanding liens on property *547 is a fact of life, and heretofore lienorsleast of all the United Stateshave not been required to afford the legal equivalent of "same day service" to finally adjudicate title before the closing date. Respondent was not left only with the remedy of a quiet title action; she could have sought from the Secretary a "certificate of discharge" of |
Justice Rehnquist | 1,995 | 19 | dissenting | United States v. Williams | https://www.courtlistener.com/opinion/117926/united-states-v-williams/ | have sought from the Secretary a "certificate of discharge" of the property under 26 U.S. C. 6325(b)(3) by agreeing to hold the proceeds of the sale of the property "as a fund subject to the liens and claims of the United States," with the propriety of the liens to be litigated in a subsequent action under 7426(a)(3). The Court finds this remedy inadequate because it was a "doubtful" remedy upon which respondent could not "rely," since the certificate of discharge could issue only in the exercise of the Secretary's discretion. Ante, at 537. That the Secretary must exercise discretion does not make 6325(b)(3) a "doubtful" remedy. Congress appropriately granted the Secretary discretion to determine, on a case-by-case basis, whether the proceeds from the sale of property will be sufficient to protect the Government's tax lien. And because the worth of respondent's property "far exceeded the value of the Government's liens," ibid., the Secretary most likely would have issued a certificate of discharge in this case. But respondent never sought to invoke this remedy, and the cases are legion holding that a person may not claim an administrative remedy was inadequate if she never sought to invoke it. See, e. g., ; Geo. F. Alger (a company may not complain in court when it failed to take advantage of an available administrative remedy, even though that remedy may "cause inconvenience and expense"); *548 cf. ). To make a bad matter worse, the Court faults the Government for not "afford[ing respondent] an opportunity" to pursue this remedy. Ante, at 537. This makes one wonder whether we are entering an era where internal revenue agents must give warnings to delinquent taxpayers and lienees analogous to the warnings required in criminal cases by our decision in Certainly the Court has never so held before, and one may hope that it would not so hold in the future. Indeed, since respondent concedes in her brief that the Government was not required to tell her about the discretionary relief available, Brief for Respondent 20, it is surprising to see the Court suggest to the contrary. If this case involved the interpretation of a statute designed to confer new benefits or rights upon a class of individuals, today's decision would be more understandable, since such a statute would be "entitled to a liberal construction to accomplish its beneficent purposes." Cosmopolitan Shipping 7 U.S. 783 (9) ; see also Atchison, T. & S. F. R. But it would surely come as news to the millions of taxpayers in this country that the Internal Revenue Code has a "beneficent |
Justice Gorsuch | 2,019 | 7 | dissenting | BNSF R. Co. v. Loos | https://www.courtlistener.com/opinion/4595876/bnsf-r-co-v-loos/ | BNSF Railway’s negligence caused one of its employees a serious injury. After a trial, a court ordered the company to pay damages. But instead of sending the full amount to the employee, BNSF asserted that it had to divert a portion to the Internal Revenue Service. Why? BNSF said the money represented taxable “compensation” for “services rendered as an employee.” 26 U.S. C. Today, the Court agrees with the company. Respectfully, I do not. When an employee suffers a physical injury due to his employer’s negligence and has to sue in court to recover damages, it seems more natural to me to describe the final judgment as compensation for his injury than for services (never) rendered. The Court does not lay out the facts of the case, but they are relevant to my analysis and straightforward enough. Years ago, Michael Loos was working for BNSF in a train yard when he fell into a hidden drainage grate and injured his knee. He missed work for many months, and upon his return he had a series of absences, many of which he attributed to knee-injury flareups. When the company moved to fire him for allegedly violating its attendance policies, Mr. Loos sued. Among other things, Mr. Loos sought damages for BNSF’s negligence in maintaining the 2 BNSF R. CO. v. LOOS GORSUCH, J., dissenting train yard. He brought his claim under the Federal Employers’ Liability Act (FELA), an analogue to tradititional state-law tort suits that makes an interstate railroad “liable in damages to any person suffering injury while he is employed” by the railroad “for such injury resulting in whole or in part from the [railroad’s] negligence.” 45 U.S. C. Ultimately, and again much like in any other tort suit, the jury awarded damages in three categories: $85,000 in pain and suffering, $11,212.78 in medical expenses, and $30,000 in lost wages—the final category representing the amount Mr. Loos was unable to earn because of the injury BNSF’s negligence caused. Then a strange thing happened. BNSF argued that the lost wages portion of Mr. Loos’s judgment represented “compensation” to him “for services rendered as an employee” and was thus taxable income under the Railroad Retirement Tax Act (RRTA). 26 U.S. C. et seq. In much the same way the Social Security Act taxes other citizens’ incomes to fund their retirement benefits, the RRTA taxes railroad employees’ earnings to pay for their public pensions. And BNSF took the view that, because Mr. Loos owed the IRS taxes on the lost wages portion of his judgment, it had to withhold an appropriate sum and |
Justice Gorsuch | 2,019 | 7 | dissenting | BNSF R. Co. v. Loos | https://www.courtlistener.com/opinion/4595876/bnsf-r-co-v-loos/ | his judgment, it had to withhold an appropriate sum and redirect it to the government. The company took this position even though it meant BNSF would owe corresponding excise taxes. See 26 U.S. C. It took this position, too, even though no one has identified for us a single case where the IRS has sought to collect RRTA taxes on a FELA judgment in the 80 years the two statutes have coexisted. The company even persisted in its view after, first, the district court and, then, the Eighth Circuit ruled that Mr. Loos’s award wasn’t subject to RRTA taxes. Even after all that, BNSF went to the trouble of seeking review in this Court to win the right to pay the IRS. What’s the reason for BNSF’s tireless campaign? Is the Cite as: 586 U. S. (2019) 3 GORSUCH, J., dissenting company really moved by a selfless desire to protect a federal program from “a long-term risk of insolvency”? See ante, at 5, n. 2. Several amici offer a more prosaic possibility. Under the rule BNSF seeks and wins today, RRTA taxes will be due on (but only on) the portion of a FELA settlement or judgment designated as lost wages. Taxes will not attach to other amounts attributed to, say, pain and suffering or medical costs. At trial, of course, a plaintiff ’s damages are what they are, and often juries will attribute a significant portion of damages to lost wages. But with the help of the asymmetric tax treatment they secure today, railroads like BSNF can now sweeten their settlement offers while offering less money. Forgo trial and accept a lower settlement, they will tell injured workers, and in return we will designate a small fraction (maybe even none) of the payments as taxable lost wages. In this way, the Court’s decision today may do precisely nothing to increase the government’s tax collections or protect the solvency of any federal program. Instead, it may only mean that employees will pay a tax for going to trial—and railroads will succeed in buying cheaper settlements in the future at the bargain basement price of a few thousand dollars in excise taxes in one case today. See Brief for American Association for Justice as Amicus Curiae 34–36; Brief for SMART et al. as Amici Curiae 5–7. Whatever the reason for BNSF’s gambit, the problems with it start for me at the first step of the statutory interpretation analysis—with the text of the law itself. The RRTA taxes an employee’s “compensation,” which it defines as “money remuneration for services rendered as an |
Justice Gorsuch | 2,019 | 7 | dissenting | BNSF R. Co. v. Loos | https://www.courtlistener.com/opinion/4595876/bnsf-r-co-v-loos/ | it defines as “money remuneration for services rendered as an employee to one or more employers.” 26 U.S. C. A “service” refers to “duty or labor by one person bound to submit his will to the direction and control of [another].” Black’s Law Dictionary 1607 (3d ed. 1933). And “remuneration” means “a quid pro quo,” “rec- ompense” or “reward” for such services. So 4 BNSF R. CO. v. LOOS GORSUCH, J., dissenting the words “remuneration for services rendered” naturally cover things like an employee’s salary or hourly wage. Nor do they stop there, as the Court correctly notes. Rather, and contrary to the court of appeals’ view, those words also fairly encompass benefits like sick or disability pay. After all, an employer offers those benefits to attract and keep employees working on its behalf. In that way, these benefits form part of the “quid pro quo” (compensa- tion) the employer pays to secure the “duty or labor” (ser- vices) the employee renders. Cf. United But damages for negligence are different. No one would describe a dangerous fall or the wrenching of a knee as a “service rendered” to the party who negligently caused the accident. BNSF hardly directed Mr. Loos to fall or offered to pay him for doing so. In fact, BNSF didn’t even pay Mr. Loos voluntarily; he had to wrest a judgment from the railroad at the end of a legal battle. So Mr. Loos’s FELA judgment seems to me, as it did to every judge in the proceedings below, unconnected to any service Mr. Loos rendered to BNSF. Instead of being “compensation” for “services rendered as an employee,” it seems more natural to say that the negligence damages BNSF paid are “com- pensation” to Mr. Loos for his injury. That’s exactly how we usually understand tort damages—as “compensation” for an “injury” caused by “the unlawful act or omission or negligence of another.” Black’s Law Dictionary 314 (2d ed. 1910). And that’s exactly how FELA describes the damages it provides—stating that it renders a railroad “liable” not for services rendered but for any “injury” caused by the defendant’s “negligence.” 45 U.S. C. see also New York Central R. (Brandeis, J., dissenting) (FELA liability is “a penalty for wrong doing,” a “remedy” that “mak[es] the wrongdoer indemnify him whom he has wronged”). Of course, BNSF isn’t without a reply. Time and again Cite as: 586 U. S. (2019) 5 GORSUCH, J., dissenting it highlights the fact that the district court measured the lost wages portion of Mr. Loos’s award by reference to what he could have earned but |
Justice Gorsuch | 2,019 | 7 | dissenting | BNSF R. Co. v. Loos | https://www.courtlistener.com/opinion/4595876/bnsf-r-co-v-loos/ | award by reference to what he could have earned but for his injury. But if BNSF’s negligence had injured a passenger on a train instead of an employee in a train yard, a jury could have measured the passenger’s tort damages in exactly the same way, taking account of the wages she could have earned from her own employer but for the railroad’s negli- gence. Vicksburg & Meridian R. Co. v. Putnam, 118 U.S. 545, 554 (1886). In those circumstances, I doubt any of us would say the passenger’s damages award represented compensation for “services rendered” to her employer rather than compensation for her injury. And I don’t see why we would reach a different result here simply because the victim of BNSF’s negligence happened to be one of its own workers. Of course, as the Court points out, ante, at 11, n. 5, FELA suits may be brought only by railroad employees against their employers. But in cases like ours a FELA suit simply serves in the interstate railroad in- dustry as a federalized substitute for a traditional state negligence tort claim of the sort that could be brought by anyone the railroad injured, employee or not. Inescapably, “the basis of liability under [FELA] is and remains negli- gence.” (Douglas, J., concurring). Looking beyond the statute’s text to its history only compounds BNSF’s problems. To be clear, the statutory history I have in mind here isn’t the sort of unenacted legislative history that often is neither truly legislative (having failed to survive bicameralism and presentment) nor truly historical (consisting of advocacy aimed at win- ning in future litigation what couldn’t be won in past statutes). Instead, I mean here the record of enacted changes Congress made to the relevant statutory text over time, the sort of textual evidence everyone agrees can sometimes shed light on meaning. See United States v. 6 BNSF R. 1 U.S. 649, The RRTA’s statutory history is long and instructive. Beginning in 1937, the statute defined taxable “compensa- tion” to include remuneration “for services rendered,” but with the further instruction that this included compensa- tion “for time lost.” Carriers Taxing Act of 1937, 50 Stat. 436. Courts applying the RRTA’s sister statute, the Railroad Retirement Act (RRA), understood this language to capture settlement payments for personal injury claims that would not otherwise qualify as “remuneration for services rendered.” See, e.g., ; Congress itself seemed to agree, explaining in 1946 that remuneration for “time lost” includes payments made “with respect to an absence on account of personal injury.” But then Congress reversed field. In 1975, it |
Justice Gorsuch | 2,019 | 7 | dissenting | BNSF R. Co. v. Loos | https://www.courtlistener.com/opinion/4595876/bnsf-r-co-v-loos/ | personal injury.” But then Congress reversed field. In 1975, it removed payments “for time lost” from the RRTA’s definition of “compensation.” 89 Stat. 466. And in 1983, Congress overwrote the last remaining reference to payments “for time lost” in a nearby section. –426. To my mind, Congress’s decision to remove the only language that could have fairly cap- tured the damages here cannot be easily ignored. Yet BNSF would have us do exactly that. On its ac- count, the RRTA’s discussions about compensation for time lost and personal injuries only ever served to illus- trate what has qualified all along as remuneration for “services rendered.” So, on its view, when Congress first added and then removed language about time lost and personal injuries, it quite literally wasted its time because none of its additions and subtractions altered the statute’s meaning. Put another way, BNSF asks us to read back into the law words (time lost, personal injury) that Con- gress deliberately removed on the assumption they were never really needed in the first place. As I see it, that is Cite as: 586 U. S. (2019) 7 GORSUCH, J., dissenting less “ ‘a construction of a statute [than] an enlargement of it by the court, so that what was omitted, [BNSF] pre- sum[es] by inadvertence, may be included within its scope. To supply omissions [like that] transcends the judicial function.’ ” West Virginia Univ. Hospitals, ). Looking beyond the text and history of this statute to compare it with others confirms the conclusion. Where the RRTA directs the taxation of railroad employee income to fund retirement benefits, the RRA controls the calcula- tion of those benefits. And, unlike the RRTA, that statute continues to include “pay for time lost” in the definition of “compensation” it uses to calculate benefits. 45 U.S. C. Normally, when Congress chooses to exclude terms in one statute while introducing or retaining them in another closely related law, we give effect to rather than pass a blind eye over the difference. Nor is there any question that Congress knows exactly how to tax a favor- able tort judgment when it wants. See, e.g., 26 U.S. C. (punitive damages are not deductible). Its failure to offer any comparably clear command here should, once more, tell us something. With so much in the statute’s text, history, and sur- roundings now pointing for Mr. Loos, BNSF is left to lean heavily on case law. The company says we must rule its way primarily because of Social Security But I do not see anything in that case dictating a victory |
Justice Gorsuch | 2,019 | 7 | dissenting | BNSF R. Co. v. Loos | https://www.courtlistener.com/opinion/4595876/bnsf-r-co-v-loos/ | do not see anything in that case dictating a victory for BNSF. Nierotko concerned a different statute, a different legal claim, and a different factual context. There, the plaintiff brought a wrongful termination claim before the National Labor Relations Board, claiming that his employer fired him in retaliation for union activity. The NLRB ordered the employee rein- stated to his former job and paid as if he had never left. Under those circumstances, this Court held that for pur- 8 BNSF R. CO. v. LOOS GORSUCH, J., dissenting poses of calculating the plaintiff ’s Social Security Act benefits, his “wages” should include his backpay award, allocated to the period when he would have been working but for the employer’s misconduct. Since then, however, the Court has suggested that at least one of Nierotko’s holdings was likely motivated more by a policy concern with protecting the employee’s full retirement to Social Security benefits than by a careful reading of the Social Security Act. See United ; at 220– 221 (Scalia, J., concurring in judgment). Besides, in this case we’re simply not faced with a wrongful termination claim, an award of backpay, or the interpretation of the Social Security Act—let alone reason to worry that ruling for Mr. Loos would inequitably shortchange an employee. So whatever light Nierotko might continue to shed on the question it faced, and whatever superficial similarities one might point to here, that decision simply doesn’t dictate an answer to the question whether a tort victim’s damages for a physical injury qualify as “compensation for services rendered” under the RRTA. By this point BNSF is left with only one argument, which it treats as no more than a last resort: Chevron deference. In the past, the briefs and oral argument in this case likely would have centered on whether we should defer to the IRS’s administrative interpretation of the RRTA. After all, the IRS (at least today) agrees with BNSF’s interpretation that “compensation for services rendered” includes damages for personal injuries. And the Chevron doctrine, if it retains any force, would seem to allow BNSF to parlay any statutory ambiguity into a colorable argument for judicial deference to the IRS’s view, regardless of the Court’s best independent understanding of the law. See Chevron U. S. A. Of course, any Chevron analysis here would be complicated by the gov- Cite as: 586 U. S. (2019) 9 GORSUCH, J., dissenting ernment’s change of heart. For if Nierotko is as relevant as BNSF contends, then it must also be relevant that, back when Nierotko was decided, the IRS took the view |
Justice Gorsuch | 2,019 | 7 | dissenting | BNSF R. Co. v. Loos | https://www.courtlistener.com/opinion/4595876/bnsf-r-co-v-loos/ | back when Nierotko was decided, the IRS took the view that the term “wages” in the Social Security Act did not include backpay awards for wrongful termination. See –367. And if “wages” don’t include back- pay awards for wrongful terminations, it’s hard to see how “compensation for services rendered” might include damages for an act of negligence. Still, even with the complications that follow from executive agencies’ pench- ant for changing their views about the law’s meaning almost as often as they change administrations, a plea for deference surely would have enjoyed pride of place in BNSF’s submission not long ago. But nothing like that happened here. BNSF devoted scarcely any of its briefing to Chevron. At oral argument, BNSF’s lawyer didn’t even mention the case until the final seconds—and even then “hate[d] to cite” it. Tr. of Oral Arg. 58. No doubt, BNSF proceeded this way well aware of the mounting criticism of Chevron deference. See, e.g., Pereira v. Sessions, 585 U. S. – (2018) (Kenne- dy, J., concurring). And no doubt, too, this is all to the good. Instead of throwing up our hands and letting an interested party—the federal government’s executive branch, no less—dictate an inferior interpretation of the law that may be more the product of politics than a scru- pulous reading of the statute, the Court today buckles down to its job of saying what the law is in light of its text, its context, and our precedent. Though I may disagree with the result the Court reaches, my colleagues rightly afford the parties before us an independent judicial inter- pretation of the law. They deserve no less |
Justice Burger | 1,975 | 12 | concurring | Dunlop v. Bachowski | https://www.courtlistener.com/opinion/109260/dunlop-v-bachowski/ | I join the opinion of the Court with the understanding that the Court has fashioned an exceedingly narrow scope of review of the Secretary's determination not to bring an action on behalf of a complainant to set aside an election. The language and purposes of 401 of the Labor-Management Reporting and Disclosure Act of 1959, 29 U.S. C. 481, have required the Court to define a scope of review much narrower than applies under 5 U.S. C. 706 (2) (A) in most other administrative areas. The Court's holding must be read as providing that the determination of the Secretary not to challenge a union election may be held arbitrary and capricious only where the Secretary's investigation, as evidenced by his statement of reasons, shows election irregularities *591 that affected its outcome as to the complainant, and that notwithstanding the illegal conduct so found the Secretary nevertheless refuses to bring an action and advances no rational reason for his decision. MR. JUSTICE REHNQUIST, concurring in the result in part and dissenting in part. The parties to this case will have to be excused if they react with surprise to the opinion of the Court. Instead of deciding the issue presented in the Secretary of Labor's petition for certiorari, the Court decides an issue about which the parties no longer disagree; to compound the confusion, the reasoning adopted by the Court to resolve the issue it does decide is quite unusual unless it is intended to foreshadow disposition of the issue upon which the Court purports to reserve judgment. I After exhausting intraunion remedies, respondent filed a complaint with the Secretary of Labor alleging violations of 401 of the Labor-Management Reporting and Disclosure Act of 1959 (LMRDA), 29 U.S. C. 481. The Secretary conducted an investigation and concluded that no civil action to set aside the challenged election was warranted. Respondent was so notified,[*] and he then sought to challenge the Secretary's *592 refusal to file suit. The complaint alleged that the Secretary had refused to file suit, "[n]otwithstanding the fact that the Defendant Secretary's investigation has substantiated the [respondent's] allegations," and that respondent "has not been given a statement of reasons why the Defendant Secretary will not file suit." App. 5A. Respondent asked the court to order the Secretary to file suit to set aside the election and "direct the Defendant Secretary to make available for examination by the [respondent] all evidence it has obtained concerning its investigation of the aforesaid election." at 6A. The Court of Appeals, reversing the District Court, held that the Secretary's refusal to file an action |
Justice Burger | 1,975 | 12 | concurring | Dunlop v. Bachowski | https://www.courtlistener.com/opinion/109260/dunlop-v-bachowski/ | Court, held that the Secretary's refusal to file an action to set aside the election was judicially reviewable. In considering "the proper scope of such judicial review," the Court of Appeals concluded that the Secretary should prepare a statement of reasons, presumably to assist in judicial review and also to ensure that proper deference was paid to the Secretary's determinations. Notwithstanding contrary verbiage, the approach of this Court is not materially different. The Court expressly reserves "the question whether the district court is empowered to order the Secretary to bring a civil suit against the union to set aside the election," ante, at 575, but its justification for ordering the Secretary to provide a statement of reasons appears premised upon an affirmative disposition of the reserved question: the Secretary must provide a statement of reasons "to enable the reviewing court intelligently to review the Secretary's determination," ante, at 571. I cannot subscribe to judicial reasoning of this convoluted sort. *593 II In the first place, whether or not a statement of reasons must be supplied by the Secretary is not an issue presented by this case. The single question presented by the Secretary's petition for certiorari is: "Whether a disappointed union office seeker may invoke the judicial process to compel the Secretary of Labor to bring an action under Title IV of the Labor-Management Reporting and Disclosure Act of 1959 to set aside a union election." Pet. for Cert. 2. The Secretary did not seek review of the holding by the Court of Appeals that a statement of reasons was required but instead proceeded to comply with that portion of the appellate court's holding by filing the statement of reasons that is appended to the opinion of the Court. As the Secretary states: "We do not contest this portion of the court's holding." Brief for Petitioner 5 n. 2. Such a concession appears well founded, although not for the reasons stated by the Court. Independent of any connection with judicial review, a statement of reasons is required by statute. The Administrative Procedure Act (APA), which is applicable to the LMRDA, 29 U.S. C. 526, states: "Prompt notice shall be given of the denial in whole or in part of a written application, petition, or other request of an interested person made in connection with any agency proceedings. Except in affirming a prior denial or when the denial is selfexplanatory, the notice shall be accompanied by a brief statement of the grounds for denial." 5 U.S. C. 555 (e). See S. Doc. No. 248, 79th Cong., 2d Sess., 206, 265 (1946). |
Justice Burger | 1,975 | 12 | concurring | Dunlop v. Bachowski | https://www.courtlistener.com/opinion/109260/dunlop-v-bachowski/ | Doc. No. 248, 79th Cong., 2d Sess., 206, 265 (1946). Here, where the Secretary is charged with the *594 responsibility of enforcing the rights of individual union members and has established a procedure for the filing of a complaint with him by such members, 555 (e) would appear to be applicable. The acquiescence of the Secretary has removed this issue from the case. Since the majority persists in deciding it, I concur in the result on the basis of the APA, which is not dependent upon the availability of judicial review. This ground, in my view, furnishes a sounder reason for concluding that a statement of reasons must be furnished than does the reasoning of the Court. III It remains to consider the only question presented by the Secretary's petition for certiorari: Is judicial review available at the behest of respondent to force the Secretary to file a civil action to set aside the union election? Respondent does not rely upon any provision of the LMRDA as authorizing this post-election lawsuit, for indeed there is none. Instead, respondent relies upon the APA judicial-review provisions, 5 U.S. C. 701-706. App. 3A. The judicial-review provisions of the APA do not apply, however, "to the extent that(1) statutes preclude judicial review; or (2) agency action is committed to agency discretion by law." 5 U.S. C. 701 (a). I agree with the Court that 29 U.S. C. 483 does not preclude judicial review of the kind sought in this case. That section expresses the congressional judgment that the civil action filed by the Secretary under 29 U.S. C. 482 (b) shall be the exclusive remedy "for challenging an election already conducted." Respondent recognizes that this Court's decision in precludes him from proceeding directly *595 against the union, a result that I believe is compelled by 483. But 483 is silent about the availability of relief to force the Secretary to pursue the remedy that is exclusively his, and under this Court's decisions a prohibition of judicial review is not to be lightly inferred. Abbott I reach a contrary conclusion, however, with regard to the second clause of 701 (a). It seems to me that prior decisions of this Court establish that the Secretary's decision to file or not to file a complaint under 482 is precisely the kind of "agency action committed to agency discretion by law" exempted from the judicial-review provisions of the APA. In LMRDA cases, this Court has repeatedly recognized the exclusive role in post-election challenges played by the Secretary. In at we said: "Section 402 of Title IV, as has |
Justice Burger | 1,975 | 12 | concurring | Dunlop v. Bachowski | https://www.courtlistener.com/opinion/109260/dunlop-v-bachowski/ | at we said: "Section 402 of Title IV, as has been pointed out, sets up an exclusive method for protecting Title IV rights, by permitting an individual member to file a complaint with the Secretary of Labor challenging the validity of any election because of violations of Title IV. Upon complaint the Secretary investigates and if he finds probable cause to believe that Title IV has been violated, he may file suit in the appropriate district court. It is apparent that Congress decided to utilize the special knowledge and discretion of the Secretary of Labor in order best to serve the public interest. In so doing Congress, with one exception not here relevant, decided not to permit individuals to block or delay union elections by filing federal-court suits for violations of Title IV. Reliance on the discretion of the Secretary is in harmony with the general congressional policy to allow *596 unions great latitude in resolving their own internal controversies, and, where that fails, to utilize the agencies of Government most familiar with union problems to aid in bringing about a settlement through discussion before resort to the courts. Without setting out the lengthy legislative history which preceded the passage of this measure, it is sufficient to say that we are satisfied that the Act itself shows clearly by its structure and language that the disputes here, basically relating as they do to eligibility of candidates for office, fall squarely within Title IV of the Act and are to be resolved by the administrative and judicial procedures set out in that Title." (Emphasis added.) See also More recently, in we said, in the context of claims presented by an intervenor that had not been included in the Secretary's complaint: "With respect to litigation by union members, then, the legislative history supports the conclusion that Congress intended to prevent members from pressing claims not thought meritorious by the Secretary, and from litigating in forums or at times different from those chosen by the Secretary. ". [W]e think Congress intended to insulate the union from any complaint that did not appear meritorious to both a complaining member and the Secretary. Accordingly, we hold that in a post-election enforcement suit, Title IV imposes no bar to intervention by a union member, so long as that intervention is limited to the claims of illegality presented by the Secretary's complaint." *597 The exclusivity of the Secretary's role in the enforcement of Title IV rights is no accident. It represents a conscious legislative compromise adopted to balance two important but conflicting interests: vindication of the rights |
Justice Burger | 1,975 | 12 | concurring | Dunlop v. Bachowski | https://www.courtlistener.com/opinion/109260/dunlop-v-bachowski/ | balance two important but conflicting interests: vindication of the rights of union members and freedom of unions from undue harassment. See Bottle This Court has recognized unreviewable discretion both in the labor area, and in other civil areas, The Confiscation Cases, ; The Court of Appeals sought to distinguish this line of cases on the grounds that it involved "vindication of societal or governmental interest, rather than the protection of individual rights," While the Secretary points out the artificiality of this purported distinction and refutes it as applied to these cases, Brief for Petitioner 30, a more basic response is that such considerations provide no basis for contravention of legislative intent: "Congress for reasons of its own decided upon the method for the protection of the `right' which it created. It selected the precise machinery and fashioned the tool which it deemed suited to that end. All constitutional questions aside, it is for Congress to determine how the rights which it creates shall be enforced." Switchmen's The Court recognizes the power of these arguments, if only by understatement, when it acknowledges that any argument for judicial review of the Secretary's determination "obviously presents some difficulty in light of the strong evidence that Congress deliberately gave exclusive enforcement authority to the Secretary." Ante, at 575 In my view the parties to this *598 litigation are entitled to adjudication of the issue upon which this Court granted certiorari. I would accordingly reverse the judgment of the Court of Appeals insofar as it held that the Secretary's refusal to institute an action under 29 U.S. C. 482 is judicially reviewable under the provisions of the APA, 5 U.S. C. 701-706. |
Justice Stevens | 1,984 | 16 | majority | Chevron USA Inc. v. Natural Resources Defense Council, Inc. | https://www.courtlistener.com/opinion/111221/chevron-usa-inc-v-natural-resources-defense-council-inc/ | In the Clean Air Act Amendments of 1977, Stat. 685, Congress enacted certain requirements applicable *840 to States that had not achieved the national air quality standards established by the Environmental Protection Agency (EPA) pursuant to earlier legislation. The amended Clean Air Act required these "nonattainment" States to establish a permit program regulating "new or modified major stationary sources" of air pollution. Generally, a permit may not be issued for a new or modified major stationary source unless several stringent conditions are met.[1] The EPA regulation promulgated to implement this permit requirement allows a State to adopt a plantwide definition of the term "stationary source."[2] Under this definition, an existing plant that contains several pollution-emitting devices may install or modify one piece of equipment without meeting the permit conditions if the alteration will not increase the total emissions from the plant. The question presented by these cases is whether EPA's decision to allow States to treat all of the pollution-emitting devices within the same industrial grouping as though they were encased within a single "bubble" is based on a reasonable construction of the statutory term "stationary source." I The EPA regulations containing the plantwide definition of the term stationary source were promulgated on October *841 14, 1981. Respondents[3] filed a timely petition for review in the United States Court of Appeals for the District of Columbia Circuit pursuant to 42 U.S. C. 7607(b)(1).[4] The Court of Appeals set aside the regulations. National Resources Defense Council, The court observed that the relevant part of the amended Clean Air Act "does not explicitly define what Congress envisioned as a `stationary source, to which the permit program. should apply," and further stated that the precise issue was not "squarely addressed in the legislative history." In light of its conclusion that the legislative history bearing on the question was "at best contradictory," it reasoned that "the purposes of the nonattainment program should guide our decision here." n.[5] Based on two of its precedents concerning the applicability of the bubble concept to certain Clean Air Act programs,[6] the court stated that the bubble concept was "mandatory" in programs designed merely to maintain existing air quality, but held that it was "inappropriate" in programs enacted to improve air quality. Since the purpose of the permit *842 program its "raison d'etre," in the court's view was to improve air quality, the court held that the bubble concept was inapplicable in these cases under its prior precedents. It therefore set aside the regulations embodying the bubble concept as contrary to law. We granted certiorari to review |
Justice Stevens | 1,984 | 16 | majority | Chevron USA Inc. v. Natural Resources Defense Council, Inc. | https://www.courtlistener.com/opinion/111221/chevron-usa-inc-v-natural-resources-defense-council-inc/ | concept as contrary to law. We granted certiorari to review that judgment, and we now reverse. The basic legal error of the Court of Appeals was to adopt a static judicial definition of the term "stationary source" when it had decided that Congress itself had not commanded that definition. Respondents do not defend the legal reasoning of the Court of Appeals.[7] Nevertheless, since this Court reviews judgments, not opinions,[8] we must determine whether the Court of Appeals' legal error resulted in an erroneous judgment on the validity of the regulations. II When a court reviews an agency's construction of the statute which it administers, it is confronted with two questions. First, always, is the question whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court, *843 as well as the agency, must give effect to the unambiguously expressed intent of Congress.[9] If, however, the court determines Congress has not directly addressed the precise question at issue, the court does not simply impose its own construction on the statute,[10] as would be necessary in the absence of an administrative interpretation. Rather, if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency's answer is based on a permissible construction of the statute.[11] "The power of an administrative agency to administer a congressionally created program necessarily requires the formulation of policy and the making of rules to fill any gap left, implicitly or explicitly, by Congress." If Congress has explicitly left a gap for the agency to fill, there is an express delegation *844 of authority to the agency to elucidate a specific provision of the statute by regulation. Such legislative regulations are given controlling weight unless they are arbitrary, capricious, or manifestly contrary to the statute.[12] Sometimes the legislative delegation to an agency on a particular question is implicit rather than explicit. In such a case, a court may not substitute its own construction of a statutory provision for a reasonable interpretation made by the administrator of an agency.[13] We have long recognized that considerable weight should be accorded to an executive department's construction of a statutory scheme it is entrusted to administer,[14] and the principle of deference to administrative interpretations "has been consistently followed by this Court whenever decision as to the meaning or reach of a statute has involved reconciling conflicting policies, and a full understanding of the force of the statutory policy in the given situation has depended upon |
Justice Stevens | 1,984 | 16 | majority | Chevron USA Inc. v. Natural Resources Defense Council, Inc. | https://www.courtlistener.com/opinion/111221/chevron-usa-inc-v-natural-resources-defense-council-inc/ | the statutory policy in the given situation has depended upon more than ordinary knowledge respecting the matters subjected to agency regulations. See, e. g., National Broadcasting ; Labor ; Republic Aviation ; Securities & Exchange ; Labor ". If this choice represents a reasonable accommodation of conflicting policies that were committed to the agency's care by the statute, we should not disturb it unless it appears from the statute or its legislative history that the accommodation is not one that Congress would have sanctioned." United Accord, Capital Cities Cable, Inc. v. Crisp, ante, at 699-700. In light of these well-settled principles it is clear that the Court of Appeals misconceived the nature of its role in reviewing the regulations at issue. Once it determined, after its own examination of the legislation, that Congress did not actually have an intent regarding the applicability of the bubble concept to the permit program, the question before it was not whether in its view the concept is "inappropriate" in the general context of a program designed to improve air quality, but whether the Administrator's view that it is appropriate in the context of this particular program is a reasonable one. Based on the examination of the legislation and its history which follows, we agree with the Court of Appeals that Congress did not have a specific intention on the applicability of the bubble concept in these cases, and conclude that the EPA's use of that concept here is a reasonable policy choice for the agency to make. III In the 0's and the 1960's Congress enacted a series of statutes designed to encourage and to assist the States in curtailing air pollution. See generally The Clean Air Amendments of 1970, Stat. 1976, "sharply increased federal authority and responsibility *846 in the continuing effort to combat air pollution," but continued to assign "primary responsibility for assuring air quality" to the several States, Section 109 of the 1970 Amendments directed the EPA to promulgate National Ambient Air Quality Standards (NAAQS's)[15] and 110 directed the States to develop plans (SIP's) to implement the standards within specified deadlines. In addition, 111 provided that major new sources of pollution would be required to conform to technology-based performance standards; the EPA was directed to publish a list of categories of sources of pollution and to establish new source performance standards (NSPS) for each. Section 111(e) prohibited the operation of any new source in violation of a performance standard. Section 111(a) defined the terms that are to be used in setting and enforcing standards of performance for new stationary sources. It |
Justice Stevens | 1,984 | 16 | majority | Chevron USA Inc. v. Natural Resources Defense Council, Inc. | https://www.courtlistener.com/opinion/111221/chevron-usa-inc-v-natural-resources-defense-council-inc/ | and enforcing standards of performance for new stationary sources. It provided: "For purposes of this section: "(3) The term `stationary source' means any building, structure, facility, or installation which emits or may emit any air pollutant." In the 1970 Amendments that definition was not only applicable to the NSPS program required by 111, but was made applicable to a requirement of 110 that each state implementation plan contain a procedure for reviewing the location of any proposed new source and preventing its construction if it would preclude the attainment or maintenance of national air quality standards.[16] In due course, the EPA promulgated NAAQS's, approved SIP's, and adopted detailed regulations governing NSPS's *847 for various categories of equipment. In one of its programs, the EPA used a plantwide definition of the term "stationary source." In 1974, it issued NSPS's for the nonferrous smelting industry that provided that the standards would not apply to the modification of major smelting units if their increased emissions were offset by reductions in other portions of the same plant.[17] Nonattainment The 1970 legislation provided for the attainment of primary NAAQS's by 1975. In many areas of the country, particularly the most industrialized States, the statutory goals were not attained.[18] In 1976, the 94th Congress was confronted with this fundamental problem, as well as many others respecting pollution control. As always in this area, the legislative struggle was basically between interests seeking strict schemes to reduce pollution rapidly to eliminate its social costs and interests advancing the economic concern that strict schemes would retard industrial development with attendant social costs. The 94th Congress, confronting these competing interests, was unable to agree on what response was in the public interest: legislative proposals to deal with nonattainment failed to command the necessary consensus.[19] In light of this situation, the EPA published an Emissions Offset Interpretive Ruling in December 1976, see to "fill the gap," as respondents put it, until Congress acted. The Ruling stated that it was intended to *848 address "the issue of whether and to what extent national air quality standards established under the Clean Air Act may restrict or prohibit growth of major new or expanded stationary air pollution sources." In general, the Ruling provided that "a major new source may locate in an area with air quality worse than a national standard only if stringent conditions can be met." The Ruling gave primary emphasis to the rapid attainment of the statute's environmental goals.[20] Consistent with that emphasis, the construction of every new source in nonattainment areas had to meet the "lowest achievable emission rate" under |