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Justice Powell
| 1,986 | 17 |
majority
|
United States v. Loud Hawk
|
https://www.courtlistener.com/opinion/111554/united-states-v-loud-hawk/
|
nevertheless substantial, impairment of liberty imposed on an accused while released on bail, and to shorten the disruption of life caused by arrest and the presence of unresolved criminal charges." During much of the litigation, respondents were neither under indictment nor subject to bail.[13] Further judicial proceedings would have been necessary to subject respondents to any actual restraints. Cf. As we stated in : "[W]ith no charges outstanding, personal liberty is certainly not impaired to the same degree as it is after arrest while charges are pending. After the charges against him have been dismissed, `a citizen suffers no restraints on his liberty and is [no longer] the subject of public accusation: his situation does not compare with that of a defendant who has been arrested and held to answer.' " 456 U.S., Respondents argue that the speedy trial guarantee should apply to this period because the Government's desire to prosecute them was a matter of public record. Public suspicion, however, is not sufficient to justify the delay in favor of a defendant's speedy trial claim. We find that after the District Court dismissed the indictment against respondents and after respondents were freed without restraint, they were "in the same position as any other subject of a criminal investigation." See The Speedy Trial Clause does not purport to protect a defendant from all effects flowing from a delay before *312 The Clause does not, for example, limit the length of a pre-indictment criminal investigation even though "the [suspect's] knowledge of an ongoing criminal investigation will cause stress, discomfort, and perhaps a certain disruption in normal life." 456 U.S., Nor does the fact that respondents were ordered to appear at the evidentiary hearing held on remand in the District Court during the first appeal an appearance they waived constitute the sort of "actual restraint" required under our precedents as a basis for application of the Speedy Trial Clause. Finally, we are not persuaded that respondents' need for counsel while their case was technically dismissed supports their speedy trial claim. Although the retention of counsel is frequently an inconvenience and an expense, the Speedy Trial Clause's core concern is impairment of liberty; it does not shield a suspect or a defendant from every expense or inconvenience associated with criminal defense. We therefore find that under the rule of when defendants are not incarcerated or subjected to other substantial restrictions on their liberty, a court should not weigh that time towards a claim under the Speedy Trial Clause. III The remaining issue is how to weigh the delay occasioned by an
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Justice Powell
| 1,986 | 17 |
majority
|
United States v. Loud Hawk
|
https://www.courtlistener.com/opinion/111554/united-states-v-loud-hawk/
|
issue is how to weigh the delay occasioned by an interlocutory appeal when the defendant is subject to indictment or restraint. As we have recognized, the Sixth Amendment's guarantee of a speedy trial "is an important safeguard to prevent undue and oppressive incarceration prior to trial, to minimize anxiety and concern accompanying public accusation and to limit the possibilities that long delay will impair the ability of an accused to defend himself." United These safeguards may be as important to the accused when the delay is occasioned by an unduly long appellate process as when the delay is caused by a lapse between the initial arrest and the drawing of a proper indictment, at *313 118-119, or by continuances in the date of trial, At the same time, there are important public interests in the process of appellate The assurance that motions to suppress evidence or to dismiss an indictment are correctly decided through orderly appellate safeguards both the rights of defendants and the "rights of public justice." The legislative history of 18 U.S. C. 3731 "makes it clear that Congress intended to remove all statutory barriers to Government appeals and to allow appeals whenever the Constitution would permit." United It is, of course, true that the interests served by appellate may sometimes stand in opposition to the right to a speedy But, as the Court observed in United at 121: "It has long been the rule that when a defendant obtains a reversal of a prior, unsatisfied conviction, he may be retried in the normal course of events. [This rule] has been thought wise because it protects the societal interest in trying people accused of crime, rather than granting them immunization because of legal error at a previous trial, and because it enhances the probability that appellate courts will be vigilant to strike down previous convictions that are tainted with reversible error. These policies, so carefully preserved in this Court's interpretation given the Double Jeopardy Clause, would be seriously undercut by [an] interpretation given the Speedy Trial Clause [that raised a Sixth Amendment obstacle to retrial following successful attack on conviction]." In we adopted a four-part balancing test to determine whether a series of continuances infringed upon the defendant's right to a speedy That test assessed the "[l]ength of delay, the reason for the *314 delay, the defendant's assertion of his right, and prejudice to the defendant." Ibid (footnote omitted). The test furnishes the flexibility to take account of the competing concerns of orderly appellate on the one hand, and a speedy trial on the other. We therefore adopt
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Justice Powell
| 1,986 | 17 |
majority
|
United States v. Loud Hawk
|
https://www.courtlistener.com/opinion/111554/united-states-v-loud-hawk/
|
and a speedy trial on the other. We therefore adopt this functional test to determine the extent to which appellate time consumed in the of pretrial motions should weigh towards a defendant's speedy trial claim. Under this test, we conclude that in this case the delays do not justify the "unsatisfactorily severe remedy of dismissal." A 's first, third, and fourth factors present no great difficulty in application. The first factor, the length of delay, defines a threshold in the inquiry: there must be a delay long enough to be "presumptively prejudicial." Here, a 90-month delay in the trial of these serious charges is presumptively prejudicial and serves to trigger application of 's other factors. The third factor the extent to which respondents have asserted their speedy trial rights does not support their position. Although the Court of Appeals found that respondents have repeatedly moved for dismissal on speedy trial that finding alone does not establish that respondents have appropriately asserted their rights. We held in that such assertions from defendants are "entitled to strong evidentiary weight" in determining whether their rights to a speedy trial have been denied. -532. These assertions, however, must be viewed in the light of respondents' other conduct. Here, respondents' speedy trial claims are reminiscent of Penelope's tapestry.[14] At the same time respondents were making a record of claims in the District Court for speedy trial, they consumed six months by filing indisputably frivolous petitions for rehearing and for certiorari after this *315 Court's decision in United They also filled the District Court's docket with repetitive and unsuccessful motions. See, e. g., n. The Court of Appeals gave "little weight" to the fourth factor, prejudice to respondents. At most, the court recognized the possibility of "impairment of a fair trial that may well result from the absence or loss of memory of witnesses in this case." See That possibility of prejudice is not sufficient to support respondents' position that their speedy trial rights were violated. In this case, moreover, delay is a two-edged sword. It is the Government that bears the burden of proving its case beyond a reasonable doubt. The passage of time may make it difficult or impossible for the Government to carry this burden. B The flag all litigants seek to capture is the second factor, the reason for delay. In we held that "different weights should be assigned to different reasons." While a "deliberate attempt to delay the trial in order to hamper the defense," would be weighed heavily against the Government, a delay from "overcrowded courts" as
|
Justice Powell
| 1,986 | 17 |
majority
|
United States v. Loud Hawk
|
https://www.courtlistener.com/opinion/111554/united-states-v-loud-hawk/
|
against the Government, a delay from "overcrowded courts" as was the situation here would be weighed "less heavily." Given the important public interests in appellate it hardly need be said that an interlocutory appeal by the Government ordinarily is a valid reason that justifies delay. In assessing the purpose and reasonableness of such an appeal, courts may consider several factors. These include the strength of the Government's position on the appealed issue, the importance of the issue in the posture of the case, and in some cases the seriousness of the crime. United For example, a delay resulting from an appeal *316 would weigh heavily against the Government if the issue were clearly tangential or frivolous. Moreover, the charged offense usually must be sufficiently serious to justify restraints that may be imposed on the defendant pending the outcome of the appeal. Under delays in bringing the case to trial caused by the Government's interlocutory appeal may be weighed in determining whether a defendant has suffered a violation of his rights to a speedy It is clear in this case, however, that respondents have failed to show a reason for according these delays any effective weight towards their speedy trial claims. There is no showing of bad faith or dilatory purpose on the Government's part. The Government's position in each of the appeals was strong, and the reversals by the Court of Appeals are prima facie evidence of the reasonableness of the Government's action. Moreover, despite the seriousness of the charged offenses, the District Court chose not to subject respondents to any actual restraints pending the outcome of the appeals. The only remaining question is the weight to be attributed to delays caused by respondents' interlocutory appeals. In that limited class of cases where a pretrial appeal by the defendant is appropriate, see, e. g., Hollywood Motor delays from such an appeal ordinarily will not weigh in favor of a defendant's speedy trial claims. A defendant with a meritorious appeal would bear the heavy burden of showing an unreasonable delay caused by the prosecution in that appeal, or a wholly unjustifiable delay by the appellate court. A defendant who resorts to an interlocutory appeal normally should not be able upon return to the district court to reap the reward of dismissal for failure to receive a speedy As one Court of Appeals has noted in the context of a District Court's consideration of pretrial motions: "Having sought the aid of the judicial process and realizing the deliberateness that a court employs in reaching a *317 decision, the
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Justice Powell
| 1,986 | 17 |
majority
|
United States v. Loud Hawk
|
https://www.courtlistener.com/opinion/111554/united-states-v-loud-hawk/
|
that a court employs in reaching a *317 decision, the defendants are not now able to criticize the very process which they so frequently called upon." United rehearing denied, In the present case, respondents' appeal was allowable under the law of the Ninth Circuit before our decision in Hollywood Motor But we find that their position was so lacking in merit that the time consumed by this appeal should not weigh in support of respondents' speedy trial claim. Nor do we weigh the additional delay of six months resulting from respondents' frivolous action in seeking rehearing and certiorari toward respondents' speedy trial claim. See ibid., decided prior to these latter actions. IV We cannot hold, on the facts before us, that the delays asserted by respondents weigh sufficiently in support of their speedy trial claim to violate the Speedy Trial Clause. They do not justify the severe remedy of dismissing the indictment. Accordingly, the judgment of the Court of Appeals for the Ninth Circuit is reversed. It is so ordered.
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Justice Thomas
| 2,013 | 1 |
concurring
|
Adoptive Couple v. Baby Girl
|
https://www.courtlistener.com/opinion/2959741/adoptive-couple-v-baby-girl/
|
I join the Court’s opinion in full but write separately to explain why constitutional avoidance compels this out- come. Each party in this case has put forward a plausible interpretation of the relevant sections of the Indian Child Welfare Act (ICWA). However, the interpretations offered by respondent Birth Father and the United States raise significant constitutional problems as applied to this case. Because the Court’s decision avoids those problems, I concur in its interpretation. I This case arises out of a contested state-court adoption proceeding. Adoption proceedings are adjudicated in state family courts across the country every day, and “domestic relations” is “an area that has long been regarded as a virtually exclusive province of the States.” Indeed, “[t]he whole subject of the domestic relations of husband and wife, parent and child, belongs to the laws of the States and not to the laws of the United States.” In re Burrus, 593– 594 (1890). Nevertheless, when Adoptive Couple filed a petition in South Carolina Family Court to finalize their adoption of Baby Girl, Birth Father, who had relinquished 2 ADOPTIVE COUPLE v. BABY GIRL THOMAS, J., concurring his parental rights via a text message to Birth Mother, claimed a federal right under the ICWA to block the adop- tion and to obtain custody. The ICWA establishes “federal standards that govern state-court child custody proceedings involving Indian children.” Ante, at 2. The ICWA defines “Indian child” as “any unmarried person who is under age eighteen and is either (a) a member of an Indian tribe or (b) is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe.” 25 U.S. C. As relevant, the ICWA defines “child custody proceeding,” to include “adoptive placement,” which means “the permanent placement of an Indian child for adoption, including any action resulting in a final decree of adop- tion,” and “termination of parental rights,” which means “any action resulting in the termination of the parent-child relationship,” The ICWA restricts a state court’s ability to terminate the parental rights of an Indian parent in two relevant ways. Section 1912(f) prohibits a state court from involun- tarily terminating parental rights “in the absence of a determination, supported by evidence beyond a reasonable doubt, including testimony of qualified expert witnesses, that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child.” Section 1912(d) prohibits a state court from terminating parental rights until the court is satisfied “that active efforts have been made to provide
|
Justice Thomas
| 2,013 | 1 |
concurring
|
Adoptive Couple v. Baby Girl
|
https://www.courtlistener.com/opinion/2959741/adoptive-couple-v-baby-girl/
|
is satisfied “that active efforts have been made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family and that these efforts have proved unsuccessful.” A third provision creates specific placement preferences for the adoption of Indian children, which favor placement with Indians over other adoptive families. Operating together, these requirements often lead to different out- comes than would result under state law. That is precisely Cite as: 570 U. S. (2013) 3 THOMAS, J., concurring what happened here. See ante, at 6 (“It is undisputed that, had Baby Girl not been 3/256 Cherokee, Biological Father would have had no right to object to her adoption under South Carolina law”). The ICWA recognizes States’ inherent “jurisdiction over Indian child custody proceedings,” but asserts that federal regulation is necessary because States “have often failed to recognize the essential tribal relations of Indian people and the cultural and social standards pre- vailing in Indian communities and families,” However, Congress may regulate areas of traditional state concern only if the Constitution grants it such power. Admt. 10 (“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are re- served to the States respectively, or to the people”). The threshold question, then, is whether the Constitution grants Congress power to override state custody law whenever an Indian is involved. II The ICWA asserts that the Indian Commerce Clause, Art. I, cl. 3, and “other constitutional authority” pro- vides Congress with “plenary power over Indian affairs.” The reference to “other constitutional authority” is not illuminating, and I am aware of no other enumer- ated power that could even arguably support Congress’ intrusion into this area of traditional state authority. See Fletcher, The Supreme Court and Federal Indian Policy, (“As a matter of federal constitutional law, the Indian Commerce Clause grants Congress the only explicit constitutional authority to deal with Indian tribes”); Natelson, The Original Understand- ing of the Indian Commerce Clause, 85 Denver U. L. Rev. 201, 210 (7) (hereinafter Natelson) (evaluating, and rejecting, other potential sources of authority supporting congressional power over Indians). The assertion of ple- 4 ADOPTIVE COUPLE v. BABY GIRL THOMAS, J., concurring nary authority must, therefore, stand or fall on Congress’ power under the Indian Commerce Clause. Although this Court has said that the “central function of the Indian Commerce Clause is to provide Congress with plenary power to legislate in the field of Indian affairs,” Cotton Petroleum neither the text nor the original understanding of the Clause supports Congress’ claim to such “plenary” power.
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Justice Thomas
| 2,013 | 1 |
concurring
|
Adoptive Couple v. Baby Girl
|
https://www.courtlistener.com/opinion/2959741/adoptive-couple-v-baby-girl/
|
of the Clause supports Congress’ claim to such “plenary” power. A The Indian Commerce Clause gives Congress authority “[t]o regulate Commerce with the Indian tribes.” Art. I, cl. 3 (emphasis added). “At the time the original Constitution was ratified, ‘commerce’ consisted of selling, buying, and bartering, as well as transporting for these purposes.” United (1995) (THOMAS, J., concurring). See also 1 S. Johnson, A Dictionary of the English Language 361 (4th rev. ed. 1773) (reprint 1978) (defining commerce as “Intercourse; ex- change of one thing for another; interchange of any thing; trade; traffick”). “[W]hen Federalists and Anti-Federalists discussed the Commerce Clause during the ratification period, they often used trade (in its selling/bartering sense) and commerce interchangeably.” at 586 (THOMAS, J., concurring). The term “commerce” did not include economic activity such as “manufacturing and agriculture,” let alone noneconomic activity such as adoption of children. Furthermore, the term “commerce with Indian tribes” was invariably used during the time of the founding to mean “ ‘trade with Indians.’ ” See, e.g., Natelson, 215–216, and n. 97 (citing 18th-century sources); Report of Commit- tee on Indian Affairs (Feb 20, 1787), in 32 Journals of the Continental Congress 1774–1789, pp. 66, 68 (R. Hill ed. 1936) (hereinafter J. Cont’l Cong.) (using the phrase “commerce with the Indians” to mean trade with the Cite as: 570 U. S. (2013) 5 THOMAS, J., concurring Indians). And regulation of Indian commerce generally referred to legal structures governing “the conduct of the merchants engaged in the Indian trade, the nature of the goods they sold, the prices charged, and similar matters.” Natelson 216, and n. 99. The Indian Commerce Clause contains an additional textual limitation relevant to this case: Congress is given the power to regulate Commerce “with the Indian tribes.” The Clause does not give Congress the power to regulate commerce with all Indian persons any more than the Foreign Commerce Clause gives Congress the power to regulate commerce with all foreign nationals traveling within the United States. A straightforward reading of the text, thus, confirms that Congress may only regulate commercial interactions—“commerce”—taking place with established Indian communities—“tribes.” That power is far from “plenary.” B Congress’ assertion of “plenary power” over Indian affairs is also inconsistent with the history of the Indian Commerce Clause. At the time of the founding, the Clause was understood to reserve to the States general police powers with respect to Indians who were citizens of the several States. The Clause instead conferred on Congress the much narrower power to regulate trade with Indian tribes—that is, Indians who had not been incorporated into the
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Justice Thomas
| 2,013 | 1 |
concurring
|
Adoptive Couple v. Baby Girl
|
https://www.courtlistener.com/opinion/2959741/adoptive-couple-v-baby-girl/
|
tribes—that is, Indians who had not been incorporated into the body-politic of any State. 1 Before the Revolution, most Colonies adopted their own regulations governing Indian trade. See Natelson 219, and n. 121 (citing colonial laws). Such regulations were necessary because colonial traders all too often abused their Indian trading partners, through fraud, exorbitant prices, extortion, and physical invasion of Indian territory, 6 ADOPTIVE COUPLE v. BABY GIRL THOMAS, J., concurring among other things. See 1 F. Prucha, The Great Father 18–20 (1984) (hereinafter Prucha); Natelson 220, and n. 122. These abuses sometimes provoked violent Indian retaliation. See Prucha 20. To mitigate these conflicts, most Colonies extensively regulated traders engaged in commerce with Indian tribes. See e.g., Ordinance to Regu- late Indian Affairs, Statutes of South Carolina (Aug. 31, 1751), in 16 Early American Indian Documents: Treaties and Laws, 1607–1789, pp. 331–334 (A. Vaughan and D. Rosen eds. 1998).1 Over time, commercial regulation at the colonial level proved largely ineffective, in part be- cause “[t]here was no uniformity among the colonies, no two sets of like regulations.” Prucha 21. Recognizing the need for uniform regulation of trade with the Indians, Benjamin Franklin proposed his own “articles of confederation” to the Continental Congress on July 21, 1775, which reflected his view that central control over Indian affairs should predominate over local control. 2 J. Cont’l Cong. 195–199 (W. Ford ed. 1905). Franklin’s proposal was not enacted, but in November 1775, Con- gress empowered a committee to draft regulations for the Indian trade. 3 On July 12, 1776, the committee submitted a draft of the Articles of Confedera- tion to Congress, which incorporated many of Franklin’s proposals. 5 The draft prohibited States from waging offensive war against the Indians without congressional authorization and granted Congress —————— 1 South Carolina, for example, required traders to be licensed, to be of good moral character, and to post a bond. Ordinance to Regulate Indian Affairs, in 16 Early American Indian Documents, at 331–334. A potential applicant’s name was posted publicly before issuing the license, so anyone with objections had an opportunity to raise them. Restrictions were placed on employing agents, – 334, and names of potential agents had to be disclosed. Traders who violated these rules were subject to substantial penalties. Cite as: 570 U. S. (2013) 7 THOMAS, J., concurring the exclusive power to acquire land from the Indians out- side state boundaries, once those boundaries had been es- tablished. This version also gave Congress “the sole and exclusive Right and Power of Regulating the Trade, and managing all Affairs with the Indians.” at
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Justice Thomas
| 2,013 | 1 |
concurring
|
Adoptive Couple v. Baby Girl
|
https://www.courtlistener.com/opinion/2959741/adoptive-couple-v-baby-girl/
|
the Trade, and managing all Affairs with the Indians.” at 550. On August 20, 1776, the Committee of the Whole pre- sented to Congress a revised draft, which provided Con- gress with “the sole and exclusive right and power of regulating the trade, and managing all affairs with the Indians.” 681–682. Some delegates feared that the Articles gave Congress excessive power to in- terfere with States’ jurisdiction over affairs with Indians residing within state boundaries. After further delibera- tion, the final result was a clause that included a broad grant of congressional authority with two significant exceptions: “The United States in Congress assembled shall also have the sole and exclusive right and power of regulating the trade and managing all affairs with the Indians, not members of any of the States, provided that the legislative right of any State within its own limits be not infringed or violated.” Articles of Confederation, Art. IX, cl. 4. As a result, Congress retained exclusive jurisdic- tion over Indian affairs outside the borders of the States; the States retained exclusive jurisdiction over relations with Member-Indians;2 and Congress and the States “ex- ercise[d] concurrent jurisdiction over transactions with tribal Indians within state boundaries, but congressional decisions would have to be in compliance with local law.” Natelson 230. The drafting of the Articles of Confedera- —————— 2 Although Indians were generally considered “members” of a State if they paid taxes or were citizens, see Natelson 230, the precise defini- tion of the term was “not yet settled” at the time of the founding and was “a question of frequent perplexity and contention in the fed- eral councils,” The Federalist No. 42, p. 265 (C. Rossiter ed. 1961) (J. Madison). 8 ADOPTIVE COUPLE v. BABY GIRL THOMAS, J., concurring tion reveals the delegates’ concern with protecting the power of the States to regulate Indian persons who were politically incorporated into the States. This concern for state power reemerged during the drafting of the Constitution. 2 The drafting history of the Constitutional Convention also supports a limited construction of the Indian Com- merce Clause. On July 24, 1787, the convention elected a drafting committee—the Committee of Detail—and charged it to “report a Constitution conformable to the Res- olutions passed by the Convention.” 2 Records of the Federal Convention of 1787, p.106 (M. Farrand rev. 1966) (J. Madison). During the Committee’s deliberations, John Rutledge, the chairman, suggested incorporating an In- dian affairs power into the Constitution. at n. 6, 143. The first draft reported back to the convention, however, provided Congress with authority “[t]o regulate commerce with foreign nations,
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Justice Thomas
| 2,013 | 1 |
concurring
|
Adoptive Couple v. Baby Girl
|
https://www.courtlistener.com/opinion/2959741/adoptive-couple-v-baby-girl/
|
provided Congress with authority “[t]o regulate commerce with foreign nations, and among the several States,” (Aug. 6, 1787), but did not include any specific Indian affairs clause. On August 18, James Madison proposed that the Federal Government be granted several additional powers, including the power “[t]o regulate affairs with the Indians as well within as without the limits of the U. States.” (J. Madi- son) (emphasis added). On August 22, Rutledge delivered the Committee of Detail’s second report, which modified Madison’s proposed clause. The Committee proposed to add to Congress’ power “[t]o regulate commerce with foreign nations, and among the several States” the words, “and with Indians, within the Limits of any State, not subject to the laws thereof.” at 366–367 The Committee’s version, which echoed the Articles of Confederation, was far narrower than Madison’s proposal. On August 31, the revised draft was submitted to a Com- Cite as: 570 U. S. (2013) 9 THOMAS, J., concurring mittee of Eleven for further action. 481 (J. Madison). That Committee recommended adding to the Commerce Clause the phrase, “and with the Indian tribes,” which the Convention ultimately adopted. It is, thus, clear that the Framers of the Constitution were alert to the difference between the power to regulate trade with the Indians and the power to regulate all In- dian affairs. By limiting Congress’ power to the former, the Framers declined to grant Congress the same broad pow- ers over Indian affairs conferred by the Articles of Confed- eration. See Prakash, Against Tribal Fungibility, 89 Cornell L. Rev. 1069, 1090 During the ratification debates, opposition to the Indian Commerce Clause was nearly nonexistent. See Natelson 248 (noting that Robert Yates, a New York Anti-Federalist was “almost the only writer who objected to any part [of ] of the Commerce Clause—a clear indication that its scope was understood to be fairly narrow” (footnote omitted)). Given the Anti-Federalists’ vehement opposition to the Constitution’s other grants of power to the Federal Gov- ernment, this silence is revealing. The ratifiers almost certainly understood the Clause to confer a relatively modest power on Congress—namely, the power to regulate trade with Indian tribes living beyond state borders. And this feature of the Constitution was welcomed by Federal- ists and Anti-Federalists alike due to the considerable interest in expanding trade with such Indian tribes. See, e.g., The Federalist No. 42, at 265 (J. Madison) (praising the Constitution for removing the obstacles that had existed under the Articles of Confederation to federal control over “trade with Indians” (emphasis added)); 3 J. Elliot, The Debates in the Several State Conventions on
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Justice Thomas
| 2,013 | 1 |
concurring
|
Adoptive Couple v. Baby Girl
|
https://www.courtlistener.com/opinion/2959741/adoptive-couple-v-baby-girl/
|
J. Elliot, The Debates in the Several State Conventions on the Adoption of the Federal Constitution 580 (2d ed. 1863) (Adam Stephens, at the Virginia ratifying convention, June 23, 1788, describing the Indian tribes residing near 10 ADOPTIVE COUPLE v. BABY GIRL THOMAS, J., concurring the Mississippi and “the variety of articles which might be obtained to advantage by trading with these people”); The Federalist No. 24, at 158 (A. Hamilton) (arguing that frontier garrisons would “be keys to the trade with the Indian nations”); Brutus, (Letter) X, N. Y. J., Jan. 24, 1788, in 15 The Documentary History of the Ratification of the Constitution 462, 465 (J. Kaminski & G. Saladino eds. 2012) (conceding that there must be a standing army for some purposes, including “trade with Indians”). There is little evidence that the ratifiers of the Constitution under- stood the Indian Commerce Clause to confer anything resembling plenary power over Indian affairs. See Natel- son 247–250. III In light of the original understanding of the Indian Commerce Clause, the constitutional problems that would be created by application of the ICWA here are evident. First, the statute deals with “child custody proceedings,” not “commerce.” It was enacted in response to concerns that “an alarmingly high percentage of Indian families [were] broken up by the removal, often unwar- ranted, of their children from them by nontribal public and private agencies.” The perceived problem was that many Indian children were “placed in non-Indian foster and adoptive homes and institutions.” This problem, however, had nothing to do with commerce. Second, the portions of the ICWA at issue here do not regulate Indian tribes as tribes. Sections 1912(d) and (f ), and apply to all child custody proceedings involv- ing an Indian child, regardless of whether an Indian tribe is involved. This case thus does not directly implicate Congress’ power to “legislate in respect to Indian tribes.” United (emphasis added). Baby Girl was never domiciled on an Indian Reservation, and the Cherokee Nation had no jurisdiction Cite as: 570 U. S. (2013) 11 THOMAS, J., concurring over her. Cf. Mississippi Band of Choctaw Indians v. Holyfield, (holding that the Indian Tribe had exclusive jurisdiction over child custody proceedings, even though the children were born off the reservation, because the children were “domiciled” on the reservation for purposes of the ICWA). Although Birth Father is a registered member of The Cherokee Nation, he did not live on a reservation either. He was, thus, subject to the laws of the State in which he resided (Oklahoma) and of the State where his daughter resided during
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Justice Thomas
| 2,013 | 1 |
concurring
|
Adoptive Couple v. Baby Girl
|
https://www.courtlistener.com/opinion/2959741/adoptive-couple-v-baby-girl/
|
(Oklahoma) and of the State where his daughter resided during the custody proceedings (South Carolina). Nothing in the In- dian Commerce Clause permits Congress to enact spe- cial laws applicable to Birth Father merely because of his status as an Indian.3 Because adoption proceedings like this one involve neither “commerce” nor “Indian tribes,” there is simply no constitutional basis for Congress’ assertion of authority over such proceedings. Also, the notion that Congress can direct state courts to apply different rules of evidence and procedure merely because a person of Indian descent is involved raises absurd possibilities. Such plenary power would allow Congress to dictate specific rules of criminal procedure for state-court prosecutions against Indian defendants. Likewise, it would allow Congress to substi- tute federal law for state law when contract disputes involve Indians. But the Constitution does not grant Congress power to override state law whenever that law —————— 3 Petitioners and the guardian ad litem contend that applying the ICWA to child custody proceedings on the basis of race implicates equal protection concerns. See Brief for Petitioners 45 (arguing that the statute would be unconstitutional “if unwed fathers with no preexisting substantive parental rights receive a statutory preference based solely on the Indian child’s race”); Brief for Respondent Guardian Ad Litem 48–49 (same). I need not address this argument because I am satisfied that Congress lacks authority to regulate the child custody proceedings in this case. 12 ADOPTIVE COUPLE v. BABY GIRL THOMAS, J., concurring happens to be applied to Indians. Accordingly, application of the ICWA to these child custody proceedings would be unconstitutional. * * * Because the Court’s plausible interpretation of the relevant sections of the ICWA avoids these constitutional problems, I concur. Cite as: 570 U. S. (2013) 1 BREYER, J., concurring SUPREME COURT OF THE UNITED STATES No. 12–399 ADOPTIVE COUPLE, PETITIONERS v. BABY GIRL, A MINOR CHILD UNDER THE AGE OF FOURTEEN YEARS, ET AL.
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Justice Thomas
| 2,018 | 1 |
concurring
|
Murphy v. National Collegiate Athletic Assn.
|
https://www.courtlistener.com/opinion/4497655/murphy-v-national-collegiate-athletic-assn/
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I join the Court’s opinion in its entirety. I write sepa- rately, however, to express my growing discomfort with our modern severability precedents. I agree with the Court that the Professional and Ama- teur Sports Protection Act (PASPA) exceeds Congress’ Article I authority to the extent it prohibits New Jersey from “authoriz[ing]” or “licens[ing]” sports gambling, 28 U.S. C. Unlike the dissent, I do “doubt” that Congress can prohibit sports gambling that does not cross state lines. Post, at 2 (opinion of GINSBURG, J.); see Li- cense Tax Cases, (holding that Congress has “no power” to regulate “the internal com- merce or domestic trade of the States,” including the intrastate sale of lottery tickets); United States v. Lopez, 2 (documenting why the Commerce Clause does not permit Congress to regulate purely local activities that have a substantial effect on interstate commerce). But even assuming the Commerce Clause allows Congress to pro- hibit intrastate sports gambling “directly,” it “does not authorize Congress to regulate state governments’ regula- tion of interstate commerce.” New The Necessary and Proper Clause does not give Congress this power either, as a law is not “proper” if it “subvert[s] basic principles of federal- ism and dual sovereignty.” 65 (THOMAS, J., dissenting). Commandeering the States, as PASPA does, subverts those principles. See Because PASPA is at least partially unconstitutional, our precedents instruct us to determine “which portions of the statute we must sever and excise.” United States v. The Court must make this severability determination by asking a counterfactual question: “ ‘Would Congress still have passed’ the valid sections ‘had it known’ about the constitutional invalidity of the other portions of the stat- ute?” (plurality opinion)). I join the Court’s opinion because it gives the best answer it can to this question, and no party has asked us to apply a different test. But in a future case, we should take another look at our severability precedents. Those precedents appear to be in tension with traditional limits on judicial authority. Early American courts did not have a severability doctrine. See Walsh, Partial Un- constitutionality, 85 N. Y. U. L. Rev. 738, 769 (2010) (Walsh). They recognized that the judicial power is, fun- damentally, the power to render judgments in individual Cite as: 5 U. S. (2018) 3 THOMAS, J., concurring cases. See ; Baude, The Judgment Power, 96 Geo. L. J. 1807, 1815 Judicial review was a by- product of that process. See generally P. Hamburger, Law and Judicial Duty ; Prakash & Yoo, The Origins of Judicial Review, As Chief Justice Marshall famously explained, “[i]t is emphatically
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Murphy v. National Collegiate Athletic Assn.
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Review, As Chief Justice Marshall famously explained, “[i]t is emphatically the province and duty of the judicial department to say what the law is” because “[t]hose who apply the rule to particular cases, must of necessity expound and interpret that rule.” If a plaintiff relies on a statute but a defendant argues that the statute conflicts with the Constitution, then courts must resolve that dispute and, if they agree with the defendant, follow the higher law of the Constitution. See at –178; The Federalist No. 78, p. 467 (C. Rossiter ed. 1961) (A. Hamilton). Thus, when early American courts determined that a statute was unconsti- tutional, they would simply decline to enforce it in the case before them. See Walsh 755–766. “[T]here was no ‘next step’ in which courts inquired into whether the legislature would have preferred no law at all to the constitutional remainder.” Despite this historical practice, the Court’s modern cases treat the severability doctrine as a “remedy” for constitutional violations and ask which provisions of the statute must be “excised.” See, e.g., ; ; Alaska Airlines, Inc. v. Brock, This language cannot be taken literally. Invalidating a statute is not a “remedy,” like an injunction, a declaration, or damages. See Harri- son, Severability, Remedies, and Constitutional Adjudica- tion, 82–88 (2014) (Harrison). Remedies “operate with respect to specific parties,” not “on legal rules in the abstract.” ; see also Massachu- (explaining that 4 the power “to review and annul acts of Congress” is “little more than the negative power to disregard an unconstitu- tional enactment” and that “the court enjoins not the execution of the statute, but the acts of the official”). And courts do not have the power to “excise” or “strike down” statutes. See 39 Op. Atty. Gen. 22, 22–23 (“The decisions are practically in accord in holding that the courts have no power to repeal or abolish a statute”); Harrison 82 (“[C]ourts do not make [nonseverable] provi- sions inoperative Invalidation by courts is a figure of speech”); Mitchell, The Writ-of-Erasure Fallacy, 104 Va. L. Rev. (forthcoming 2018) (manuscript, ) (“The federal courts have no authority to erase a duly enacted law from the statute books”), online at https://papers.ssrn.com/sol3/ papers.cfm?abstract_id=3158038 (as last visited May 11, 2018). Because courts cannot take a blue pencil to statutes, the severability doctrine must be an exercise in statutory interpretation. In other words, the severability doctrine has courts decide how a statute operates once they con- clude that part of it cannot be constitutionally enforced. See Fallon, As-Applied and Facial Challenges and Third- Party Standing, 1333–1334 (2000); Harrison 88. But even
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Murphy v. National Collegiate Athletic Assn.
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and Third- Party Standing, 1333–1334 (2000); Harrison 88. But even under this view, the sever- ability doctrine is still dubious for at least two reasons. First, the severability doctrine does not follow basic principles of statutory interpretation. Instead of requiring courts to determine what a statute means, the severability doctrine requires courts to make “a nebulous inquiry into hypothetical congressional intent.” n. 7 (THOMAS, J., dissenting in part). It requires judges to determine what Congress would have intended had it known that part of its statute was unconstitutional.* But —————— * The first court to engage in this counterfactual exploration of legis- lative intent was the Massachusetts Supreme Judicial Court in Warren Cite as: 5 U. S. (2018) 5 THOMAS, J., concurring it seems unlikely that the enacting Congress had any intent on this question; Congress typically does not pass statutes with the expectation that some part will later be deemed unconstitutional. See Walsh 740–741; Stern, Separability and Separability Clauses in the Supreme Court, Without any actual evidence of intent, the severability doctrine invites courts to rely on their own views about what the best statute would be. See Walsh 752–753; Stern 112–113. More fundamentally, even if courts could discern Con- gress’ hypothetical intentions, intentions do not count unless they are enshrined in a text that makes it through the constitutional processes of bicameralism and present- ment. See (THOMAS, J., concurring in judgment). Because we have “ ‘a Government of laws, not of men,’ ” we are governed by “legislated text,” not “legislators’ intentions”—and espe- cially not legislators’ hypothetical intentions. Zuni Public School Dist. No. 89 v. Department of Education, 550 U.S. 81, 119 (2007) (Scalia, J., dissenting). Yet hypothetical intent is exactly what the severability doctrine turns on, at least when Congress has not expressed its fallback position in the text. Second, the severability doctrine often requires courts to weigh in on statutory provisions that no party has stand- ing to challenge, bringing courts dangerously close to issuing advisory opinions. See Stern 77; Lea, Situational Severability, 788–803 (2017) (Lea). If one provision of a statute is deemed unconstitutional, the severability doctrine places every other provision at risk of —————— v. Mayor and Aldermen of Charlestown, This Court adopted the Warren formulation in the late 19th century, see an era when statutory interpretation privileged Congress’ unexpressed “intent” over the enacted text, see, e.g., Church of Holy Trinity v. United States, 143 U.S. 457, 472 (1892); United 6 being declared nonseverable and thus inoperative; our precedents do not ask whether the plaintiff has standing to challenge those other provisions. See National
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Murphy v. National Collegiate Athletic Assn.
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plaintiff has standing to challenge those other provisions. See National Federa- tion of Independent 696–697 (2012) (joint dissent) (citing, as an example, 242– 244 (1929)). True, the plaintiff had standing to challenge the unconstitutional part of the statute. But the severa- bility doctrine comes into play only after the court has resolved that issue—typically the only live controversy between the parties. In every other context, a plaintiff must demonstrate standing for each part of the statute that he wants to challenge. See Lea 789, 751, and nn. 79– 80 ; DaimlerChrysler Corp. v. Cuno, ). The severabil- ity doctrine is thus an unexplained exception to the nor- mal rules of standing, as well as the separation-of-powers principles that those rules protect. See Steel (19). In sum, our modern severability precedents are in ten- sion with longstanding limits on the judicial power. And, though no party in this case has asked us to reconsider these precedents, at some point, it behooves us to do so. Cite as: 5 U. S. (2018) 1 BREYER, J., concurring Opinioninofpart and, dissenting BREYER J. in part SUPREME COURT OF THE UNITED STATES Nos. 16–476 and 16–477 PHILIP D. MURPHY, GOVERNOR OF NEW JERSEY, ET AL., PETITIONERS 16–476 v. NATIONAL COLLEGIATE ATHLETIC ASSOCIATION, ET AL. NEW JERSEY THOROUGHBRED HORSEMEN’S ASSOCIATION, INC., PETITIONER 16–477 v. NATIONAL COLLEGIATE ATHLETIC ASSOCIATION, ET AL. ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT [May 14, 2018] JUSTICE BREYER, concurring in part and dissenting in part. I agree with JUSTICE GINSBURG that 28 U.S. C. is severable from the challenged portion of The challenged part of subsection (1) prohibits a State from “author[izing]” or “licens[ing]” sports gambling schemes; subsection (2) prohibits individuals from “spon- sor[ing], operat[ing], advertis[ing], or promot[ing]” sports gambling schemes “pursuant to the law of a govern- mental entity.” The first says that a State cannot author- ize sports gambling schemes under state law; the second says that (just in case a State finds a way to do so) sports gambling schemes that a State authorizes are unlawful under federal law regardless. As JUSTICE GINSBURG makes clear, the latter section can live comfortably on its 2 MURPHY v. NATIONAL COLLEGIATE ATHLETIC ASSN. BREYER, J., concurring Opinioninofpart and, dissenting BREYER J. in part own without the first. Why would Congress enact both these provisions? The obvious answer is that Congress wanted to “keep sports gambling from spreading.” S. Rep. No. 102–248, pp. 4–6 (11). It feared that widespread sports gambling would “threate[n] to change the nature of sporting events from wholesome entertainment for all
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Murphy v. National Collegiate Athletic Assn.
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the nature of sporting events from wholesome entertainment for all ages to devices for gam- bling.” And it may have preferred that state authorities enforce state law forbidding sports gambling than require federal authorities to bring civil suits to enforce federal law forbidding about the same thing. Alternatively, Congress might have seen subsection (2) as a backup, called into play if subsection (1)’s requirements, directed to the States, turned out to be unconstitutional— which, of course, is just what has happened. Neither of these objectives is unreasonable. So read, the two subsections both forbid sports gambling but applies federal policy directly to individuals while the challenged part of forces the States to prohibit sports gambling schemes (thereby shifting the burden of enforcing federal regulatory policy from the Federal Government to state governments). Section 3702(2), addressed to individuals, standing alone seeks to achieve Congress’ objective of halting the spread of sports gambling schemes by “regulat[ing] interstate commerce directly.” New But the challenged part of subsection (1) seeks the same end indirectly by “regulat[ing] state governments’ regulation of interstate commerce.” And it does so by addressing the States (not individuals) directly and telling state legislatures what laws they must (or cannot) enact. Under our precedent, the first provision (directly and unconditionally telling States what laws they must enact) is unconstitutional, but the second (directly telling individuals what they cannot do) is not. See As so interpreted, the statutes would make New Jersey’s Cite as: 5 U. S. (2018) 3 BREYER, J., concurring Opinioninofpart and, dissenting BREYER J. in part victory here mostly Pyrrhic. But that is because the only problem with the challenged part of lies in its means, not its end. Congress has the constitutional power to prohibit sports gambling schemes, and no party here argues that there is any constitutional defect in ’s alternative means of doing so. I consequently join JUSTICE GINSBURG’s dissenting opinion in part, and all but Part VI–B of the Court’s opinion. Cite as: 5 U. S. (2018) 1 GINSBURG, J., dissenting SUPREME COURT OF THE UNITED STATES Nos. 16–476 and 16–477 PHILIP D. MURPHY, GOVERNOR OF NEW JERSEY, ET AL., PETITIONERS 16–476 v. NATIONAL COLLEGIATE ATHLETIC ASSOCIATION, ET AL. NEW JERSEY THOROUGHBRED HORSEMEN’S ASSOCIATION, INC., PETITIONER 16–477 v. NATIONAL COLLEGIATE ATHLETIC ASSOCIATION, ET AL.
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Tellabs, Inc. v. Makor Issues & Rights, Ltd.
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This Court has long recognized that meritorious private actions to enforce federal antifraud securities laws are an essential supplement to criminal prosecutions and civil enforcement actions brought, respectively, by the Department of Justice and the Securities and Exchange Commission (SEC). See, e.g., Dura ; J.I. Case Private securities fraud actions, however, if not adequately contained, can be employed abusively to impose substantial costs on companies and individuals whose conduct conforms to the law. See Merrill Lynch, Pierce, Fenner & Smith As a check against abusive litigation by private parties, Congress enacted the Private Securities Litigation Reform Act of 1995 (PSLRA), Exacting pleading requirements are among the control measures Congress included in the PSLRA. The Act requires plaintiffs to state with particularity both the facts constituting the alleged violation, and the facts evidencing scienter, i.e., the defendant's intention "to deceive, manipulate, or defraud." & ; see 15 U.S.C. 78u-4(b)(1),(2). This case concerns the latter requirement. As set out in 21D(b)(2) of the PSLRA, plaintiffs must "state with particularity facts giving rise to a strong inference that the defendant acted with the required state of mind." 15 U.S.C. 78u-4(b)(2). Congress left the key term "strong inference" undefined, and Courts of Appeals have divided on its meaning. In the case before us, the Court of Appeals for the Seventh Circuit held that the "strong inference" standard would be met if the complaint "allege[d] facts from which, if true, a reasonable person could infer that the defendant acted with the required intent." That formulation, we conclude, does not capture the stricter demand Congress sought to convey in 21D(b)(2). It does not suffice that a reasonable factfinder plausibly could infer from the complaint's allegations the requisite state of mind. Rather, to determine whether a complaint's scienter allegations can survive threshold inspection for sufficiency, a court governed by 21D(b)(2) must engage in a comparative evaluation; it must consider, not only inferences urged by the plaintiff, as the Seventh Circuit did, but also competing inferences rationally drawn from the facts alleged. An inference of fraudulent intent may be plausible, yet less cogent than other, nonculpable explanations for the defendant's conduct. To qualify as "strong" within the intendment of 21D(b)(2), we hold, an inference of scienter must be *05 more than merely plausible or reasonable it must be cogent and at least as compelling as any opposing inference of nonfraudulent intent. I Petitioner Tellabs, Inc., manufactures specialized equipment used in fiber optic networks. During the time period relevant to this case, petitioner Richard Notebaert was Tellabs' chief executive officer and president. Respondents (Shareholders) are persons who purchased Tellabs
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officer and president. Respondents (Shareholders) are persons who purchased Tellabs stock between December 11, 2000, and June 19, They accuse Tellabs and Notebaert (as well as several other Tellabs executives) of engaging in a scheme to deceive the investing public about the true value of Tellabs' stock. See ; App. 94-98.[1] Beginning on December 11, 2000, the Shareholders allege, Notebaert (and by imputation Tellabs) "falsely reassured public investors, in a series of statements that Tellabs was continuing to enjoy strong demand for its products and earning record revenues," when, in fact, Notebaert knew the opposite was true. From December 2000 until the spring of the Shareholders claim, Notebaert knowingly misled the public in four First, he made statements indicating that demand for Tellabs' flagship networking device, the TITAN 5500, was continuing to grow, when in fact demand for that product was waning. Second, Notebaert made statements indicating that the TITAN 6500, Tellabs' next-generation networking device, was available for delivery, and that demand for that product was strong and growing, when in truth the product was not ready for delivery and demand was weak. -598. Third, he falsely represented Tellabs' financial results for the fourth quarter of 2000 (and, in connection with those results, condoned the practice of "channel stuffing," under which Tellabs flooded its customers with unwanted products). Fourth, Notebaert made a series of over revenue projections, when demand for the TITAN 5500 was drying up and production of the TITAN 6500 was behind schedule. -599. Based on Notebaert's sunny assessments, the Shareholders contend, market analysts recommended that investors buy Tellabs' stock. See The first public glimmer that business was not so healthy came in March when Tellabs modestly reduced its first quarter sales projections. In the next months, Tellabs made progressively more cautious statements about its projected sales. On June 19, the last day of the class period, Tellabs disclosed that demand for the TITAN 5500 had significantly dropped. Simultaneously, the company substantially lowered its revenue projections for the second quarter of The next day, the price of Tellabs stock, which had reached a high of $67 during the period, plunged to a low of $15.87. On December 3, the Shareholders filed a class action in the District Court for the Northern District of Illinois. Their complaint inter alia, that Tellabs and Notebaert had engaged in securities fraud in violation of 10(b) of the Securities Exchange Act of 1934, 48 Stat. *06 891, 15 U.S.C. 78j(b), and SEC Rule 10b-5, 17 CFR 240.10b-5 also that Notebaert was a "controlling person" under 20(a) of the 1934 Act, 15 U.S.C. 78t(a),
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Tellabs, Inc. v. Makor Issues & Rights, Ltd.
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person" under 20(a) of the 1934 Act, 15 U.S.C. 78t(a), and therefore derivatively liable for the company's fraudulent acts. See App. 98-101, 167-171. Tellabs moved to dismiss the complaint on the ground that the Shareholders had failed to plead their case with the particularity the PSLRA requires. The District Court agreed, and therefore dismissed the complaint without App. to Pet. for Cert. 80a-117a; see The Shareholders then amended their complaint, adding references to 27 confidential sources and making further, more specific, allegations concerning Notebaert's mental state. See ; App. 91-93, 152-160. The District Court again dismissed, this time with The Shareholders had sufficiently pleaded that Notebaert's statements were misleading, the court determined, but they had insufficiently alleged that he acted with scienter, The Court of Appeals for the Seventh Circuit reversed in relevant Like the District Court, the Court of Appeals found that the Shareholders had pleaded the misleading character of Notebaert's statements with sufficient particularity. Unlike the District Court, however, the Seventh Circuit concluded that the Shareholders had sufficiently alleged that Notebaert acted with the requisite state of mind. The Court of Appeals recognized that the PSLRA "unequivocally raise[d] the bar for pleading scienter" by requiring plaintiffs to "plea[d] sufficient facts to create a strong inference of scienter." In evaluating whether that pleading standard is met, the Seventh Circuit said, "courts [should] examine all of the allegations in the complaint and then decide whether collectively they establish such an inference." "[W]e will allow the complaint to survive," the court next and critically "if it alleges facts from which, if true, a reasonable person could infer that the defendant acted with the required intent If a reasonable person could not draw such an inference from the alleged facts, the defendants are entitled to dismissal." at In adopting its standard for the survival of a complaint, the Seventh Circuit explicitly rejected a stiffer standard adopted by the Sixth Circuit, i.e., that "plaintiffs are entitled only to the most plausible of competing inferences." ). The Sixth Circuit's standard, the court observed, because it involved an assessment of competing inferences, "could potentially infringe upon plaintiffs' Seventh Amendment rights." 437 F.3d, at We granted certiorari to resolve the disagreement among the Circuits on whether, and to what extent, a court must consider competing inferences in determining whether a securities fraud complaint gives rise to a "strong inference" of scienter.[2] 549 U.S. 166 L. Ed. 2d 6 *07 II Section 10(b) of the Securities Exchange Act of 1934 forbids the "use or employ, in connection with the purchase or sale of any security, [of] any
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Tellabs, Inc. v. Makor Issues & Rights, Ltd.
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with the purchase or sale of any security, [of] any manipulative or deceptive device or contrivance in contravention of such rules and regulations as the [SEC] may prescribe as necessary or appropriate in the public interest or for the protection of investors." 15 U.S.C. 78j(b). SEC Rule 10b-5 implements 10(b) by declaring it unlawful: "(a) To employ any device, scheme, or artifice to defraud, "(b) To make any untrue statement of a material fact or to omit to state a material fact necessary in order to make the statements made not misleading, or "(c) To engage in any act, practice, or course of business which operates or would operate as a fraud or deceit upon any person, in connection with the purchase or sale of any security." 17 CFR 240.10b-5. Section 10(b), this Court has implied from the statute's text and purpose, affords a right of action to purchasers or sellers of securities injured by its violation. See, e.g., Dura See also at ("The securities statutes seek to maintain public confidence in the marketplace by deterring fraud, in part, through the availability of private securities fraud actions."); 377 U.S., at (private securities fraud actions provide "a most effective weapon in the enforcement" of securities laws and are "a necessary supplement to Commission action"). To establish liability under 10(b) and Rule 10b-5, a private plaintiff must prove that the defendant acted with scienter, "a mental state embracing intent to deceive, manipulate, or defraud." & -, and n. 12,[3] In an ordinary civil action, the Federal Rules of Civil Procedure require only "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. Rule Civ. Proc. 8(a)(2). Although the rule encourages brevity, the complaint must say enough to give the defendant "fair notice of what the plaintiff's claim is and the grounds upon which it rests." Dura Prior to the enactment of the PSLRA, the sufficiency of a complaint for securities fraud was governed not by Rule 8, but by the heightened pleading standard set forth in Rule 9(b). See Rule 9(b) applies to "all averments of fraud or mistake"; it requires that "the circumstances constituting fraud be with particularity" but provides that "[m]alice, intent, knowledge, and other condition of mind of a person, may be averred generally." Courts of Appeals diverged on the character of the Rule 9(b) inquiry in 10(b) cases: Could securities fraud plaintiffs allege the requisite mental state "simply by stating that scienter existed," In re GlenFed, Inc. Securities Litigation, 42 F.3d *08 1541, 1546-1547 or were they required to allege with
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Tellabs, Inc. v. Makor Issues & Rights, Ltd.
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*08 1541, 1546-1547 or were they required to allege with particularity facts giving rise to an inference of scienter? Compare with, e.g., 975 F.2d, at Circuits requiring plaintiffs to allege specific facts indicating scienter expressed that requirement variously. See 5A C. Wright & A. Miller, Federal Practice and Procedure 1301.1, pp. 300-302 (hereinafter Wright & Miller). The Second Circuit's formulation was the most stringent. Securities fraud plaintiffs in that Circuit were required to "specifically plead those [facts] which they assert give rise to a strong inference that the defendants had" the requisite state of mind. The "strong inference" formulation was appropriate, the Second Circuit said, to ward off allegations of "fraud by hindsight." See, e.g., F.3d 1124, Setting a uniform pleading standard for 10(b) actions was among Congress' objectives when it enacted the PSLRA. Designed to curb perceived abuses of the 10(b) private action"nuisance filings, targeting of deep-pocket defendants, vexatious discovery requests and manipulation by class action lawyers," 547 U.S., at (quoting H.R. Conf. Rep. No. 104-369, p. 31 (1995), U.S.Code Cong. & Admin.News 1995, p. 730 (hereinafter H.R. Conf. Rep.))the PSLRA installed both substantive and procedural controls.[4] Notably, Congress prescribed new procedures for the appointment of lead plaintiffs and lead counsel. This innovation aimed to increase the likelihood that institutional investorsparties more likely to balance the interests of the class with the long-term interests of the company would serve as lead plaintiffs. See ; S.Rep. No. 104-98, p. 11 (1995), U.S.Code Cong. & Admin.News 1995, pp. 679, 690. Congress also "limit[ed] recoverable damages and attorney's fees, provide[d] a `safe harbor' for forward-looking statements, mandate[d] imposition of sanctions for frivolous litigation, and authorize[d] a stay of discovery pending resolution of any motion to dismiss." 547 U.S., at And in 21D(b) of the PSLRA, Congress "impose[d] heightened pleading requirements in actions brought pursuant to 10(b) and Rule 10b-5." Under the PSLRA's heightened pleading instructions, any private securities complaint alleging that the defendant made a false or misleading statement must: (1) "specify each statement alleged to have been misleading [and] the reason or reasons why the statement is misleading," 15 U.S.C. 78u-4(b)(1); and (2) "state with particularity facts giving rise to a strong inference that the defendant acted with the required state of mind," 78u-4(b)(2). In the instant case, as earlier see at 06, the District Court and the Seventh Circuit agreed that the Shareholders met the first of the two requirements: The complaint sufficiently *09 specified Notebaert's alleged misleading statements and the reasons why the statements were 303 F.Supp.2d, -600. But those courts disagreed on whether the Shareholders, as required by
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those courts disagreed on whether the Shareholders, as required by 21D(b)(2), "state[d] with particularity facts giving rise to a strong inference that [Notebaert] acted with [scienter]," 78u-4(b)(2). See at 06. The "strong inference" standard "unequivocally raise[d] the bar for pleading scienter," 437 F.3d, and signaled Congress' purpose to promote greater uniformity among the Circuits, see H.R. Conf. Rep., p. 41. But "Congress did not throw much light on what facts suffice to create [a strong] inference," or on what "degree of imagination courts can use in divining whether" the requisite inference 437 F.3d, While adopting the Second Circuit's "strong inference" standard, Congress did not codify that Circuit's case law interpreting the standard. See 78u-4(b)(2). See also Brief for United States as Amicus Curiae 18. With no clear guide from Congress other than its "inten[tion] to strengthen existing pleading requirements," H.R. Conf. Rep., p. 41, Courts of Appeals have diverged again, this time in construing the term "strong inference." Among the uncertainties, should courts consider competing inferences in determining whether an inference of scienter is "strong"? See 437 F.3d, - Our task is to prescribe a workable construction of the "strong inference" standard, a reading geared to the PSLRA's twin goals: to curb frivolous, lawyer-driven litigation, while preserving investors' ability to recover on meritorious claims. III A We establish the following prescriptions: First, faced with a Rule 12(b)(6) motion to dismiss a 10(b) action, courts must, as with any motion to dismiss for failure to plead a claim on which relief can be granted, accept all factual allegations in the complaint as true. See On this point, the parties agree. See Reply Brief 8; Brief for Respondents 26; Brief for United States as Amicus Curiae 8, 20, 21. Second, courts must consider the complaint in its entirety, as well as other sources courts ordinarily examine when ruling on Rule 12(b)(6) motions to dismiss, in particular, documents incorporated into the complaint by reference, and matters of which a court may take judicial notice. See 5B Wright & Miller 1357 The inquiry, as several Courts of Appeals have recognized, is whether all of the facts alleged, taken collectively, give rise to a strong inference of scienter, not whether any individual allegation, scrutinized in isolation, meets that standard. See, e.g., ; See also Brief for United States as Amicus Curiae Third, in determining whether the pleaded facts give rise to a "strong" inference of scienter, the court must take into account plausible opposing inferences. The Seventh Circuit expressly declined to engage in such a comparative inquiry. A complaint could survive, that court said, as
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Tellabs, Inc. v. Makor Issues & Rights, Ltd.
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https://www.courtlistener.com/opinion/145709/tellabs-inc-v-makor-issues-rights-ltd/
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comparative inquiry. A complaint could survive, that court said, as long as it "alleges facts from which, if true, a reasonable person could infer that the defendant acted with the required intent"; in other words, only "[i]f a reasonable person could not draw such an inference from *10 the alleged facts" would the defendant prevail on a motion to dismiss. 437 F.3d, at But in 21D(b)(2), Congress did not merely require plaintiffs to "provide a factual basis for [their] scienter allegations," ), i.e., to allege facts from which an inference of scienter rationally could be drawn. Instead, Congress required plaintiffs to plead with particularity facts that give rise to a "strong"i.e., a powerful or cogentinference. See American Heritage Dictionary 1717 (4th ed.2000) (defining "strong" as "[p]ersuasive, effective, and cogent"); 16 Oxford English Dictionary 949 (2d ed.1989) (defining "strong" as "[p]owerful to demonstrate or convince" (definition 16b)); cf. 7 The strength of an inference cannot be decided in a vacuum. The inquiry is inherently comparative: How likely is it that one conclusion, as compared to others, follows from the underlying facts? To determine whether the plaintiff has alleged facts that give rise to the requisite "strong inference" of scienter, a court must consider plausible nonculpable explanations for the defendant's conduct, as well as inferences favoring the plaintiff. The inference that the defendant acted with scienter need not be irrefutable, i.e., of the "smoking-gun" genre, or even the "most plausible of competing inferences," Fidel, 392 F.3d, at ). Recall in this regard that 21D(b)'s pleading requirements are but one constraint among many the PSLRA installed to screen out frivolous suits, while allowing meritorious actions to move forward. See at 08, and n. 4. Yet the inference of scienter must be more than merely "reasonable" or "permissible"it must be cogent and compelling, thus strong in light of other explanations. A complaint will survive, we hold, only if a reasonable person would deem the inference of scienter cogent and at least as compelling as any opposing inference one could draw from the facts alleged.[5] *11 B Tellabs contends that when competing inferences are considered, Notebaert's evident lack of pecuniary motive will be dispositive. The Shareholders, Tellabs stresses, did not allege that Notebaert sold any shares during the class period. See Brief for Petitioners 50 ("The absence of any allegations of motive color all the other allegations putatively giving rise to an inference of scienter."). While it is true that motive can be a relevant consideration, and personal financial gain may weigh heavily in favor of a scienter inference, we agree with the Seventh Circuit
|
Justice Ginsburg
| 2,007 | 5 |
majority
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Tellabs, Inc. v. Makor Issues & Rights, Ltd.
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https://www.courtlistener.com/opinion/145709/tellabs-inc-v-makor-issues-rights-ltd/
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of a scienter inference, we agree with the Seventh Circuit that the absence of a motive allegation is not fatal. See 437 F.3d, As earlier at 09-10, allegations must be considered collectively; the significance that can be ascribed to an allegation of motive, or lack thereof, depends on the entirety of the complaint. Tellabs also maintains that several of the Shareholders' allegations are too vague or ambiguous to contribute to a strong inference of scienter. For example, the Shareholders alleged that Tellabs flooded its customers with unwanted products, a practice known as "channel stuffing." See at 05. But they failed, Tellabs argues, to specify whether the channel stuffing allegedly known to Notebaert was the illegitimate kind (e.g., writing orders for products customers had not requested) or the legitimate kind (e.g., offering customers discounts as an incentive to buy). Brief for Petitioners 44-46; Reply Brief 8. See also But see 603-604 We agree that omissions and ambiguities count against inferring scienter, for plaintiffs must "state with particularity facts giving rise to a strong inference that the defendant acted with the required state of mind." 78u-4(b)(2). We reiterate, however, that the court's job is not to scrutinize each allegation in isolation but to assess all the allegations holistically. See at 09-10; 437 F.3d, In sum, the reviewing court must ask: When the allegations are accepted as true and taken collectively, would a reasonable person deem the inference of scienter at least as strong as any opposing inference?[6] IV Accounting for its construction of 21D(b)(2), the Seventh Circuit explained that the court "th[ought] it wis[e] to adopt an approach that [could not] be misunderstood as a usurpation of the jury's role." 437 F.3d, at In our view, the Seventh Circuit's concern was undue.[7] A court's *12 comparative assessment of plausible inferences, while constantly assuming the plaintiff's allegations to be true, we think it plain, does not impinge upon the Seventh Amendment right to jury trial.[8] Congress, as creator of federal statutory claims, has power to prescribe what must be pleaded to state the claim, just as it has power to determine what must be proved to prevail on the merits. It is the federal lawmaker's prerogative, therefore, to allow, disallow, or shape the contours of including the pleading and proof requirements for 10(b) private actions. No decision of this Court questions that authority in general, or suggests, in particular, that the Seventh Amendment inhibits Congress from establishing whatever pleading requirements it finds appropriate for federal statutory claims. Cf. ; (both recognizing that heightened pleading requirements can be established by Federal Rule, citing Fed.
|
Justice Ginsburg
| 2,007 | 5 |
majority
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Tellabs, Inc. v. Makor Issues & Rights, Ltd.
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https://www.courtlistener.com/opinion/145709/tellabs-inc-v-makor-issues-rights-ltd/
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pleading requirements can be established by Federal Rule, citing Fed. Rule Civ. Proc. 9(b), which requires that fraud or mistake be pleaded with particularity).[9] Our decision in Fidelity & Deposit of 47 L. Ed. is instructive. That case concerned a rule adopted by the Supreme Court of the District of Columbia in 1879 pursuant to rulemaking power delegated by Congress. The rule required defendants, in certain contract actions, to file an affidavit "specifically stating, in precise and distinct terms, the grounds of his defen[s]e." The defendant's affidavit was found insufficient, and judgment was entered for the plaintiff, whose declaration and supporting affidavit had been found satisfactory. This Court upheld the District's rule against the contention that it violated the Seventh Amendment. Just as the purpose of 21D(b) is to screen out frivolous complaints, the purpose of the prescription at issue in Fidelity & Deposit was to "preserve the courts from frivolous defen[s]es," Explaining why the Seventh Amendment was not implicated, this Court said that the heightened pleading rule simply "prescribes the means of making an issue," and that, when "[t]he issue [was] made as prescribed, the right of trial by jury accrues." ; accord Ex parte Peterson, 3 U.S. 300, (citing Fidelity & Deposit and reiterating: "It does not infringe the constitutional right to a trial by jury [in a civil case], to require, with a view to formulating the issues, an oath by each party to the facts relied upon."). See also 13 U.S. 593, (1) In the instant case, provided that the Shareholders have satisfied the congressionally "prescribe[d] means of making an issue," Fidelity & Deposit 187 U.S., the case will fall within the jury's authority to assess the credibility of witnesses, resolve any genuine issues of fact, and make the ultimate determination whether Notebaert and, by imputation, Tellabs acted with scienter. We emphasize, as well, that under our construction of the "strong inference" standard, a plaintiff is not forced to plead more than she would be required to prove at trial. A plaintiff alleging fraud in a 10(b) action, we hold today, must plead facts rendering an inference of scienter at least as likely as any plausible opposing inference. At trial, she must then prove her case by a "preponderance of the evidence." Stated otherwise, she must demonstrate that it is more likely than not that the defendant acted with scienter. See Herman & * * * While we reject the Seventh Circuit's approach to 21D(b)(2), we do not decide whether, under the standard we have described, see at 09-11, the Shareholders' allegations warrant "a strong inference
|
Justice Stevens
| 1,988 | 16 |
majority
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Sheridan v. United States
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https://www.courtlistener.com/opinion/112131/sheridan-v-united-states/
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On February 6, 1982, an obviously intoxicated off-duty serviceman named Carr fired several rifle shots into an automobile being driven by petitioners on a public street near the *394 Bethesda Naval Hospital. Petitioners brought suit against the United States alleging that their injuries were caused by the Government's negligence in allowing Carr to leave the hospital with a loaded rifle in his possession. The District Court dismissed the action and the Court of Appeals affirmed on the ground that the claim is barred by the intentional tort exception to the Federal Tort Claims Act (FTCA or Act). The question we granted certiorari to decide is whether petitioners' claim is one "arising out of" an assault or battery within the meaning of 28 U.S. C. 2680(h).[1] I When it granted the Government's motion to dismiss, the District Court accepted petitioners' version of the facts as alleged *395 in their complaint and as supplemented by discovery. That version may be briefly stated. After finishing his shift as a naval medical aide at the hospital, Carr consumed a large quantity of wine, rum, and other alcoholic beverages. He then packed some of his belongings, including a rifle and ammunition, into a uniform bag and left his quarters. Some time later, three naval corpsmen found him lying face down in a drunken stupor on the concrete floor of a hospital building. They attempted to take him to the emergency room, but he broke away, grabbing the bag and revealing the barrel of the rifle. At the sight of the rifle barrel, the corpsmen fled. They neither took further action to subdue Carr, nor alerted the appropriate authorities that he was heavily intoxicated and brandishing a weapon. Later that evening, Carr fired the shots that caused physical injury to one of the petitioners and property damage to their car. The District Court began its legal analysis by noting the general rule that the Government is not liable for the intentional torts of its employees. The petitioners argued that the general rule was inapplicable because they were relying, not on the fact that Carr was a Government employee when he assaulted them, but rather on the negligence of other Government employees who failed to prevent his use of the rifle. The District Court assumed that the alleged negligence would have made the defendant liable under the law of Maryland, and also assumed that the Government would have been liable if Carr had not been a Government employee. Nevertheless, although stating that it was "sympathetic" to petitioners' claim, App. to Pet. for Cert. 26a, it
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Justice Stevens
| 1,988 | 16 |
majority
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Sheridan v. United States
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https://www.courtlistener.com/opinion/112131/sheridan-v-united-states/
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to petitioners' claim, App. to Pet. for Cert. 26a, it concluded that Fourth Circuit precedents required dismissal because Carr "happens to be a government employee rather than a private citizen," at 23a. The Court of Appeals affirmed. Like the District Court, it concluded that the Circuit's prior decisions in and Thigpen v. United States, 800 F. 2d *396 393 (CA4 1986),[2] foreclosed the following argument advanced by petitioners: "The Sheridans also argue that Carr's status as an enlisted naval man and, therefore, a government employee, should [be] irrelevant to the issue of the government's immunity vel non from liability for negligently failing to prevent the injury. They correctly assert that the shooting at the Sheridans' vehicle was not connected with Carr's job responsibility or duties as a government employee. The Sheridans further assert that if Carr had not been a government employee, a claim would undoubtedly lie against the government and 2680(h) would be inapplicable. See (holding 2680(h) inapplicable where probationer alleged that negligence by United States marshal allowed non-government employee to assault and torture probationer). They contend it is anomalous to deny their claim simply because the corpsmen were negligent in the handling of a government employee *397 rather than a private citizen." In dissent, Chief Judge Winter argued that cases involving alleged negligence in hiring or supervising Government employees are not applicable to a situation in which the basis for the Government's alleged liability has nothing to do with the assailant's employment status. He wrote: "As the majority opinion concedes and Thigpen, as well as the other cases relied upon by the majority are all cases where the purported government negligence was premised solely on claims of negligent hiring and/or supervision. The same was true in United ]. Such claims are essentially grounded in the doctrine of respondeat superior. In these cases, the government's liability arises, if at all, only because of the employment relationship. If the assailant were not a federal employee, there would be no independent basis for a suit against the government. It is in this situation that an allegation of government negligence can legitimately be seen as an effort to `circumvent' the 2680(h) bar; it is just this situation where government liability is possible only because of the fortuity that the assailant happens to receive federal paychecks that 2680(h) was designed to preclude. See Shearer, [-57]; 669-70; "On the other hand, where government liability is independent of the assailant's employment status, it is possible to discern two distinct torts: the intentional tort (assault and battery) and the government negligence that precipitated it.
|
Justice Stevens
| 1,988 | 16 |
majority
|
Sheridan v. United States
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https://www.courtlistener.com/opinion/112131/sheridan-v-united-states/
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(assault and battery) and the government negligence that precipitated it. Where no reliance is placed on negligent supervision or respondeat superior principles, the cause of action against the government cannot really be said to `arise out of' the assault and battery; rather it is *398 based on the government's breach of a separate legal duty." The difference between the majority and the dissent in this case is reflected in conflicting decisions among the Circuits as well.[3] We therefore granted certiorari to resolve this important conflict. II The FTCA gives federal district courts jurisdiction over claims against the United States for money damages "for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred." 28 U.S. C. 1346(b). However, among other limitations, the Act also provides that this broad grant of jurisdiction "shall not apply to [a]ny claim arising out of assault, battery" or other specified intentional torts. 28 U.S. C. 2680(h). The words "any claim arising out of" an assault or battery are unquestionably broad enough to bar all claims based entirely on an assault or battery. The import of these words is less clear, however, when they are applied to a claim arising out of two tortious acts, one of which is an assault or battery and the other of which is a mere act of negligence. Nonetheless, it is both settled and undisputed that in at least some situations the fact that an injury was directly caused by an assault or battery will not preclude liability against the Government for negligently allowing the assault to occur. Thus, *399 in United we held that a prisoner who was assaulted by other inmates could recover damages from the United States because prison officials were negligent in failing to prevent the assault that caused his injury.[4] Two quite different theories might explain why Muniz' claim did not "arise out of" the assault that caused his injuries. First, it might be assumed that since he alleged an independent basis for tort liability namely, the negligence of the prison officials the claim did not arise solely, or even predominantly, out of the assault. Rather, the attention of the trier of fact is focused on the Government's negligent act or omission; the intentional commission is simply considered
|
Justice Stevens
| 1,988 | 16 |
majority
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Sheridan v. United States
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https://www.courtlistener.com/opinion/112131/sheridan-v-united-states/
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negligent act or omission; the intentional commission is simply considered as part of the causal link leading to the injury. Under this view, the assailant's individual involvement would not give rise to Government liability, but antecedent negligence by Government agents could, provided of course that similar negligent conduct would support recovery under the law of the State where the incident occurred. See Note, Section 2680(h) of the Federal Tort Claims Act: Government Liability for the Negligent Failure to Prevent an Assault and Battery by a Federal Employee, 69 Geo. L. J. 803, 822-825 (advocating this view and collecting cases). *400 In response to this theory, the Government argues that the "arising out of" language must be read broadly and that the Sheridans' negligence claim is accordingly barred, for in the absence of Carr's assault, there would be no claim. We need not resolve this dispute, however, because even accepting the Government's contention that when an intentional tort is a sine qua non of recovery the action "arises out of" that tort, we conclude that the exception does not bar recovery in this case. We thus rely exclusively on the second theory, which makes clear that the intentional tort exception is simply inapplicable to torts that fall outside the scope of 1346(b)'s general waiver. This second explanation for the Muniz holding, which is narrower but not necessarily inconsistent with the first, adopts Judge (later Justice) Harlan's reasoning in In that case, as in Muniz, a prisoner claimed that an assault by another inmate had been caused by the negligence of federal employees. After recognizing that the "immunity against claims arising out of assault and battery can literally be read to apply to assaults committed by persons other than government employees," at his opinion concluded that 2680(h) must be read against the rest of the Act. The exception should therefore be construed to apply only to claims that would otherwise be authorized by the basic waiver of sovereign immunity. Since an assault by a person who was not employed by the Government could not provide the basis for a claim under the FTCA, the exception could not apply to such an assault; rather, the exception only applies in cases arising out of assaults by federal employees. In describing the coverage of the FTCA, Judge Harlan emphasized the statutory language that was critical to his analysis. As he explained, the Act covers actions for personal injuries "caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment (Italics supplied)."
|
Justice Stevens
| 1,988 | 16 |
majority
|
Sheridan v. United States
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https://www.courtlistener.com/opinion/112131/sheridan-v-united-states/
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within the scope of his office or employment (Italics supplied)." *401 We need only move the emphasis to the next phrase "while acting within the scope of his office or employment" to apply his analysis to the assault and battery committed by the off-duty, inebriated enlisted man in this case. If nothing more was involved here than the conduct of Carr at the time he shot at petitioners, there would be no basis for imposing liability on the Government. The tortious conduct of an off-duty serviceman, not acting within the scope of his office or employment, does not in itself give rise to Government liability whether that conduct is intentional or merely negligent. As alleged in this case, however, the negligence of other Government employees who allowed a foreseeable assault and battery to occur may furnish a basis for Government liability that is entirely independent of Carr's employment status. By voluntarily adopting regulations that prohibit the possession of firearms on the naval base and that require all personnel to report the presence of any such firearm,[5] and by further voluntarily undertaking to provide care to a person who was visibly drunk and visibly armed, the Government assumed responsibility to "perform [its] `good Samaritan' task in a careful manner." Indian Towing The District Court and the Court of Appeals both assumed that petitioners' version of the facts would support recovery under Maryland law on a negligence theory if the naval hospital had been owned and operated by a private person. Although the Government now disputes this assumption, it is not our practice to re-examine a question of state law of that kind or, without good reason, to pass upon it in the first instance.[6] See On this assumption, it seems perfectly clear that the mere fact that Carr happened to be an off-duty federal employee should not provide a basis for protecting the Government from liability that would attach if Carr had been an unemployed civilian patient or visitor in the hospital. Indeed, in a case in which the employment status of the assailant has nothing to do with the basis for imposing liability on the Government, it would seem perverse to exonerate the Government because of the happenstance that Carr was on a federal payroll.[7] *403 In a case of this kind,[8] the fact that Carr's behavior is characterized as an intentional assault rather than a negligent act is also quite irrelevant. If the Government has a duty to prevent a foreseeably dangerous individual from wandering about unattended, it would be odd to assume that Congress intended a
|
Justice Burger
| 1,986 | 12 |
concurring
|
Wardair Canada Inc. v. Florida Dept. of Revenue
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https://www.courtlistener.com/opinion/111709/wardair-canada-inc-v-florida-dept-of-revenue/
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The Court acknowledges in its discussion in Part II concerning the scope of the Federal Aviation Act that "not only is there no indication that Congress wished to preclude state sales taxation of airline fuel, but, to the contrary, the Act expressly permits States to impose such taxes." Ante, at 6. That being so I see no reason for the discussion in Part III. While 49 U.S. C. App. 1513(a) describes a number of state taxes which are prohibited, 1513(b) expressly permits state "sales or use taxes on the sale of goods or services." The fuel tax challenged here is plainly a "sales or use ta[x] on the sale of goods" within the language of 1513(b). Remarkably, the Court nevertheless refuses to "rely on the existence of this section to answer the Commerce Clause issue raised here" because it believes it is "plausible that Congress never considered whether States should be permitted to impose sales taxes on foreign, as opposed to domestic, carriers." Ante, at 7 Accordingly, the Court continues with an extended discussion of "the so-called dormant Commerce Clause," which applies to cases involving *14 areas where "the Federal Government has not affirmatively acted." The plain language of 1513(b) demonstrates, however, that there is nothing "dormant" here. The conclusion the Court reaches in Part II is illuminated by the Court's curious failure to even mention any of the extensive legislative history or this Court's recent precedent concerning the enactment of 1513, which followed our decision in Evansville-Vanderburgh Airport Authority In that case the Court upheld a $1-per-passenger "head tax" on all passengers boarding airplanes at the Evansville airport, after rejecting a Commerce Clause attack because the tax did not discriminate between interstate and intrastate commerce. Congress reacted immediately to our decision by holding hearings on local taxation of air transportation. See Hearings on S. 2397 et al. before the Subcommittee on Aviation of the Senate Committee on Commerce, 92d Cong., 2d Sess., 129-198 (hereafter Senate Hearings); Hearings on H. R. 2337 et al. before the Subcommittee on Transportation and Aeronautics of the House Committee on Interstate and Foreign Commerce, 92d Cong., 2d Sess. (hereafter House Hearings). The result of these hearings was the enactment of 7(a) of the Airport Development Acceleration Act of 1973, see Pub. L. 93-44, 7(a), which added 1113 to the Federal Aviation Act, and which is now codified, as amended, at 49 U.S. C. App. 1513. We subsequently addressed the scope of 1513(a)'s prohibition when confronted with Hawaii's state tax on the gross income of airlines operating within that State. See Aloha Reviewing the legislative
|
Justice Burger
| 1,986 | 12 |
concurring
|
Wardair Canada Inc. v. Florida Dept. of Revenue
|
https://www.courtlistener.com/opinion/111709/wardair-canada-inc-v-florida-dept-of-revenue/
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airlines operating within that State. See Aloha Reviewing the legislative history, the Court pointed out that 1513 was enacted out of congressional concern that "the proliferation of local taxes burdened interstate air transportation." at 9 (citing S. Rep. No. 93-12, pp. 17, 20-21 (1973), and H. R. Rep. No. 93-157, pp. 4-5 (1973)). We concluded unanimously that Hawaii's tax was expressly pre-empted *15 by the plain language of 1513(a), emphasizing that "when a federal statute unambiguously forbids the States to impose a particular kind of tax on an industry affecting interstate commerce, courts need not look beyond the plain language of the federal statute to determine whether a state statute that imposes such a tax is pre-empted." In the course of our discussion of 1513(a) we addressed the Hawaii Supreme Court's "professed confusion over the `paradox' between 1513(a)'s prohibition on certain state taxes on air transportation and 1513(b)'s reservation of the States' primary sources of revenue, such as property taxes, net income taxes, franchise taxes, and sales or use taxes." n. 6. Our resolution of this "paradox" is enlightening: "We find no paradox between 1513(a) and 1513(b). Section 1513(a) pre-empts a limited number of state taxes, including gross receipts taxes imposed on the sale of air transportation or the carriage of persons traveling in air commerce. Section 1513(b) clarifies Congress' view that the States are still free to impose on airlines and air carriers `taxes other than those enumerated in subsection (a),' such as property taxes, net income taxes, and franchise taxes. While neither the statute nor its legislative history explains exactly why Congress chose to distinguish between gross receipts taxes imposed on airlines and the taxes reserved in 1513(b), the statute is quite clear that Congress chose to make the distinction, and the courts are obliged to honor this congressional choice." Careful review of the legislative history indicates that it is not entirely silent as to why Congress chose to make this particular distinction. The Senate's first proposal to *16 limit state taxation would have prohibited any state tax direct or indirect on air transportation. S. 3611, 92d Cong., 2d Sess. ; see also H. R. 2337, 92d Cong., 1st Sess. (1971) (similar prohibition). The States, however, complained loudly at the hearings that this sweeping provision would prohibit even unobjectionable taxes such as landing fees, fuel taxes, and sales taxes on food provided to airline passengers. E. g., House Hearings, at 91 (statement of John A. Nammack, Executive Vice President, National Association of State Aviation Officials). This broad interpretation was supported by officials from the Civil Aeronautics
|
Justice Burger
| 1,986 | 12 |
concurring
|
Wardair Canada Inc. v. Florida Dept. of Revenue
|
https://www.courtlistener.com/opinion/111709/wardair-canada-inc-v-florida-dept-of-revenue/
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broad interpretation was supported by officials from the Civil Aeronautics Board and the Federal Aviation Administration, who objected to any such broad prohibition because it would deprive local governments of funds necessary for maintenance of airports. Senate Hearings, at 138 (statement of Whitney Gillilland, Vice Chairman, CAB); In reply, Members of Congress assured these officials that the prohibition was intended to apply only to "head taxes" and the like, and that some clarification of the bill's intent would be in order. E. g., See also House Hearings, at 99 (statement of Rep. Dingell); The final bill enacting 1513 therefore appears to be a compromise following careful consideration by Congress as to the permissible scope of state taxation in the area of air commerce. Most relevant to the issue before us in this case is the fact that nowhere in that legislative history is there any indication that Congress intended to limit the applicability of 1513(b) to state taxation of interstate air commerce while prohibiting taxation of foreign air commerce. To the contrary, Congress was fully aware that the bill would cover foreign air commerce, since both the State Department and the Senate's own Legislative Council advised Congress that "air commerce" as employed in the proposed bill encompassed foreign *17 and overseas air commerce. See Senate Hearings, at 136 (letter of David M. Abshire, Department of State); Moreover, Congress discussed the effect of foreign "head taxes" if similar local taxes were barred. House Hearings, at 35-37. The language of the Act bears this out. Section 1513(a)'s prohibition refers to certain taxes "on persons traveling in air commerce or on the sale of air transportation." The Act defines "air commerce" as including "interstate, overseas, or foreign air commerce." 49 U.S. C. App. 1301(4). Similarly, "air transportation" is defined as including "interstate, overseas, or foreign air transportation." 1301(10). Under the plain language of 1513, therefore, the Florida tax even in the area of foreign air commerce is expressly authorized by Congress. Just as we need not look beyond the plain language "when a federal statute unambiguously forbids the States to impose a particular kind of tax on an industry affecting interstate commerce," Aloha 464 U. S., we need not look beyond the plain language of a federal statute which unambiguously authorizes the States to impose a particular kind of tax. Section 1513(b) authorizes state sales taxes on goods used in air commerce. While Congress has not explained exactly why it made the distinction between taxes prohibited under 1513(a) and those permitted under 1513(b), "Congress chose to make the distinction, and the
|
Justice Rehnquist
| 1,995 | 19 |
dissenting
|
United States v. National Treasury Employees Union
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https://www.courtlistener.com/opinion/117898/united-states-v-national-treasury-employees-union/
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I believe that the Court's opinion is seriously flawed in two respects. First, its application of the First Amendment understates the weight that should be accorded to the governmental justifications for the honoraria ban and overstates the amount of speech that actually will be deterred. Second, its discussion of the impact of the statute that it strikes down is carefully limited to only a handful of the most appealing individual situations, but when it deals with the remedy it suddenly shifts gears and strikes down the statute as applied to the entire class of Executive Branch employees below grade GS-16. I therefore dissent. I In 1991, in the aftermath of recommendations by two distinguished commissions, Congress adopted its present ban *490 on the receipt of honoraria. Congress defined an "honorarium" as "a payment of money or any thing of value for an appearance, speech or article (including a series of appearances, speeches, or articles if the subject matter is directly related to the individual's official duties or the payment is made because of the individual's status with the Government) by a Member, officer or employee, excluding, any actual and necessary travel expenses incurred by such individual (and one relative) to the extent that such expenses are paid or reimbursed by any other person, and the amount otherwise determined shall be reduced by the amount of any such expenses to the extent that such expenses are not paid or reimbursed." 5 U.S. C. App. 505(3) (1988 ed., Supp. V). The ban neither prohibits anyone from speaking or writing, nor does it penalize anyone who speaks or writes; the only stricture effected by the statute is a denial of compensation. In Simon & we evaluated the constitutionality of New York's "Son of Sam" law, which regulated an accused or convicted criminal's receipt of income generated by works that described his crime. We concluded that the law implicated First Amendment concerns because it "impose[d] a financial disincentive only on speech of a particular content." Because the "Son of Sam" law was content based, we required the State to demonstrate that the regulation was necessary to serve a compelling state interest and was narrowly drawn to achieve that end. We determined that the State had failed to meet its burden because the statute was overbroad. Unlike the law at issue in Simon & the honoraria ban is neither content nor viewpoint based. Ante, at 468; cf. ; *491 As a result, the ban does not raise the specter of Government control over the marketplace of ideas. Cf. Simon & To the extent that the
|
Justice Rehnquist
| 1,995 | 19 |
dissenting
|
United States v. National Treasury Employees Union
|
https://www.courtlistener.com/opinion/117898/united-states-v-national-treasury-employees-union/
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of ideas. Cf. Simon & To the extent that the honoraria ban implicates First Amendment concerns, the proper standard of review is found in our cases dealing with the Government's ability to regulate the First Amendment activities of its employees. A public employee does not relinquish First Amendment rights to comment on matters of public interest by virtue of government employment. See ; We have emphasized, however, that "the State's interests as an employer in regulating the speech of its employees `differ significantly from those it possesses in connection with regulation of the speech of the citizenry in general.' " (quoting at ). The proper resolution of these competing interests requires "`a balance between the interests of the [employee], as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.' " 461 U.S., at (quoting at ). Just last Term, a plurality of the Court explained: "The key to First Amendment analysis of government employment decisions, then, is this: The government's interest in achieving its goals as effectively and efficiently as possible is elevated from a relatively subordinate interest when it acts as sovereign to a significant one when it acts as employer. The government cannot restrict the speech of the public at large just in the name of efficiency. But where the government is employing someone for the very purpose of effectively achieving its goals, such restrictions may well be appropriate." *492 In conducting this balance, we consistently have given substantial weight to government employers' reasonable predictions of disruption, even when the speech involved was on a matter of public concern. As we noted in Connick, "`the Government, as an employer, must have wide discretion and control over the management of its personnel and internal affairs.' " ). These principles are reflected in our cases involving governmental restrictions on employees' rights to engage in partisan political activity.[1] In Public we examined 9(a) of the Hatch Act, which prohibited officers and employees in the Executive Branch of the Federal Government, with exceptions, from taking "`any active part in political management or in political campaigns.' " We analyzed 9(a)'s strictures as applied to the partisan political activities of an industrial employee at the United States Mint, and concluded that "[f]or regulation of employees it is not necessary that the act regulated be anything more than an act reasonably deemed by Congress to interfere with the efficiency of the public service." Despite the fact that 9(a) barred threemillion public employees from
|
Justice Rehnquist
| 1,995 | 19 |
dissenting
|
United States v. National Treasury Employees Union
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https://www.courtlistener.com/opinion/117898/united-states-v-national-treasury-employees-union/
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Despite the fact that 9(a) barred threemillion public employees from taking "effective part in campaigns that may bring about changes in their lives, their fortunes, and their happiness," we held that if in Congress' judgment "efficiency may be best obtained by prohibiting active participation by classified *493 employees in politics as party officers or workers," there was no constitutional objection, More than 25 years later, we again addressed the constitutionality of 9(a) of the Hatch Act. In Civil Service we "unhesitatingly reaffirm[ed] the holding," because "neither the First Amendment nor any other provision of the Constitution invalidate[d] alaw barring this kind of partisan political conduct by federal employees," We applied the balancing approach set forth in to the Hatch Act's sweeping limitation on partisan political activity, and determined that the balance struck by Congress was "sustainable by the obviously important interests sought to be served by the limitations on partisan political activities now contained in the Hatch Act." We concluded that "[p]erhaps Congress at some time w[ould] come to a different view of the realities of political life and Government service," but we were in no position to dispute Congress' current view of the matter. Although protection of employees from pressure to perform political chores certainly was a concern of the Hatch Act, see ante, at 471, it was by no means the only, or even the most important, concern.[2] See Letter Rather, the Court recognized that a major thesis of the Hatch Act was that "to serve this great end of Governmentthe impartial execution of the lawsit is essential that federal employees not take formal positions in political parties, not undertake to play substantial roles in partisan political campaigns, and not run for office on partisan political tickets. Forbidding activities like these will reduce the *494 hazards to fair and effective government." The Court emphasized that "it is not only important that the Government and its employees in fact avoid practicing political justice, but it is also critical that they appear to the public to be avoiding it, if confidence in the system of representative Government is not to be eroded to a disastrous extent." Thus, the Hatch Act served as a safeguard to both the actual and perceived impartiality and effectiveness of the Federal Government. See ; Letter Applying these standards to the honoraria ban, I cannot say that the balance that Congress has struck between its interests and the interests of its employees to receive compensation for their First Amendment expression is unreasonable. Cf. Letter ; 391 U. S., at The Court largely ignores the Government's foremost
|
Justice Rehnquist
| 1,995 | 19 |
dissenting
|
United States v. National Treasury Employees Union
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https://www.courtlistener.com/opinion/117898/united-states-v-national-treasury-employees-union/
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U. S., at The Court largely ignores the Government's foremost interestprevention of impropriety and the appearance of improprietyby focusing solely on the burdens of the statute as applied to several carefully selected Executive Branch employees whose situations present the application of the statute where the Government's interests are at their lowest ebb: a mail handler employed by the Postal Service who lectured on the Quaker religion; an aerospace engineer who lectured on black history; a microbiologist who reviewed dance performances; and a tax examiner who wrote articles about the environment. Ante, at 461-462. Undoubtedly these are members of the class, but they by no means represent the breadth of the class which includes all "`employee[s]' below grade GS-16, whobut for 5 U.S. C. app. 501(b) would receive `honoraria', as defined in 5 U.S. C. app. 505(3)." App. 124-125. Nothing in the class certification limits the receipt of honoraria to the activities engaged in by the several employees discussed by the Court. See, e. g., *495 ante, at 463, n. 6. This artificially narrow prism of class members, however, is the focus of the Court's entire First Amendment discussion. The class definition speaks of anyone who would receive an honorarium but for the statute. App. 124-125. An unknown number of these individuals would receive honoraria where there is a nexus between their speech and their Government employment. There is little doubt that Congress reasonably could conclude that its interests in preventing impropriety and the appearance of impropriety in the federal work force outweigh the employees' interests in receiving compensation for expression that has a nexus to their Government employment. Cf. Federal Election The Court relies on cases involving restrictions on the speech of private actors to argue that the Government is required to produce "evidence of misconduct related to honoraria in the vast rank and file of federal employees below grade GS-16." Ante, at 472; ante, at 475-476, and n. 21.[3] The Court recognizes, however, that we "`have consistently given greater deference to government predictions of harm used to justify restriction of employee speech than to predictions of harm used to justify restrictions on the speech of the public at large.' " Ante, at 475, n. 21 (quoting ). *496 Prior to enactment of the current honoraria ban, Congress was informed by two distinguished commissions that its previous limitations on honoraria were inadequate. The 1989 Quadrennial Commission recommended that "Congress enact legislation abolishing the practice of accepting honoraria in all three branches." Fairness for Our Public Servants: Report of the 1989 Commission on Executive, Legislative and Judicial Salaries vi (Dec. 1988).
|
Justice Rehnquist
| 1,995 | 19 |
dissenting
|
United States v. National Treasury Employees Union
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https://www.courtlistener.com/opinion/117898/united-states-v-national-treasury-employees-union/
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Commission on Executive, Legislative and Judicial Salaries vi (Dec. 1988). To Serve With Honor: Report of the President's Commission on Federal Ethics Law Reform (hereinafter Wilkey Commission) echoed many of the Quadrennial Commission's concerns: "We recognize that speeches by federal officials can help inform the public or particular groups and may encourage interchange between the public and private sectors. Nevertheless, we can see no justification for perpetuating the current system of honoraria. Hono- raria paid to officials can be a camouflage for efforts by individuals or entities to gain the officials' favor. The companies that pay honoraria and related travel expenses frequently deem these payments to be normal business expenses and likely believe that these payments enhance their access to public officials who receive them. "Although we are aware of no special problems associated with receipt of honoraria within the judiciary, the Commissionin the interest of alleviating abuses in the legislative branch and in applying equitable limitations across the governmentjoins the Quadrennial Commission in recommending the enactment of legislation to ban the receipt of honoraria by all officials and employees in all three branches of government." The Wilkey Commission "recognize[d] that banning honoraria would have a substantial financial cost to many officials," but determined that "the current ailment is *497 a serious one and that this medicine is no more bitter than is needed to cure the patient," The Wilkey Commission also was aware that its recommendations covered not only high-level federal employees,[4] but it "regard[ed] the current state of affairs as to honoraria in particular as unacceptable in the extreme, and believe[d] that [the Government could not] wait until an unspecified date in the future to end this harmful practice."[5] The Court concedes that in light of the abuses of honoraria by its Members, Congress could reasonably assume that "payments of honoraria to judges or high-ranking officials in the Executive Branch might generate a similar appearance of improper influence," ante, at 473, but it concludes that Congress could not extend this presumption to federal employees *498 below grade GS-16. The theory underlying the Court's distinctionthat federal employees below grade GS-16 have negligible power to confer favors on those who might pay to hear them speak or to read their articlesis seriously flawed. Tax examiners, bank examiners, enforcement officials, or any number of federal employees have substantial power to confer favors even though their compensation level is below grade GS-16. Furthermore, we rejected the same distinction in Public : "There is a suggestion that administrative workers may be barred, constitutionally, from political management and political campaigns while the industrial workers
|
Justice Rehnquist
| 1,995 | 19 |
dissenting
|
United States v. National Treasury Employees Union
|
https://www.courtlistener.com/opinion/117898/united-states-v-national-treasury-employees-union/
|
from political management and political campaigns while the industrial workers may not be barred, constitutionally, without an act `narrowly and selectively drawn to define and punish the specific conduct.' Congress has determined that the presence of government employees, whether industrial or administrative, in the ranks of political party workers is bad. Whatever differences there may be between administrative employees of the government and industrial workers in its employ are differences in detail so far as the constitutional power under review is concerned. Whether there are such differences and what weight to attach to them, are all matters of detail for Congress." Congress was not obliged to draw an infinitely filigreed statute to deal with every subtle distinction between various groups of employees. See Letter 413 U. S., ; The Court dismisses the Hatch Act experience as irrelevant, because it aimed to protect employees' rights, notably their right to free expression, rather than to restrict those rights. Ante, at 471. This is, indeed, a strange characterization of 9(a) of the Hatch Act. It prohibited officers *499 and employees in the Executive Branch of the Federal Government from taking "`any active part in political management or in political campaigns.' " The penalty for violation was dismissal from Since the right to participate in a political campaign is surely secured in the abstract by the First Amendment, see, e. g., (per 1, protected curiam), it can hardly be said that the Act the rights of workers who wished to engage in partisan political activity. One of the purposes of the Act was assuredly to free employees who did not wish to become engaged in politics from requests by their superiors to contribute money or time, but to the extent the Act protected these employees it undoubtedly limited the First Amendment rights of those who did wish to take an active part in politics. The Government's related concern regarding the difficulties that would attach in administering a case-by-case analysis of the propriety of particular honoraria also supports the honoraria ban's validity. As we emphasized in "[t]he government's interest in achieving its goals as effectively and efficiently as possible is elevated from a relatively subordinate interest when it acts as sovereign to a significant one when it acts as employer." 511 U.S., at Congress reasonably determined that the prior ethics regime, which required these case-by-case determinations, was inadequate. See App. 257 ("[T]he current state of affairs as to honoraria [is] unacceptable in the extreme"). As a subsequent 1992 GAO Report confirmed, individual ethics officers and various agencies gave differing interpretations to the nexus requirement, and
|
Justice Rehnquist
| 1,995 | 19 |
dissenting
|
United States v. National Treasury Employees Union
|
https://www.courtlistener.com/opinion/117898/united-states-v-national-treasury-employees-union/
|
various agencies gave differing interpretations to the nexus requirement, and some "approved activities that were questionable as to the appropriateness of accepting compensation." GAO Report, at 9. The Court observes that because a nexus limitation is retained for a series of speeches, it cannot be that difficult to enforce. Ante, at 474. The exception that the honoraria ban *500 makes for a "series of appearances, speeches, or articles," far from undermining the statute's basic purpose, demonstrates that Congress was sensitive to the need for inhibiting as little speech consistent with its responsibility of ensuring that its employees perform their duties impartially and that there is no appearance of impropriety. Reply Brief for United States 12-13. One is far less likely to undertake a "series" of speeches or articles without being paid than he is to make a single speech or write a single article without being paid. Congress reasonably could have concluded that the number of cases where an employee wished to deliver a "series" of speeches would be much smaller than the number of requests to give individual speeches or write individual articles. Unlike our prototypical application of which normally involves a response to the content of employee speech, the honoraria ban prohibits no speech and is unrelated to the message or the viewpoint expressed by the Government employee.[6] Cf. (analyzing termination of an employee based upon statements critical of the employer); ; 391 U. S., Furthermore, the honoraria ban exempts from its prohibition travel and other expenses related *501 to employee speech. See 5 U.S. C. App. 505(3) (1988 ed., Supp. V); 5 CFR 2636.203 Because there is only a limited burden on respondents' First Amendment rights, Congress reasonably could have determined that its paramount interests in preventing impropriety and the appearance of impropriety in its work force justified the honoraria ban. See Civil Service Public There is a special irony to the Court's decision. In order to combat corruption and to regain the public's trust, the Court essentially requires Congress to resurrect a bureaucracy that it previously felt compelled to replace and to equip it with resources sufficient to conduct case-by-case determinations regarding the actual and apparent propriety of honoraria by all Executive Branch employees below grade GS-16. I believe that a proper application of the test to this content-neutral restriction on the receipt of compensation compels the conclusion that the honoraria ban is consistent with the First Amendment. See Civil Service II One would expect, at the conclusion of its discussion in Parts IIV, for the Court to hold the statute inapplicable on First Amendment grounds
|
Justice Rehnquist
| 1,995 | 19 |
dissenting
|
United States v. National Treasury Employees Union
|
https://www.courtlistener.com/opinion/117898/united-states-v-national-treasury-employees-union/
|
Court to hold the statute inapplicable on First Amendment grounds to persons such as the postal worker who lectures on the Quaker religion, and others of similar ilk. But the Court in Part V, in what may fairly be described as an O. Henry ending, holds the statute inapplicable to the entire class before the Court: all Executive Branch employees below grade GS-16 who would receive honoraria but for the statute. Under the Court's "as applied" remedy, 501(b) would not apply regardless of whether there was a nexus between the compensation and the individual's employment. Even if I agreed that application of the honoraria ban to expressive activity unrelated to an employee's Government *502 employment violated the First Amendment, I could not agree with the Court's remedy.[7] In United we analyzed the constitutionality of 40 U.S. C. 13k (1982 ed.), as applied to the public sidewalks surrounding the Supreme Court. Section 13k prohibited, "among other things, the `display [of] any flag, banner, or device designed or adapted to bring into public notice any party, organization, or movement' in the United States Supreme Court building and on its grounds." -173 (quoting 13k). We concluded that there was insufficient justification for 13k's prohibition against carrying signs, banners, or devices on the public sidewalks surrounding the building. As a remedy, we held that 13k was "unconstitutional as applied to those sidewalks." ; see also Although the Court limits its analysis to only those applications of the honoraria ban where there is no nexus between the honoraria and Government employment, the Court prohibits application of the honoraria ban to all Executive Branch employees below grade GS-16 even where there is a nexus between the honoraria and the employees' Government employment. Ante, at 479-480.[8] Even respondents acknowledge that the central aim of their litigation could "be achieved by a remedy similar to the one urged by the governmentby holding the ban invalid as applied to respondents' *503 writing and speaking activities, which have no nexus to their federal employment." Brief for Respondents 45-46. Consistent with our approach in Grace if I were to conclude that 501(b) violated the First Amendment, I would affirm the Court of Appeals only insofar as its judgment affirmed the injunction against the enforcement of 501(b) as applied to Executive Branch employees below grade GS-16 who seek honoraria that are unrelated to their Government employment.
|
Justice Thomas
| 1,999 | 1 |
majority
|
Florida v. White
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https://www.courtlistener.com/opinion/118287/florida-v-white/
|
The Florida Contraband Forfeiture Act provides that certain forms of contraband, including motor vehicles used in violation of the Act's provisions, may be seized and potentially forfeited. In this case, we must decide whether the Fourth Amendment requires the police to obtain a warrant before seizing an automobile from a public place when they have probable cause to believe that it is forfeitable contraband. We hold that it does not. I On three occasions in July and August police officers observed respondent Tyvessel Tyvorus White using his car to deliver cocaine, and thereby developed probable cause to believe that his car was subject to forfeiture under the Florida Contraband Forfeiture Act (Act), et seq. (1997).[1] Several months later, the police arrested respondent at his place of employment on charges unrelated to the drug transactions observed in July and August At the same time, the arresting officers, without securing a warrant, seized respondent's automobile in accordance with the provisions of the Act. See 932.703(2)(a).[2] They seized the *562 vehicle solely because they believed that it was forfeitable under the Act. During a subsequent inventory search, the police found two pieces of crack cocaine in the ashtray. Based on the discovery of the cocaine, respondent was charged with possession of a controlled substance in violation of Florida law. At histrial on the possession charge, respondent filed a motion to suppress the evidence discovered during the inventory search. He argued that the warrantless seizure of his car violated the Fourth Amendment, thereby making the cocaine the "fruit of the poisonous tree." The trial court initially reserved ruling on respondent's motion, but later denied it after the jury returned a guilty verdict. On appeal, the Florida First District Court of Appeal affirmed. Adopting the position of a majority of state and federal courts to have considered the question, the court rejected respondent's argument that the Fourth Amendment required the police to secure a warrant prior to seizing his vehicle. Because the Florida Supreme Court and this Court had not directly addressed the issue, the court certified to the Florida Supreme Court the question whether, absent exigent circumstances, the warrantless seizure of an automobile under the Act violated the Fourth Amendment. In a divided opinion, the Florida Supreme Court answered the certified question in the affirmative, quashed the First District Court of Appeal's opinion, and remanded. The majority of the court concluded that, absent exigent circumstances, the Fourth Amendment requires the police to obtain a warrant prior to seizing property *563 that has been used in violation of the Act. According to the court, the
|
Justice Thomas
| 1,999 | 1 |
majority
|
Florida v. White
|
https://www.courtlistener.com/opinion/118287/florida-v-white/
|
in violation of the Act. According to the court, the fact that the police develop probable cause to believe that such a violation occurred does not, standing alone, justify a warrantless seizure. The court expressly rejected the holding of the Eleventh Circuit, see United and the majority of other Federal Circuits to have addressed the same issue in the context of the federal civil forfeiture law, 21 U.S. C. 881, which is similar to Florida's. See United ; United ; United ; United ; United But see United ; United ; United States v.Linn, We granted certiorari, and now reverse. II The Fourth Amendment guarantees "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures," and further provides that "no Warrants shall issue, but upon probable cause." U. S. Const., Amdt. 4. In deciding whether a challenged governmental action violates the Amendment, we have taken care to inquire whether the action was regarded as an unlawful search and seizure when the Amendment was framed. See Wyoming v. Houghton, ante, at 299; In Carroll, we held that when federal officers have probable cause to believe that an automobile contains contraband, *564 the Fourth Amendment does not require them to obtain a warrant prior to searching the car for and seizing the contraband. Our holding was rooted in federal law enforcement practice at the time of the adoption of the Fourth Amendment. Specifically, we looked to laws of the First, Second, and Fourth Congresses that authorized federal officers to conduct warrantless searches of ships and to seize concealed goods subject to duties. at 150-151 (citing Act of July 31, 1789, 24, 29, ; Act of Aug. 4, 1790, 50, ; Act of Feb. 18, 1793, 27, ; Act of Mar. 2, 1799, 68-70, 678). These enactments led us to conclude that "contemporaneously with the adoption of the Fourth Amendment," Congress distinguished "the necessity for a search warrant between goods subject to forfeiture, when concealed in a dwelling house or similar place, and like goods in course of transportation and concealed in a movable vessel where they readily could be put out of reach of a search warrant." The Florida Supreme Court recognized that under Carroll, the police could search respondent's car, without obtaining a warrant, if they had probable cause to believe that it contained contraband. The court, however, rejected the argument that the warrantless seizure of respondent's vehicle itself also was appropriate under Carroll and its progeny. It reasoned that "[t]here is a vast difference between permitting the immediate search of
|
Justice Thomas
| 1,999 | 1 |
majority
|
Florida v. White
|
https://www.courtlistener.com/opinion/118287/florida-v-white/
|
is a vast difference between permitting the immediate search of a movable automobile based on actual knowledge that it then contains contraband [and] the discretionary seizure of a citizen's automobile based upon a belief that it may have been used at some time in the past to assist in illegal activity." We disagree. The principles underlying the rule in Carroll and the founding-era statutes upon which they are based fully support the conclusion that the warrantless seizure of respondent's car did not violate the Fourth Amendment. Although, as the Florida Supreme Court observed, the police lacked *565 probable cause to believe that respondent's car contained contraband, see they certainly had probable cause to believe that the vehicle itself was contraband under Florida law.[3] Recognition of the need to seize readily movable contraband before it is spirited away undoubtedly underlies the early federal laws relied upon in Carroll. See -152; see also ; South This need is equally weighty when the automobile, as opposed to its contents, is the contraband that the police seek to secure.[4] Furthermore, the early federal statutes that we looked to in Carroll, like the Florida Contraband Forfeiture Act, authorized the warrantless seizure of both goods subject to duties and the ships upon which those goods were concealed. See, e. g., 46; 174; 678, 692. In addition to the special considerations recognized in the context of movable items, our Fourth Amendment jurisprudence has consistently accorded law enforcement officials greater latitude in exercising their duties in public places. For example, although a warrant presumptively is required for a felony arrest in a suspect's home, the Fourth Amendment permits warrantless arrests in public places where an officer has probable cause to believe that a felony has occurred. See United In explaining this rule, we have drawn upon the established *566 "distinction between a warrantless seizure in an open area and such a seizure on private premises." ; see also at 586- The principle that underlies Watson extends to the seizure at issue in this case. Indeed, the facts of this case are nearly indistinguishable from those in G. M. Leasing There, we considered whether federal agents violated the Fourth Amendment by failing to secure a warrant prior to seizing automobiles in partial satisfaction of income tax assessments. We concluded that they did not, reasoning that "[t]he seizures of the automobiles in this case took place on public streets, parking lots, or other open places, and did not involve any invasion of privacy." Here, because the police seized respondent's vehicle from a public arearespondent's employer's parking lotthe warrantless seizure also
|
Justice Blackmun
| 1,989 | 11 |
second_dissenting
|
Florida v. Riley
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https://www.courtlistener.com/opinion/112175/florida-v-riley/
|
The question before the Court is whether the helicopter surveillance over Riley's property constituted a "search" within the meaning of the Fourth Amendment. Like JUSTICE BRENNAN, JUSTICE MARSHALL, JUSTICE STEVENS, and JUSTICE O'CONNOR, I believe that answering this question depends upon whether Riley has a "reasonable expectation of privacy" that no such surveillance would occur, and does not depend upon the fact that the helicopter was flying at a lawful altitude under FAA regulations. A majority of this Court thus agrees to at least this much. The inquiry then becomes how to determine whether Riley's expectation was a reasonable one. JUSTICE BRENNAN, the two Justices who have joined him, and JUSTICE O'CONNOR all believe that the reasonableness of Riley's expectation depends, in large measure, on the frequency of nonpolice helicopter flights at an altitude of 400 feet. Again, I agree. How is this factual issue to be decided? JUSTICE BRENNAN suggests that we may resolve it ourselves without any evidence in the record on this point. I am wary of this approach. While I, too, suspect that for most American communities it is a rare event when nonpolice helicopters fly over one's curtilage at an altitude of 400 feet, I am not convinced that we should establish a per se rule for the entire Nation based on judicial suspicion alone. See Coffin, Judicial Balancing, 63 N. Y. U. L. Rev. 16, 37 (1988). But we need not abandon our judicial intuition entirely. The opinions of both JUSTICE BRENNAN and JUSTICE O'CONNOR, by their use of "cf." citations, implicitly recognize that none of our prior decisions tells us who has the burden of proving whether Riley's expectation of privacy was reasonable. In the absence of precedent on the point, it is appropriate for us to take into account our estimation of the *468 frequency of nonpolice helicopter flights. See 4 W. LaFave, Search and Seizure 11.2(b), p. 228 (2d ed. 1987) (burdens of proof relevant to Fourth Amendment issues may be based on a judicial estimate of the probabilities involved). Thus, because I believe that private helicopters rarely fly over curtilages at an altitude of 400 feet, I would impose upon the prosecution the burden of proving contrary facts necessary to show that Riley lacked a reasonable expectation of privacy. Indeed, I would establish this burden of proof for any helicopter surveillance case in which the flight occurred below 1,000 feet in other words, for any aerial surveillance case not governed by the Court's decision in In this case, the prosecution did not meet this burden of proof, as JUSTICE
|
Justice Ginsburg
| 2,008 | 5 |
second_dissenting
|
John R. Sand & Gravel Co. v. United States
|
https://www.courtlistener.com/opinion/145838/john-r-sand-gravel-co-v-united-states/
|
I agree that adhering to Kendall, Finn, and Soriano is irreconcilable with the reasoning and result in Irwin, and therefore join Justice STEVENS' dissent. I write separately to explain why I would regard this case as an appropriate occasion to revisit those precedents even if we had not already "directly overrule[d]" them. Cf. Stare decisis is an important, but not an inflexible, doctrine in our law. See ("Stare decisis is not a universal, inexorable command."). The policies underlying the doctrinestability and predictabilityare at their strongest when the Court is asked to change its mind, though nothing else of significance has changed. See Powell, Stare Decisis and Judicial Restraint, 47 Wash. & Lee L.Rev. 281, 286-287 As to the matter before us, our perception of the office of a time limit on suits against the Government has changed significantly since the decisions relied upon by the Court. We have recognized that "the same rebuttable presumption of equitable tolling applicable to suits against private defendants should also apply to suits against the United States," Irwin, 4 U.S., at 95-96, See also It damages the coherence of the law if we cling to outworn precedent at odds with later, more enlightened decisions. I surely do not suggest that overruling is routinely in order whenever a majority disagrees with a past decision, and I acknowledge that "[c]onsiderations of stare decisis have special force in the area of statutory interpretation," (19). But concerns we have previously found sufficiently weighty to justify revisiting a statutory precedent counsel strongly in favor of doing so here. First, overruling and would, as the Court concedes, see ante, at 756, "achieve a uniform interpretation of similar statutory language," Rodriguez de (19). Second, we have recognized the propriety of revisiting a decision when "intervening development of the law" has "removed or weakened [its] conceptual underpinnings." have left no tenable basis for Kendall and its progeny. Third, it is altogether appropriate to overrule a precedent that has become "a positive detriment to coherence and consistency in the law." The inconsistency between the Kendall line and Irwin is a source of both theoretical incoherence and practical confusion. For example, (a) contains a time limit materially identical to the one in 2501. Courts of Appeals have divided on the question whether 2401(a)'s limit is "jurisdictional." Compare Center for Biological with Cedars-Sinai Medical See also (recognizing that Irwin may have undermined Circuit precedent holding that 2401(a) is "jurisdictional"). Today's decision hardly assists lower courts endeavoring to answer this question. While holding that the language in 2501 is "jurisdictional," the Court also implies that Irwin governs
|
Justice Ginsburg
| 2,008 | 5 |
second_dissenting
|
John R. Sand & Gravel Co. v. United States
|
https://www.courtlistener.com/opinion/145838/john-r-sand-gravel-co-v-united-states/
|
2501 is "jurisdictional," the Court also implies that Irwin governs the *761 interpretation of all statutes we have not yet construedincluding, presumably, the identically worded 2401. See ante, at 756. Moreover, as the Court implicitly concedes, see ante, at 756-757, the strongest reason to adhere to precedent provides no support for the Kendall-Finn-Soriano line. "Stare decisis has added force when the legislature, in the public sphere, and citizens, in the private realm, have acted in reliance on a previous decision, for in this instance overruling the decision would dislodge settled rights and expectations or require an extensive legislative response." The Government, however, makes no claim that either private citizens or Congress have relied upon the "jurisdictional" status of 2501. There are thus strong reasons to abandonand notably slim reasons to adhere tothe anachronistic interpretation of 2501 adopted in Kendall. Several times, in recent Terms, the Court has discarded statutory decisions rendered infirm by what a majority considered to be better informed opinion. See, e.g., Leegin Creative Leather Products, ; and Harris Truck Lines, ); Illinois Tool Works ; (19) ). In light of these overrulings, the Court's decision to adhere to Kendall, Finn, and Soriano while offering nothing to justify their reasoning or resultsis, to say the least, perplexing. After today's decision, one will need a crystal ball to predict when this Court will reject, and when it will cling to, its prior decisions interpreting legislative texts. I would reverse the judgment rendered by the Federal Circuit majority. In accord with dissenting Judge Newman, I would hold that the Court of Appeals had no warrant to declare the petitioner's action time barred.
|
Justice O'Connor
| 1,994 | 14 |
concurring
|
United States v. Carlton
|
https://www.courtlistener.com/opinion/117846/united-states-v-carlton/
|
The unamended 26 U.S. C. 2057, which allowed taxpayers to reduce the taxable estate by buying securities and reselling them to employee stock ownership plans (ESOP's), made it possible to avoid estate taxes by structuring transactions in a certain way. But the tax laws contain many such provisions. See, e. g., 26 U.S. C. 2055 (allowing deductions from taxable estate for transfers to the government, charities, and religious organizations). And 2057 was only the latest in a series of congressional efforts to promote ESOP's by providing tax incentives. See, e. g., 26 U.S. C. 133 (partial income tax exclusion for interest paid to banks on ESOP loans); 26 U.S. C. 1042 (allowing certain taxpayers to defer capital gains taxes on sale of securities to ESOP's). Thus, although respondent Carlton may have made a "purely tax-motivated stock transfe[r]," ante, at 32, I do not understand the Court to express any normative disapproval of this course of action. As executor of Willametta Day's estate, it was entirely appropriate for Carlton to seek to reduce the estate taxes. And like all taxpayers, Carlton was entitled to structure the estate's affairs to comply with the tax laws while minimizing tax liability. As Learned Hand observed with characteristic acerbity: *36 "[A] transaction, otherwise within an exception of the tax law, does not lose its immunity, because it is actuated by a desire to avoid, or, if one choose, to evade, taxation. Any one may so arrange his affairs that his taxes shall be as low as possible; he is not bound to choose that pattern which will best pay the Treasury; there is not even a patriotic duty to increase one's taxes. Therefore, if what was done here, was what was intended by [the statute], it is of no consequence that it was all an elaborate scheme to get rid of [estate] taxes, as it certainly was." aff'd, To say that Carlton did nothing wrong in claiming the deduction does not, of course, answer the question whether Congress deprived him of due process by amending 2057. As we have noted, "the retroactive aspects of economic legislation, as well as the prospective aspects, must meet the test of due process: a legitimate legislative purpose furthered by rational means." General Motors The Court finds it relevant that, according to prominent members of the tax-writing committees of each House, the statute as originally enacted would have cost the Government too much money and would have allowed taxpayers to avoid tax by engaging in sham transactions. See ante, at 31-32. Thus, the Court reasons that the amendment to 2057
|
Justice O'Connor
| 1,994 | 14 |
concurring
|
United States v. Carlton
|
https://www.courtlistener.com/opinion/117846/united-states-v-carlton/
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31-32. Thus, the Court reasons that the amendment to 2057 served the legislative purpose of "correct[ing]" a "mistake" Congress made the first time. Ante, at 32. But this mode of analysis proves too much. Every law touching on an area in which Congress has previously legislated can be said to serve the legislative purpose of fixing a perceived problem with the prior state of affairsthere is no reason to pass a new law, after all, if the legislators are satisfied with the old one. Moreover, the subjective motivation of Members of Congress in passing a statuteto the extent it can *37 even be knownis irrelevant in this context: It is sufficient for due process analysis if there exists some legitimate purpose underlying the retroactivity provision. Cf. Retroactive application of revenue measures is rationally related to the legitimate governmental purpose of raising revenue. In enacting revenue measures, retroactivity allows "the legislative body, in the revision of tax laws, to distribute increased costs of government among its taxpayers in the light of present need for revenue and with knowledge of the sources and amounts of the various classes of taxable income during the taxable period preceding revision." For this reason, "[i]n enacting general revenue statutes, Congress almost without exception has given each such statute an effective date prior to the date of actual enactment. Usually the `retroactive' feature has application only to that portion of the current calendar year preceding the date of enactment, but [some statutes have been] applicable to an entire calendar year that had expired preceding enactment. This `retroactive' application apparently has been confined to short and limited periods required by the practicalities of producing national legislation. We may safely say that it is a customary congressional practice." United But "the Court has never intimated that Congress possesses unlimited power to `readjust rights and burdens and upset otherwise settled expectations.' " (brackets omitted), quoting The governmental interest in revising the tax laws must at some point give way to the taxpayer's interest in finality and *38 repose. For example, a "wholly new tax" cannot be imposed retroactively, United even though such a tax would surely serve to raise money. Because the tax consequences of commercial transactions are a relevant, and sometimes dispositive, consideration in a taxpayer's decisions regarding the use of his capital, it is arbitrary to tax transactions that were not subject to taxation at the time the taxpayer entered into them. See Although there is also an element of arbitrariness in retroactively changing the rate of tax to which the transaction is subject, or the availability of
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Justice O'Connor
| 1,994 | 14 |
concurring
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United States v. Carlton
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to which the transaction is subject, or the availability of a deduction for engaging in that transaction, our cases have recognized that Congress must be able to make such adjustments in an attempt to equalize actual revenue and projected budgetary requirements. In every case in which we have upheld a retroactive federal tax statute against due process challenge, however, the law applied retroactively for only a relatively short period prior to enactment. See United ; United ; United In the tax was enacted in 1935 to reach transactions completed in 1933; but we emphasized that the state legislature met only biannually and it made the revision "at the first opportunity after the tax year in which the income was received." A period of retroactivity longer than the year preceding the legislative session in which the law was enacted would raise, in my view, serious constitutional questions. But in keeping with Congress' practice of limiting the retroactive effect of revenue measures (a practice that may reflect Congress' sensitivity to the due process problems that would be raised by overreaching), the December 1987 amendment to 2057 was made retroactive only to October 1986. Given our precedents and the limited period of retroactivity, I concur *39 in the judgment of the Court that applying the amended statute to respondent Carlton did not violate due process. Justice Scalia, with whom Justice Thomas joins, concurring in the judgment. If I thought that "substantive due process" were a constitutional right rather than an oxymoron, I would think it violated by bait-and-switch taxation. Although there is not much precision in the concept "`harsh and oppressive,' " which is what the Court has adopted as its test of substantive due process unconstitutionality in the field of retroactive tax legislation, see, e. g., United -569 quoting surely it would cover a retroactive amendment that cost a taxpayer who relied on the original statute's clear meaning over $600,000. Unlike the tax at issue in here the amendment "without notice,gives a different and more oppressive legal effect to conduct undertaken before enactment of the statute." The Court attempts to minimize the amendment's harshness by characterizing it as "a curative measure," quoting some post-legislation legislative history (another oxymoron) to show that, despite the uncontested plain meaning of the statute, Congress never meant it to apply to stock that was not owned by the decedent at the time of death. See ante, at 31-32. I am not sure that whether Congress has treated a citizen oppressively should turn upon whether the oppression was, after all, only Congress' "curing" of its own mistake. Even
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Justice O'Connor
| 1,994 | 14 |
concurring
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United States v. Carlton
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https://www.courtlistener.com/opinion/117846/united-states-v-carlton/
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after all, only Congress' "curing" of its own mistake. Even if it should, however, what was done to respondent here went beyond a "cure." The retroactivity not only hit him with the tax that Congress "meant" to impose originally, but it caused his expenditures incurred in invited reliance upon the earlier law to become worthless. That could have been avoided, of course, by providing a tax credit for such expenditures. Retroactively disallowing the tax benefit *40 that the earlier law offered, without compensating those who incurred expenses in accepting that offer, seems to me harsh and oppressive by any normal measure. The Court seeks to distinguish our precedents invalidating retroactive taxes by pointing out that they involved the imposition of new taxes rather than a change in tax rates. See ante, at 34. But eliminating the specifically promised reward for costly action after the action has been taken, and refusing to reimburse the cost, is even more harsh and oppressive, it seems to me, than merely imposing a new tax on past actions. The Court also attempts to soften the impact of the amendment by noting that it involved only "a modest period of retroactivity." Ante, at 32. But in the case of a tax-incentive provision, as opposed to a tax on a continuous activity (like the earning of income), the critical event is the taxpayer's reliance on the incentive, and the key timing issue is whether the change occurs after the reliance; that it occurs immediately after rather than long after renders it no less harsh. The reasoning the Court applies to uphold the statute in this case guarantees that all retroactive tax laws will henceforth be valid. To pass constitutional muster the retroactive aspects of the statute need only be "rationally related to a legitimate legislative purpose." Ante, at 35. Revenue raising is certainly a legitimate legislative purpose, see U. S. Const., Art. I, 8, cl. 1, and any law that retroactively adds a tax, removes a deduction, or increases a rate rationally furthers that goal. I welcome this recognition that the Due Process Clause does not prevent retroactive taxes, since I believe that the Due Process Clause guarantees no substantive rights, but only (as it says) process, see TXO Production I cannot avoid observing, however, two stark discrepancies between today's due process reasoning and the due process reasoning the Court applies to its identification of new socalled *41 fundamental rights, such as the right to structure family living arrangements, see and the right to an abortion, see First and most obviously, where respondent's claimed right to hold
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Justice O'Connor
| 1,994 | 14 |
concurring
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United States v. Carlton
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https://www.courtlistener.com/opinion/117846/united-states-v-carlton/
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First and most obviously, where respondent's claimed right to hold onto his property is at issue, the Court upholds the tax amendment because it rationally furthers a legitimate interest; whereas when other claimed rights that the Court deems fundamental are at issue, the Court strikes down laws that concededly promote legitimate interests, id, at 150, 2. Secondly, when it is pointed out that the Court's retroactive-tax ruling today is inconsistent with earlier decisions, see, e. g., ; ; the Court dismisses those cases as having been "decided during an era characterized by exacting review of economic legislation under an approach that `has long since been discarded.' " Ante, at 34, quoting But economic legislation was not the only legislation subjected to "exacting review" in those bad old days, and one wonders what principled reason justifies "discarding" that bad old approach only as to that category. For the Court continues to rely upon "exacting review" cases of the Nichols-Blodgett-Untermyer vintage for its due process "fundamental rights" jurisprudence. See, e. g., 159 and ); see also The picking and choosing among various rights to be accorded "substantive due process" protection is alone enough to arouse suspicion; but the categorical and inexplicable exclusion of so-called "economic rights" (even though the Due Process Clause explicitly applies to "property") unquestionably involves policymaking rather than neutral legal analysis. *42 I would follow the text of the Constitution, which sets forth certain substantive rights that cannot be taken away, and adds, beyond that, a right to due process when life, liberty, or property is to be taken away.
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Justice Sotomayor
| 2,020 | 24 |
majority
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Lucky Brand Dungarees, Inc. v. Marcel Fashions Group, Inc.
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https://www.courtlistener.com/opinion/4754908/lucky-brand-dungarees-inc-v-marcel-fashions-group-inc/
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This case arises from protracted litigation between peti- tioners Lucky Brand Dungarees, Inc., and others (collec- tively Lucky Brand) and respondent Marcel Fashions Group, Inc. (Marcel). In the latest lawsuit between the two, Lucky Brand asserted a defense against Marcel that it had not pressed fully in a preceding suit between the parties. This Court is asked to determine whether Lucky Brand’s failure to litigate the defense in the earlier suit barred Lucky Brand from invoking it in the later Because the parties agree that, at a minimum, the preclusion of such a defense in this context requires that the two suits share the same claim to relief—and because we find that the two suits here did not—Lucky Brand was not barred from raising its defense in the later action. I Marcel and Lucky Brand both sell jeans and other ap- l. Both entities also use the word “Lucky” as part of their marks on clothing. In 1986, Marcel received a federal trademark registration for “Get Lucky”; a few years later, 2 LUCKY BRAND DUNGAREES, INC. v. MARCEL FASHIONS GROUP, INC. Opinion of the Court in 1990, Lucky Brand began selling apl using the reg- istered trademark “Lucky Brand” and other marks that in- clude the word “Lucky.” Three categories of marks are at issue in this case: Mar- cel’s “Get Lucky” mark; Lucky Brand’s “Lucky Brand” mark; and various other marks owned by Lucky Brand that contain the word “Lucky.” These trademarks have led to nearly 20 years of litigation between the two companies, proceeding in three rounds. A In 2001—the first round—Marcel sued Lucky Brand, al- leging that Lucky Brand’s use of the phrase “Get Lucky” in advertisements infringed Marcel’s trademark. In 2003, the parties signed a settlement agreement. As part of the deal, Lucky Brand agreed to stop using the phrase “Get Lucky.” App. 191. In exchange, Marcel agreed to release any claims regarding Lucky Brand’s use of its own trademarks. at 191–192. B The ink was barely dry on the settlement agreement when, in 2005, the parties began a second round of litiga- tion (2005 Action). Lucky Brand filed suit, alleging that Marcel and its licensee violated its trademarks by copying its designs and logos in a new clothing line. As relevant here, Marcel filed several counterclaims that all turned, in large part, on Lucky Brand’s alleged continued use of “Get Lucky”: One batch of allegations asserted that Lucky Brand had continued to use Marcel’s “Get Lucky” mark in viola- tion of the settlement agreement, while others alleged that Lucky Brand’s use of the phrase “Get
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Justice Sotomayor
| 2,020 | 24 |
majority
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Lucky Brand Dungarees, Inc. v. Marcel Fashions Group, Inc.
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https://www.courtlistener.com/opinion/4754908/lucky-brand-dungarees-inc-v-marcel-fashions-group-inc/
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others alleged that Lucky Brand’s use of the phrase “Get Lucky” and “Lucky Brand” together was “confusingly similar to”—and thus in- fringed––Marcel’s “Get Lucky” mark. Defendants’ Answer, Affirmative Defenses, and Counterclaims to Plaintiffs’ Complaint in No. 1:05–cv–06757 (SDNY), Doc. 40–2, p. 39; Cite as: 590 U. S. (2020) 3 Opinion of the Court see at 34–41. None of Marcel’s counterclaims alleged that Lucky Brand’s use of its own marks alone—i.e., inde- pendent of any alleged use of “Get Lucky”—infringed Mar- cel’s “Get Lucky” mark. Lucky Brand moved to dismiss the counterclaims, alleg- ing that they were barred by the release provision of the settlement agreement. After the District Court denied the motion without prejudice, Lucky Brand noted the release defense once more in its answer to Marcel’s counterclaims. But as the 2005 Action proceeded, Lucky Brand never again invoked the release defense. The 2005 Action concluded in two phases. First, as a sanction for misconduct during discovery, the District Court concluded that Lucky Brand violated the settlement agreement by continuing to use “Get Lucky” and perma- nently enjoined Lucky Brand from copying or imitating Marcel’s “Get Lucky” mark. Order Granting Partial Sum- mary Judgment and Injunction in No. 1:05–cv–06757, Doc. 183; see also App. 203–204. The injunction did not enjoin, or even mention, Lucky Brand’s use of any other marks or phrases containing the word “Lucky.” Order Granting Par- tial Summary Judgment and Injunction, Doc. 183. The case then proceeded to trial. The jury found against Lucky Brand on Marcel’s remaining counterclaims—those that al- leged infringement from Lucky Brand’s continued use of the “Get Lucky” catchphrase alongside its own marks. See Brief for Respondent 52. C In April 2011, the third round of litigation began: Marcel filed an action against Lucky Brand (2011 Action), main- taining that Lucky Brand continued to infringe Marcel’s “Get Lucky” mark and, in so doing, contravened the judg- ment issued in the 2005 Action. This complaint did not reprise Marcel’s earlier allegation (in the 2005 Action) that Lucky Brand continued to use the 4 LUCKY BRAND DUNGAREES, INC. v. MARCEL FASHIONS GROUP, INC. Opinion of the Court “Get Lucky” phrase. Marcel argued only that Lucky Brand’s continued, post-2010 use of Lucky Brand’s own marks—some of which used the word “Lucky”—infringed Marcel’s “Get Lucky” mark in a manner that (according to Marcel) was previously found infringing.1 Marcel requested that the District Court enjoin Lucky Brand from using any of Lucky Brand’s marks containing the word “Lucky.” The District Court granted Lucky Brand summary judg- ment, concluding that Marcel’s claims in the 2011 Action were essentially the
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Justice Sotomayor
| 2,020 | 24 |
majority
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Lucky Brand Dungarees, Inc. v. Marcel Fashions Group, Inc.
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https://www.courtlistener.com/opinion/4754908/lucky-brand-dungarees-inc-v-marcel-fashions-group-inc/
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that Marcel’s claims in the 2011 Action were essentially the same as its counterclaims in the 2005 Action. But the Court of Appeals for the Second Circuit disa- greed. The court concluded that Marcel’s claims in the 2011 Action were distinct from those it had asserted in the 2005 Action, because the claims at issue in the 2005 Action were “for earlier infringements.” at 110. As the court noted, “[w]inning a judgment does not deprive the plaintiff of the right to sue” for the defendant’s “subsequent similar violations.” The Second Circuit further rejected Marcel’s request to hold Lucky Brand in contempt for violating the injunction issued in the 2005 Action. The court noted that the conduct at issue in the 2011 Action was Lucky Brand’s use of its own marks—not the use of the phrase “Get Lucky.” By contrast, the 2005 injunction prohibited Lucky Brand from using the “Get Lucky” mark—not Lucky Brand’s own marks that hap- pened to contain the word “Lucky.” Moreover, the court reasoned that the jury in the 2005 Action had been —————— 1 See Complaint for Injunctive Relief and Trademark Infringement in No. 1:11–cv–05523 (SDNY), Doc. 1, ¶15 (“Despite the entry of the [2005 Action judgment], [Lucky Brand] ha[s] continued to willfully infringe [Marcel’s] GET LUCKY mark by using the Lucky Brand marks in the identical manner and form and on the same goods for which [it] w[as] found liable for infringement”); (“Despite the entry of the” 2005 Action judgment, Lucky Brand has “continued its uninterrupted and willful use of the Lucky Brand marks and any other trademarks includ- ing the word ‘Lucky’ ”). Cite as: 590 U. S. (2020) 5 Opinion of the Court “free to find infringement of Marcel’s ‘Get Lucky’ mark based solely on Lucky Brand’s use of [the phrase] ‘Get Lucky.’ ” The court vacated and remanded for further proceedings. On remand to the District Court, Lucky Brand moved to dismiss, arguing—for the first time since its motion to dis- miss and answer in the 2005 Action—that Marcel had re- leased its claims by entering the settlement agreement. Marcel countered that Lucky Brand was precluded from in- voking the release defense, because it could have pursued the defense fully in the 2005 Action but had neglected to do so. The District Court granted Lucky Brand’s motion to dis- miss, holding that it could assert its release defense and that the settlement agreement indeed barred Marcel’s claims. The Second Circuit vacated and remanded, concluding that a doctrine it termed “defense preclusion” prohibited Lucky Brand from raising the release defense in the 2011
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Justice Sotomayor
| 2,020 | 24 |
majority
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Lucky Brand Dungarees, Inc. v. Marcel Fashions Group, Inc.
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Lucky Brand from raising the release defense in the 2011 Action. Noting that a different cate- gory of preclusion—issue preclusion—may be wielded against a defendant, see Parklane Co. v. Shore, 439 U.S. 322 (1979), the court reasoned that the same should be true of claim preclusion: A defendant should be pre- cluded from raising an unlitigated defense that it should have raised earlier. The panel then held that “defense pre- clusion” bars a party from raising a defense where: “(i) a previous action involved an adjudication on the merits”; “(ii) the previous action involved the same parties”; “(iii) the de- fense was either asserted or could have been asserted, in the prior action”; and “(iv) the district court, in its discre- tion, concludes that preclusion of the defense is appropri- ate.” Finding each factor satisfied in this case, the panel vacated the District Court’s judgment. We granted certiorari, 588 U. S. (2019), to resolve differ- ences among the Circuits regarding when, if ever, claim 6 LUCKY BRAND DUNGAREES, INC. v. MARCEL FASHIONS GROUP, INC. Opinion of the Court preclusion applies to defenses raised in a later Com- with Hallco Mfg. Co. v. Foster, 256 F.3d 1290, 1297–1298 (CA Fed. 2001); (CA11 1991). II A This case asks whether so-called “defense preclusion” is a valid application of res judicata: a term that now comprises two distinct doctrines regarding the preclusive effect of prior litigation. 18 C. Wright, A. Miller, & E. Cooper, Fed- eral Practice and Procedure (3d ed. 2016) (Wright & Miller). The first is issue preclusion (sometimes called col- lateral estoppel), which precludes a party from relitigating an issue actually decided in a prior case and necessary to the judgment. ; see Parklane n. 5. The second doctrine is claim preclusion (sometimes itself called res judicata). Unlike issue preclusion, claim preclu- sion prevents parties from raising issues that could have been raised and decided in a prior action—even if they were not actually litigated. If a later suit advances the same claim as an earlier suit between the same parties, the ear- lier suit’s judgment “prevents litigation of all grounds for, or defenses to, recovery that were previously available to the parties, regardless of whether they were asserted or de- termined in the prior proceeding.” Brown v. Felsen, 442 U.S. 127, 131 (1979); see also Wright & Miller Suits involve the same claim (or “cause of action”) when they “ ‘aris[e] from the same transaction,’ ” United States v. Tohono O’odham Nation, (quoting (1982)), or involve a “common nucleus of operative facts,” Restatement (Second) of Judgments Comment b, p.
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Justice Sotomayor
| 2,020 | 24 |
majority
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Lucky Brand Dungarees, Inc. v. Marcel Fashions Group, Inc.
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https://www.courtlistener.com/opinion/4754908/lucky-brand-dungarees-inc-v-marcel-fashions-group-inc/
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of operative facts,” Restatement (Second) of Judgments Comment b, p. 199 (1982) (Restatement (Second)). Cite as: 590 U. S. (2020) 7 Opinion of the Court Put another way, claim preclusion “describes the rules formerly known as ‘merger’ and ‘bar.’ ” “If the plaintiff wins, the entire claim is merged in the judgment; the plaintiff cannot bring a second independent action for additional relief, and the defendant cannot avoid the judgment by offering new defenses.” Wright & Miller But “[i]f the second law- suit involves a new claim or cause of action, the parties may raise assertions or defenses that were omitted from the first lawsuit even though they were equally relevant to the first cause of action.” As the Second Circuit itself seemed to recognize, see 898 F.3d, at 236–237, this Court has never explicitly recognized “defense preclusion” as a standalone category of res judi- cata, unmoored from the two guideposts of issue preclusion and claim preclusion. Instead, our case law indicates that any such preclusion of defenses must, at a minimum, sat- isfy the strictures of issue preclusion or claim preclusion. See, e.g., U.S. 423, (holding that where two lawsuits involved different claims, preclu- sion operates “only upon the matter actually at issue and determined in the original action”).2 The parties thus agree that where, as here, issue preclusion does not apply, a de- fense can be barred only if the “causes of action are the —————— 2 There may be good reasons to question any application of claim pre- clusion to defenses. It has been noted that in suits involving successive claims against the same defendant, courts often “assum[e] that the de- fendant may raise defenses in the second action that were not raised in the first, even though they were equally available and relevant in both actions.” Wright & Miller This is because “[v]arious considera- tions, other than actual merits, may govern” whether to bring a defense, “such as the smallness of the amount or the value of the property in con- troversy, the difficulty of obtaining the necessary evidence, the expense of the litigation, and [a party’s] own situation.” U.S. 351, Here, however, this Court need not deter- mine when (if ever) applying claim preclusion to defenses may be appro- priate, because a necessary predicate—identity of claims—is lacking. 8 LUCKY BRAND DUNGAREES, INC. v. MARCEL FASHIONS GROUP, INC. Opinion of the Court same” in the two suits—that is, where they share a “ ‘com- mon nucleus of operative fact[s].’ ” Brief for Respondent 2, 27, 31, 50; accord, Reply Brief 3. B Put simply, the two
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Justice Sotomayor
| 2,020 | 24 |
majority
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Lucky Brand Dungarees, Inc. v. Marcel Fashions Group, Inc.
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https://www.courtlistener.com/opinion/4754908/lucky-brand-dungarees-inc-v-marcel-fashions-group-inc/
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50; accord, Reply Brief 3. B Put simply, the two suits here were grounded on different conduct, involving different marks, occurring at different times. They thus did not share a “common nucleus of oper- ative facts.” Restatement (Second) Comment b, at 199. To start, claims to relief may be the same for the purposes of claim preclusion if, among other things, “ ‘a different judgment in the second action would impair or destroy rights or interests established by the judgment entered in the first action.’ ” Wright & Miller Here, however, the 2011 Action did not imperil the judgment of the 2005 Action because the lawsuits involved both different conduct and different trademarks. In the 2005 Action, Marcel alleged that Lucky Brand in- fringed Marcel’s “Get Lucky” mark both by directly imitat- ing its “Get Lucky” mark and by using the “Get Lucky” slo- gan alongside Lucky Brand’s other marks in a way that created consumer confusion. Brief for Respondent 52. Mar- cel appears to admit, thus, that its claims in the 2005 Action depended on Lucky Brand’s alleged use of “Get Lucky.” at 9–10 (“Marcel’s reverse-confusion theory [in the 2005 Ac- tion] depended, in part, on Lucky’s continued imitation of the GET LUCKY mark”). By contrast, the 2011 Action did not involve any alleged use of the “Get Lucky” phrase. Indeed, Lucky Brand had been enjoined in the 2005 Action from using “Get Lucky,” and in the 2011 Action, Lucky Brand was found not to have violated that 779 F.3d, –112. The parties thus do not argue that Lucky Brand continued to use “Get Lucky” after the 2005 Action concluded, and at oral argu- ment, counsel for Marcel appeared to confirm that Marcel’s claims in the 2011 Action did not allege that Lucky Brand Cite as: 590 U. S. (2020) 9 Opinion of the Court continued to use “Get Lucky.” Tr. of Oral Arg. 46. Instead, Marcel alleged in the 2011 Action that Lucky Brand com- mitted infringement by using Lucky Brand’s own marks containing the word “Lucky”—not the “Get Lucky” mark it- self. Plainly, then, the 2011 Action challenged different conduct, involving different marks. Not only that, but the complained-of conduct in the 2011 Action occurred after the conclusion of the 2005 Action. Claim preclusion generally “does not bar claims that are predicated on events that postdate the filing of the initial complaint.” Whole Woman’s Health v. Hellerstedt, 579 U. S. (2016) (slip op., at 12) (internal quotation marks omitted); Lawlor v. National Screen Service Corp., 349 U.S. 322, 327–328 (1955) (holding that two suits were not “based
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Justice Sotomayor
| 2,020 | 24 |
majority
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Lucky Brand Dungarees, Inc. v. Marcel Fashions Group, Inc.
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https://www.courtlistener.com/opinion/4754908/lucky-brand-dungarees-inc-v-marcel-fashions-group-inc/
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322, 327–328 (1955) (holding that two suits were not “based on the same cause of action,” because “[t]he conduct pres- ently complained of was all subsequent to” the prior judg- ment and it “cannot be given the effect of extinguishing claims which did not even then exist and which could not possibly have been sued upon in the previous case”). This is for good reason: Events that occur after the plaintiff files suit often give rise to new “[m]aterial operative facts” that “in themselves, or taken in conjunction with the antecedent facts,” create a new claim to relief. Restatement (Second) Comment f, at 203; 18 J. Moore, D. Coquillette, G. Jo- seph, G. Vairo, & C. Varner, Federal Practice p. 131–55, n. 1 (3d ed. 2019) (citing cases where “[n]ew facts create[d a] new claim”). This principle takes on particular force in the trademark context, where the enforceability of a mark and likelihood of confusion between marks often turns on extrinsic facts that change over time. As Lucky Brand points out, liability for trademark infringement turns on marketplace realities that can change dramatically from year to year. Brief for Petitioners 42–45. It is no surprise, then, that the Second Circuit held that Marcel’s 2011 Action claims were not barred by the 2005 Action. By the same token, the 2005 10 LUCKY BRAND DUNGAREES, INC. v. MARCEL FASHIONS GROUP, INC. Opinion of the Court Action could not bar Lucky Brand’s 2011 defenses. At bottom, the 2011 Action involved different marks, dif- ferent legal theories, and different conduct—occurring at different times. Because the two suits thus lacked a “com- mon nucleus of operative facts,” claim preclusion did not and could not bar Lucky Brand from asserting its settle- ment agreement defense in the 2011 Action. III Resisting this conclusion, Marcel points to treatises and this Court’s cases, arguing that they support a version of “defense preclusion” doctrine that extends to the facts of this case. Brief for Respondent 24–26. But these authori- ties do no such thing. As an initial matter, regardless of what those authorities might imply about “defense preclu- sion,” none of them describe scenarios applicable here. Moreover, we doubt that these authorities stand for any- thing more than that traditional claim- or issue-preclusion principles may bar defenses raised in a subsequent suit— principles that, as explained above, do not bar Lucky Brand’s release defense here. Take, for example, cases that involve either judgment en- forcement or a collateral attack on a prior judgment. at 26–35. In the former scenario, a party takes action to en- force a prior judgment
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Justice Sotomayor
| 2,020 | 24 |
majority
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Lucky Brand Dungarees, Inc. v. Marcel Fashions Group, Inc.
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https://www.courtlistener.com/opinion/4754908/lucky-brand-dungarees-inc-v-marcel-fashions-group-inc/
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a party takes action to en- force a prior judgment already issued against another; in the latter, a party seeks to avoid the effect of a prior judg- ment by bringing a suit to undo it. If, in either situation, a different outcome in the second action “would nullify the in- itial judgment or would impair rights established in the in- itial action,” preclusion principles would be at play. Re- statement (Second) at 185; Wright & Miller In both scenarios, courts simply apply claim preclusion or issue preclusion to prohibit a claim or defense that would Cite as: 590 U. S. (2020) 11 Opinion of the Court attack a previously decided claim.3 But these principles do not preclude defendants from asserting defenses to new claims, which is precisely what Marcel would have us do here. In any event, judgment-enforcement and collateral-at- tack scenarios are far afield from the circumstances of this case. Lucky Brand’s defense in the 2011 Action did not threaten the judgment issued in the 2005 Action or, as Mar- cel argues, “achieve the same practical result” that the above-mentioned principles seek to avoid. Brief for Re- spondent 31–32. Indeed, while the judgment in the 2005 Action plainly prohibited Lucky Brand from using “Get Lucky,” it did not do the same with respect to Lucky Brand’s continued, standalone use of its own marks containing the word “Lucky”—the only conduct at issue in the 2011 Action. Put simply, Lucky Brand’s defense to new claims in the 2011 Action did not risk impairing the 2005 judgment. Nor do cases like aid Marcel. See Brief for Respondent 32–33. To be sure, Beloit held that a defendant in a second suit over bonds “of the same issue” was precluded from raising a defense it had not raised in the first But the Court there —————— 3 One might ask: If any preclusion of defenses (under the claim-preclu- sion rubric) requires identity of claims in two suits, how could the second similar suit have avoided standard claim preclusion in the first place? Different contexts may yield different answers. In a judgment-enforce- ment context, the answer may be that claim preclusion applies only “to a final judgment rendered in an action separate from that in which the doctrine is asserted.” 18 J. Moore, D. Coquillette, G. Joseph, G. Vairo, & C. Varner, Federal Practice p. 131–116 (3d ed. 2019) (empha- sis added). Thus—although claim preclusion does apply to a later, standalone suit seeking relief that could have been obtained in the first— it “is not applicable to efforts to obtain supplemental relief in the
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Justice Sotomayor
| 2,020 | 24 |
majority
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Lucky Brand Dungarees, Inc. v. Marcel Fashions Group, Inc.
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https://www.courtlistener.com/opinion/4754908/lucky-brand-dungarees-inc-v-marcel-fashions-group-inc/
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not applicable to efforts to obtain supplemental relief in the original action, or direct attacks on the judgment.” Ibid (footnote de- leted). The upshot is that—even if a court deems the underlying core of operative facts to be the same—a plaintiff in that circumstance is not precluded from enforcing its rights with respect to continuing wrongful conduct. 12 LUCKY BRAND DUNGAREES, INC. v. MARCEL FASHIONS GROUP, INC. Opinion of the Court explained that the judgment in the first suit “established conclusively the original validity of the securities described in the bill, and the liability of the town to pay them.” at 623. In other words, by challenging the validity of all bonds of the same issue, the defense in the second suit would have threatened the validity of the judgment in the first The same cannot be said of the defense raised in the 2011 Action vis-à-vis the judgment in the 2005 Action. * * * At bottom, Marcel’s 2011 Action challenged different con- duct—and raised different claims—from the 2005 Action. Under those circumstances, Marcel cannot preclude Lucky Brand from raising new defenses. The judgment of the Sec- ond Circuit is therefore reversed, and the case is remanded for proceedings consistent with this opinion. It is so ordered
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Justice Burger
| 1,986 | 12 |
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Bowsher v. Synar
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https://www.courtlistener.com/opinion/111756/bowsher-v-synar/
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The question presented by these appeals is whether the assignment by Congress to the Comptroller General of the United States of certain functions under the Balanced Budget and Emergency Deficit Control Act of violates the doctrine of separation of powers. I A On December 12, the President signed into law the Balanced Budget and Emergency Deficit Control Act of Stat. 1038, 2 U.S. C. 901 et seq. (1982 ed., Supp. III), popularly known as the "Gramm-Rudman-Hollings Act." The purpose of the Act is to eliminate the federal budget deficit. To that end, the Act sets a "maximum deficit amount" for federal spending for each of fiscal years through 1991. The size of that maximum deficit amount progressively reduces to zero in fiscal year 1991. If in any fiscal year the federal budget deficit exceeds the maximum *718 deficit amount by more than a specified sum, the Act requires across-the-board cuts in federal spending to reach the targeted deficit level, with half of the cuts made to defense programs and the other half made to nondefense programs. The Act exempts certain priority programs from these cuts. 255. These "automatic" reductions are accomplished through a rather complicated procedure, spelled out in 251, the so-called "reporting provisions" of the Act. Each year, the Directors of the Office of Management and Budget (OMB) and the Congressional Budget Office (CBO) independently estimate the amount of the federal budget deficit for the upcoming fiscal year. If that deficit exceeds the maximum targeted deficit amount for that fiscal year by more than a specified amount, the Directors of OMB and CBO independently calculate, on a program-by-program basis, the budget reductions necessary to ensure that the deficit does not exceed the maximum deficit amount. The Act then requires the Directors to report jointly their deficit estimates and budget reduction calculations to the Comptroller General. The Comptroller General, after reviewing the Directors' reports, then reports his conclusions to the President. 251(b). The President in turn must issue a "sequestration" order mandating the spending reductions specified by the Comptroller General. 252. There follows a period during which Congress may by legislation reduce spending to obviate, in whole or in part, the need for the sequestration order. If such reductions are not enacted, the sequestration order becomes effective and the spending reductions included in that order are made. Anticipating constitutional challenge to these procedures, the Act also contains a "fallback" deficit reduction process to take effect "[i]n the event that any of the reporting procedures described in section 251 are invalidated." 274(f). Under these provisions, the report prepared by the Directors
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274(f). Under these provisions, the report prepared by the Directors of OMB and the CBO is submitted directly to a specially *719 created Temporary Joint Committee on Deficit Reduction, which must report in five days to both Houses a joint resolution setting forth the content of the Directors' report. Congress then must vote on the resolution under special rules, which render amendments out of order. If the resolution is passed and signed by the President, it then serves as the basis for a Presidential sequestration order. B Within hours of the President's signing of the Act,[1] Congressman Synar, who had voted against the Act, filed a complaint seeking declaratory relief that the Act was unconstitutional. Eleven other Members later joined Congressman Synar's suit. A virtually identical lawsuit was also filed by the National Treasury Employees Union. The Union alleged that its members had been injured as a result of the Act's automatic spending reduction provisions, which have suspended certain cost-of-living benefit increases to the Union's members.[2] A three-judge District Court, appointed pursuant to 2 U.S. C. 922(a)(5) (1982 ed., Supp. III), invalidated the reporting provisions. The District Court concluded that the Union had standing to challenge the Act since the members of the Union had suffered actual injury by suspension of certain benefit increases. The District Court also concluded that Congressman Synar and his fellow Members had standing under the so-called "congressional standing" doctrine. See cert. granted sub nom. *720 The District Court next rejected appellees' challenge that the Act violated the delegation doctrine. The court expressed no doubt that the Act delegated broad authority, but delegation of similarly broad authority has been upheld in past cases. The District Court observed that in 321 U.S. 4, this Court upheld a statute that delegated to an unelected "Price Administrator" the power "to promulgate regulations fixing prices of commodities." Moreover, in the District Court's view, the Act adequately confined the exercise of administrative discretion. The District Court concluded that "the totality of the Act's standards, definitions, context, and reference to past administrative practice provides an adequate `intelligible principle' to guide and confine administrative decision making." Although the District Court concluded that the Act survived a delegation doctrine challenge, it held that the role of the Comptroller General in the deficit reduction process violated the constitutionally imposed separation of powers. The court first explained that the Comptroller General exercises executive functions under the Act. However, the Comptroller General, while appointed by the President with the advice and consent of the Senate, is removable not by the President but only by a joint resolution
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Bowsher v. Synar
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https://www.courtlistener.com/opinion/111756/bowsher-v-synar/
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not by the President but only by a joint resolution of Congress or by impeachment. The District Court reasoned that this arrangement could not be sustained under this Court's decisions in and Humphrey's Under the separation of powers established by the Framers of the Constitution, the court concluded, Congress may not retain the power of removal over an officer performing executive functions. The congressional removal power created a "here-and-now subservience" of the Comptroller General to Congress. The District Court therefore held that *721 "since the powers conferred upon the Comptroller General as part of the automatic deficit reduction process are executive powers, which cannot constitutionally be exercised by an officer removable by Congress, those powers cannot be exercised and therefore the automatic deficit reduction process to which they are are central cannot be implemented." Appeals were taken directly to this Court pursuant to 274(b) of the Act. We noted probable jurisdiction and expedited consideration of the appeals. We affirm. II A threshold issue is whether the Members of Congress, members of the National Treasury Employees Union, or the Union itself have standing to challenge the constitutionality of the Act in question. It is clear that members of the Union, one of whom is an appellee here, will sustain injury by not receiving a scheduled increase in benefits. See 252(a)(6)(C)(i); This is sufficient to confer standing under 274(a)(2) and Article III. We therefore need not consider the standing issue as to the Union or Members of Congress. See Secretary of Cf. Automobile ; Barnes v. Accordingly, we turn to the merits of the case. III We noted recently that "[t]he Constitution sought to divide the delegated powers of the new Federal Government into three defined categories, Legislative, Executive, and Judicial." The declared purpose of separating and dividing the powers of government, of course, was to "diffus[e] power the better to secure liberty." Youngstown Sheet & Tube Justice Jackson's words echo the famous warning of Montesquieu, *722 quoted by James Madison in The Federalist No. 47, that " `there can be no liberty where the legislative and executive powers are united in the same person, or body of magistrates'." The Federalist No. 47, p. 325 (J. Cooke ed. 1961). Even a cursory examination of the Constitution reveals the influence of Montesquieu's thesis that checks and balances were the foundation of a structure of government that would protect liberty. The Framers provided a vigorous Legislative Branch and a separate and wholly independent Executive Branch, with each branch responsible ultimately to the people. The Framers also provided for a Judicial Branch equally independent with
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Bowsher v. Synar
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Framers also provided for a Judicial Branch equally independent with "[t]he judicial Power extend[ing] to all Cases, in Law and Equity, arising under this Constitution, and the Laws of the United States." Art. III, 2. Other, more subtle, examples of separated powers are evident as well. Unlike parliamentary systems such as that of Great Britain, no person who is an officer of the United States may serve as a Member of the Congress. Art. I, 6. Moreover, unlike parliamentary systems, the President, under Article II, is responsible not to the Congress but to the people, subject only to impeachment proceedings which are exercised by the two Houses as representatives of the people. Art. II, 4. And even in the impeachment of a President the presiding officer of the ultimate tribunal is not a member of the Legislative Branch, but the Chief Justice of the United States. Art. I, 3. That this system of division and separation of powers produces conflicts, confusion, and discordance at times is inherent, but it was deliberately so structured to assure full, vigorous, and open debate on the great issues affecting the people and to provide avenues for the operation of checks on the exercise of governmental power. The Constitution does not contemplate an active role for Congress in the supervision of officers charged with the execution of the laws it enacts. The President appoints "Officers of the United States" with the "Advice and Consent of *723 the Senate" Art. II. 2. Once the appointment has been made and confirmed, however, the Constitution explicitly provides for removal of Officers of the United States by Congress only upon impeachment by the House of Representatives and conviction by the Senate. An impeachment by the House and trial by the Senate can rest only on "Treason, Bribery or other high Crimes and Misdemeanors." Art. II, 4. A direct congressional role in the removal of officers charged with the execution of the laws beyond this limited one is inconsistent with separation of powers. This was made clear in debate in the First Congress in 1789. When Congress considered an amendment to a bill establishing the Department of Foreign Affairs, the debate centered around whether the Congress "should recognize and declare the power of the President under the Constitution to remove the Secretary of Foreign Affairs without the advice and consent of the Senate." Myers, James Madison urged rejection of a congressional role in the removal of Executive Branch officers, other than by impeachment, saying in debate: "Perhaps there was no argument urged with more success, or more plausibly grounded against
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Bowsher v. Synar
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argument urged with more success, or more plausibly grounded against the Constitution, under which we are now deliberating, than that founded on the mingling of the Executive and Legislative branches of the Government in one body. It has been objected, that the Senate have too much of the Executive power even, by having a control over the President in the appointment to office. Now, shall we extend this connection between the Legislative and Executive departments, which will strengthen the objection, and diminish the responsibility we have in the head of the Executive?" 1 Annals of Cong. 380 (1789). Madison's position ultimately prevailed, and a congressional role in the removal process was rejected. This "Decision of 1789" provides "contemporaneous and weighty evidence" of the Constitution's meaning since many of the Members of the *724 First Congress "had taken part in framing that instrument."[3] This Court first directly addressed this issue in At issue in Myers was a statute providing that certain postmasters could be removed only "by and with the advice and consent of the Senate." The President removed one such Postmaster without Senate approval, and a lawsuit ensued. Chief Justice Taft, writing for the Court, declared the statute unconstitutional on the ground that for Congress to "draw to itself, or to either branch of it, the power to remove or the right to participate in the exercise of that power would be to infringe the constitutional principle of the separation of governmental powers." A decade later, in Humphrey's relied upon heavily by appellants, a Federal Trade Commissioner who had been removed by the President sought backpay. Humphrey's Executor involved an issue not presented either in the Myers case or in this case i. e., the power of Congress to limit the President's powers of removal of a Federal Trade Commissioner. *.[4] The relevant statute permitted removal "by the President," but only "for inefficiency, neglect of duty, or malfeasance in office." Justice Sutherland, speaking for the Court, upheld the statute, holding that "illimitable power of removal is not possessed by the President [with respect to Federal Trade Commissioners]." The Court distinguished Myers, reaffirming its holding that congressional participation in the removal of executive officers is unconstitutional. Justice Sutherland's opinion for the Court also underscored the crucial role of separated powers in our system: "The fundamental necessity of maintaining each of the three general departments of government entirely free from the control or coercive influence, direct or indirect, of either of the others, has often been stressed and is hardly open to serious question. So much is implied in the very fact
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Justice Burger
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Bowsher v. Synar
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serious question. So much is implied in the very fact of the separation of the powers of these departments by the Constitution; and in the rule which recognizes their essential co-equality." U.S., at 629-630. The Court reached a similar result in concluding that, under Humphrey's Executor, the President did not have unrestrained *726 removal authority over a member of the War Claims Commission. In light of these precedents, we conclude that Congress cannot reserve for itself the power of removal of an officer charged with the execution of the laws except by impeachment. To permit the execution of the laws to be vested in an officer answerable only to Congress would, in practical terms, reserve in Congress control over the execution of the laws. As the District Court observed: "Once an officer is appointed, it is only the authority that can remove him, and not the authority that appointed him, that he must fear and, in the performance of his functions, obey." The structure of the Constitution does not permit Congress to execute the laws; it follows that Congress cannot grant to an officer under its control what it does not possess. Our decision in supports this conclusion. In we struck down a one-House "legislative veto" provision by which each House of Congress retained the power to reverse a decision Congress had expressly authorized the Attorney General to make: "Disagreement with the Attorney General's decision on 's deportation that is, Congress' decision to deport no less than Congress' original choice to delegate to the Attorney General the authority to make that decision, involves determinations of policy that Congress can implement in only one way; bicameral passage followed by presentment to the President. Congress must abide by its delegation of authority until that delegation is legislatively altered or revoked." To permit an officer controlled by Congress to execute the laws would be, in essence, to permit a congressional veto. Congress could simply remove, or threaten to remove, an officer for executing the laws in any fashion found to be unsatisfactory to Congress. This kind of congressional control over *727 the execution of the laws, makes clear, is constitutionally impermissible. The dangers of congressional usurpation of Executive Branch functions have long been recognized. "[T]he debates of the Constitutional Convention, and the Federalist Papers, are replete with expressions of fear that the Legislative Branch of the National Government will aggrandize itself at the expense of the other two branches." Indeed, we also have observed only recently that "[t]he hydraulic pressure inherent within each of the separate Branches to exceed the outer
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Justice Burger
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Bowsher v. Synar
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within each of the separate Branches to exceed the outer limits of its power, even to accomplish desirable objectives, must be resisted." at With these principles in mind, we turn to consideration of whether the Comptroller General is controlled by Congress. IV Appellants urge that the Comptroller General performs his duties independently and is not subservient to Congress. We agree with the District Court that this contention does not bear close scrutiny. The critical factor lies in the provisions of the statute defining the Comptroller General's office relating to removability.[5] Although the Comptroller General is nominated by the President from a list of three individuals recommended by the Speaker of the House of Representatives and the President pro tempore of the Senate, see 31 U.S. C. *728 703(a)(2),[6] and confirmed by the Senate, he is removable only at the initiative of Congress. He may be removed not only by impeachment but also by joint resolution of Congress "at any time" resting on any one of the following bases: "(i) permanent disability; "(ii) inefficiency; "(iii) neglect of duty; "(iv) malfeasance; or "(v) a felony or conduct involving moral turpitude." 31 U.S. C. 703(e)(1)B.[7] This provision was included, as one Congressman explained in urging passage of the Act, because Congress "felt that [the Comptroller General] should be brought under the sole control of Congress, so that Congress at any moment when it found he was inefficient and was not carrying on the duties of his office as he should and as the Congress expected, could remove him without the long, tedious process of a trial by impeachment." 61 Cong. Rec. 1081 (1921). The removal provision was an important part of the legislative scheme, as a number of Congressmen recognized. Representative Hawley commented: "[H]e is our officer, in a measure, getting information for us If he does not do his work properly, we, as practically his employers, ought to be able to discharge him from his office." 58 Cong. Rec. 7136 (1919). Representative Sisson observed that the removal provisions would give "[t]he Congress of the United States absolute control of the man's destiny in office." *729 61 Cong. Rec. 987 (1921). The ultimate design was to "give the legislative branch of the Government control of the audit, not through the power of appointment, but through the power of removal." 58 Cong. Rec. 7211 (1919) (Rep. Temple). JUSTICE WHITE contends: "The statute does not permit anyone to remove the Comptroller at will; removal is permitted only for specified cause, with the existence of cause to be determined by Congress following a hearing. Any removal
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| 1,986 | 12 |
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Bowsher v. Synar
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https://www.courtlistener.com/opinion/111756/bowsher-v-synar/
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to be determined by Congress following a hearing. Any removal under the statute would presumably be subject to post-termination judicial review to ensure that a hearing had in fact been held and that the finding of cause for removal was not arbitrary." Post, at 770. That observation by the dissenter rests on at least two arguable premises: (a) that the enumeration of certain specified causes of removal excludes the possibility of removal for other causes, cf. ; and (b) that any removal would be subject to judicial review, a position that appellants were unwilling to endorse.[8] Glossing over these difficulties, the dissent's assessment of the statute fails to recognize the breadth of the grounds for removal. The statute permits removal for "inefficiency," "neglect of duty," or "malfeasance." These terms are very broad and, as interpreted by Congress, could sustain removal of a Comptroller General for any number of actual or perceived transgressions of the legislative will. The Constitutional Convention chose to permit impeachment of executive officers only for "Treason, Bribery, or other high Crimes and Misdemeanors." It rejected language that would have permitted impeachment for "maladministration," with Madison *730 arguing that "[s]o vague a term will be equivalent to a tenure during pleasure of the Senate." 2 M. Farrand, Records of the Federal Convention of 1787, p. 550 (1911). We need not decide whether "inefficiency" or "malfeasance" are terms as broad as "maladministration" in order to reject the dissent's position that removing the Comptroller General requires "a feat of bipartisanship more difficult than that required to impeach and convict." Post, at 771 (WHITE, J., dissenting). Surely no one would seriously suggest that judicial independence would be strengthened by allowing removal of federal judges only by a joint resolution finding "inefficiency," "neglect of duty," or "malfeasance." JUSTICE WHITE, however, assures us that "[r]ealistic consideration" of the "practical result of the removal provision," post, at 774, 773, reveals that the Comptroller General is unlikely to be removed by Congress. The separated powers of our Government cannot be permitted to turn on judicial assessment of whether an officer exercising executive power is on good terms with Congress. The Framers recognized that, in the long term, structural protections against abuse of power were critical to preserving liberty. In constitutional terms, the removal powers over the Comptroller General's office dictate that he will be subservient to Congress. This much said, we must also add that the dissent is simply in error to suggest that the political realities reveal that the Comptroller General is free from influence by Congress. The Comptroller General heads the General Accounting
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Bowsher v. Synar
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influence by Congress. The Comptroller General heads the General Accounting Office (GAO), "an instrumentality of the United States Government independent of the executive departments," 31 U.S. C. 702(a), which was created by Congress in 1921 as part of the Budget and Accounting Act of 1921, Congress created the office because it believed that it "needed an officer, responsible to it alone, to check upon the application of public funds in accordance with appropriations." H. Mansfield, *731 The Comptroller General: A Study in the Law and Practice of Financial Administration 65 (1939). It is clear that Congress has consistently viewed the Comptroller General as an officer of the Legislative Branch. The Reorganization Acts of 1945 and 1949, for example, both stated that the Comptroller General and the GAO are "a part of the legislative branch of the Government." ; Similarly, in the Accounting and Auditing Act of 1950, Congress required the Comptroller General to conduct audits "as an agent of the Congress." Over the years, the Comptrollers General have also viewed themselves as part of the Legislative Branch. In one of the early Annual Reports of Comptroller General, the official seal of his office was described as reflecting "the independence of judgment to be exercised by the General Accounting Office, subject to the control of the legislative branch. The combination represents an agency of the Congress independent of other authority auditing and checking the expenditures of the Government as required by law and subjecting any questions arising in that connection to quasi-judicial determination." GAO Ann. Rep. 5-6 (1924). Later, Comptroller General Warren, who had been a Member of Congress for 15 years before being appointed Comptroller General, testified: "During most of my public life, I have been a member of the legislative branch. Even now, although heading a great agency, it is an agency of the Congress, and I am an agent of the Congress." To Provide for Reorganizing of Agencies of the Government: Hearings on H. R. 3325 before the House Committee on Expenditures, 79th Cong., 1st Sess., 69 (1945) (emphasis added). And, in one conflict during Comptroller General McCarl's tenure, he asserted his independence of the Executive Branch, stating: "Congress is the only authority to which there lies an appeal from the decision of this office. *732 ". I may not accept the opinion of any official, inclusive of the Attorney General, as controlling my duty under the law." with respect to interpretation of compensation statute). Against this background, we see no escape from the conclusion that, because Congress has retained removal authority over the Comptroller General, he may
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Justice Burger
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Bowsher v. Synar
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https://www.courtlistener.com/opinion/111756/bowsher-v-synar/
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has retained removal authority over the Comptroller General, he may not be entrusted with executive powers. The remaining question is whether the Comptroller General has been assigned such powers in the Balanced Budget and Emergency Deficit Control Act of V The primary responsibility of the Comptroller General under the instant Act is the preparation of a "report." This report must contain detailed estimates of projected federal revenues and expenditures. The report must also specify the reductions, if any, necessary to reduce the deficit to the target for the appropriate fiscal year. The reductions must be set forth on a program-by-program basis. In preparing the report, the Comptroller General is to have "due regard" for the estimates and reductions set forth in a joint report submitted to him by the Director of CBO and the Director of OMB, the President's fiscal and budgetary adviser. However, the Act plainly contemplates that the Comptroller General will exercise his independent judgment and evaluation with respect to those estimates. The Act also provides that the Comptroller General's report "shall explain fully any differences between the contents of such report and the report of the Directors." 251(b)(2). Appellants suggest that the duties assigned to the Comptroller General in the Act are essentially ministerial and mechanical so that their performance does not constitute "execution of the law" in a meaningful sense. On the contrary, we view these functions as plainly entailing execution *733 of the law in constitutional terms. Interpreting a law enacted by Congress to implement the legislative mandate is the very essence of "execution" of the law. Under 251, the Comptroller General must exercise judgment concerning facts that affect the application of the Act. He must also interpret the provisions of the Act to determine precisely what budgetary calculations are required. Decisions of that kind are typically made by officers charged with executing a statute. The executive nature of the Comptroller General's functions under the Act is revealed in 252(a)(3) which gives the Comptroller General the ultimate authority to determine the budget cuts to be made. Indeed, the Comptroller General commands the President himself to carry out, without the slightest variation (with exceptions not relevant to the constitutional issues presented), the directive of the Comptroller General as to the budget reductions: "The [Presidential] order must provide for reductions in the manner specified in section 251(a)(3), must incorporate the provisions of the [Comptroller General's] report submitted under section 251(b), and must be consistent with such report in all respects. The President may not modify or recalculate any of the estimates, determinations, specifications, bases, amounts, or percentages
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Justice Burger
| 1,986 | 12 |
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Bowsher v. Synar
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https://www.courtlistener.com/opinion/111756/bowsher-v-synar/
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any of the estimates, determinations, specifications, bases, amounts, or percentages set forth in the report submitted under section 251(b) in determining the reductions to be specified in the order with respect to programs, projects, and activities, or with respect to budget activities, within an account." 252(a)(3) (emphasis added). See also 251(d)(3)(A). Congress of course initially determined the content of the Balanced Budget and Emergency Deficit Control Act; and undoubtedly the content of the Act determines the nature of the executive duty. However, as makes clear, once Congress makes its choice in enacting legislation, its participation ends. Congress can thereafter control the execution *734 of its enactment only indirectly by passing new legislation. By placing the responsibility for execution of the Balanced Budget and Emergency Deficit Control Act in the hands of an officer who is subject to removal only by itself, Congress in effect has retained control over the execution of the Act and has intruded into the executive function. The Constitution does not permit such intrusion. VI We now turn to the final issue of remedy. Appellants urge that rather than striking down 251 and invalidating the significant power Congress vested in the Comptroller General to meet a national fiscal emergency, we should take the lesser course of nullifying the statutory provisions of the 1921 Act that authorizes Congress to remove the Comptroller General. At oral argument, counsel for the Comptroller General suggested that this might make the Comptroller General removable by the President. All appellants urge that Congress would prefer invalidation of the removal provisions rather than invalidation of 251 of the Balanced Budget and Emergency Deficit Control Act. Severance at this late date of the removal provisions enacted 65 years ago would significantly alter the Comptroller General's office, possibly by making him subservient to the Executive Branch. Recasting the Comptroller General as an officer of the Executive Branch would accordingly alter the balance that Congress had in mind in drafting the Budget and Accounting Act of 1921 and the Balanced Budget and Emergency Deficit Control Act, to say nothing of the wide array of other tasks and duties Congress has assigned the Comptroller General in other statutes.[9] Thus appellants' *735 argument would require this Court to undertake a weighing of the importance Congress attached to the removal provisions in the Budget and Accounting Act of 1921 as well as in other subsequent enactments against the importance it placed on the Balanced Budget and Emergency Deficit Control Act of Fortunately this is a thicket we need not enter. The language of the Balanced Budget and Emergency Deficit
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Bowsher v. Synar
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enter. The language of the Balanced Budget and Emergency Deficit Control Act itself settles the issue. In 274(f), Congress has explicitly provided "fallback" provisions in the Act that take effect "[i]n the event any of the reporting procedures described in section 251 are invalidated." 274(f)(1) (emphasis added). The fallback provisions are " `fully operative as a law,' " ). Assuming that appellants are correct in urging that this matter must be resolved on the basis of congressional intent, the intent appears to have been for 274(f) to be given effect in this situation. Indeed, striking the removal provisions would lead to a statute that Congress would probably have refused to adopt. As the District Court concluded: "[T]he grant of authority to the Comptroller General was a carefully considered protection against what the House conceived to be the pro-executive bias of the OMB. It is doubtful that the automatic deficit reduction process would have passed without such protection, and doubtful that the protection would have been considered present if the Comptroller General were not removable by Congress itself" *736A Accordingly, rather than perform the type of creative and imaginative statutory surgery urged by appellants, our holding simply permits the fallback provisions to come into play.[10] VII No one can doubt that Congress and the President are confronted with fiscal and economic problems of unprecedented magnitude, but "the fact that a given law or procedure is efficient, convenient, and useful in facilitating functions of government, standing alone, will not save it if it is contrary to the Constitution. Convenience and efficiency are not the primary objectives or the hallmarks of democratic government." We conclude that the District Court correctly held that the powers vested in the Comptroller General under 251 violate the command of the Constitution that the Congress play no direct role in the execution of the laws. Accordingly, the judgment and order of the District Court are affirmed. Our judgment is stayed for a period not to exceed 60 days to permit Congress to implement the fallback provisions. It is so ordered. *736B JUSTICE STEVENS, with whom JUSTICE MARSHALL joins, concurring in the judgment.
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Justice Douglas
| 1,971 | 10 |
concurring
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Doherty v. United States
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https://www.courtlistener.com/opinion/108396/doherty-v-united-states/
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While concurring completely in the Court's per curiam, I believe additional detail clarifying the applicability of *30 Fed. Rule Crim. Proc. 44 and the Criminal Justice Act[1] to these circumstances is warranted inasmuch as all of the circuits' rules implementing the latter are susceptible of replications of the result reached below.[2] Rule 44 and the Criminal Justice Act each establish a federal policy of providing every indigent federal accused with appointed counsel at every stage in his defense from arraignment through direct review by this Court, including petitioning for certiorari. I Rule 44 The Act of June 29, 1940,[3] authorized the Supreme Court to prescribe uniform criminal procedures in the federal courts prior to and including verdict. By an order of the Court on December 26, *31 1944 (), such rules were adopted, thereafter transmitted to the Congress, and became effective on March 21, 1946. These contained the forerunner of the present Rule 44, which provided: "Assignment of Counsel. If the defendant appears in court without counsel, the court shall advise him of his right to counsel and assign counsel to represent him at every stage of the proceeding unless he elects to proceed without counsel or is able to obtain counsel." This procedure embodied our holding in that federal indigent defendants had a right under the Sixth Amendment to free counsel during trial. Until it was unclear whether Rule 44 extended that assistance to direct appeals of convictions arising in the federal courts. In any event by the last decade the sweep of our decisions involving right to counsel on appeal required revision of Rule 44 to make clear that "every stage of the proceedings" did, in fact, include appeals.[4] Thus, the revised rule effective since 1966 now reads: "Every defendant who is unable to obtain counsel shall be entitled to have counsel assigned to represent him at every stage of the proceedings from his initial appearance before the commissioner or *32 the court through appeal, unless he waives such appointment." Fed. Rule Crim. Proc. 44 (a). Whether "appeal" includes proceedings before the Supreme Court was not addressed by the Advisory Committee's Note and was until now an academic question since the rule became effective after the implementation of the Criminal Justice Act under which courts of appeals have uniformly adopted procedures routinely to extend appointed counsel's duty to preparation of certiorari petitions desired by their clients. Because this Court has traditionally appointed counsel for those indigents whose certiorari petitions are granted, the only gap in coverage would arise where, as here, a request for appointment is made to
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Justice Douglas
| 1,971 | 10 |
concurring
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Doherty v. United States
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https://www.courtlistener.com/opinion/108396/doherty-v-united-states/
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where, as here, a request for appointment is made to the Court of Appeals after it has decided an indigent's appeal. It is significant that the language of the amended rule does extend assistance to "appeals" and does not restrict "appeals" to proceedings in "courts of appeals." Moreover, no qualification such as "first appeal" is present. Additionally, to the extent that the Advisory Committee's suggested reading sheds light on its thinking, its Note refers to a law review article which argues for mandatory appointments in all stages of the federal criminal process,[5] including petitions for certiorari. That is the obvious disposition to be made of any ambiguity. II Criminal Justice Act An independent source of the federal statutory policy of continuous representation of indigents during their defense in the federal criminal process is the Criminal Justice Act of 1964. As does Rule 44, the Act provides an automatic right to counsel only in prosecutions *33 originating in the District Courts and during direct review therefrom. Unlike Rule 44, the Act also authorizes discretionary appointment of counsel in the "interests of justice" to any pauper "subject to revocation of parole, in custody as a material witness, or seeking relief under section 2241, 2254, or 2255 of title 28 or section 4245 of title 18."[6] 18 U.S. C. 3006A (g). Another important difference between the Act and Rule 44 is that only the former authorizes the disbursement of federal funds to reimburse court-appointed lawyers.[7] Financial relief to the Bar has become increasingly necessary as our decisions have expanded indigents' rights to counsel. The clearest statement of the Act's policy of providing blanket coverage of indigents' representation from arraignment through review by this Court is found in the first sentence of subsection (c): "A person for whom counsel is appointed shall be represented at every stage of the proceedings from his initial appearance before the United States magistrate or the court through appeal, including ancillary matters." 18 U.S. C. 3006A (c). The ambiguous phrase "through appeal," has been clarified by a 1970 amendment to another section. 18 U.S. C. 3006A (d) (6) now provides: "If a person for whom counsel is appointed under this section appeals to an appellate court or petitions for a writ of certiorari, he may do so without *34 prepayment of fees and costs or security therefor and without filing the affidavit required by section 1915 (a) of title 28."[8] (Emphasis added.) Most of the original congressional hearings and floor debates concern the wisdom of public defender services in contrast to the more conventional system of rotating appointments among
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Justice Douglas
| 1,971 | 10 |
concurring
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Doherty v. United States
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https://www.courtlistener.com/opinion/108396/doherty-v-united-states/
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contrast to the more conventional system of rotating appointments among the Bar. No discussion was directed to the precise question involved here. Nonetheless, there are several indicia that "appeal," as used in 3006A (c), was intended to include proceedings in this Court. Different versions of the Actall based upon the Attorney General's Committee on Poverty and the Administration of Federal Criminal Justice report of 1963 were passed in each of the Houses of Congress. A conference committee ironed out the differences and its House members afterwards reported concerning the present language of subsection (c): "Implied in the Senate version, and expressed in the House version, is the right of a defendant to have counsel appointed at any stage of the proceeding; i. e., before the commissioner, the district court, the court of appeals, or the Supreme Court." H. R. Rep. No. 1709, 88th Cong., 2d Sess., 7 (1964) (emphasis added). At least two exchanges during the floor debates made explicit that proceedings in this Court were within the Act's coverage.[9] *35 Moreover, the Judicial Conference's Committee to Implement the Criminal Justice Act of 1964 submitted in 1965 an interim recommendation that: "[C]ounsel appointed on appeal should advise the defendant of his right to initiate a further review by the filing of a petition for certiorari, and to file such petition, if requested by the defendant." Report on Criminal Justice Act, 36 F. R. D. 285, 291 (1965).[10] As mentioned earlier, this recommendation has been adopted by all of the circuit conferences. And our own rules have been amended to implement our participation under the Act in cases where we grant certiorari or note probable jurisdiction. Supreme Court Rule 53 (8). Other indicators of intent are found in the Attorney General's Committee study. One of its recommendations was that a lawyer appointed by the trial court should have incentives to represent the accused in the subsequent stages of the case including "any appellate proceedings." Hearings on S. 1057 before the Senate Committee on the judiciary, 88th Cong., 1st Sess., 183, 205 (1963). Presumably a purpose to excise the step during which certiorari petitions are prepared would have avoided the phrase "any appellate proceedings" and substituted instead "proceedings before the Courts of Appeals." Moreover, the study group recommended that the Act cover probation and parole revocation hearings, *36 a suggestion accepted by the legislature. 18 U.S. C. 3006A (a). It is difficult to ascribe to Congress a purpose to extend the assistance of counsel to paupers in these ancillary matters but to withhold it when they petition for certiorari. It is clear
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Justice Douglas
| 1,971 | 10 |
concurring
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Doherty v. United States
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https://www.courtlistener.com/opinion/108396/doherty-v-united-states/
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withhold it when they petition for certiorari. It is clear that the help of counsel was meant to be available during review by this Court both in filing for certiorari and on the merits. It cannot seriously be urged against this backdrop, that Congress intended to leave lawyerless those relatively infrequent and impecunious petitioners who request counsel only after courts of appeals have adversely decided their claims. In such situations as this one, the judicial function is to resolve ambiguous statutory language in light of the underlying purposes of the measure. Since the applicant is entitled to counsel to aid in his preparation of his petition for writ of certiorari, the only question which remains is whether it is the duty of the court of appeals or of this Court to make an appointment. Given the existing apparatus of the courts of appeals for the purpose of appointing counsel for their impoverished appellants, it would seem to be little burden upon them to process applications such as this one. Also, local appointments would facilitate swift filings of those petitions within the time limits prescribed by Supreme Court Rule 22 (2). The conclusion that the duty to process these requests should lie with the courts of appeals, rather than this Court, has been suggested elsewhere. Boskey, The Right to Counsel in Appellate Proceedings, I join the Court in remanding the case so that the Court of Appeals may reconsider the application. I agree that it should enter a new decree so that Doherty's time within which he may file his certiorari papers may run anew.
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Justice Thomas
| 1,997 | 1 |
majority
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Robinson v. Shell Oil Co.
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https://www.courtlistener.com/opinion/118082/robinson-v-shell-oil-co/
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Section 704(a) of Title VII of the Civil Rights Act of 1964 makes it unlawful "for an employer to discriminate against any of his employees or applicants for employment" who have either availed themselves of Title VII's protections or assisted others in so doing. as amended, 42 U.S. C. 2000e3(a). We are asked to decide in this case whether the term "employees," as used in 704(a), includes former employees, such that petitioner may bring suit against his former employer for postemployment actions allegedly taken in retaliation for petitioner's having filed a charge with the Equal Employment Opportunity Commission (EEOC). The United States Court of Appeals for the Fourth Circuit, sitting en banc, held that the term "employees" in 704(a) referred only to current employees and therefore petitioner's claim was not cognizable under Title VII. We granted certiorari, and now reverse. I Respondent Shell Oil Co. fired petitioner Charles T. Robinson, Sr., in 1991. Shortly thereafter, petitioner filed a charge with the EEOC, alleging that respondent had discharged him because of his race. While that charge was pending, petitioner applied for a job with another company. That company contacted respondent, as petitioner's former employer, for an employment reference. Petitioner claims that respondent gave him a negative reference in retaliation for his having filed the EEOC charge. *340 Petitioner subsequently sued under 704(a), alleging retaliatory discrimination. On respondent's motion, the District Court dismissed the action, adhering to previous Fourth Circuit precedent holding that 704(a) does not apply to former employees. Petitioner appealed, and a divided panel of the Fourth Circuit reversed the District Court. The Fourth Circuit granted rehearing en banc, vacated the panel decision, and thereafter affirmed the District Court's determination that former employees may not bring suit under 704(a) for retaliation occurring after termination of their employment. We granted certiorari in order to resolve a conflict among the Circuits on this issue.[1] II A Our first step in interpreting a statute is to determine whether the language at issue has a plain and unambiguous meaning with regard to the particular dispute in the case. Our inquiry must cease if the statutory language is unambiguous and "the statutory scheme is coherent and consistent." United States v.Ron Pair Enterprises, Inc., ; see also Connecticut Nat. *341 The plainness or ambiguity of statutory language is determined by reference to the language itself, the specific context in which that language is used, and the broader context of the statute as a whole. Estate of ; In this case, consideration of those factors leads us to conclude that the term "employees," as used in 704(a),
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Justice Thomas
| 1,997 | 1 |
majority
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Robinson v. Shell Oil Co.
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https://www.courtlistener.com/opinion/118082/robinson-v-shell-oil-co/
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to conclude that the term "employees," as used in 704(a), is ambiguous as to whether it excludes former employees. At first blush, the term "employees" in 704(a) would seem to refer to those having an existing employment relationship with the employer in question. Cf. Walters v. Metropolitan Ed. Enterprises, Inc., ante, at 207-208 (interpreting the term "employees" in 701(b), 42 U.S. C. 2000e(b)). This initial impression, however, does not withstand scrutiny in the context of 704(a). First, there is no temporal qualifier in the statute such as would make plain that 704(a) protects only persons still employed at the time of the retaliation. That the statute could have expressly included the phrase "former employees" does not aid our inquiry. Congress also could have used the phrase "current employees." But nowhere in Title VII is either phrase usedeven where the specific context otherwise makes clear an intent to cover current or former employees.[2] Similarly, that other statutes have been more specific in their coverage of "employees" and *342 "former employees," see, e. g., 2 U.S. C. 1301(4) (1994 ed., Supp. I) (defining "employee" to include "former employee"); 5 U.S. C. 1212(a)(1) (including "employees, former employees, and applicants for employment" in the operative provision), proves only that Congress can use the unqualified term "employees" to refer only to current employees, not that it did so in this particular statute. Second, Title VII's definition of "employee" likewise lacks any temporal qualifier and is consistent with either current or past employment. Section 701(f) defines "employee" for purposes of Title VII as "an individual employed by an employer." 42 U.S. C. 2000e(f). The argument that the term "employed," as used in 701(f), is commonly used to mean "[p]erforming work under an employer-employee relationship," Black's Law Dictionary 525 (6th ed. 1990), begs the question by implicitly reading the word "employed" to mean "is employed." But the word "employed" is not so limited in its possible meanings, and could just as easily be read to mean "was employed." Third, a number of other provisions in Title VII use the term "employees" to mean something more inclusive or different from "current employees." For example, 706(g)(1) and 717(b) both authorize affirmative remedial action (by a court or EEOC, respectively) "which may include reinstatement or hiring of employees." 42 U.S. C. 2000e 5(g)(1) and 2000e16(b). As petitioner notes, because one does not "reinstat[e]" current employees, that language necessarily refers to former employees. Likewise, one may hire individuals to be employees, but one does not typically hire persons who already are employees. Section 717(b) requires federal departments and agencies to have
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Justice Thomas
| 1,997 | 1 |
majority
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Robinson v. Shell Oil Co.
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https://www.courtlistener.com/opinion/118082/robinson-v-shell-oil-co/
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employees. Section 717(b) requires federal departments and agencies to have equal employment opportunity policies and rules, "which shall include a provision that an employee or applicant for employment shall be notified of any final action taken on any complaint of discrimination filed by him thereunder." 42 U.S. C. 2000e16(b). If the complaint involves *343 discriminatory discharge, as it often does, the "employee" who must be notified is necessarily a former employee. Similarly, 717(c) provides that an "employee or applicant for employment, if aggrieved by the final disposition of his complaint, may file a civil action" 42 U.S. C. 2000e16(c). Again, given that discriminatory discharge is a forbidden "personnel actio[n] affecting employees," see 717(a), 42 U.S. C. 2000e16(a), the term "employee" in 717(c) necessarily includes a former employee. See (involving a discriminatory discharge action successfully brought under 717 by a former Postal Service employee).[3] Of course, there are sections of Title VII where, in context, use of the term "employee" refers unambiguously to a current employee, for example, those sections addressing salary or promotions. See 703(h), 42 U.S. C. 2000e2(h) (allowing different standards of compensation for "employees who work in different locations"); 717(b), 42 U.S. C. 2000e 16(b) (directing federal agencies to establish a plan "to provide a maximum opportunity for employees to advance so as to perform at their highest potential"). But those examples at most demonstrate that the term "employees" may have a plain meaning in the context of a particular sectionnot that the term has the same meaning in all other sections and in all other contexts. Once it is established that the term "employees" includes former employees in some sections, but not in others, the term standing alone is necessarily ambiguous and each section must be analyzed *344 to determine whether the context gives the term a further meaning that would resolve the issue in dispute.[4] Respondent argues that the addition of the word "his" before "employees" narrows the scope of the provision. Brief for Respondent 19. That argument is true, so far as it goes, but it does not resolve the question before usnamely, in what time frame must the employment relationship exist. The phrase "his employees" could include "his" former employees, but still exclude persons who have never worked for the particular employer being charged with retaliation. Nor are we convinced by respondent's argument that Congress' inclusion in 704(a) of "applicants for employment" as persons distinct from "employees," coupled with its failure to include "former employees," is evidence of congressional intent not to include former employees. The use of the term "applicants" in 704(a) does
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Justice Thomas
| 1,997 | 1 |
majority
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Robinson v. Shell Oil Co.
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https://www.courtlistener.com/opinion/118082/robinson-v-shell-oil-co/
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employees. The use of the term "applicants" in 704(a) does not serve to confine, by negative inference, the temporal scope of the term "employees." Respondent's argument rests on the incorrect premise that the term "applicants" is equivalent to the phrase "future employees." But the term "applicants" would seem to cover many persons who will not become employees. Unsuccessful applicants or those who turn down a job offer, for example, would have been applicants, but not future employees. And the term fails to cover certain future employees who may be offered and will accept jobs without having to apply for those jobs. Because the term "applicants" in 704(a) is not synonymous with the phrase "future employees," there is no basis for engaging in the further (and questionable) negative inference *345 that inclusion of the term "applicants" demonstrates intentional exclusion of former employees. Finally, the use of the term "individual" in 704(a), as well as in 703(a), 42 U.S. C. 2000e2(a), provides no meaningful assistance in resolving this case. To be sure, "individual" is a broader term than "employee" and would facially seem to cover a former employee. But it would also encompass a present employee as well as other persons who have never had an employment relationship with the employer at issue. The term "individual," therefore, does not seem designed to capture former employees, as distinct from current employees, and its use provides no insight into whether the term "employees" is limited only to current employees. B Finding that the term "employees" in 704(a) is ambiguous, we are left to resolve that ambiguity. The broader context provided by other sections of the statute provides considerable assistance in this regard. As noted above, several sections of the statute plainly contemplate that former employees will make use of the remedial mechanisms of Title VII. See Indeed, 703(a) expressly includes discriminatory "discharge" as one of the unlawful employment practices against which Title VII is directed. 42 U.S. C. 2000e2(a). Insofar as 704(a) expressly protects employees from retaliation for filing a "charge" under Title VII, and a charge under 703(a) alleging unlawful discharge would necessarily be brought by a former employee, it is far more consistent to include former employees within the scope of "employees" protected by 704(a). In further support of this view, petitioner argues that the word "employees" includes former employees because to hold otherwise would effectively vitiate much of the protection afforded by 704(a). See Brief for Petitioner 20-30. This is also the position taken by the EEOC. See Brief for *346 United States and EEOC as Amici Curiae 16-25; see also
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Justice Thomas
| 1,997 | 1 |
majority
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Robinson v. Shell Oil Co.
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https://www.courtlistener.com/opinion/118082/robinson-v-shell-oil-co/
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United States and EEOC as Amici Curiae 16-25; see also 2 EEOC Compliance Manual 614.7(f). According to the EEOC, exclusion of former employees from the protection of 704(a) would undermine the effectiveness of Title VII by allowing the threat of postemployment retaliation to deter victims of discrimination from complaining to the EEOC, and would provide a perverse incentive for employers to fire employees who might bring Title VII claims. Brief for United States and EEOC as Amici Curiae 18-21. Those arguments carry persuasive force given their coherence and their consistency with a primary purpose of antiretaliation provisions: Maintaining unfettered access to statutory remedial mechanisms. Cf. ; The EEOC quite persuasively maintains that it would be destructive of this purpose of the antiretaliation provision for an employer to be able to retaliate with impunity against an entire class of acts under Title VIIfor example, complaints regarding discriminatory termination. We agree with these contentions and find that they support the inclusive interpretation of "employees" in 704(a) that is already suggested by the broader context of Title VII. III We hold that the term "employees," as used in 704(a) of Title VII, is ambiguous as to whether it includes former employees. It being more consistent with the broader context of Title VII and the primary purpose of 704(a), we hold that former employees are included within 704(a)'s coverage. Accordingly, the decision of the Fourth Circuit is reversed. It is so ordered.
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Justice Souter
| 2,000 | 20 |
majority
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Johnson v. United States
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https://www.courtlistener.com/opinion/118364/johnson-v-united-states/
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The issue in this case grows out of an Ex Post Facto Clause challenge to the retroactive application of 18 U.S. C. 3583(h), which authorizes a district court to impose an additional term of supervised release following the reimprisonment of those who violate the conditions of an initial term. The United States argues that district courts had the power to do so under the prior law, and that this cures any ex post facto problems. We agree with the Government as to the interpretation of prior law, and we find that consideration of the Ex Post Facto Clause is unnecessary. I In the Sentencing Reform Act of 1984, 212(a)(2), Congress eliminated most forms of parole in favor of *697 supervised release, a form of postconfinement monitoring overseen by the sentencing court, rather than the Parole Commission. See The sentencing court was authorized to impose a term of supervised release to follow imprisonment, with the maximum length of the term varying according to the severity of the initial offense. See 18 U.S. C. 3583(a), (b). While on supervised release, the offender was required to abide by certain conditions, some specified by statute and some imposable at the court's discretion. See 3583(d). Upon violation of a condition, 18 U.S. C. 3583(e)(3) (1988 ed., Supp. V) authorized the court to "revoke a term of supervised release, and require the person to serve in prison all or part of the term of supervised release without credit for time previously served on post-release supervision"[1] Such was done here. In October petitioner Cornell Johnson violated 18 U.S. C. 1029(b)(2), a Class D felony. In March the United States District Court for the Eastern District of Tennessee sentenced him to 25 months' imprisonment, to be followed by three years of supervised release, the maximum term available under 3583(b) for a Class D felony. Johnson was released from prison on August 14, having received good-conduct credits, and began serving his 3-year term of supervised release. Some seven months into that term, he was arrested in Virginia and later convicted of four state forgery-related offenses. He was thus found to have violated one of the conditions of supervised release made mandatory by 3583(d), that he not commit another crime during his term of supervised release, and one imposed by the District Court, that he not leave the judicial district without permission. *698 The District Court revoked Johnson's supervised release, imposed a prison term of 18 months, and ordered Johnson placed on supervised release for 12 months following imprisonment. App. 40-41. For this last order, the District Court did not
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Justice Souter
| 2,000 | 20 |
majority
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Johnson v. United States
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https://www.courtlistener.com/opinion/118364/johnson-v-united-states/
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40-41. For this last order, the District Court did not identify the source of its authority, though under Circuit law it might have relied on 3583(h), a subsection added to the statute in see Violent Crime Control and Law Enforcement Act of 110505(2)(B), Subsection (h) explicitly gave district courts the power to impose another term of supervised release following imprisonment, a power not readily apparent from the text of 3583(e)(3) (set out infra, at 704). Johnson appealed his sentence, arguing that 3583(e)(3) gave district courts no such power and that applying 3583(h) to him violated the Ex Post Facto Clause of the Constitution, Art. I, 9. The Sixth Circuit, joining the majority of the Federal Courts of Appeals, had earlier taken Johnson's position as far as the interpretation of 3583(e)(3) was concerned, holding that it did not authorize a district court to impose a new term of supervised release following revocation and reimprisonment. See United[2] It nonetheless affirmed the District Court, judgt. order reported at reasoning that the application of 3583(h) was not retroactive at all, since revocation of supervised release was punishment for Johnson's violation of the conditions of supervised *699 release, which occurred after the amendments. With no retroactivity, there could be no Ex Post Facto Clause violation. See App. 49 (citing United (CA6), cert. denied, ). Other Circuits had held to the contrary, that revocation and reimprisonment were punishment for the original offense. From that perspective, application of 3583(h) was retroactive and at odds with the Ex Post Facto Clause.[3] We granted certiorari to resolve the conflicts, and now affirm. II The heart of the Ex Post Facto Clause, U. S. Const., Art. I, 9, bars application of a law "that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed" To prevail on this sort of ex post facto claim, Johnson must show both that the law he challenges operates retroactively (that it applies to conduct completed before its enactment) and that it raises the penalty from whatever the law provided when he acted. See California Dept. of A The Sixth Circuit, as mentioned earlier, disposed of the ex post facto challenge by applying its earlier cases holding the application of 3583(h) not retroactive at all: revocation *700 of supervised release "imposes punishment for defendants' new offenses for violating the conditions of their supervised release." United On this theory, that is, if the violation of the conditions of supervised release occurred after the enactment of 3583(h), as Johnson's did, the new law could be given effect without applying it
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Justice Souter
| 2,000 | 20 |
majority
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Johnson v. United States
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https://www.courtlistener.com/opinion/118364/johnson-v-united-states/
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the new law could be given effect without applying it to events before its enactment. While this understanding of revocation of supervised release has some intuitive appeal, the Government disavows it, and wisely so in view of the serious constitutional questions that would be raised by construing revocation and reimprisonment as punishment for the violation of the conditions of supervised release. Although such violations often lead to reimprisonment, the violative conduct need not be criminal and need only be found by a judge under a preponderance of the evidence standard, not by a jury beyond a reasonable doubt. See 18 U.S. C. 3583(e)(3) (1988 ed., Supp. V). Where the acts of violation are criminal in their own right, they may be the basis for separate prosecution, which would raise an issue of double jeopardy if the revocation of supervised release were also punishment for the same offense. Treating postrevocation sanctions as part of the penalty for the initial offense, however (as most courts have done), avoids these difficulties. See, e. g., United ; United overruled on other grounds, United ; United Cf. For that matter, such treatment is all but entailed by our summary affirmance of summarily aff'd, U.S. 713 in which a three-judge panel forbade on ex post facto grounds the application of a Massachusetts statute imposing sanctions for violation of parole to a prisoner originally sentenced before its enactment. We therefore attribute postrevocation penalties to the original conviction. B Since postrevocation penalties relate to the original offense, to sentence Johnson to a further term of supervised release under 3583(h) would be to apply this section retroactively (and to raise the remaining ex post facto question, whether that application makes him worse off). But before any such application (and constitutional test), there is a question that neither party addresses. The Ex Post Facto Clause raises to the constitutional level one of the most basic presumptions of our law: legislation, especially of the criminal sort, is not to be applied retroactively. See, e. g., ; Quite independent of the question whether the Ex Post Facto Clause bars retroactive application of 3583(h), then, there is the question whether Congress intended such application. Absent a clear statement of that intent, we do not give retroactive effect to statutes burdening private interests. See The Government offers nothing indicating congressional intent to apply 3583(h) retroactively. The legislative decision to alter the rule of law established by the majority interpretation of 3583(e)(3) (no authority for supervised release after revocation and reimprisonment) does not, by itself, tell us when or how that legislative decision was intended
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Justice Souter
| 2,000 | 20 |
majority
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Johnson v. United States
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https://www.courtlistener.com/opinion/118364/johnson-v-united-states/
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tell us when or how that legislative decision was intended to take effect. See Neither is there any indication of retroactive purpose in the omission of an express effective date from the statute. The omission simply remits us to the general rule that when a statute has no effective date, "absent a clear direction by Congress to the contrary, [it] takes effect on the date of its enactment." GozlonPeretz,[4] Nor, finally, has Congress given us anything expressly identifying the relevant conduct in a way that would point to retroactive intent. It may well be that Congress, like the Sixth Circuit, believed that 3583(h) would naturally govern sentencing proceedings for violations of supervised release that took place after the statute's enactment, simply because the violation was the occasion for imposing the sanctions.[5] But Congress gave us no clear indication to this effect, and we have already rejected that theory; the relevant conduct is the initial offense. In sum, there being no contrary intent, our longstanding presumption directs that 3583(h) applies only to cases in which that initial offense occurred after the effective date of the amendment, September 13, Given this conclusion, the case does not turn on whether Johnson is worse off under 3583(h) than he previously was under 3583(e)(3), as subsection (h) does not apply, and the ex post facto question does not arise. The case turns, instead, *703 simply on whether 3583(e)(3) permitted imposition of supervised release following a recommitment.[6] III Section 3583(e), at the time of Johnson's conviction, authorized a district court to "(1) terminate a term of supervised release and discharge the person released at any time after the expiration of one year of supervised release, pursuant to the provisions of the Federal Rules of Criminal Procedure relating to the modification of probation, if it is satisfied that such action is warranted by the conduct of the person released and the interest of justice; "(2) extend a term of supervised release if less than the maximum authorized term was previously imposed, and modify, reduce, or enlarge the conditions of supervised release, at any time prior to the expiration or termination of the term of supervised release, pursuant to the provisions of the Federal Rules of Criminal Procedure relating to the modification of probation and the provisions applicable to the initial setting of the terms and conditions of post-release supervision; *704 "(3) revoke a term of supervised release, and require the person to serve in prison all or part of the term of supervised release without credit for the time previously served on postrelease supervision, if it finds
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Justice Souter
| 2,000 | 20 |
majority
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Johnson v. United States
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https://www.courtlistener.com/opinion/118364/johnson-v-united-states/
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the time previously served on postrelease supervision, if it finds by a preponderance of the evidence that the person violated a condition of supervised release, pursuant to the provisions of the Federal Rules of Criminal Procedure that are applicable to probation revocation and to the provisions of applicable policy statements issued by the Sentencing Commission" The text of subsection (e)(3) does not speak directly to the question whether a district court revoking a term of supervised release in favor of reimprisonment may require service of a further term of supervised release following the further incarceration. And if we were to concentrate exclusively on the verb "revoke," we would not detect any suggestion that the reincarceration might be followed by another term of supervised release, the conventional understanding of "revoke" being simply "to annul by recalling or taking back." Webster's Third New International Dictionary 1944 (1981). There are reasons, nonetheless, to think that the option of further supervised release was intended. First, there are some textual reasons, starting with the preceding subsection (e)(1). This is an unequivocal provision for ending the term of supervised release without the possibility of its reimposition or continuation at a later time. Congress wrote that when a court finds that a defendant's conduct and the interests of justice warrant it, the court may "terminate a term of supervised release and discharge the person released," once at least a year of release time has been served. If application of subsection (3) had likewise been meant to conclude any possibility of supervised release later, it would have been natural for Congress to write in like terms. It could have provided that upon finding a defendant in violation of the release conditions the court could "terminate a term of supervised release" and order the defendant *705 incarcerated for a term as long as the original supervised release term. But that is not what Congress did. Instead of using "terminate" with the sense of finality just illustrated in subsection (1), Congress used the verb "revoke" and so at the least left the door open to a reading of subsection (3) that would not preclude further supervised release after the initial revocation.[7] In fact, the phrasing of subsection (3) did more than just leave the door open to the nonpreclusive reading. As it was written before the amendments, subsection (3) did not provide (as it now does) that the court could revoke the release term and require service of a prison term equal to the maximum authorized length of a term of supervised release. It provided, rather, that the court could
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Justice Souter
| 2,000 | 20 |
majority
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Johnson v. United States
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https://www.courtlistener.com/opinion/118364/johnson-v-united-states/
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of supervised release. It provided, rather, that the court could "revoke a term of supervised release, and require the person to serve in prison all or part of the term of supervised release" So far as the text is concerned, it is not a "term of imprisonment" that is to be served, but all or part of "the term of supervised release." But if "the term of supervised release" is being served, in whole or part, in prison, then something about the term of supervised release survives the preceding order of revocation. While this sounds very metaphysical, the metaphysics make one thing clear: unlike a "terminated" order of supervised release, one *706 that is "revoked" continues to have some effect. And since it continues in some sense after revocation even when part of it is served in prison, why can the balance of it not remain effective as a term of supervised release when the reincarceration is over?[8] Without more, we would have to admit that Congress had used "revoke" in an unconventional way in subsection (3), but it turns out that the unconventional sense is not unheard of. See United Webster's Third New International Dictionary (our edition of which was issued three years before the 1984 Act) reveals that "revoke" can mean "to call or summon back," without the implication (here) that no further supervised release is subsequently possible. It gives "recall" as a synonym and comments that "RECALL in this sense indicates a calling back, suspending, or abrogating, either finally as erroneous or ill-advised or tentatively for deliberation" Ibid.[9] The unconventional dictionary definition is not, of *707 course, dispositive (although the emphasis placed upon it by Justice Scalia might suggest otherwise, see post, at 718 719). What it does do, however, is to soften the strangeness of Congress's unconventional sense of "revoke" as allowing a "revoked" term of supervised release to retain vitality after revocation. It shows that saying a "revoked" term of supervised release survives to be served in prison following the court's reconsideration of it is consistent with a secondary but recognized definition, and so is saying that any balance not served in prison may survive to be served out as supervised release. A final textually based point is that the result of recognizing Congress's unconventional usage of "revoke" is far less remarkable even than the unconventional usage. Let us suppose that Congress had legislated in language that unequivocally *708 supported the dissent, by writing subsection (3) to provide that the judge could "revoke" or "terminate" the term of supervised release and sentence the defendant to
|
Justice Souter
| 2,000 | 20 |
majority
|
Johnson v. United States
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https://www.courtlistener.com/opinion/118364/johnson-v-united-states/
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the term of supervised release and sentence the defendant to a further term of incarceration. There is no reason to think that under that regime the court would lack the power to impose a subsequent term of supervised release in accordance with its general sentencing authority under 18 U.S. C. 3583(a). This section provides that "[t]he court, in imposing a sentence to a term of imprisonment for a felony or a misdemeanor, may include as a part of the sentence a requirement that the defendant be placed on a term of supervised release after imprisonment" Thus, on the dissent's reading, when Johnson's supervised release was revoked and he was committed to prison, the District Court "impos[ed] a sentence to a term of imprisonment." See, e. g., App. 36, 39. And that sentence was, as already noted, imposed for his initial offense, the Class D felony violation of 1029(b)(2). See Nor would it be mere formalism to link the second prison sentence to the initial offense; the gravity of the initial offense determines the maximum term of reimprisonment, see 3583(e)(3), just as it controls the maximum term of supervised release in the initial sentencing, see 3583(b). Since on the dissent's understanding the resentencing proceeding would fall literally and sensibly within the terms of 3583(a), a plain meaning approach would find authority for reimposition of supervised release there. Cf. United (finding that 3583(a) grants power to impose a term of supervised release following reimprisonment at resentencing for violation of probation). There is, then, nothing surprising about the consequences of our reading. The reading also enjoys the virtue of serving the evident congressional purpose. The congressional policy in providing for a term of supervised release after incarceration is to improve the odds of a successful transition *709 from the prison to liberty. See, e. g., United States v. Johnson, ante, at 59 ("Congress intended supervised release to assist individuals in their transition to community life. Supervised release fulfills rehabilitative ends, distinct from those served by incarceration"). The Senate Report was quite explicit about this, stating that the goal of supervised release is "to ease the defendant's transition into the community after the service of a long prison term for a particularly serious offense, or to provide rehabilitation to a defendant who has spent a fairly short period in prison for punishment or other purposes but still needs supervision and training programs after release." S. Rep. No. 98-225, p. 124 (1983). Prisoners may, of course, vary in the degree of help needed for successful reintegration. Supervised release departed from the parole system it replaced
|
Justice Souter
| 2,000 | 20 |
majority
|
Johnson v. United States
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https://www.courtlistener.com/opinion/118364/johnson-v-united-states/
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reintegration. Supervised release departed from the parole system it replaced by giving district courts the freedom to provide postrelease supervision for those, and only those, who needed it. See ("In effect, the term of supervised release provided by the bill takes the place of parole supervision under current law. Unlike current law, however, probation officers will only be supervising those releasees from prison who actually need supervision, and every releasee who does need supervision will receive it"). Congress aimed, then, to use the district courts' discretionary judgment to allocate supervision to those releasees who needed it most. But forbidding the reimposition of supervised release after revocation and reimprisonment would be fundamentally contrary to that scheme. A violation of the terms of supervised release tends to confirm the judgment that help was necessary, and if any prisoner might profit from the decompression stage of supervised release, no prisoner needs it more than one who has already tried liberty and failed. He is the problem case among problem cases, and a Congress asserting that "every releasee who does need supervision will receive it," ib seems very unlikely *710 to have meant to compel the courts to wash their hands of the worst cases at the end of reimprisonment.[10] The idea that a sentencing court should have authority to subject a reincarcerated prisoner to further supervised release has support, moreover, in the pre-Guidelines practice with respect to nondetentive monitoring, as illuminated in United The Sentencing Guidelines, after all, "represent an approach that begins with, and builds upon," pre-Guidelines law, see USSG, ch. 1, pt. A, intro. comment. 3, and when a new legal regime develops out of an identifiable predecessor, it is reasonable to look to the precursor in fathoming the new law. Cf. Two sorts of nondetentive monitoring existed before the introduction of supervised release: probation and parole. Of these pre-Guidelines options, the one more closely analogous *711 to supervised release following imprisonment was parole, which by definition was a release under supervision of a parole officer following service of some term of incarceration. Courts have commented on the similarity. See, e. g., ; United In thinking about this case, it is striking that the provisions of the former parole scheme dealing with the consequences of violating parole conditions repeatedly used the verb "revoke." See, e. g., 18 U.S. C. 4214(d)(5) (1982 ed.) (repealed 1984, Pub. L. 98-473, 218(a)(5), 235, 2031) (revocation of parole); 21 U.S. C. 841(c) (1982 ed.) (repealed 1984) (revocation of special parole). And yet there seems never to have been a question that a new term of parole
|
Justice Souter
| 2,000 | 20 |
majority
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Johnson v. United States
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https://www.courtlistener.com/opinion/118364/johnson-v-united-states/
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have been a question that a new term of parole could follow a prison sentence imposed after revocation of an initial parole term.[11] See, e. g., 28 CFR 2.52(b) *712 (following revocation of parole, Sentencing Commission will determine whether reparole is warranted); O', ; United States Parole[12] Thus, "revocation" of parole followed by further imprisonment was not a mere termination of a limited liberty that a defendant could experience only once per conviction, and it is fair to suppose that in the absence of any textual bar "revocation" of parole's replacement, supervised release, was meant to leave open the possibility of further supervised release, as well. As seen already, "revoke" is no such bar, and we find no other. The proceeding that follows a violation of the conditions of supervised release is not, to be sure, a precise reenactment of the initial sentencing. Section 3583(e)(3) limits the possible prison term to the duration of the term of supervised release originally imposed. (If less than the maximum has been imposed, a court presumably may, before revoking the term, extend it pursuant to 3583(e)(2); this would allow the term of imprisonment to equal the term of supervised release authorized for the initial offense.) The new prison term is limited further according to the gravity of the original offense. See 3583(e)(3). But nothing in these specific *713 provisions suggests that the possibility of supervised release following imprisonment was meant to be eliminated.[13] In sum, from a purely textual perspective, the more plausible reading of 3583(e)(3) before its amendment and the addition of subsection (h) leaves open the possibility of supervised release after reincarceration. Pre-Guidelines practice, linguistic continuity from the old scheme to the current one, and the obvious thrust of congressional sentencing policy confirm that, in applying the law as before the enactment of subsection (h), district courts have the authority to order terms of supervised release following reimprisonment. The judgment of the Court of Appeals for the Sixth Circuit is Affirmed. Justice Kennedy, concurring in part. The Court holds that 18 U.S. C. 3583(e)(3), as it stood before the amendment adding what is now subsection (h), permits a trial court to impose further incarceration followed by a period of supervised release after revoking an earlier supervised release because the conditions were violated. In my view this is the correct result. The subsection permits a court to "require [a] person to serve in prison all or part of the term of supervised release" originally imposed. 18 U.S. C. 3583(e)(3) (1988 ed., Supp. V). This indicates that after the right to be on supervised
|
Justice Souter
| 2,000 | 20 |
majority
|
Johnson v. United States
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https://www.courtlistener.com/opinion/118364/johnson-v-united-states/
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This indicates that after the right to be on supervised release has been revoked there is yet an unexpired term of supervised release that can be allocated, in the court's discretion, in whole or in part to confinement and to release on such terms and conditions *714 as the court specifies. This was the convincing analysis adopted by the Court of Appeals for the First Circuit in reaching the same conclusion, and it suffices to resolve the case. See United The analysis, moreover, is no less fair than Justice Scalia's, post, at 722, n. 5 (dissenting opinion), which, after explaining at length that the only possible meaning of "revoke a term" is "`to annul' " it,post, at 715, to "`cancel' " it,post, at 716, and to treat it "as though it had never existed," post, at 717, explains away the statute's later inconvenient reference to "the term of supervised release" as "describ[ing] the length of the permitted imprisonment by reference to that nowdefunct term of supervised release," post, at 721. This, of course, is not what the text says. Indeed, for support Justice Scalia turns to Congress' use of "terminate" in 3583(g)which Justice Scalia elsewhere concedes "was a mistake." Post, at 718, n. 2. Faced with a choice between two difficult readings of what all must admit is not optimal statutory text, the Court is correct to adopt the interpretation that makes the most sense. I would not go on to suggest, as the Court does, that a court could extend a term of supervised release pursuant to 3583(e)(2) prior to revoking the term under 3583(e)(3). Ante, at 712. The subparts of 3583(e) are phrased in the disjunctive; and 3583(e)(3) must stand on its own. This suggests the term of imprisonment plus any further term of supervised release imposed under 3583(e)(3) may not exceed the original term of supervised release that had been imposed and then violated. Nor would I invoke 18 U.S. C. 3583(a), ante, at 708, which raises more issues than it resolves, not the least of which is the description of the District Court's action as "imposing a sentence." Petitioner's sentence was imposed upon conviction. What is at issue in this case is the appropriate adjustment to make to that sentence when the prisoner has violated the conditions of supervised release. *715 With these observations I join the opinion of the Court, save for its parenthetical discussion of 3583(e)(2), ante, at 712, and its dictum regarding 3583(a), ante, at 708. Justice Thomas, concurring in the judgment.
|
Justice Scalia
| 1,989 | 9 |
concurring
|
Granfinanciera, SA v. Nordberg
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https://www.courtlistener.com/opinion/112317/granfinanciera-sa-v-nordberg/
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I join all but Part IV of the Court's opinion. I make that exception because I do not agree with the premise of its discussion: that "the Federal Government need not be a party for a case to revolve around `public rights.' " Ante, at 54, quoting In my view a matter of "public rights," whose adjudication Congress may assign to tribunals lacking the essential characteristics of Article III courts, "must at a minimum arise `between the government and others.' " Northern Construction quoting Ex parte Until quite recently this has also been the consistent view of the Court. See 458 U.S., at n. 23 ; Atlas Roofing ; ; ; ; *66 Ex parte at ; Murray's The notion that the power to adjudicate a legal controversy between two private parties may be assigned to a non-Article III, yet federal, tribunal is entirely inconsistent with the origins of the public rights doctrine. The language of Article III itself, of course, admits of no exceptions; it directs unambiguously that the "judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish." In Murray's Lessee, however, we recognized a category of "public rights" whose adjudication, though a judicial act, Congress may assign to tribunals lacking the essential characteristics of Article III courts. That case involved the Act of May 15, 1820, which established a summary procedure for obtaining from collectors of federal revenue funds that they owed to the Treasury. Under that procedure, after a federal auditor made the determination that the funds were due, a "distress warrant" would be issued by the Solicitor of the Treasury, authorizing a United States marshal to seize and sell the personal property of the collector, and to convey his real property, in satisfaction of the debt. The United States' lien upon the real property would be effective upon the marshal's filing of the distress warrant in the district court of the district where the property was located. The debtor could, however, bring a challenge to the distress warrant in any United States district court, in which judicial challenge "every fact upon which the legality of the extra-judicial remedy depends may be drawn in[to] question," *67 Murray's Lessee involved a dispute over title to lands that had been owned by a former collector of customs whom the Treasury auditor had adjudged to be deficient in his remittances. The defendant had purchased the land in the marshal's sale pursuant to a duly issued distress warrant (which had apparently
|
Justice Scalia
| 1,989 | 9 |
concurring
|
Granfinanciera, SA v. Nordberg
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https://www.courtlistener.com/opinion/112317/granfinanciera-sa-v-nordberg/
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pursuant to a duly issued distress warrant (which had apparently not been contested by the collector in any district court proceeding). The plaintiff, who had acquired the same land pursuant to the execution of a judgment against the collector, which execution occurred before the marshal's sale, but after the marshal's filing of the distress warrant to establish the lien, brought an action for ejectment to try title. He argued, inter alia, that the process by which the defendant had obtained title violated Article III because adjudication of the collector's indebtedness to the United States was inherently a judicial act, and could not lawfully have been performed by a Treasury auditor, but only by an Article III court. We rejected this contention by observing that although "the auditing of the accounts of a receiver of public moneys may be, in an enlarged sense, a judicial act," the English and American traditions established that it did not, without consent of Congress, give rise to a judicial "controversy" within the meaning of Article III. It was in the course of answering the plaintiff's rejoinder to this holding that we uttered the words giving birth to the public rights doctrine. The plaintiff argued that if we were correct that the matter was "not in its nature a judicial controversy, congress could not make it such, nor give jurisdiction over it to the district courts" in the bills permitted to be filed by collectors challenging distress warrants so that "the fact that congress has enabled the district court to pass upon it, is conclusive evidence that it is a judicial controversy." That argument, we said, "leaves out of view the fact that the United States is a party." at Unlike a private party who acts extrajudicially to recapture his property, the marshal who executes a distress warrant "cannot *68 be made responsible in a judicial tribunal for obeying the lawful command of the government; and the government itself, which gave the command, cannot be sued without its own consent," even though the issue in question is an appropriate matter for a judicial controversy. Congress could, however, waive this immunity, so as to permit challenges to the factual bases of officers' actions in Article III courts; and this waiver did not have to place the proceeding in the courts unconditionally or ab initio, for the "United States may consent to be sued, and may yield this consent upon such terms and under such restrictions as it may think just." Thus, we summed up, in the oft-quoted passage establishing the doctrine at issue here: [T]here are
|
Justice Scalia
| 1,989 | 9 |
concurring
|
Granfinanciera, SA v. Nordberg
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https://www.courtlistener.com/opinion/112317/granfinanciera-sa-v-nordberg/
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oft-quoted passage establishing the doctrine at issue here: [T]here are matters, involving public rights, which may be presented in such form that the judicial power is capable of acting on them, and which are susceptible of judicial determination, but which Congress may or may not bring within the cognizance of the courts of the United States, as it may deem proper." It is clear that what we meant by public rights were not rights important to the public, or rights created by the public, but rights of the public that is, rights pertaining to claims brought by or against the United States. For central to our reasoning was the device of waiver of sovereign immunity, as a means of converting a subject which, though its resolution involved a "judicial act," could not be brought before the courts, into the stuff of an Article III "judicial controversy." Waiver of sovereign immunity can only be implicated, of course, in suits where the Government is a party. We understood this from the time the doctrine of public rights was born, in 1856, until two Terms ago, saying as recently as 1982 that the suits to which it applies "must at a minimum arise `between the government and others,' " Northern Construction 458 U. S., at quoting Ex parte 279 * U. S., at See also, in addition to the cases ; Ex parte Cf. In however, we decided to interpret the phrase "public rights" as though it had not been developed in the context just discussed and did not bear the meaning just described. We pronounced, as far as I can tell by sheer force of our office, that it applies to a right "so closely integrated into a public regulatory scheme as to be a matter appropriate for agency resolution with limited involvement by the Article III judiciary." The doctrine reflects, we announced, "simply a pragmatic understanding that when Congress selects a quasi-judicial method of resolving matters that `could be conclusively determined by the Executive and Legislative Branches,' the danger of encroaching on the judicial powers is reduced," quoting Northern at 68 without pointing out, as had Murray's Lessee, that the only adjudications of private rights that "could be conclusively determined by the Executive and Legislative Branches" were a select category of private rights vis-a-vis the Government itself. We thus held in for the first time, that a purely private federally created action did not require Article III courts. There was in my view no constitutional basis for that decision. It did not purport to be faithful to the origins
|
Justice Scalia
| 1,989 | 9 |
concurring
|
Granfinanciera, SA v. Nordberg
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https://www.courtlistener.com/opinion/112317/granfinanciera-sa-v-nordberg/
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It did not purport to be faithful to the origins of the public rights doctrine in Murray's Lessee; nor did it replace the careful analysis of that case with some other reasoning that identifies a discrete category of "judicial acts" which, at the time the Constitution was adopted, were not thought to implicate a "judicial controversy." The lines sought to be established by the Constitution did not matter. "Pragmatic understanding" was all that counted in a case-by-case evaluation of whether the danger of "encroaching" on the "judicial *70 powers" (a phrase now drained of constant content) is too much. The Term after in Commodity Futures Trading we reconfirmed our error, embracing the analysis of and describing at greater length the new Article III standard it established, which seems to me no standard at all: "[I]n reviewing Article III challenges, we have weighed a number of factors, none of which has been deemed determinative, with an eye to the practical effect that the congressional action will have on the constitutionally assigned role of the federal judiciary. Among the factors upon which we have focused are the extent to which the `essential attributes of judicial power' are reserved to Article III courts, and, conversely, the extent to which the non-Article III forum exercises the range of jurisdiction and powers normally vested only in Article III courts, the origins and importance of the right to be adjudicated, and the concerns that drove Congress to depart from the requirements of Article III." citing I do not think one can preserve a system of separation of powers on the basis of such intuitive judgments regarding "practical effects," no more with regard to the assigned functions of the courts, see than with regard to the assigned functions of the Executive, see This central feature of the Constitution must be anchored in rules, not set adrift in some multifactored "balancing test" and especially not in a test that contains as its last and most revealing factor "the concerns that drove Congress to depart from the requirements of Article III." Schor, I would return to the longstanding principle that the public rights doctrine requires, at a minimum, that the United States be a party to the adjudication. On that basis, I concur in the Court's conclusion in Part IV of its opinion that *71 the Article III concomitant of a jury trial could not be eliminated here. Since I join the remainder of the Court's opinion, I concur in its judgment as well.
|
Justice Douglas
| 1,971 | 10 |
majority
|
United States v. District Court for Eagle County
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https://www.courtlistener.com/opinion/108293/united-states-v-district-court-for-eagle-county/
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Eagle River is a tributary of the Colorado River; and Water District 37 is a Colorado entity encompassing all Colorado lands irrigated by water of the Eagle and its tributaries. The present case started in the Colorado courts and is called a supplemental water adjudication under (1963). The Colorado court issued a notice which, inter alia, asked all *522 owners and claimants of water rights in those streams "to file a statement of claim and to appear in regard to all water rights owned or claimed by them." The United States was served with this notice pursuant to 43 U.S. C. 666.[1] The United States moved to be dismissed as a party, asserting that 43 U.S. C. 666 does not constitute consent to have adjudicated in a state court the reserved water rights of the United States. The objections of the United States were overruled by the state District Court and on a motion for a writ of prohibition the Colorado Supreme Court took the same view. The case is here on a petition for certiorari, which we granted. We affirm the Colorado decree. It is clear from our cases that the United States often has reserved water rights based on withdrawals from the public domain. As we said in the Federal Government had the authority both before and after a State is admitted into the Union "to reserve waters for the use and benefit of *523 federally reserved lands." The federally reserved lands include any federal enclave. In we were primarily concerned with Indian reservations. The reservation of waters may be only implied and the amount will reflect the nature of the federal enclave. Here the United States is primarily concerned with reserved waters for the White River National Forest, withdrawn in 1905, Colorado having been admitted into the Union in 1876. The United States points out that Colorado water rights are based on the appropriation system which requires the permanent fixing of rights to the use of water at the time of the adjudication, with no provision for the future needs, as is often required in case of reserved water rights.[2]Ibid. Since those rights may potentially be at war with appropriative rights, it is earnestly urged that 43 U.S. C. 666 gave consent to join the United States only for the adjudication of water rights which the United States acquired pursuant to state law. The consent to join the United States "in any suit (1) for the adjudication of rights to the use of water of a river system or other source" would seem to be all-inclusive. We
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Justice Douglas
| 1,971 | 10 |
majority
|
United States v. District Court for Eagle County
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https://www.courtlistener.com/opinion/108293/united-states-v-district-court-for-eagle-county/
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system or other source" would seem to be all-inclusive. We deem almost frivolous the suggestion that the Eagle and its tributaries are not a "river system" within the meaning of the Act. No suit by any State could possibly encompass all of the water rights in the entire Colorado River which runs through or touches many States. The "river system" must be read as embracing one within the particular State's jurisdiction. With that to one side, the first clause of 666 (a) (1), read literally, would seem to cover this case for "rights to the use of water of a river system" is broad enough to embrace "reserved" waters. *524 The main reliance of the United States appears to be on Clause 2 of 666 (a) which reads: ". for the administration of such rights, where it appears that the United States is the owner of or is in the process of acquiring water rights by appropriation under State law, by purchase, by exchange, or otherwise." This provision does not qualify 666 (a) (1), for (1) and (2) are separated by an "or." Yet even if "or" be read as "and," we see no difficulty with Colorado's position. Section 666 (a) (2) obviously includes water rights previously acquired by the United States through appropriation or presently in the process of being so acquired. But we do not read 666 (a) (2) as being restricted to appropriative rights acquired under state law. In the first place "the administration of such rights" in 666 (a) (2) must refer to the rights described in (1) for they are the only ones which in this context "such" could mean; and as we have seen they are all-inclusive, in terms at least. Moreover, (2) covers rights acquired by appropriation under state law and rights acquired "by purchase" or "by exchange," which we assume would normally be appropriative rights. But it also includes water rights which the United States has "otherwise" acquired. The doctrine of ejusdem generis is invoked to maintain that "or otherwise" does not encompass the adjudication of reserved water rights, which are in no way dependent for their creation or existence on state law.[3] We reject that conclusion for we deal with an all-inclusive statute concerning "the adjudication of rights to the use of water of a river system" which in 666 (a) (1) has no exceptions and which, as we read it, includes appropriative rights, riparian rights, and reserved rights. *525 It is said that this adjudication is not a "general" one as required by This proceeding, unlike the one in Dugan,
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