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Justice Stevens | 2,004 | 16 | majority | Jones v. RR Donnelley & Sons Co. | https://www.courtlistener.com/opinion/134736/jones-v-rr-donnelley-sons-co/ | Like many federal statutes, 42 U.S. C. 1981 does not contain a statute of limitations. We held in that federal courts should apply "the most appropriate or analogous state statute of limitations" to claims based on asserted violations of Three years after our decision in Goodman, Congress enacted a catchall 4-year statute of limitations for actions arising under federal statutes enacted after December 1, 1990. 28 U.S.C. 1658. The question in this case is whether petitioners' causes of action, which allege violations of 1981, as amended by the Civil Rights Act of 1991 (1991 Act), are governed by 1658 or by the personal injury statute of limitations of the forum State. I Petitioners are African-American former employees of respondent's Chicago manufacturing division. On November *372 25, 1996, petitioners filed this class action alleging violations of their rights under 1981, as amended by the 1991 Act. Specifically, the three classes of plaintiffs alleged that they were subjected to a racially hostile work environment, given an inferior employee status, and wrongfully terminated or denied a transfer in connection with the closing of the Chicago plant. Respondent sought summary judgment on the ground that petitioners' claims are barred by the applicable Illinois statute of limitations because they arose more than two years before the complaint was filed. Petitioners responded that their claims are governed by 1658, which provides: "Except as otherwise provided by law, a civil action arising under an Act of Congress enacted after the date of the enactment of this section may not be commenced later than 4 years after the cause of action accrues."[1] Section 1658 was enacted on December 1, 1990. Thus, petitioners' claims are subject to the 4-year statute of limitations if they arose under an Act of Congress enacted after that date. The original version of the statute now codified at Rev. Stat. 1977, 42 U.S. C. 1981, was enacted as 1 of the Civil Rights Act of 1866, It was amended in minor respects in 1870 and recodified in 1874, see but its basic coverage did not change prior to 1991. As first enacted, 1981 provided in relevant part that "all persons [within the jurisdiction of the United States] shall have the same right, in every State and Territory to make and enforce contracts as is enjoyed by white citizens." We held in *373 that the statutory right "to make and enforce contracts" did not protect against harassing conduct that occurred after the formation of the contract. Under that holding, it is clear that petitioners' hostile work environment, wrongful discharge, and refusal to transfer claims do |
Justice Stevens | 2,004 | 16 | majority | Jones v. RR Donnelley & Sons Co. | https://www.courtlistener.com/opinion/134736/jones-v-rr-donnelley-sons-co/ | work environment, wrongful discharge, and refusal to transfer claims do not state violations of the original version of In 1991, however, Congress responded to Patterson by adding a new subsection to 1981 that defines the term "`make and enforce contracts'" to include the "termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship." 42 U.S. C. 1981(b).[2] It is undisputed that petitioners have alleged violations of the amended statute. The critical question, then, is whether petitioners' causes of action "ar[ose] under" the 1991 Act or under 1981 as originally The District Court determined that petitioners' wrongful termination, refusal to transfer, and hostile work environment claims arose under the 1991 Act and therefore are governed by 1658.[3] In its view, the plain text of 1658 compels the conclusion that, "whenever Congress, after December 1990, passes legislation that creates a new cause of action, the catch-all statute of limitations applies to that cause of action." The 1991 amendment to 1981 falls within that category, the court reasoned, because it opened the door to claims of postcontract discrimination that, under Patterson, could not have been brought under 1981 as 149 F. Supp. 2d, The District Court certified its ruling for an interlocutory appeal pursuant to 28 U.S. C. 1292(b), and the Court of Appeals reversed. It concluded that 1658 "applies only when an act of Congress creates a wholly new cause of action, one that does not depend on the continued existence of a statutory cause of action previously enacted and kept in force by the amendment." The 1991 amendment does not satisfy that test, the court explained, because the text of 1981(b) "simply cannot stand on its own"; instead, it merely redefines a term in the original statute without altering the text that "provides the basic right of recovery for an individual whose constitutional rights have been violated." The Court of Appeals' conclusion that 1658 does not apply to a cause of action based on a post-1990 amendment to a pre-existing statute is consistent with decisions from the Third and Eighth Circuits. See ; Conversely, the Courts of Appeals for the Sixth and Tenth Circuits have held that 1658 applies "whenever Congress, after December 1990, passes legislation *375 that creates a new cause of action," whether or not the legislation amends a pre-existing statute. ; accord, We granted certiorari to resolve the conflict in the Circuits, and now reverse. II Petitioners, supported by the United States as amicus curiae, argue that reversal is required by the "plain language" of 1658, which prescribes a 4-year statute |
Justice Stevens | 2,004 | 16 | majority | Jones v. RR Donnelley & Sons Co. | https://www.courtlistener.com/opinion/134736/jones-v-rr-donnelley-sons-co/ | the "plain language" of 1658, which prescribes a 4-year statute of limitations for "civil action[s] arising under an Act of Congress enacted after" December 1, 1990. They point out that the 1991 Act is, by its own terms, an "Act" of Congress that was "enacted" after December 1, 1990. See Pub. L. 102-166, Moreover, citing our interpretations of the term "arising under" in other federal statutes and in Article III of the Constitution, petitioners maintain that their causes of action arose under the 1991 Act. Respondent concedes that the 1991 Act qualifies as an "Act of Congress enacted" after 1991, but argues that the meaning of the term "arising under" is not so clear. We agree. Although our expositions of the "arising under" concept in other contexts are helpful in interpreting the term as it is used in 1658, they do not point the way to one obvious answer. For example, Chief Justice Marshall's statement that a case arises under federal law for purposes of Article III jurisdiction whenever federal law "forms an ingredient of the original cause," supports petitioners' view that their causes of action arose under the 1991 amendment to 1981, because the 1991 Act clearly "forms an ingredient" of petitioners' claims.[4] But the same could be said of the *376 original version of Thus, reliance on Osborn would suggest that petitioners' causes of action arose under the pre-1991 version of 1981 as well as under the 1991 Act, just as a cause of action may arise under both state and federal law. As the Court of Appeals observed, however, 1658 does not expressly "address the eventuality when a cause of action `aris[es] under' two different `Acts,' one enacted before and one enacted after the effective date of 1658." Petitioners argue that we should look not at Article III, but at how Congress has used the term "arising under" in federal legislation. They point in particular to the statutes in Title 28 that define the scope of federal subject-matter jurisdiction.[5] We have interpreted those statutes to mean that a claim arises under federal law if federal law provides a necessary element of the plaintiff's claim for relief.[6] Petitioners recognize that we have construed the term more broadly in other statutes,[7] but argue that the placement of 1658 in Title 28 suggests that Congress meant to invoke our interpretation of the neighboring jurisdictional rules. We hesitate to place too much significance on the location of a statute in the United States Code. But even if we accepted *377 the proposition that Congress intended the term "arising under" to have |
Justice Stevens | 2,004 | 16 | majority | Jones v. RR Donnelley & Sons Co. | https://www.courtlistener.com/opinion/134736/jones-v-rr-donnelley-sons-co/ | proposition that Congress intended the term "arising under" to have the same meaning in 1658 as in other sections of Title 28, it would not follow that the text is unambiguous. We have said that "[t]he most familiar definition of the statutory `arising under' limitation" is the statement by Justice Holmes that a suit "`arises under the law that creates the cause of action,'" Franchise Tax Bd. of On one hand, that statement could support petitioners' view that their causes of action arose under the 1991 Act, which created a statutory right that did not previously exist. On the other hand, it also could support respondent's claim that petitioners' causes of action arose under the original version of 1981, which contains the operative language setting forth the elements of their claims. Justice Holmes' formulation even could support the view that petitioners' claims arose under both versions of the statute. Cf. T. B. Harms 339 F.2d ("It has come to be realized that Mr. Justice Holmes' formula is more useful for inclusion than for the exclusion for which it was intended"). In order to ascertain Congress' intent, therefore, we must look beyond the bare text of 1658 to the context in which it was enacted and the purposes it was designed to accomplish. III In Board of Regents of Univ. of State of N. we observed that Congress' failure to enact a uniform statute of limitations applicable to federal causes of action created a "void which is commonplace in federal statutory law." Over the years that void has spawned a vast amount of litigation. Prior to the enactment of 1658, the "settled practice [was] to adopt a local time limitation as federal law if it [was] not inconsistent with federal law or policy to do so." Such "[l]imitation borrowing," Board of Regents v. generated a host of issues that required resolution on a statute-by-statute basis. For example, it often was difficult to determine which of the forum State's statutes of limitations was the most appropriate to apply to the federal claim. We wrestled with that issue in in which we considered which state statute provided the most appropriate limitations principle for claims arising under 42 U.S. C. 276-279 (resolving split of authority over whether the closest state analogue to an action brought under 1983 was an action for tortious injury to the rights of another, an action on an unwritten contract, or an action for a liability on a statute). Before reaching that question, however, we first had to determine whether the characterization of a 1983 claim for statute of limitations |
Justice Stevens | 2,004 | 16 | majority | Jones v. RR Donnelley & Sons Co. | https://www.courtlistener.com/opinion/134736/jones-v-rr-donnelley-sons-co/ | the characterization of a 1983 claim for statute of limitations purposes was an issue of state or federal law and whether all such claims should be characterized in the same way. Two years later, in we answered the same three questions for claims arising under 482 U.S., at 661-662. Both decisions provoked dissent[8] and further litigation.[9] The practice of borrowing state statutes of limitations also forced courts to address the "frequently present problem of a conflict of laws in determining which State statute [was] controlling, the law of the forum or that of the situs of the injury." S. Rep. No. 619, 84th Cong., 1st Sess., 4-6 (1955) (discussing problems caused by borrowing state statutes of *379 limitations for antitrust claims).[10] Even when courts were able to identify the appropriate state statute, limitations borrowing resulted in uncertainty for both plaintiffs and defendants, as a plaintiff alleging a federal claim in State A would find herself barred by the local statute of limitations while a plaintiff raising precisely the same claim in State B would be permitted to proceed. Interstate variances of that sort could be especially confounding in class actions because they often posed problems for joint resolution. See Memorandum from R. Marcus, Assoc. Reporter to Workload Subcommittee reprinted in App. to Vol. 1 Federal Courts Study Committee, Working Papers and Subcommittee Reports (1990), Doc. No. 5, p. 10 (hereinafter Marcus Memorandum). Courts also were forced to grapple with questions such as whether federal or state law governed when an action was "commenced," or when service of process had to be effectuated. See Sentry And the absence of a uniform federal limitations period complicated the development of federal law on the question when, or under what circumstances, a statute of limitations could be tolled. See -242 ; Board of Regents v. Those problems led both courts and commentators to "cal[l] upon Congress to eliminate these complex cases, that do much to consume the time and energies of judges but that *380 do little to advance the cause of justice, by enacting federal limitations periods for all federal causes of action." Sentry 802 F. 2d, at 246.[11] Congress answered that call by creating the Federal Courts Study Committee, which recommended the enactment of a retroactive, uniform federal statute of limitations.[12] As we have noted, 1658 applies only to claims arising under statutes enacted after December 1, 1990, but it otherwise follows the Committee's recommendation. The House Report accompanying the final bill confirms that Congress was keenly aware of the problems associated with the practice of borrowing state statutes of limitations, and |
Justice Stevens | 2,004 | 16 | majority | Jones v. RR Donnelley & Sons Co. | https://www.courtlistener.com/opinion/134736/jones-v-rr-donnelley-sons-co/ | with the practice of borrowing state statutes of limitations, and that a central purpose of 1658 was to minimize the occasions for that practice.[13] The history that led to the enactment of 1658 strongly supports an interpretation that fills more rather than less of the void that has created so much unnecessary work for federal judges.[14] The interpretation favored by respondent *381 and the Court of Appeals subverts that goal by restricting 1658 to cases in which the plaintiff's cause of action is based solely on a post-1990 statute that "`establishes a new cause of action without reference to preexisting law.'" 305 F.3d, (quoting ). On that view, 1658 would apply only to a small fraction of post-1990 enactments. Congress routinely creates new rights of action by amending existing statutes, and "[a]ltering statutory definitions, or adding new definitions of terms previously undefined, is a common way of amending statutes." Nothing in the text or history of 1658 supports an interpretation that would limit its reach to entirely new sections of the United States Code. An amendment to an existing statute is no less an "Act of Congress" than a new, stand-alone statute. What matters is the substantive effect of an enactmentthe creation of new rights of action and corresponding liabilitiesnot the format in which it appears in the Code. The Court of Appeals reasoned that 1658 must be given a narrow scope lest it disrupt litigants' settled expectations. The court observed that Congress refused to make 1658 retroactive because, "`with respect to many statutes that have no explicit limitations provision, the relevant limitations period has long since been resolved by judicial decision,'" and "`retroactively imposing a four year statute of limitations on legislation that the courts have previously ruled is subject to a six month limitations period in one [State], and a ten year period in another, would threaten to disrupt the settled expectations of many parties.'" -726 Concerns about settled expectations provide a valid reason to reject an interpretation of 1658 under which *382 any new amendment to federal law would suffice to trigger the 4-year statute of limitations, regardless of whether the plaintiff's claim would have been availableand subject to a state statute of limitationsprior to December 1, 1990. Such concerns do not, however, carry any weight against the reading of 1658 adopted by the District Court and urged by petitioners, under which the catchall limitations period applies only to causes of action that were not available until after 1658 was If a cause of action did not exist prior to 1990, potential litigants could not have formed |
Justice Stevens | 2,004 | 16 | majority | Jones v. RR Donnelley & Sons Co. | https://www.courtlistener.com/opinion/134736/jones-v-rr-donnelley-sons-co/ | exist prior to 1990, potential litigants could not have formed settled expectations as to the relevant statute of limitations that would then be disrupted by application of 1658. We conclude that a cause of action "aris[es] under an Act of Congress enacted" after December 1, 1990and therefore is governed by 1658's 4-year statute of limitationsif the plaintiff's claim against the defendant was made possible by a post-1990 enactment. That construction best serves Congress' interest in alleviating the uncertainty inherent in the practice of borrowing state statutes of limitations while at the same time protecting settled interests. It spares federal judges and litigants the need to identify the appropriate state statute of limitations to apply to new claims but leaves in place the "borrowed" limitations periods for pre-existing causes of action, with respect to which the difficult work already has been done. Interpreting 1658 to apply whenever a post-1990 enactment creates a new right to maintain an action also is consistent with the common usage of the word "arise" to mean "come into being; originate"[15] or "spring up."[16] Finally, that construction is consistent with our interpretations of *383 the term "arising under" as it is used in statutes governing the scope of federal subject-matter jurisdiction. By contrast, nothing in our case law supports an interpretation as narrow as that endorsed by the Court of Appeals, under which "arising under" means something akin to "based solely upon." We should avoid reading 1658 in such a way as to give the familiar statutory language a meaning foreign to every other context in which it is used. IV In this case, petitioners' hostile work environment, wrongful termination, and failure to transfer claims "ar[ose] under" the 1991 Act in the sense that petitioners' causes of action were made possible by that Act. Patterson held that "racial harassment relating to the conditions of employment is not actionable under " The 1991 Act overturned Patterson by defining the key "make and enforce contracts" language in 1981 to include the "termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship." 42 U.S. C. 1981(b). In we recognized that the 1991 amendment "enlarged the category of conduct that is subject to 1981 liability," and we therefore held that the amendment does not apply "to a case that arose before it was enacted," Our reasoning in Rivers supports the conclusion that the 1991 Act fully qualifies as "an Act of Congress enacted after [December 1, 1990]" within the meaning of 1658. Because petitioners' hostile work environment, wrongful termination, and failure to transfer claims |
Justice Stevens | 2,004 | 16 | majority | Jones v. RR Donnelley & Sons Co. | https://www.courtlistener.com/opinion/134736/jones-v-rr-donnelley-sons-co/ | hostile work environment, wrongful termination, and failure to transfer claims did not allege a violation of the pre-1990 version of 1981 but did allege violations of the amended statute, those claims "ar[ose] under" the amendment to 1981 contained in the 1991 Act. *384 While that conclusion seems eminently clear in this case,[17] respondent has posited various hypothetical cases in which it might be difficult to determine whether a particular claim arose under the amended or the unamended version of a statute. Similarly, the Court of Appeals reasoned that applying 1658 to post-1990 amendments could be problematic in some cases because "`the line between an amendment that modifies an existing right and one that creates a new right is often difficult to draw.'" (quoting 219 F. 3d, at ). We are not persuaded that any "guess work," is required to determine whether the plaintiff has alleged a violation of the relevant statute as it stood prior to December 1, 1990, or whether her claims necessarily depend on a subsequent amendment. Courts routinely make such determinations when dealing with amendments (such as the 1991 amendment to 1981) that do not apply retroactively.[18] In any event, such hypothetical problems pale in comparison with the difficulties that federal courts faced for decades in trying *385 to answer all the questions raised by borrowing appropriate limitations rules from state statutes. The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. |
Justice Kagan | 2,013 | 3 | concurring | Florida v. Jardines | https://www.courtlistener.com/opinion/856347/florida-v-jardines/ | For me, a simple analogy clinches this case—and does so on privacy as well as property grounds. A stranger comes to the front door of your home carrying super-high- powered binoculars. See ante, at 7, n. 3. He doesn’t knock or say hello. Instead, he stands on the porch and uses the binoculars to peer through your windows, into your home’s furthest corners. It doesn’t take long (the binoculars are really very fine): In just a couple of minutes, his uncom- mon behavior allows him to learn details of your life you disclose to no one. Has your “visitor” trespassed on your property, exceeding the license you have granted to mem- bers of the public to, say, drop off the mail or distribute campaign flyers? Yes, he has. And has he also invaded your “reasonable expectation of privacy,” by nosing into intimacies you sensibly thought protected from disclosure? (Harlan, J., concurring). Yes, of course, he has done that too. That case is this case in every way that matters. Here, police officers came to Joelis Jardines’ door with a super- sensitive instrument, which they deployed to detect things inside that they could not perceive unassisted. The equip- ment they used was animal, not mineral. But contra the dissent, see post, at 2 (opinion of ALITO, J.) (noting the ubiquity of dogs in American households), that is of no 2 FLORIDA v. JARDINES KAGAN, J., concurring significance in determining whether a search occurred. Detective Bartelt’s dog was not your neighbor’s pet, come to your porch on a leisurely stroll. As this Court discussed earlier this Term, drug-detection dogs are highly trained tools of law enforcement, geared to respond in distinctive ways to specific scents so as to convey clear and reliable information to their human partners. See Florida v. Harris, 568 U. S. (2013) (slip op. at 2–3, 7–8). They are to the poodle down the street as high-powered binocu- lars are to a piece of plain glass. Like the binoculars, a drug-detection dog is a specialized device for discovering objects not in plain view (or plain smell). And as in the hypothetical above, that device was aimed here at a home—the most private and inviolate (or so we expect) of all the places and things the Fourth Amendment protects. Was this activity a trespass? Yes, as the Court holds to- day. Was it also an invasion of privacy? Yes, that as well. The Court today treats this case under a property ru- bric; I write separately to note that I could just as happily have decided it by looking to |
Justice Kagan | 2,013 | 3 | concurring | Florida v. Jardines | https://www.courtlistener.com/opinion/856347/florida-v-jardines/ | could just as happily have decided it by looking to Jardines’ privacy interests. A decision along those lines would have looked well, much like this one. It would have talked about “ ‘the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion.’ ” Ante, at 4 (quoting (1961)). It would have insisted on maintaining the “prac- tical value” of that right by preventing police officers from standing in an adjacent space and “trawl[ing] for evidence with impunity.” Ante, at 4. It would have explained that “ ‘privacy expectations are most heightened’ ” in the home and the surrounding area. Ante, at 4–5 ). And it would have determined that police officers invade those shared expectations when they use trained canine assistants to reveal within the confines of a home what they could not otherwise have found there. See ante, at 6–7, and nn. 2–3. Cite as: 569 U. S. (2013) 3 KAGAN, J., concurring It is not surprising that in a case involving a search of a home, property concepts and privacy concepts should so align. The law of property “naturally enough influence[s]” our “shared social expectations” of what places should be free from governmental incursions. ; see Rakas v. Illinois, 439 U.S. 128, 143, n. 12 (1978). And so the sentiment “my home is my own,” while originating in property law, now also denotes a common understanding—extending even beyond that law’s formal protections—about an especially private sphere. Jardines’ home was his property; it was also his most intimate and familiar space. The analysis proceed- ing from each of those facts, as today’s decision reveals, runs mostly along the same path. I can think of only one divergence: If we had decided this case on privacy grounds, we would have realized that already re- solved it.1 The Kyllo Court held that police officers con- ducted a search when they used a thermal-imaging device to detect heat emanating from a private home, even though they committed no trespass. Highlighting our intention to draw both a “firm” and a “bright” line at “the entrance to the house,” we announced the fol- lowing rule: “Where, as here, the Government uses a device that is not in general public use, to explore details of the home that would previously have been unknowable —————— 1 The dissent claims, alternatively, that Illinois v. Caballes, 543 U.S. 405, 409–410 (2005), controls this case (or nearly does). See post, at 9, 11. But Caballes concerned a drug-detection dog’s sniff of an automo- bile during a traffic stop. See also |
Justice Kagan | 2,013 | 3 | concurring | Florida v. Jardines | https://www.courtlistener.com/opinion/856347/florida-v-jardines/ | of an automo- bile during a traffic stop. See also Florida v. Harris, 568 U. S. (2013). And we have held, over and over again, that people’s expecta- tions of privacy are much lower in their cars than in their homes. See, e.g., ; ; New ; 4 FLORIDA v. JARDINES KAGAN, J., concurring without physical intrusion, the surveillance is a ‘search’ and is presumptively unreasonable without a warrant.” That “firm” and “bright” rule governs this case: The police officers here conducted a search because they used a “device not in general public use” (a trained drug- detection dog) to “explore details of the home” (the pres- ence of certain substances) that they would not otherwise have discovered without entering the premises. And again, the dissent’s argument that the device is just a dog cannot change the equation. As Kyllo made clear, the “sense-enhancing” tool at issue may be “crude” or “sophisticated,” may be old or new (drug-detection dogs actually go back not “12,000 years” or “centuries,” post, at 2, 8, 12, but only a few decades), may be either smaller or bigger than a breadbox; still, “at least where (as here)” the device is not “in general public use,” training it on a home violates our “minimal expectation of privacy”—an expecta- tion “that exists, and that is acknowledged to be reasona- ble.” 36.2 That does not mean the device —————— 2 The dissent’s other principal reason for concluding that no violation of privacy occurred in this case—that police officers themselves might detect an aroma wafting from a house—works no better. If officers can smell drugs coming from a house, they can use that information; a human sniff is not a search, we can all agree. But it does not follow that a person loses his expectation of privacy in the many scents within his home that (his own nose capably tells him) are not usually detecti- ble by humans standing outside. And indeed, Kyllo already decided as much. In response to an identical argument from the dissent in that case, see (noting that humans can sometimes detect “heat emanating from a building”), the Kyllo Court stated: “The dissent’s comparison of the thermal imaging to various circumstances in which outside observers might be able to perceive, without technology, the heat of the home is quite irrele- vant. The fact that equivalent information could sometimes be ob- tained by other means does not make lawful the use of means that violate the Fourth Amendment. In any event, [at the time in question,] no outside observer could have discerned the relative heat |
Justice Thomas | 2,019 | 1 | majority | Mont v. United States | https://www.courtlistener.com/opinion/4625690/mont-v-united-states/ | This case requires the Court to decide whether a con- victed criminal’s period of supervised release is tolled—in effect, paused—during his pretrial detention for a new criminal offense. Specifically, the question is whether that pretrial detention qualifies as “imprison[ment] in connec- tion with a conviction for a Federal, State, or local crime.” 18 U.S. C. Given the text and statutory context of we conclude that if the court’s later imposed sentence credits the period of pretrial detention as time served for the new offense, then the pretrial detention also tolls the supervised-release period. I A In 2004, petitioner Jason Mont began distributing co- caine and crack cocaine in northern Ohio. After substan- tial drug sales to a confidential informant and a search of his home that uncovered handguns and $2,700 in cash, a federal grand jury indicted Mont for multiple drug and firearm offenses. He later pleaded guilty to conspiring to possess with intent to distribute cocaine, and to possessing a firearm and ammunition after having been convicted of a 2 MONT v. UNITED STATES Opinion of the Court felony. See 18 U.S. C. (2000 ed.); 21 U.S. C. 846 (2000 ed.). The District Court sentenced Mont to 120 months’ im- prisonment, later reduced to 84 months, to be followed by 5 years of supervised release. Mont was released from federal prison on March 6, 2012, and his supervised re- lease was “slated to end on March 6, 2017.” 723 Fed. Appx. 325, 326 (CA6 2018); see 18 U.S. C. (a “term of supervised release commences on the day the person is released from imprisonment”). Among other standard conditions, Mont’s supervised release required that he “not commit another federal, state, or local crime,” “not illegally possess a controlled substance,” and “refrain from any unlawful use of a controlled substance.” Judg- ment in No. 4:05–cr–00229 (ND Ohio), Doc. 37, p. 111. Mont did not succeed on supervised release. In March 2015, an Ohio grand jury charged him with two counts of marijuana trafficking in a sealed indictment. Mont was arrested and released on bond while awaiting trial for those charges. Things only got worse from there. In October 2015, Mont tested positive for cocaine and oxyco- done during a routine drug test conducted as part of his supervised release. But Mont’s probation officer did not immediately report these violations to the District Court; instead, the officer referred him for additional substance- abuse counseling. Mont proceeded to test positive in five more random drug tests over the next few months. He also used an “ ‘unknown’ liquid to try to pass two |
Justice Thomas | 2,019 | 1 | majority | Mont v. United States | https://www.courtlistener.com/opinion/4625690/mont-v-united-states/ | used an “ ‘unknown’ liquid to try to pass two subse- quent drug tests.” In Jan- uary Mont’s probation officer finally reported the supervised-release violations, including Mont’s use of drugs and attempts to adulterate his urine samples. The violation report also informed the District Court about the pending state charges and the anticipated trial date of March in state court. The District Court declined to issue an arrest warrant at that time, but it asked to “ ‘be notified of Cite as: 587 U. S. (2019) 3 Opinion of the Court the resolution of the state charges.’ ” ; see 18 U.S. C. (explaining that the District Court “may issue a warrant for the arrest” of the releasee for “violation of a condition of release”). On June 1, approximately four years and three months into his 5-year term of supervised release, Mont was arrested again on new state charges of trafficking in cocaine, and his bond was revoked on the earlier marijuana- trafficking charges. He was incarcerated in the Ma- honing County Jail and has remained in state custody since that date. Mont’s probation officer filed a report with the District Court stating that he had violated the terms of his release based on these new state offenses. The officer later advised the court that because Mont’s incarceration rendered him unavailable for supervision, the Probation Office was “toll[ing]” his federal supervision. App. 21. The officer promised to keep the court apprised of the pending state charges and stated that, if Mont were convicted, the officer would ask the court to take action at that time. In October Mont entered into plea agreements with state prosecutors in exchange for a predetermined 6-year sentence. The state trial court accepted Mont’s guilty pleas on October 6, and set the cases for sentencing in December Three weeks later, Mont filed a written admission in the District Court “acknowledg[ing]” that he had violated his conditions of supervised release “by virtue of his conviction following guilty pleas to certain felony offenses” in state court. Record in No. 4:05–cr–00229 (ND Ohio), Doc. 92, p. 419. Even though he had yet to be sentenced for the state offenses, Mont sought a hearing on the supervised-release violations at the court’s “earliest convenience.” The court initially scheduled a hearing for November 9, but then, over Mont’s objection, rescheduled the hearing several times to allow for “the conclusion of the State 4 MONT v. UNITED STATES Opinion of the Court sentencing.” App. 8; On March 21, 2017, Mont was sentenced in state court to six years’ imprisonment. The judge “credited the |
Justice Thomas | 2,019 | 1 | majority | Mont v. United States | https://www.courtlistener.com/opinion/4625690/mont-v-united-states/ | state court to six years’ imprisonment. The judge “credited the roughly ten months that Mont had already been incarcerated pending a disposition as time served.” The District Court issued a warrant on March 30, 2017, and ultimately set a supervised-release hearing for June 28, 2017. B Two days before that hearing, Mont challenged the jurisdiction of the District Court based on the fact that his supervised release had initially been set to expire on March 6, 2017. The court concluded that it had authority to supervise Mont, revoked his supervised release, and ordered him to serve an additional 42 months’ imprison- ment to run consecutive to his state sentence. The court held that it retained jurisdiction to revoke the release under 18 U.S. C. which preserves, for a “reason- ably necessary” period of time, the court’s power to adjudi- cate violations and revoke a term of supervised release after the term has expired “if, before its expiration, a warrant or summons has been issued on the basis of an allegation of such a violation.” The court further held that it retained authority to revoke Mont’s term of supervised release because it gave “notice by way of a summons” on November 1, when it originally scheduled the hear- ing. App. 22. The court also concluded that the delay between the guilty pleas in October and the hearing date in June 2017 was “reasonably necessary.” The Sixth Circuit affirmed on alternative grounds. The court could find no evidence in the record that a summons had issued within the meaning of 723 Fed. Appx., at 329, n. 5. But because Circuit precedent pro- vided an alternative basis for affirmance, the court did not further consider the Government’s argument that the Cite as: 587 U. S. (2019) 5 Opinion of the Court District Court retained jurisdiction under In- stead, the court held that Mont’s supervised-release period was tolled while he was held in pretrial detention in state custody under which provides: “(e) Supervision After Release.— The term of su- pervised release commences on the day the person is released from imprisonment and runs concurrently with any Federal, State, or local term of probation or supervised release or parole for another offense to which the person is subject or becomes subject during the term of supervised release. A term of supervised release does not run during any period in which the person is imprisoned in connection with a conviction for a Federal, State, or local crime unless the impris- onment is for a period of less than 30 consecutive days.” (Emphasis added.) Relying on Circuit |
Justice Thomas | 2,019 | 1 | majority | Mont v. United States | https://www.courtlistener.com/opinion/4625690/mont-v-united-states/ | less than 30 consecutive days.” (Emphasis added.) Relying on Circuit precedent, the Sixth Circuit ex- plained that when a defendant is convicted of the offense for which he was held in pretrial detention for longer than 30 days and “ ‘his pretrial detention is credited as time served toward his sentence, then the pretrial detention is “in connection with” a conviction and tolls the period of supervised release under ” ). Be- cause Mont’s term of supervised release had been tolled between June and March 2017, there was ample time left on his supervised-release term when the warrant issued on March 30, 2017. The Courts of Appeals disagree on whether tolls supervised release for periods of pretrial detention lasting longer than 30 days when that incarceration is later credited as time served on a conviction. Compare United (supervised-release period tolls); United ; United 6 MONT v. UNITED STATES Opinion of the Court ; at with United States v. (supervised- release period does not toll); United We granted certiorari to resolve this split of authority. 586 U. S. (2018). II We hold that pretrial detention later credited as time served for a new conviction is “imprison[ment] in connec- tion with a conviction” and thus tolls the supervised- release term under This is so even if the court must make the tolling calculation after learning whether the time will be credited. In our view, this reading is compelled by the text and statutory context of A Section 3624(e) provides for tolling when a person “is imprisoned in connection with a conviction.” This phrase, sensibly read, includes pretrial detention credited toward another sentence for a new conviction. First, the definition of “is imprisoned” may well include pretrial detention. Both now and at the time Congress created supervised release, see 98 Stat. – 2000, the term “imprison” has meant “[t]o put in a prison,” “to incarcerate,” “[t]o confine a person, or restrain his liberty, in any way.” Black’s Law Dictionary 681 (5th ed. 1979); 5 Oxford English Dictionary 113 (1933); accord, Black’s Law Dictionary 875 (10th ed. 2014). These defini- tions encompass pretrial detention, and, despite the dis- sent’s reliance on a narrower definition, post, at 5–7 (opin- ion of SOTOMAYOR, J.), even Mont has not pressed any serious argument to the contrary. As the Sixth Circuit previously recognized, if imprisonment referred only to “confinement that is the result of a penalty or sentence, Cite as: 587 U. S. (2019) 7 Opinion of the Court then the phrase ‘in connection with a conviction’ [would] becom[e] entirely superfluous.” Second, the phrase “in connection with a |
Justice Thomas | 2,019 | 1 | majority | Mont v. United States | https://www.courtlistener.com/opinion/4625690/mont-v-united-states/ | becom[e] entirely superfluous.” Second, the phrase “in connection with a conviction” encompasses a period of pretrial detention for which a defendant receives credit against the sentence ultimately imposed. The Court has often recognized that “in connec- tion with” can bear a “broad interpretation.” Merrill Lynch, Pierce, Fenner & Smith 85 (2006) (interpreting “in connection with the purchase or sale” broadly in the context of of the Securities Exchange Act of 1934, 15 U.S. C. see, e.g., United 443 (1946) (describing the phrase “in connection with” in the Shipping Act, 1916, as “broad and gen- eral”). The Court has also recognized that “ ‘ in connection with’ is essentially indeterminate because connections, like relations, stop nowhere.” Maracich v. Spears, 570 U.S. 48, 59 (2013) (quotation altered). Here, however, we need not consider the outer bounds of the term “in connec- tion with,” as pretrial incarceration is directly tied to the conviction when it is credited toward the new sentence. The judgment of the state court stated as much, crediting the pretrial detention that Mont served while awaiting trial and sentencing for his crimes against his ultimate sentence for those same crimes. This reading of “imprison[ment] in connection with a conviction” is buttressed by the fact that Congress, like most States, instructs courts calculating a term of impris- onment to credit pretrial detention as time served on a subsequent conviction. See 18 U.S. C. Tr. of Oral Arg. 54 (statement of the Assistant Solicitor General representing that the same rule applies in 45 States and the District of Columbia). Thus, it makes sense that the phrase “imprison[ment] in connection with a conviction” would include pretrial detention later credited as time served, especially since both provisions were passed as 8 MONT v. UNITED STATES Opinion of the Court part of the Sentencing Reform Act of 1984. See 98 Stat. –. If Congress intended a narrower interpretation, it could have easily used narrower lan- guage, such as “after a conviction” or “following a convic- tion.” See e.g., Bail Reform Act of 1984, 98 Stat. 1987 (adding Federal Rule of Criminal Procedure 46(h), allowing courts to direct forfeiture of property “after conviction of the offense charged” (emphasis added)). We cannot override Congress’ choice to employ the more capa- cious phrase “in connection with.” Third, the text undeniably requires courts to retrospec- tively calculate whether a period of pretrial detention should toll a period of supervised release. Whereas instructs courts precisely when the supervised- release clock begins—“on the day the person is released”— the statute does not require courts to make a tolling de- termination as |
Justice Thomas | 2,019 | 1 | majority | Mont v. United States | https://www.courtlistener.com/opinion/4625690/mont-v-united-states/ | not require courts to make a tolling de- termination as soon as a defendant is arrested on new charges or to continually reassess the tolling calculation throughout the period of his pretrial detention. Congress contemplated the opposite by including a minimum- incarceration threshold: tolling occurs “unless the impris- onment is for a period of less than 30 consecutive days.” This calculation must be made after either release from custody or entry of judgment; there is no way for a court to know on day 5 of a defendant’s pretrial detention whether the period of custody will extend be- yond 30 days. Thus, at least some uncertainty as to whether supervised release is tolled is built into by legislative design. This fact confirms that courts should make the tolling calculation upon the defendant’s release from custody or upon entry of judgment. B The statutory context also supports our reading. Super- vised release is “a form of postconfinement monitoring” that permits a defendant a kind of conditional liberty by Cite as: 587 U. S. (2019) 9 Opinion of the Court allowing him to serve part of his sentence outside of prison. Recognizing that Congress provided for supervised release to facilitate a “transition to community life,” we have declined to offset a term of supervised release by the amount of excess time a defendant spent in prison after two of his convictions were declared invalid. United States v. As we explained: “The objectives of supervised release would be unfulfilled if excess prison time were to offset and reduce terms of supervised release” because “[s]upervised release has no statutory function until confinement ends.” This understanding of supervised release informs our reading of the tolling provision. Consider itself. The sentence preceding the one at issue here specifies that supervised release “runs concurrently” with “probation or supervised release or parole for another offense.” (emphasis added). But the next sentence (the one at issue here) excludes periods of “imprison[ment]” served “in connection with a conviction.” The juxtaposition of these two sentences reinforces the fact that prison time is “not interchange- able” with supervised release. Permitting a period of probation or parole to count toward supervised release but excluding a period of incarceration furthers the statutory design of “successful[ly] transition[ing]” a de- fendant from “prison to liberty.” at 708– Allowing pretrial detention credited toward another sentence to toll the period of supervised release is con- sistent with that design. Cf. A. Scalia & B. Garner, Reading Law 167 (2012) (explaining that “the whole-text canon” requires consideration of “the entire text, in view of its structure” and “logical relation |
Justice Thomas | 2,019 | 1 | majority | Mont v. United States | https://www.courtlistener.com/opinion/4625690/mont-v-united-states/ | entire text, in view of its structure” and “logical relation of its many parts”). Second, it would be an exceedingly odd construction of the statute to give a defendant the windfall of satisfying a new sentence of imprisonment and an old sentence of 10 MONT v. UNITED STATES Opinion of the Court supervised release with the same period of pretrial deten- tion. Supervised release is a form of punishment that Congress prescribes along with a term of imprisonment as part of the same sentence. See generally And Congress denies defendants credit for time served if the detention time has already “been credited against another sentence.” Yet Mont’s reading of would deprive the Government of its lawfully imposed sentence of supervised release while the defendant is serving a separate sentence of incarceration—one often imposed by a different sovereign. Under our view, in contrast, time in pretrial detention constitutes supervised release only if the charges against the defendant are dismissed or the defendant is acquitted. This ensures that the defendant is not faulted for conduct he might not have committed, while otherwise giving full effect to the lawful judgment previously imposed on the defendant.1 C In response to these points, Mont follows the D. C. Circuit in arguing that the present tense of the statute (“ ‘is imprisoned’ ”) forbids any backward looking tolling analysis. See 829 F.3d, at Mont contends that, when a defendant is held in pretrial detention, a court cannot say at that moment that he “is imprisoned in connection with a conviction.” He relies on the Dictionary Act, which provides that “[i]n determining the meaning of any Act of Congress, unless the context indicates other- wise[,] words used in the present tense include the future —————— 1 Our reading leaves intact a district court’s ability to preserve its authority by issuing an arrest warrant or summons under based on the conduct at issue in the new charges, irrespective of whether the defendant is later convicted or acquitted of those offenses. But preserving jurisdiction through is not a prerequisite to a court maintaining authority under nor does it impact the tolling calculation under Cite as: 587 U. S. (2019) 11 Opinion of the Court as well as the present.” 1 U.S. C. Mont’s argument confuses the rule (“any period in which the person is imprisoned in connection with a conviction”) with a court’s analysis of whether that rule was satisfied. Of course, the determination whether supervised release has been tolled cannot be made at the exact moment when the defendant is held in pretrial detention. Rather, the court must |
Justice Thomas | 2,019 | 1 | majority | Mont v. United States | https://www.courtlistener.com/opinion/4625690/mont-v-united-states/ | defendant is held in pretrial detention. Rather, the court must await the outcome of those separate proceed- ings before it will know whether “imprison[ment]” is tied to a conviction. But the statute does not require the court to make a contemporaneous assessment. Quite the oppo- site: As discussed, the statute undeniably contemplates that there will be uncertainty about the status of super- vised release when a defendant has been held for a short period of time and it is unclear whether the imprisonment will exceed 30 days. There is no reason the statute would preclude postponing calculation just because the custody period extends beyond 30 days. Once the court makes the calculation, it will determine whether the relevant period ultimately qualified as a period “in which the person is imprisoned in connection with a conviction” for 30 or more days. In short, the present-tense phrasing of the statute does not address whether a judge must be able to make a supervised-release determination at any given time. Moreover, any uncertainty about whether supervised release is tolled matters little from either the court’s or the defendant’s perspective. As for the court, the defendant need not be supervised when he is held in custody, so it does not strike us as “odd” to make a delayed determina- tion concerning tolling. The court need not monitor the defendant’s progress in transitioning back into the community because the defendant is not in the community. And if the court is concerned about losing authority over the defendant because of an impending conclusion to supervised release, it can simply issue a summons or warrant under for alleged violations. 12 MONT v. UNITED STATES Opinion of the Court As for the defendant, there is nothing unfair about not knowing during pretrial detention whether he is also subject to court supervision. The answer to that question cannot meaningfully influence his behavior. A defendant in custody will be unable to comply with many ordinary conditions of supervised release intended to reacclimate him to society—for example, making restitution payments, attending substance-abuse counseling, meeting curfews, or participating in job training. The rules he can “comply” with are generally mandated by virtue of being in prison— for example, no new offenses or use of drugs. See (listing mandatory and discretionary condi- tions). In this case, Mont’s supervised-release conditions required that he “work regularly at a lawful occupation” and “support his dependants and meet other family responsibilities.” Judgment in No. 4:05–cr–00229 (ND Ohio), Doc. 37, at 111. Mont could not fulfill these condi- tions while sitting in an Ohio jail, and his probation officer |
Justice Thomas | 2,019 | 1 | majority | Mont v. United States | https://www.courtlistener.com/opinion/4625690/mont-v-united-states/ | while sitting in an Ohio jail, and his probation officer correctly deemed him “unavailable for supervision.”2 App. 21. III Applying to Mont, the pretrial-detention period tolled his supervised release beginning in June Mont therefore had about nine months remaining on his term of supervised release when the District Court re- voked his supervised release and sentenced him to an —————— 2 Although a defendant in pretrial detention is unable to be super- vised, it does not necessarily follow that the defendant will be punished by his inability to comply with the terms of his supervised release if the detention period is not later credited as time served for a conviction. In that circumstance, the district court may always modify the terms of his supervision. See 18 U.S. C. And, as the Government explained at oral argument, modification of supervised release may not be necessary to the extent that “the defendant can’t be deemed to have been required to” comply with the terms of supervised release while in custody. Tr. of Oral Arg. 45. Cite as: 587 U. S. (2019) 13 Opinion of the Court additional 42 months’ imprisonment. And because independently tolled the supervised-release period, it is immaterial whether the District Court could have issued a summons or warrant under to preserve its authority. * * * In light of the statutory text and context of pretrial detention qualifies as “imprison[ment] in connec- tion with a conviction” if a later imposed sentence credits that detention as time served for the new offense. Such pretrial detention tolls the supervised-release period, even though the District Court may need to make the tolling determination after the conviction. Accordingly, we affirm the judgment of the Sixth Circuit. It is so ordered. Cite as: 587 U. S. (2019) 1 SOTOMAYOR, J., dissenting SUPREME COURT OF THE UNITED STATES No. 17–8995 JASON J. MONT, PETITIONER v. |
Justice Scalia | 2,009 | 9 | majority | Republic of Iraq v. Beaty | https://www.courtlistener.com/opinion/145868/republic-of-iraq-v-beaty/ | We consider in these cases whether the Republic of Iraq remains subject to suit in American courts pursuant to the terrorism exception to foreign sovereign immunity, now repealed, that had been codified at 28 U.S. C. I A Under the venerable principle of foreign sovereign im munity, foreign states are ordinarily “immune from the jurisdiction of the courts of the United States and of the States,” See generally Schooner Exchange v. McFaddon, But the statute embody ing that principle—the Foreign Sovereign Immunities Act of 1976 (FSIA), 28 U.S. C. et seq.—recognizes a number of exceptions; if any of these is applicable, the state is subject to suit, and federal district courts have 2 REPUBLIC OF IRAQ v. BEATY Opinion of the Court jurisdiction to adjudicate the claim. Verlinden B. V. v. Central Bank of Nigeria, In 1996, Congress added to the list of statutory excep tions one for state sponsors of terrorism, which was codi fied at 28 U.S. C. Subject to limitations not relevant here, that exception stripped immunity in any suit for money damages “against a foreign state for personal injury or death that was caused by an act of torture, extrajudicial kill ing, aircraft sabotage, hostage taking, or the provision of material support or resources for such an act except that the court shall decline to hear a claim un der this paragraph— “(A) if the foreign state was not designated as a state sponsor of terrorism under section 6(j) of the Ex port Administration Act of 1979 (0 U.S. C. App. 240(j)) or section 620A of the Foreign Assistance Act of 1961 (22 U.S. C. 2371) at the time the act occurred” In brief, stripped immunity from a foreign state for claims arising from particular acts, if those acts were taken at a time when the state was designated as a sponsor of terrorism. B In September 1990, Acting Secretary of State Lawrence Eagleburger formally designated Iraq, pursuant to of the Export Administration Act of 1979, as redesignated and amended, 0 U.S. C. App. as “a country which has repeatedly provided support for acts of international terrorism,” Over a decade later, in March 2003, the United States and a coalition of allies initiated military action against that country. In a matter of weeks, the regime of Iraqi dictator Saddam Hussein collapsed and coalition forces occupied Cite as: 6 U. S. (2009) 3 Opinion of the Court Baghdad. American attention soon shifted from combat operations to the longer term project of rebuilding Iraq, with the ultimate goal of creating a stable ally in the region. Toward that |
Justice Scalia | 2,009 | 9 | majority | Republic of Iraq v. Beaty | https://www.courtlistener.com/opinion/145868/republic-of-iraq-v-beaty/ | of creating a stable ally in the region. Toward that end, Congress enacted in April 2003 the Emergency Wartime Supplemental Appropriations Act (EWSAA), Section 103 of that Act author ized the President to “make inapplicable with respect to Iraq section 620A of the Foreign Assistance Act of 1961 or any other provision of law that applies to countries that have supported terrorism.” President George W. Bush exercised that authority to its fullest extent in May 2003, declaring “inapplicable with respect to Iraq section 620A of the Foreign Assistance Act of 1961 and any other provision of law that applies to countries that have supported terrorism.” Shortly thereafter, the United States Court of Appeals for the District of Columbia Circuit had occasion to con sider whether that Presidential action had the effect of rendering inapplicable to Iraq the terrorism exception to foreign sovereign immunity. The Court concluded in a divided panel decision that the President’s EWSAA au thority did not permit him to waive and thereby restore sovereign immunity to Iraq, for claims arising from acts it had taken while designated as a spon sor of terror. Because Iraq succeeded in having the claims against it dismissed on other grounds, at 9–60, it could not seek certiorari to challenge the D. C. Circuit’s interpretation of the EWSAA. C There is yet another legislative enactment, and yet another corresponding executive waiver, that bear on the question presented. The National Defense Authorization Act for Fiscal Year (NDAA), was passed 4 REPUBLIC OF IRAQ v. BEATY Opinion of the Court in January That Act (1) repealed the FSIA’s terror ism exception, (2) replaced it with a new, roughly similar exception, (3) declared that nothing in of the EWSAA had “ever authorized, directly or indirectly, the making inapplicable of any provision of chapter 97 of title 28, United States Code, or the removal of the jurisdiction of any court of the United States” (thus purporting to ratify the Court of Appeals’ decision), 43; and (4) author ized the President to waive “any provision of this section with respect to Iraq” so long as he made certain findings and so notified Congress within 30 days, at 343–344. The last provision was added to the NDAA after the President vetoed an earlier version of the bill, which did not include the waiver authority. The President’s veto message said that the bill “would imperil billions of dollars of Iraqi assets at a crucial juncture in that nation’s recon struction efforts.” Memorandum to the House of Repre sentatives Returning Without Approval the “National Defense Authorization Act for Fiscal Year” |
Justice Scalia | 2,009 | 9 | majority | Republic of Iraq v. Beaty | https://www.courtlistener.com/opinion/145868/republic-of-iraq-v-beaty/ | Without Approval the “National Defense Authorization Act for Fiscal Year” 43 Weekly Comp. of Pres. Doc. 1641 (2007). Only when Con gress added the waiver authority to the NDAA did the President agree to approve it; and on the same day he signed it into law he also officially waived “all provisions of section 1083 of the Act with respect to Iraq,” 73 Fed. Reg. 671 II We consider today two cases that have been navigating their way through the lower courts against the backdrop of the above-described congressional, military, Presidential, and judicial actions. Respondents in the Simon case are American nationals (and relatives of those nationals) who allege that they were captured and cruelly mistreated by Iraqi officials during the 1991 Gulf War. The Beaty re Cite as: 6 U. S. (2009) Opinion of the Court spondents are the children of two other Americans, Ken neth Beaty and William Barloon, who are alleged to have been similarly abused by the regime of Saddam Hussein in the aftermath of that war. Each set of respondents filed suit in early 2003 against Iraq in the United States Dis trict Court for the District of Columbia, alleging violations of local, federal, and international law. Respondents invoked the terrorism exception to foreign sovereign immunity, and given ’s holding that the President had not rendered that statutory provision inap plicable to Iraq, the District Court refused to dismiss either case on jurisdictional grounds. In Beaty, after the District Court denied Iraq’s motion to dismiss, 0 F. Supp. 2d 60, 70 (2007), Iraq invoked the collateral order doctrine to support an interlocutory appeal. See Mitchell v. Forsyth, In Simon, the District Court determined that the claims were time barred and dismissed on that alternative basis, Vine v. Republic of Iraq, after which the Simon respondents appealed. In the Beaty appeal, Iraq (supported by the United States as amicus) requested that the Court of Appeals for the District of Columbia Circuit reconsider ’s holding en banc. The Court denied that request over the dissent of Judges Brown and Kavanaugh, and a panel then summa rily affirmed in an unpublished order the District Court’s denial of Iraq’s motion to dismiss. No. 07–707 (Nov. 21, 2007) (per curiam), App. to Pet. for Cert. 1a–2a. While the Simon appeal was still pending, Congress enacted the NDAA, and the Court of Appeals requested supplemental briefing addressing the impact of that legis lation on the court’s jurisdiction. Iraq contended, as an alternative argument to its position that was wrongly decided, that even if 28 U.S. C. ’s application to Iraq survived |
Justice Scalia | 2,009 | 9 | majority | Republic of Iraq v. Beaty | https://www.courtlistener.com/opinion/145868/republic-of-iraq-v-beaty/ | even if 28 U.S. C. ’s application to Iraq survived the President’s EWSAA waiver, the provision was repealed by of 6 REPUBLIC OF IRAQ v. BEATY Opinion of the Court the NDAA, 41; and that the new terrorism exception to sovereign immunity—which was created by the NDAA and codified at 28 U.S. C. A. (July Supp.)—was waived by the President with respect to Iraq pursuant to his NDAA authority. The Court of Appeals rejected that argument, holding instead, based on a close reading of the statutory text, that “the NDAA leaves intact our jurisdiction over cases that were pending against Iraq when the Congress en acted the NDAA.” The panel then reversed the District Court’s determination that the Simon respondents’ claims were untimely, at 119– 1196, and rebuffed Iraq’s request for dismissal under the political question doctrine, at 1196–1198. Iraq sought this Court’s review of both cases, asking us to determine whether under current law it remains sub ject to suit in the federal courts. We granted certiorari, U. S. (2009), and consolidated the cases. III A Section 103 of the EWSAA consists of a principal clause, followed by eight separate proviso clauses. The dispute in these cases concerns the second of the provisos. The principal clause and that proviso read: “The President may suspend the application of any provision of the Iraq Sanctions Act of 1990: Pro vided further, That the President may make inappli cable with respect to Iraq section 620A of the Foreign Assistance Act of 1961 or any other provision of law that applies to countries that have supported terror ism” Iraq and the United States both read the quoted proviso’s residual clause as sweeping in the terrorism exception to foreign sovereign immunity. Certainly that reading is, as Cite as: 6 U. S. (2009) 7 Opinion of the Court even the Court acknowledged, “straightforward.” Title 28 U.S. C. ’s exception to sovereign immunity for state sponsors of terrorism stripped jurisdic tional immunity from a country unless “the foreign state was not designated as a state sponsor of terrorism.” This is a “provision of law” (indisputably) that “applies to” (strips immunity from) “countries that have supported terrorism” (as designated pursuant to certain statutory provisions). Of course the word “any” (in the phrase “any other provision of law”) has an “expansive meaning,” United giving us no warrant to limit the class of provisions of law that the President may waive. Because the President exercised his authority with respect to “all” provisions of law encom passed by the second proviso, his actions made “inapplicable” to Iraq. To a layperson, |
Justice Scalia | 2,009 | 9 | majority | Republic of Iraq v. Beaty | https://www.courtlistener.com/opinion/145868/republic-of-iraq-v-beaty/ | proviso, his actions made “inapplicable” to Iraq. To a layperson, the notion of the President’s suspending the operation of a valid law might seem strange. But the practice is well established, at least in the sphere of for eign affairs. See United (canvassing prece dents from as early as the “inception of the national gov ernment”). The granting of Presidential waiver authority is particularly apt with respect to congressional elimina tion of foreign sovereign immunity, since the granting or denial of that immunity was historically the case-by-case prerogative of the Executive Branch. See, e.g., Ex parte Peru, 318 U.S. 78, 86–90 It is entirely unre markable that Congress, having taken upon itself in the FSIA to “free the Government” from the diplomatic pres sures engendered by the case-by-case approach, Verlinden, 461 U.S., at 8, would nonetheless think it prudent to afford the President some flexibility in unique circum stances such as these. 8 REPUBLIC OF IRAQ v. BEATY Opinion of the Court B The Court of Appeals in resisted the above con struction, primarily on the ground that the relevant text is found in a proviso. We have said that, at least presump tively, the “grammatical and logical scope [of a proviso] is confined to the subject-matter of the principal clause.” United 266 U.S. 31, 34–3 (19). Using that proposition as a guide, the panel strove mightily to construe the proviso as somehow restricting the principal clause of EWSAA which authorized the President to suspend “any provision of the Iraq Sanc tions Act of 1990,” In the Court of Appeals’ view, the second proviso related to that subsection of the Iraq Sanctions Act (referred to in the principal provision) which dictated that certain enu merated statutory provisions, including of the Foreign Assistance Act of 1961 and “all other provisions of law that impose sanctions against a country which has repeatedly provided support for acts of international ter rorism,” shall be fully enforced against Iraq. §86F(c), 104 Stat. 201 (emphasis added). The panel understood the second EWSAA proviso as doing nothing more than clari fying that the authority granted by the principal clause (to suspend any part of the Iraq Sanctions Act) included the power to make inapplicable to Iraq the various independ ent provisions of law that §86F(c) of the Iraq Sanctions Act instructed to be enforced against Iraq—which might otherwise continue to apply of their own force even with out the Iraq Sanctions Act. However, the residual clause of §86F(c) encompasses only provisions that “impose sanctions”; and, in the Court of Appeals’ view, that ex cludes which is a |
Justice Scalia | 2,009 | 9 | majority | Republic of Iraq v. Beaty | https://www.courtlistener.com/opinion/145868/republic-of-iraq-v-beaty/ | Court of Appeals’ view, that ex cludes which is a rule going instead to the jurisdiction of the federal courts. Thus, the EWSAA pro viso swept only as broadly as §86F(c), and therefore did not permit the President to waive the FSIA terrorism exception. Cite as: 6 U. S. (2009) 9 Opinion of the Court This is a highly sophisticated effort to construe the proviso as a limitation upon the principal clause. Ulti mately, however, we think that effort neither necessary nor successful. It is true that the “general office of a pro viso is to except something from the enacting clause, or to qualify and restrain its generality.” at 34. But its general (and perhaps appropriate) office is not, alas, its exclusive use. Use of a proviso “to state a general, independent rule,” Alaska v. United States, 4 U.S. 7, 106 (200), may be lazy drafting, but is hardly a novelty. See, e.g., McDonald v. United States, 279 U.S. 12, 21 (1929). itself came with the caveat that a proviso is sometimes used “to introduce independent legislation.” 266 U.S., at 3. We think that was its office here. The principal clause granted the President a power; the second proviso purported to grant him an additional power. It was not, on any fair reading, an exception to, qualification of, or restraint on the principal power. Contrasting the second EWSAA proviso to some of the other provisos illustrates the point. For example, the first proviso cautioned that “nothing in this section shall affect the applicability of the Iran-Iraq Arms Non-Proliferation Act of 1992,” and the third forbade the export of certain military equipment “under the authority of this section.” Both of these plainly sought to define and limit the authority granted by the principal clause. The fourth proviso, however, mandated that “sec tion 307 of the Foreign Assistance Act of 1961 shall not apply with respect to programs of international organiza tions for Iraq,” ib and it is impossible to see how that self-executing suspension of a distinct statute in any way cabined or clarified the principal clause’s authorization to suspend the Iraq Sanctions Act. There are other indications that the second proviso’s waiver authority was not limited to the statutory provi 10 REPUBLIC OF IRAQ v. BEATY Opinion of the Court sions embraced by §86F(c) of the Iraq Sanctions Act. If that is all it was meant to accomplish, why would Con gress not simply have tracked §86F(c)’s residual clause? Instead of restricting the President’s authority to statutes that “impose sanctions” on sponsors of terror, the EWSAA extended it to |
Justice Scalia | 2,009 | 9 | majority | Republic of Iraq v. Beaty | https://www.courtlistener.com/opinion/145868/republic-of-iraq-v-beaty/ | sanctions” on sponsors of terror, the EWSAA extended it to any statute that “applies” to such states. That is undoubtedly a broader class. Even if the best reading of the EWSAA proviso were that it encompassed only statutes that impose sanctions or prohibit assistance to state sponsors of terrorism, see 370 F.3d, at 4, we would disagree with the Court of Appeals’ conclusion that the FSIA exception is not such a law. Allowing lawsuits to proceed certainly has the extra benefit of facilitating the compensation of injured victims, but the fact that targeted only foreign states designated as sponsors of terrorism suggests that the law was intended as a sanction, to punish and deter undesirable conduct. Stripping the immunity that foreign sovereigns ordinarily enjoy is as much a sanction as elimi nating bilateral assistance or prohibiting export of muni tions (both of which are explicitly mandated by §86F(c) of the Iraq Sanctions Act). The application of this sanction affects the jurisdiction of the federal courts, but that fact alone does not deprive it of its character as a sanction. It may well be that when Congress enacted the EWSAA it did not have specifically in mind the terrorism exception to sovereign immunity. The Court of Appeals evidently found that to be of some importance. at 6 (noting there is “no reference in the legislative history to the FSIA”). But the whole value of a generally phrased resid ual clause, like the one used in the second proviso, is that it serves as a catchall for matters not specifically contem plated—known unknowns, in the happy phrase coined by Secretary of Defense Donald Rumsfeld. Pieces of Intelli gence: The Existential Poetry of Donald H. Rumsfeld 2 (H. Seely comp. 2003). If Congress wanted to limit the waiver Cite as: 6 U. S. (2009) 11 Opinion of the Court authority to particular statutes that it had in mind, it could have enumerated them individually. We cannot say with any certainty (for those who think this matters) whether the Congress that passed the EWSAA would have wanted the President to be permitted to waive Certainly the exposure of Iraq to billions of dollars in damages could be thought to jeopard ize the statute’s goal of speedy reconstruction of that country. At least the President thought so. And in the “vast external realm, with its important, complicated, delicate and manifold problems,” Curtiss-Wright Export courts ought to be especially wary of overriding apparent statutory text supported by execu tive interpretation in favor of speculation about a law’s true purpose.1 C Respondents advance two other objections to |
Justice Scalia | 2,009 | 9 | majority | Republic of Iraq v. Beaty | https://www.courtlistener.com/opinion/145868/republic-of-iraq-v-beaty/ | law’s true purpose.1 C Respondents advance two other objections to the straightforward interpretation of the EWSAA proviso. First, in a less compelling variant of the D. C. Circuit’s approach, the Simon respondents argue that “section 620A of the Foreign Assistance Act of 1961 or any other provi sion of law that applies to countries that have supported terrorism” means section 620A of the Foreign Assistance Act or any other provision of law cited therein. The provi sion would thus allow the President to make inapplicable to Iraq the statutes that precludes from being used to provide support to terror-sponsoring nations. Not to put too fine a point upon it, that is an absurd reading, not —————— 1 The eighth proviso of EWSAA says that absent further con gressional action, “the authorities contained in this section shall expire on September 30,” The Court of Appeals ex pressed doubt that Congress would have wanted federal-court jurisdic tion to disappear for a year and then suddenly return. v. Repub lic of Iraq, 6–7 Our analysis of the sunset provision, see Part V, infra, disposes of that concern. 12 REPUBLIC OF IRAQ v. BEATY Opinion of the Court only textually but in the result it produces: It would mean that the effect of the EWSAA was to permit the President to exclude Iraq from, rather than include it within, such beneficent legislation as the Food for Peace Act of 1966, 7 U.S. C. et seq. Both respondents also invoke the canon against implied repeals, 437 U.S. 13, but that canon has no force here. Iraq’s construction of the statute neither rests on implication nor effects a repeal. The EWSAA proviso expressly allowed the President to render certain statutes inapplicable; the only question is its scope. And it did not repeal anything, but merely granted the President authority to waive the application of par ticular statutes to a single foreign nation. Cf. Clinton v. City of New York, 24 U.S. 417, 443–44 D We must consider whether anything in the subsequent NDAA legislation changes the above analysis. In particu lar, of that statute specifically says that “[n]othing in section 103 of the [EWSAA] has ever au thorized, directly or indirectly, the making inapplicable of any provision of chapter 97 of title 28, United States Code, or the removal of the jurisdiction of any court of the United States.” 43. This looks like a ratifica tion by Congress of the conclusion reached in the decision. Is such a ratification effective? The NDAA is not subse quent legislative history, as Iraq claims, cf. Sullivan v. Finkelstein, (SCALIA, |
Justice Scalia | 2,009 | 9 | majority | Republic of Iraq v. Beaty | https://www.courtlistener.com/opinion/145868/republic-of-iraq-v-beaty/ | legislative history, as Iraq claims, cf. Sullivan v. Finkelstein, (SCALIA, J., concur ring in part); rather, it is binding law, approved by the Legislature and signed by the President. Subsequent legislation can of course alter the meaning of an existing law for the future; and it can even alter the past operation of an existing law (constitutional objections aside) if it makes that retroactive operation clear. v. USI Cite as: 6 U. S. (2009) 13 Opinion of the Court Film Products, 11 U.S. 244, To tell the truth, however, we are unaware of any case dealing with the retroactive amendment of a law that had already expired, as the EWSAA had here. And it is doubtful whether Congress can retroactively claw back power it has given to the Executive, invalidating Presidential action that was valid when it was taken. Thankfully, however, we need not explore these difficulties here. In of the NDAA, the President was given authority to “waive any provision of this section with respect to Iraq.” 43. The President proceeded to waive “all” provisions of that section as to Iraq, includ ing (presumably) 73 Fed. Reg. 671. The Act can therefore add nothing to our analysis of the EWSAA. Respondent Beaty objects that the President cannot waive a fact. But neither can Congress legislate a fact. Section 1083(c)(4) could change our interpretation of the disputed EWSAA language only if it has some substantive effect, changing what would otherwise be the law. And if the President’s waiver does anything, it eliminates any sub stantive effect that the NDAA would otherwise have on cases to which Iraq is a party.2 IV Having concluded that the President did render 28 U.S. C. “inapplicable with respect to Iraq,” and that such action was within his assigned powers, we consider respondents’ argument that the inapplicability of —————— 2 Respondents contend that the NDAA waiver is irrelevant because the President’s veto of the initial version of the bill—which did not include the waiver authority—was defective. We need not inquire into that point, since Congress (evidently thinking the veto effective) en acted a new bill that was identical in all material respects but for the addition of presidential waiver authority. Since that authority would be nugatory, and the rest of the new law utterly redundant, if a law resulting from the former bill remained in effect, that law would have been effectively repealed. 14 REPUBLIC OF IRAQ v. BEATY Opinion of the Court the provision does not bar their claims, since they arise from Iraq’s conduct prior to the President’s waiver. Any other interpretation, they |
Justice Scalia | 2,009 | 9 | majority | Republic of Iraq v. Beaty | https://www.courtlistener.com/opinion/145868/republic-of-iraq-v-beaty/ | conduct prior to the President’s waiver. Any other interpretation, they say, would cause the law to operate in a disfavored retroactive fashion. This argument proceeds as follows: The FSIA exception becomes “applicable” to a foreign state when that foreign state is designated as a sponsor of terrorism. In parallel fashion, rendering the exception “inapplicable” should be equivalent to removing the state’s designation. And under jurisdiction turned on the foreign state’s designation “at the time the act [giving rise to the claim] occurred.” On this reading, the President’s waiver meant only that Iraq could not be sued pursuant to for any future conduct, even though it technically re mained designated as a state sponsor of terrorism. Respondents support this interpretation with a policy argument and a canon of construction. First, why would Congress have sought to give Iraq better treatment than any other state that saw the error of its ways, reformed its behavior, and was accordingly removed from the list of terror-sponsoring regimes? See 370 F.3d, at 6 (calling such a result “perplexing”). Providing immunity for future acts is one thing, but wiping the slate clean is quite another. Second, this Court has often applied a presumption that, absent clear indication to the contrary, statutory amendments do not apply to pending cases. A narrow reading of “inapplica ble” would better comport with that presumption. As a textual matter, the proffered definition of “inappli cable” is unpersuasive. If a provision of law is “inapplica ble” then it cannot be applied; to “apply” a statute is “[t]o put [it] to use.” Webster’s New International Dictionary 131 (2d ed. 194). When the District Court exercised jurisdiction over these cases against Iraq, it surely was putting to use with respect to that country. Without the application of that provision, there was no Cite as: 6 U. S. (2009) 1 Opinion of the Court basis for subject-matter jurisdiction. 28 U.S. C. 1330(a). If Congress had wanted to authorize the Presi dent merely to cancel Iraq’s designation as a state sponsor of terrorism, then Congress could have done so. As a policy matter, moreover, we do not find that result particularly “perplexing.” As then-Judge Roberts ex plained in his separate opinion in Congress in 2003 “for the first time confronted the prospect that a friendly successor government would, in its infancy, be vulnerable under Section 160(a)(7) to crushing liability for the ac tions of its renounced predecessor.” (opin ion concurring in part and concurring in judgment) (em phasis in original). The Government was at the time spending considerable sums of money to rebuild Iraq, see Rogers, |
Justice Scalia | 2,009 | 9 | majority | Republic of Iraq v. Beaty | https://www.courtlistener.com/opinion/145868/republic-of-iraq-v-beaty/ | spending considerable sums of money to rebuild Iraq, see Rogers, Congress Gives Initial Approval for War Funding, Airline Aid, Wall Street Journal, Apr. 4, 2003, p. A10. What would seem perplexing is converting a billion-dollar reconstruction project into a compensation scheme for a few of Saddam’s victims. As for the judicial presumption against retroactivity, that does not induce us to read the EWSAA proviso more narrowly. Laws that merely alter the rules of foreign sovereign immunity, rather than modify substantive rights, are not operating retroactively when applied to pending cases. Foreign sovereign immunity “reflects current political realities and relationships,” and its avail ability (or lack thereof) generally is not something on which parties can rely “in shaping their primary conduct.” Republic of 41 U.S. 677, ; see also In any event, the primary conduct by Iraq that forms the basis for these suits actually occurred prior to the enactment of the FSIA terrorism exception in 1996. See Saudi 07 U.S. 349, 31 That is, Iraq was immune from suit at the time it is alleged to have harmed respondents. The President’s elimination of 16 REPUBLIC OF IRAQ v. BEATY Opinion of the Court Iraq’s later subjection to suit could hardly have deprived respondents of any expectation they held at the time of their injury that they would be able to sue Iraq in United States courts. V Accordingly, the District Court lost jurisdiction over both suits in May 2003, when the President exercised his authority to make inapplicable with respect to Iraq. At that point, immunity kicked back in and the cases ought to have been dismissed, “the only function remaining to the court [being] that of announcing the fact and dismissing the cause.” Ex parte McCardle, 7 Wall. 06, 14 (1869). In respondents’ view, that is not fatal to their claims. They point to the eighth proviso in of the EWSAA: “Provided further, That the authorities contained in this section shall expire on September 30, or on the date of enactment of a subsequent Act authorizing assistance for Iraq and that specifically amends, re peals or otherwise makes inapplicable the authorities of this section, whichever occurs first.” The effect of this provision, they contend, is that the EWSAA waiver expired in 200,3 and that when it did so was revived, immunity was again stripped, and jurisdiction was restored. If that is true, then at the very least they ought to be permitted to refile their suits and claim equitable tolling for the period between 200 and the present, during which time they understandably relied on ’s holding. The premise, |
Justice Scalia | 2,009 | 9 | majority | Republic of Iraq v. Beaty | https://www.courtlistener.com/opinion/145868/republic-of-iraq-v-beaty/ | which time they understandably relied on ’s holding. The premise, however, is flawed. It is true that the “authorities contained in” of the EWSAA expired, but expiration of the authorities (viz., the President’s —————— 3 The sunset date was extended by one year in a later bill. 108–106, Cite as: 6 U. S. (2009) 17 Opinion of the Court powers to suspend and make inapplicable certain laws) is not the same as cancellation of the effect of the President’s prior valid exercise of those authorities (viz., the restora tion of sovereign immunity). As Iraq points out, Congress has in other statutes provided explicitly that both the authorities granted and the effects of their exercise sunset on a particular date. E.g., 19 U.S. C. (“A waiver with respect to any country shall terminate on the day after the waiver authority granted by this subsection ceases to be effective with respect to such country”). The EWSAA contains no such language. We think the better reading of the eighth EWSAA pro viso (the sunset clause) is that the powers granted by the section could be exercised only for a limited time, but that actions taken by the President pursuant to those powers (e.g., suspension of the Iraq Sanctions Act) would not lapse on the sunset date. If it were otherwise, then the Iraq Sanctions Act—which has never been repealed, and which imposes a whole host of restrictions on relations with Iraq—would have returned to force in September 200. Nobody believes that is so. * * * When the President exercised his authority to make inapplicable with respect to Iraq all provisions of law that apply to countries that have supported terrorism, the exception to foreign sovereign immunity for state sponsors of terrorism became inoperative as against Iraq. As a result, the courts below lacked jurisdiction; we therefore need not reach Iraq’s alternative argument that the NDAA subsequently stripped jurisdiction over the cases. The judgments of the Court of Appeals are reversed. It is so ordered |
Justice Stevens | 1,993 | 16 | majority | McNeil v. United States | https://www.courtlistener.com/opinion/112858/mcneil-v-united-states/ | The Federal Tort Claims Act (FTCA) provides that an "action shall not be instituted upon a claim against the United States for money damages" unless the claimant has first exhausted his administrative remedies.[] The question presented is whether such an action may be maintained when the claimant failed to exhaust his administrative remedies prior to filing suit, but did so before substantial progress was made in the litigation. I On March 6, 989, petitioner, proceeding without counsel, lodged a complaint in the United States District Court for the Northern District of Illinois, alleging that the United States Public Health Service had caused him serious injuries while "conducting human research and experimentation on prisoners" in the custody of the Illinois Department of Corrections. *08 He invoked the federal court's jurisdiction under the FTCA and prayed for a judgment of $20 million. App. 3-7. Four months later, on July 7, 989, petitioner submitted a claim for damages to the Department of Health and Human Services.[2] The Department denied the claim on July 2, 989. On August 7, 989, petitioner sent a letter to the District Court enclosing a copy of the Department's denial of his administrative claim and an affidavit in support of an earlier motion for appointment of counsel. Petitioner asked that the court accept the letter "as a proper request, whereas plaintiff can properly commence his legal action accordingly." For reasons that are not entirely clear, the United States was not served with a copy of petitioner's complaint until July 30, 990.[3] at 2. On September 9, 990, the United States moved to dismiss the complaint on the ground that petitioner's action was barred by the 6-month statute of limitation.[] The motion was based on the assumption that *09 the complaint had been filed on April 5, 990, when petitioner paid the court filing fees, and that that date was more than six months after the denial of petitioner's administrative claim. In response to the motion, petitioner submitted that the complaint was timely because his action had been commenced on March 6, 989, the date when he actually lodged his complaint and the Clerk assigned it a docket number. The District Court accepted March 6, 989, as the operative date of filing, but nonetheless granted the Government's motion to dismiss. Petitioner's suit was not out of time, the District Court reasoned, but, rather, premature. The court concluded that it lacked jurisdiction to entertain an action "commenced before satisfaction of the administrative exhaustion requirement under 2675(a)." The Court of Appeals for the Seventh Circuit affirmed. The court explained: "According to 28 |
Justice Stevens | 1,993 | 16 | majority | McNeil v. United States | https://www.courtlistener.com/opinion/112858/mcneil-v-united-states/ | the Seventh Circuit affirmed. The court explained: "According to 28 U.S. C. 20(b), a tort claim against the United States must be `begun within six months after the date of mailing of notice of final denial of the claim by the agency to which it was presented.' The administrative denial was mailed on July 2, 989, so McNeil had between then and January 2, 990, to begin his action. The complaint filed in March 989 was too early. This left two options. Perhaps the document filed in March 989 loitered on the docket, springing into force when the agency acted. Or perhaps the request for counsel in August 989, during the six-month period, marks the real `beginning' of the action. The district court rejected both options, and McNeil, with the assistance of counsel appointed by this court, renews the arguments here. *0 "March 989 was too early. The suit did not linger, awaiting administrative action. Unless McNeil began a fresh suit within six months after July 2, 989, he loses." The court reviewed the materials filed in August 989 and concluded that the District Court had not committed plain error in refusing to construe them as having commenced a new action.[5] Because decisions in other Circuits permit a prematurely filed FTCA action to proceed if no substantial progress has taken place in the litigation before the administrative remedies are exhausted, see rev'd on other grounds, and[6] we granted certiorari to resolve the conflict. II As the case comes to us, we assume that the Court of Appeals correctly held that nothing done by petitioner after the denial of his administrative claim on July 2, 989, constituted the commencement of a new action. The narrow question before us is whether his action was timely either because * it was commenced when he lodged his complaint with the District Court on March 6,989, or because it should be viewed as having been "instituted" on the date when his administrative claim was denied. The text of the statute requires rejection of the first possibility. The command that an "action shall not be instituted. unless the claimant shall have first presented the claim to the appropriate Federal agency and his claim shall have been finally denied by the agency in writing and sent by certified or registered mail" is unambiguous. We are not free to rewrite the statutory text. As of March 6, 989, petitioner had neither presented his claim to the Public Health Service, nor had his claim been "finally denied" by that agency. As the Court of Appeals held, petitioner's complaint was |
Justice Stevens | 1,993 | 16 | majority | McNeil v. United States | https://www.courtlistener.com/opinion/112858/mcneil-v-united-states/ | agency. As the Court of Appeals held, petitioner's complaint was filed too early. The statutory text does not speak with equal clarity to the argument that petitioner's subsequent receipt of a formal denial from the agency might be treated as the event that "instituted" his action. Petitioner argues the word "instituted" that is used in 2675(a), see n. is not synonymous with the word "begun" in 20(b), see n. or with the word "commence" as used in certain other statutes and rules. See, e. g., 93 U.S. 20 (989). He suggests that an action is not "instituted" until the occurrence of the events that are necessary predicates to the invocation of the court's jurisdiction namely, the filing of his complaint and the formal denial of the administrative claim. This construction, he argues, is consistent with the underlying purpose of 2675(a): As long as no substantial progress has been made in the litigation by the time the claimant has exhausted his administrative remedies, the federal agency will have had a fair opportunity to investigate and possibly settle the claim before the parties *2 must assume the burden of costly and time-consuming litigation.[7] We find this argument unpersuasive. In its statutory context, we think the normal interpretation of the word "institute" is synonymous with the words "begin" and "commence." The most natural reading of the statute indicates that Congress intended to require complete exhaustion of Executive remedies before invocation of the judicial process. Every premature filing of an action under the FTCA imposes some burden on the judicial system[8] and on the Department of Justice which must assume the defense of such actions. Although the burden may be slight in an individual case, the statute governs the processing of a vast multitude of claims. The interest in orderly administration of this body of litigation is best served by adherence to the straightforward statutory command. *3 Moreover, given the clarity of the statutory text, it is certainly not a "trap for the unwary." It is no doubt true that there are cases in which a litigant proceeding without counsel may make a fatal procedural error, but the risk that a lawyer will be unable to understand the exhaustion requirement is virtually nonexistent. Our rules of procedure are based on the assumption that litigation is normally conducted by lawyers. While we have insisted that the pleadings prepared by prisoners who do not have access to counsel be liberally construed, see 0 U.S. 59 (972); 29 U.S. 97, 06 (976),[9] and have held that some procedural rules must give way because of the unique circumstance |
Justice Alito | 2,020 | 8 | dissenting | Bostock v. Clayton County | https://www.courtlistener.com/opinion/4760997/bostock-v-clayton-county/ | There is only one word for what the Court has done today: legislation. The document that the Court releases is in the form of a judicial opinion interpreting a statute, but that is deceptive. 2 BOSTOCK v. CLYTON COUNTY LITO, J., dissenting Title VII of the Civil Rights ct of 194 prohibits employ- ment discrimination on any of five specified grounds: “race, color, religion, sex, [and] national origin.” 42 U.S. C. Neither “sexual orientation” nor “gender identity” appears on that list. For the past 45 years, bills have been introduced in Congress to add “sexual orienta- tion” to the list,1 and in recent years, bills have included “gender identity” as well.2 But to date, none has passed both Houses. Last year, the House of Representatives passed a bill that would amend Title VII by defining sex discrimination to in- clude both “sexual orientation” and “gender identity,” H. R. 5, 11th Cong., 1st Sess. but the bill has stalled in the Senate. n alternative bill, H. R. 1, 11th Cong., 1st Sess. would add similar prohibitions but con- tains provisions to protect religious liberty.3 This bill re- mains before a House Subcommittee. Because no such amendment of Title VII has been en- acted in accordance with the requirements in the Constitu- tion (passage in both Houses and presentment to the Pres- ident, rt. I, cl. 2), Title VII’s prohibition of —————— 1 E.g., H. R. 1, 94th Cong., 1st Sess., (1975); H. R. 451, 95th Cong., 1st Sess., ; S. 2081, 9th Cong., 1st Sess. ; S. 18, 97th Cong., 1st Sess. (1981); S. 430, 98th Cong., 1st Sess. (1983); S. 1432, 99th Cong., 1st Sess., ; S. 44, 100th Cong., 1st Sess., ; H. R. 55, 101st Cong., 1st Sess., ; S. 574, 102d Cong., 1st Sess., ; H. R. 423, 103d Cong., 1st Sess., (1993); S. 932, 104th Cong., 1st Sess. (1995); H. R. 35, 105th Cong., 1st Sess., ; H. R. 311, 10th Cong., 1st Sess., (1999); H. R. 217, 107th Cong., 1st Sess., (2001); S. 1, 108th Cong., 1st Sess., ; H. R. 288, 109th Cong., 1st Sess., 2 See, e.g., H. R. 2015, 110th Cong., 1st Sess. (2007); H. R. 3017, 111th Cong., 1st Sess. (2009); H. R. 1397, 112th Cong., 1st Sess. (2011); H. R. 1755, 113th Cong., 1st Sess. (2013); H. R. 5, 114th Cong., 1st Sess., (2015); H. R. 2282, 115th Cong., 1st Sess., ; H. R. 5, 11th Cong., 1st Sess. 3 H. R. 1, 11th Cong., 1st Sess., (c) Cite as: 590 U. S. 3 LITO, J., dissenting discrimination because of |
Justice Alito | 2,020 | 8 | dissenting | Bostock v. Clayton County | https://www.courtlistener.com/opinion/4760997/bostock-v-clayton-county/ | 590 U. S. 3 LITO, J., dissenting discrimination because of “sex” still means what it has al- ways meant. But the Court is not deterred by these consti- tutional niceties. Usurping the constitutional authority of the other branches, the Court has essentially taken H. R. 5’s provision on employment discrimination and issued it under the guise of statutory interpretation.4 more brazen abuse of our authority to interpret statutes is hard to recall. The Court tries to convince readers that it is merely en- forcing the terms of the statute, but that is preposterous. Even as understood today, the concept of discrimination be- cause of “sex” is different from discrimination because of “sexual orientation” or “gender identity.” nd in any event, our duty is to interpret statutory terms to “mean what they conveyed to reasonable people at the time they were writ- ten.” Scalia & B. Garner, Reading Law: The Interpreta- tion of Legal Texts 1 (emphasis added). If every single living merican had been surveyed in 194, it would have been hard to find any who thought that discrimination because of sex meant discrimination because of sexual ori- entation––not to mention gender identity, a concept that was essentially unknown at the time. The Court attempts to pass off its decision as the inevita- ble product of the textualist school of statutory interpreta- tion championed by our late colleague Justice Scalia, but no one should be fooled. The Court’s opinion is like a pirate ship. It sails under a textualist flag, but what it actually represents is a theory of statutory interpretation that Jus- tice Scalia excoriated––the theory that courts should “up- date” old statutes so that they better reflect the current val- ues of society. See Scalia, Matter of Interpretation 22 —————— 4 Section 7(b) of H. R. 5 strikes the term “sex” in 42 U.S. C. 000e–2 and inserts: “SEX (INCLUDING SEXUL ORIENTTION ND GENDER IDENTITY).” 4 BOSTOCK v. CLYTON COUNTY LITO, J., dissenting If the Court finds it appropriate to adopt this the- ory, it should own up to what it is doing.5 Many will applaud today’s decision because they agree on policy grounds with the Court’s updating of Title VII. But the question in these cases is not whether discrimination because of sexual orientation or gender identity should be outlawed. The question is whether Congress did that in 194. It indisputably did not. I Title VII, as noted, prohibits discrimination “because of sex,” 000e–2(a)(1), and in 194, it was as clear as clear could be that this meant discrimination because of the ge- netic and anatomical characteristics |
Justice Alito | 2,020 | 8 | dissenting | Bostock v. Clayton County | https://www.courtlistener.com/opinion/4760997/bostock-v-clayton-county/ | meant discrimination because of the ge- netic and anatomical characteristics that men and women have at the time of birth. Determined searching has not found a single dictionary from that time that defined “sex” to mean sexual orientation, gender identity, or “transgender status.” nte, at 2. (en banc). Judge Posner agreed with that result but wrote: “I would prefer to see us acknowledge openly that today we, who are judges rather than members of Congress, are imposing on a half-century- old statute a meaning of ‘sex discrimination’ that the Congress that en- acted it would not have accepted.” (em- phasis added). The Court does not define what it means by “transgender status,” but the merican Psychological ssociation describes “transgender” as “[a]n umbrella term encompassing those whose gender identities or gender roles differ from those typically associated with the sex they were as- signed at birth.” Glossary: Defining Transgender Terms, 49 Monitor on Psychology 32 https://www.apa.org/monitor//09/ce- corner-glossary. It defines “gender identity” as “[a]n internal sense of being male, female or something else, which may or may not correspond Cite as: 590 U. S. 5 LITO, J., dissenting this opinion includes the full definitions of “sex” in the un- abridged dictionaries in use in the 190s.) In all those dictionaries, the primary definition of “sex” was essentially the same as that in the then-most recent edition of Webster’s New International Dictionary 229 (def. 1) (2d ed. 1953): “[o]ne of the two divisions of organisms formed on the distinction of male and female.” See also merican Heritage Dictionary 1187 (def. 1(a)) (199) (“The property or quality by which organisms are classified ac- cording to their reproductive functions”); Random House Dictionary of the English Language 1307 (def. 1) (19) (Random House Dictionary) (“the fact or character of being either male or female”); 9 Oxford English Dictionary 577 (def. 1) (1933) (“Either of the two divisions of organic beings distinguished as male and female respectively”). The Court does not dispute that this is what “sex” means in Title VII, although it coyly suggests that there is at least some support for a different and potentially relevant defi- nition. nte, (I address alternative definitions below. See Part I–B–3, infra.) But the Court declines to stand on that ground and instead “proceed[s] on the assumption that ‘sex’ refer[s] only to biological distinctions between male and female.” nte, If that is so, it should be perfectly clear that Title VII does not reach discrimination because of sexual orientation or gender identity. If “sex” in Title VII means biologically male or female, then discrimination because of sex means discrimination |
Justice Alito | 2,020 | 8 | dissenting | Bostock v. Clayton County | https://www.courtlistener.com/opinion/4760997/bostock-v-clayton-county/ | male or female, then discrimination because of sex means discrimination because the person in question is biologi- cally male or biologically female, not because that person is sexually attracted to members of the same sex or identifies as a member of a particular gender. How then does the Court claim to avoid that conclusion? —————— to an individual’s sex assigned at birth or sex characteristics.” Un- der these definitions, there is no apparent difference between discrimi- nation because of transgender status and discrimination because of gen- der identity. BOSTOCK v. CLYTON COUNTY LITO, J., dissenting The Court tries to cloud the issue by spending many pages discussing matters that are beside the point. The Court ob- serves that a Title VII plaintiff need not show that “sex” was the sole or primary motive for a challenged employ- ment decision or its sole or primary cause; that Title VII is limited to discrimination with respect to a list of specified actions (such as hiring, firing, etc.); and that Title VII protects individual rights, not group rights. See ante, – 9, 11. ll that is true, but so what? In cases like those before us, a plaintiff must show that sex was a “motivating factor” in the challenged employment action, 42 U.S. C. 000e– 2(m), so the question we must decide comes down to this: if an individual employee or applicant for employment shows that his or her sexual orientation or gender identity was a “motivating factor” in a hiring or discharge decision, for ex- ample, is that enough to establish that the employer dis- criminated “because of sex”? Or, to put the same ques- tion in different terms, if an employer takes an employment action solely because of the sexual orientation or gender identity of an employee or applicant, has that employer nec- essarily discriminated because of biological sex? The answers to those questions must be no, unless dis- crimination because of sexual orientation or gender identity inherently constitutes discrimination because of sex. The Court attempts to prove that point, and it argues, not merely that the terms of Title VII can be interpreted that way but that they cannot reasonably be interpreted any other way. ccording to the Court, the text is unambiguous. See ante, at 24, 27, 30. The arrogance of this argument is breathtaking. s I will show, there is not a shred of evidence that any Member of Congress interpreted the statutory text that way when Ti- tle VII was enacted. See Part III–B, infra. But the Court apparently thinks that this was because the Members were |
Justice Alito | 2,020 | 8 | dissenting | Bostock v. Clayton County | https://www.courtlistener.com/opinion/4760997/bostock-v-clayton-county/ | Court apparently thinks that this was because the Members were not “smart enough to realize” what its language means. Cite as: 590 U. S. 7 LITO, J., dissenting 357 (Posner, J., concurring). The Court seem- ingly has the same opinion about our colleagues on the Courts of ppeals, because until every single Court of ppeals to consider the question interpreted Title VII’s pro- hibition against sex discrimination to mean discrimination on the basis of biological sex. See Part III–C, infra. nd for good measure, the Court’s conclusion that Title VII unam- biguously reaches discrimination on the basis of sexual ori- entation and gender identity necessarily means that the EEOC failed to see the obvious for the first 48 years after Title VII became law.7 Day in and day out, the Commission enforced Title VII but did not grasp what discrimination “because of sex” unambiguously means. See Part III–C, infra. The Court’s argument is not only arrogant, it is wrong. It fails on its own terms. “Sex,” “sexual orientation,” and “gen- der identity” are different concepts, as the Court concedes. nte, at 19 (“homosexuality and transgender status are dis- tinct concepts from sex”). nd neither “sexual orientation” nor “gender identity” is tied to either of the two biological sexes. See ante, at 10 (recognizing that “discrimination on these bases” does not have “some disparate impact on one sex or another”). Both men and women may be attracted to members of the opposite sex, members of the same sex, or members of both sexes.8 nd individuals who are born with —————— 7 The EEOC first held that “discrimination against a transgender indi- vidual because that person is transgender” violates Title VII in in though it earlier advanced that position in an amicus brief in Federal District Court in 2011, ib n. 1. It did not hold that discrimination on the basis of sex- ual orientation violated Title VII until 2015. See Baldwin v. Foxx, 2015 WL 439741 (July 15, 2015). 8 “Sexual orientation refers to a person’s erotic response tendency or sexual attractions, be they directed toward individuals of the same sex (homosexual), the other sex (heterosexual), or both sexes (bisexual).” 1 Barb. 8 BOSTOCK v. CLYTON COUNTY LITO, J., dissenting the genes and organs of either biological sex may identify with a different gender.9 Using slightly different terms, the Court asserts again and again that discrimination because of sexual orientation or gender identity inherently or necessarily entails discrim- ination because of sex. See ante, at 2 (When an employer “fires an individual for being homosexual or transgender,” “[s]ex plays a necessary |
Justice Alito | 2,020 | 8 | dissenting | Bostock v. Clayton County | https://www.courtlistener.com/opinion/4760997/bostock-v-clayton-county/ | individual for being homosexual or transgender,” “[s]ex plays a necessary and undisguisable role in the deci- sion”); ante, at 9 (“[I]t is impossible to discriminate against a person for being homosexual or transgender without dis- criminating against that individual based on sex”); ante, at 11 (“[W]hen an employer discriminates against homosexual or transgender employees, [the] employer inescapably intends to rely on sex in its decisionmaking”); ante, at 12 (“For an employer to discriminate against employees for be- ing homosexual or transgender, the employer must inten- tionally discriminate against individual men and women in part because of sex”); ante, at 14 (“When an employer fires an employee for being homosexual or transgender, it neces- sarily and intentionally discriminates against that individ- ual in part because of sex”); ante, at 19 (“[D]iscrimination based on homosexuality or transgender status necessarily entails discrimination based on sex”). But repetition of an assertion does not make it so, and the Court’s repeated as- sertion is demonstrably untrue. Contrary to the Court’s contention, discrimination be- cause of sexual orientation or gender identity does not in —————— V. & P. Ruiz, Comprehensive Textbook of Psychiatry 201 (9th ed. 2009); see also merican Heritage Dictionary 107 (5th ed. 2011) (defining “sexual orientation” as “[t]he direction of a person’s sex- ual interest, as toward people of the opposite sex, the same sex, or both sexes”); Webster’s New College Dictionary 103 (defining “sexual orientation” as “[t]he direction of one’s sexual interest toward members of the same, opposite, or both sexes”). 9 See n. see also at 203 (“transgender” refers to “any individual who identifies with and adopts the gender role of a member of the other biological sex”). Cite as: 590 U. S. 9 LITO, J., dissenting and of itself entail discrimination because of sex. We can see this because it is quite possible for an employer to dis- criminate on those grounds without taking the sex of an in- dividual applicant or employee into account. n employer can have a policy that says: “We do not hire gays, lesbians, or transgender individuals.” nd an employer can imple- ment this policy without paying any attention to or even knowing the biological sex of gay, lesbian, and transgender applicants. In fact, at the time of the enactment of Title VII, the United States military had a blanket policy of re- fusing to enlist gays or lesbians, and under this policy for years thereafter, applicants for enlistment were required to complete a form that asked whether they were “homosex- ual.” ppendix D, infra, at 88, 101. t oral argument, the attorney representing the |
Justice Alito | 2,020 | 8 | dissenting | Bostock v. Clayton County | https://www.courtlistener.com/opinion/4760997/bostock-v-clayton-county/ | at 88, 101. t oral argument, the attorney representing the employ- ees, a prominent professor of constitutional law, was asked if there would be discrimination because of sex if an em- ployer with a blanket policy against hiring gays, lesbians, and transgender individuals implemented that policy with- out knowing the biological sex of any job applicants. Her candid answer was that this would “not” be sex discrimina- tion.10 nd she was right. The attorney’s concession was necessary, but it is fatal to the Court’s interpretation, for if an employer discriminates against individual applicants or employees without even knowing whether they are male or female, it is impossible to argue that the employer intentionally discriminated be- cause of sex. Contra, ante, at 19. n employer cannot in- tentionally discriminate on the basis of a characteristic of which the employer has no knowledge. nd if an employer does not violate Title VII by discriminating on the basis of —————— 10 See Tr. of Oral rg. in Nos. 17–118, 17–123, pp. 9– (“If there was that case, it might be the rare case in which sexual orientation dis- crimination is not a subset of sex”); see also at 9 (“Somebody who comes in and says I’m not going to tell you what my sex is, but, believe me, I was fired for my sexual orientation, that person will lose”). 10 BOSTOCK v. CLYTON COUNTY LITO, J., dissenting sexual orientation or gender identity without knowing the sex of the affected individuals, there is no reason why the same employer could not lawfully implement the same pol- icy even if it knows the sex of these individuals. If an em- ployer takes an adverse employment action for a perfectly legitimate reason—for example, because an employee stole company property—that action is not converted into sex discrimination simply because the employer knows the em- ployee’s sex. s explained, a disparate treatment case re- quires proof of intent—i.e., that the employee’s sex moti- vated the firing. In short, what this example shows is that discrimination because of sexual orientation or gender iden- tity does not inherently or necessarily entail discrimination because of sex, and for that reason, the Court’s chief argu- ment collapses. Trying to escape the consequences of the attorney’s con- cession, the Court offers its own hypothetical: “Suppose an employer’s application form offered a sin- gle box to check if the applicant is either black or Cath- olic. If the employer refuses to hire anyone who checks that box, would we conclude the employer has complied with Title VII, so long as it studiously avoids learning |
Justice Alito | 2,020 | 8 | dissenting | Bostock v. Clayton County | https://www.courtlistener.com/opinion/4760997/bostock-v-clayton-county/ | with Title VII, so long as it studiously avoids learning any particular applicant’s race or religion? Of course not.” nte, at 18. How this hypothetical proves the Court’s point is a mys- tery. person who checked that box would presumably be black, Catholic, or both, and refusing to hire an applicant because of race or religion is prohibited by Title VII. Re- jecting applicants who checked a box indicating that they are homosexual is entirely different because it is impossible to tell from that answer whether an applicant is male or female. The Court follows this strange hypothetical with an even stranger argument. The Court argues that an applicant Cite as: 590 U. S. 11 LITO, J., dissenting could not answer the question whether he or she is homo- sexual without knowing something about sex. If the appli- cant was unfamiliar with the term “homosexual,” the appli- cant would have to look it up or ask what the term means. nd because this applicant would have to take into account his or her sex and that of the persons to whom he or she is sexually attracted to answer the question, it follows, the Court reasons, that an employer could not reject this appli- cant without taking the applicant’s sex into account. See ante, at 18–19. This is illogical. Just because an applicant cannot say whether he or she is homosexual without knowing his or her own sex and that of the persons to whom the applicant is attracted, it does not follow that an employer cannot re- ject an applicant based on homosexuality without knowing the applicant’s sex. While the Court’s imagined application form proves noth- ing, another hypothetical case offered by the Court is tell- ing. But what it proves is not what the Court thinks. The Court posits: “Imagine an employer who has a policy of firing any employee known to be homosexual. The employer hosts an office holiday party and invites employees to bring their spouses. model employee arrives and in- troduces a manager to Susan, the employee’s wife. Will that employee be fired? If the policy works as the em- ployer intends, the answer depends entirely on whether the model employee is a man or a woman.” nte, at 11. This example disproves the Court’s argument because it is perfectly clear that the employer’s motivation in firing the female employee had nothing to do with that employee’s sex. The employer presumably knew that this employee was a woman before she was invited to the fateful party. Yet the employer, far from holding her biological sex |
Justice Alito | 2,020 | 8 | dissenting | Bostock v. Clayton County | https://www.courtlistener.com/opinion/4760997/bostock-v-clayton-county/ | party. Yet the employer, far from holding her biological sex 12 BOSTOCK v. CLYTON COUNTY LITO, J., dissenting against her, rated her a “model employee.” t the party, the employer learned something new, her sexual orienta- tion, and it was this new information that motivated her discharge. So this is another example showing that dis- crimination because of sexual orientation does not inher- ently involve discrimination because of sex. In addition to the failed argument just discussed, the Court makes two other arguments, more or less in passing. The first of these is essentially that sexual orientation and gender identity are closely related to sex. The Court argues that sexual orientation and gender identity are “inextrica- bly bound up with sex,” ante, at 10, and that discrimination on the basis of sexual orientation or gender identity in- volves the application of “sex-based rules,” ante, at 17. This is a variant of an argument found in many of the briefs filed in support of the employees and in the lower court decisions that agreed with the Court’s interpretation. ll these vari- ants stress that sex, sexual orientation, and gender identity are related concepts. The Seventh Circuit observed that “[i]t would require considerable calisthenics to remove ‘sex’ from ‘sexual orientation.’ ”11 The Second Circuit wrote that sex is necessarily “a factor in sex- ual orientation” and further concluded that “sexual orien- tation is a function of sex.” 112–113 (en banc). Bostock’s brief and those of amici support- ing his position contend that sexual orientation is “a sex- based consideration.”12 Other briefs state that sexual ori- entation is “a function of sex”13 or is “intrinsically related to —————— 11 See also Brief for William N. Eskridge Jr. et al. as mici Curiae 2 (“[T]here is no reasonable way to disentangle sex from same-sex attrac- tion or transgender status”). 12 Brief for Petitioner in No. 17–118, at 14; see also Brief for Southern Poverty Law Center et al. as mici Curiae 7–8. 13 Brief for Scholars Who Study the LGB Population as mici Curiae in Nos. 17–118, 17–123, p. 10. Cite as: 590 U. S. 13 LITO, J., dissenting sex.”14 Similarly, Stephens argues that sex and gender identity are necessarily intertwined: “By definition, a transgender person is someone who lives and identifies with a sex different than the sex assigned to the person at birth.”15 It is curious to see this argument in an opinion that pur- ports to apply the purest and highest form of textualism be- cause the argument effectively amends the statutory text. Title VII prohibits discrimination because of sex itself, |
Justice Alito | 2,020 | 8 | dissenting | Bostock v. Clayton County | https://www.courtlistener.com/opinion/4760997/bostock-v-clayton-county/ | statutory text. Title VII prohibits discrimination because of sex itself, not everything that is related to, based on, or defined with ref- erence to, “sex.” Many things are related to sex. Think of all the nouns other than “orientation” that are commonly modified by the adjective “sexual.” Some examples yielded by a quick computer search are “sexual harassment,” “sex- ual assault, “sexual violence,” “sexual intercourse,” and “sexual content.” Does the Court really think that Title VII prohibits dis- crimination on all these grounds? Is it unlawful for an em- ployer to refuse to hire an employee with a record of sexual harassment in prior jobs? Or a record of sexual assault or violence? To be fair, the Court does not claim that Title VII prohib- its discrimination because of everything that is related to sex. The Court draws a distinction between things that are “inextricably” related and those that are related in “some vague sense.” nte, at 10. pparently the Court would graft onto Title VII some arbitrary line separating the things that are related closely enough and those that are not.1 nd it would do this in the name of high textualism. —————— 14 Brief for merican Psychological ssociation et al. as mici Curiae 11. 15 Reply Brief for Respondent imee Stephens in No. 18–107, p. 5. 1 Notably, Title VII itself already suggests a line, which the Court ig- nores. The statute specifies that the terms “because of sex” and “on the basis of sex” cover certain conditions that are biologically tied to sex, 14 BOSTOCK v. CLYTON COUNTY LITO, J., dissenting n additional argument made in passing also fights the text of Title VII and the policy it reflects. The Court pro- claims that “[a]n individual’s homosexuality or transgender status is not relevant to employment decisions.” nte, at 9. That is the policy view of many people in and perhaps Congress would have amended Title VII to implement it if this Court had not intervened. But that is not the policy embodied in Title VII in its current form. Title VII prohib- its discrimination based on five specified grounds, and nei- ther sexual orientation nor gender identity is on the list. s long as an employer does not discriminate based on one of the listed grounds, the employer is free to decide for itself which characteristics are “relevant to [its] employment de- cisions.” By proclaiming that sexual orientation and gender identity are “not relevant to employment decisions,” the Court updates Title VII to reflect what it regards as values. The Court’s remaining argument is based on a |
Justice Alito | 2,020 | 8 | dissenting | Bostock v. Clayton County | https://www.courtlistener.com/opinion/4760997/bostock-v-clayton-county/ | as values. The Court’s remaining argument is based on a hypothet- ical that the Court finds instructive. In this hypothetical, an employer has two employees who are “attracted to men,” and “to the employer’s mind” the two employees are “mate- rially identical” except that one is a man and the other is a woman. nte, at 9 (emphasis added). The Court reasons that if the employer fires the man but not the woman, the employer is necessarily motivated by the man’s biological sex. nte, at 9–10. fter all, if two employees are identical in every respect but sex, and the employer fires only one, what other reason could there be? The problem with this argument is that the Court loads the dice. That is so because in the mind of an employer who does not want to employ individuals who are attracted to —————— namely, “pregnancy, childbirth, [and] related medical conditions.” 42 U.S. C. 000e(k). This definition should inform the meaning of “be- cause of sex” in Title VII more generally. Unlike pregnancy, neither sex- ual orientation nor gender identity is biologically linked to women or men. Cite as: 590 U. S. 15 LITO, J., dissenting members of the same sex, these two employees are not ma- terially identical in every respect but sex. On the contrary, they differ in another way that the employer thinks is quite material. nd until Title VII is amended to add sexual ori- entation as a prohibited ground, this is a view that an em- ployer is permitted to implement. s noted, other than pro- hibiting discrimination on any of five specified grounds, “race, color, religion, sex, [and] national origin.” 42 U.S. C. 000e–2(a)(1), Title VII allows employers to decide whether two employees are “materially identical.” Even id- iosyncratic criteria are permitted; if an employer thinks that Scorpios make bad employees, the employer can refuse to hire Scorpios. Such a policy would be unfair and foolish, but under Title VII, it is permitted. nd until Title VII is amended, so is a policy against employing gays, lesbians, or transgender individuals. Once this is recognized, what we have in the Court’s hy- pothetical case are two employees who differ in two ways–– sex and sexual orientation––and if the employer fires one and keeps the other, all that can be inferred is that the em- ployer was motivated either entirely by sexual orientation, entirely by sex, or in part by both. We cannot infer with any certainty, as the hypothetical is apparently meant to suggest, that the employer was motivated even in part by sex. The |
Justice Alito | 2,020 | 8 | dissenting | Bostock v. Clayton County | https://www.courtlistener.com/opinion/4760997/bostock-v-clayton-county/ | the employer was motivated even in part by sex. The Court harps on the fact that under Title VII a pro- hibited ground need not be the sole motivation for an ad- verse employment action, see ante, at 10–11, 14–15, 21, but its example does not show that sex necessarily played any part in the employer’s thinking. The Court tries to avoid this inescapable conclusion by arguing that sex is really the only difference between the two employees. This is so, the Court maintains, because both employees “are attracted to men.” nte, at 9–10. Of course, the employer would couch its objection to the man differently. It would say that its objection was his sexual orientation. So this may appear to leave us with a battle of 1 BOSTOCK v. CLYTON COUNTY LITO, J., dissenting labels. If the employer’s objection to the male employee is characterized as attraction to men, it seems that he is just like the woman in all respects except sex and that the em- ployer’s disparate treatment must be based on that one dif- ference. On the other hand, if the employer’s objection is sexual orientation or homosexuality, the two employees dif- fer in two respects, and it cannot be inferred that the dis- parate treatment was due even in part to sex. The Court insists that its label is the right one, and that presumably is why it makes such a point of arguing that an employer cannot escape liability under Title VII by giving sex discrimination some other name. See ante, at 14, 17. That is certainly true, but so is the opposite. Something that is not sex discrimination cannot be converted into sex discrimination by slapping on that label. So the Court can- not prove its point simply by labeling the employer’s objec- tion as “attract[ion] to men.” nte, at 9–10. Rather, the Court needs to show that its label is the correct one. nd a labeling standoff would not help the Court because that would mean that the bare text of Title VII does not unambiguously show that its interpretation is right. The Court would have no justification for its stubborn refusal to look any further. s it turns out, however, there is no standoff. It can eas- ily be shown that the employer’s real objection is not “at- tract[ion] to men” but homosexual orientation. In an effort to prove its point, the Court carefully includes in its example just two employees, a homosexual man and a heterosexual woman, but suppose we add two more indi- viduals, a woman who is attracted |
Justice Alito | 2,020 | 8 | dissenting | Bostock v. Clayton County | https://www.courtlistener.com/opinion/4760997/bostock-v-clayton-county/ | add two more indi- viduals, a woman who is attracted to women and a man who is attracted to women. ( large employer will likely have applicants and employees who fall into all four categories, and a small employer can potentially have all four as well.) We now have the four exemplars listed below, with the dis- charged employees crossed out: Cite as: 590 U. S. 17 LITO, J., dissenting Man attracted to men Woman attracted to men Woman attracted to women Man attracted to women The discharged employees have one thing in common. It is not biological sex, attraction to men, or attraction to women. It is attraction to members of their own sex—in a word, sexual orientation. nd that, we can infer, is the em- ployer’s real motive. In sum, the Court’s textual arguments fail on their own terms. The Court tries to prove that “it is impossible to dis- criminate against a person for being homosexual or transgender without discriminating against that individual based on sex,” ante, at 9, but as has been shown, it is en- tirely possible for an employer to do just that. “[H]omosex- uality and transgender status are distinct concepts from sex,” ante, at 19, and discrimination because of sexual ori- entation or transgender status does not inherently or nec- essarily constitute discrimination because of sex. The Court’s arguments are squarely contrary to the statutory text. But even if the words of Title VII did not definitively re- fute the Court’s interpretation, that would not justify the Court’s refusal to consider alternative interpretations. The Court’s excuse for ignoring everything other than the bare statutory text is that the text is unambiguous and therefore no one can reasonably interpret the text in any way other than the Court does. Unless the Court has met that high standard, it has no justification for its blinkered approach. nd to say that the Court’s interpretation is the only possi- ble reading is indefensible. B lthough the Court relies solely on the arguments dis- cussed above, several other arguments figure prominently in the decisions of the lower courts and in briefs submitted 18 BOSTOCK v. CLYTON COUNTY LITO, J., dissenting by or in support of the employees. The Court apparently finds these arguments unpersuasive, and so do I, but for the sake of completeness, I will address them briefly. 1 One argument, which relies on our decision in Price Wa- (plurality opin- ion), is that discrimination because of sexual orientation or gender identity violates Title VII because it constitutes pro- hibited discrimination on the basis of sex stereotypes. |
Justice Alito | 2,020 | 8 | dissenting | Bostock v. Clayton County | https://www.courtlistener.com/opinion/4760997/bostock-v-clayton-county/ | constitutes pro- hibited discrimination on the basis of sex stereotypes. See –123; 853 F.3d, at 34; 884 F.3d 50, 57–577 The argument goes like this. Ti- tle VII prohibits discrimination based on stereotypes about the way men and women should behave; the belief that a person should be attracted only to persons of the opposite sex and the belief that a person should identify with his or her biological sex are examples of such stereotypes; there- fore, discrimination on either of these grounds is unlawful. This argument fails because it is based on a faulty prem- ise, namely, that Title VII forbids discrimination based on sex stereotypes. It does not. It prohibits discrimination be- cause of “sex,” and the two concepts are not the same. See Price That does not mean, however, that an employee or applicant for employment cannot prevail by showing that a challenged decision was based on a sex stereotype. Such evidence is relevant to prove discrimination because of sex, and it may be convinc- ing where the trait that is inconsistent with the stereotype is one that would be tolerated and perhaps even valued in a person of the opposite sex. See Much of the plaintiff ’s evidence in Price was of this nature. The plaintiff was a woman who was passed over for partnership at an accounting firm, and some of the adverse comments about her work appeared to criticize her for being forceful and insufficiently “feminin[e].” at 235–23. Cite as: 590 U. S. 19 LITO, J., dissenting The main issue in Price ––the proper alloca- tion of the burdens of proof in a so-called mixed motives Ti- tle VII case—is not relevant here, but the plurality opinion, endorsed by four Justices, commented on the issue of sex stereotypes. The plurality observed that “sex stereotypes do not inevitably prove that gender played a part in a par- ticular employment decision” but “can certainly be evidence that gender played a part.”17 nd the plurality made it clear that “[t]he plaintiff must show that the em- ployer actually relied on her gender in making its decision.” Plaintiffs who allege that they were treated unfavorably because of their sexual orientation or gender identity are not in the same position as the plaintiff in Price Water- house. In cases involving discrimination based on sexual orientation or gender identity, the grounds for the em- ployer’s decision—that individuals should be sexually at- tracted only to persons of the opposite biological sex or should identify with their biological sex—apply equally to men and women. “[H]eterosexuality is not a female stereo- type; it |
Justice Alito | 2,020 | 8 | dissenting | Bostock v. Clayton County | https://www.courtlistener.com/opinion/4760997/bostock-v-clayton-county/ | and women. “[H]eterosexuality is not a female stereo- type; it not a male stereotype; it is not a sex- specific stereotype at all.” (Sykes, J., dissenting). To be sure, there may be cases in which a gay, lesbian, or transgender individual can make a claim like the one in Price That is, there may be cases where traits or behaviors that some people associate with gays, lesbians, or transgender individuals are tolerated or valued in per- sons of one biological sex but not the other. But that is a —————— 17 Two other Justices concurred in the judgment but did not comment on the issue of stereotypes. See at 258–21 (opinion of White, J.); at 21–279 (opinion of O’Connor, J.). nd Justice Kennedy reiterated on behalf of the three Justices in dissent that “Title VII creates no independ- ent cause of action for sex stereotyping,” but he added that “[e]vidence of use by decisionms of sex stereotypes is, of course, quite relevant to the question of discriminatory intent.” 20 BOSTOCK v. CLYTON COUNTY LITO, J., dissenting different matter. 2 second prominent argument made in support of the re- sult that the Court now reaches analogizes discrimination against gays and lesbians to discrimination against a per- son who is married to or has an intimate relationship with a person of a different race. Several lower court cases have held that discrimination on this ground violates Title VII. See, e.g., ; (C11 198). nd the logic of these decisions, it is argued, applies equally where an employee or applicant is treated unfavor- ably because he or she is married to, or has an intimate re- lationship with, a person of the same sex. This argument totally ignores the historically rooted rea- son why discrimination on the basis of an interracial rela- tionship constitutes race discrimination. nd without tak- ing history into account, it is not easy to see how the decisions in question fit the terms of Title VII. Recall that Title VII makes it unlawful for an employer to discriminate against an individual “because of such indi- vidual’s race.” 42 U.S. C. 000e–2(a) (emphasis added). So if an employer is happy to employ whites and blacks but will not employ any employee in an interracial relationship, how can it be said that the employer is discriminating against either whites or blacks “because of such individual’s race”? This employer would be applying the same rule to all its employees regardless of their race. The answer is that this employer is discriminating on a ground that history tells us is a core form |
Justice Alito | 2,020 | 8 | dissenting | Bostock v. Clayton County | https://www.courtlistener.com/opinion/4760997/bostock-v-clayton-county/ | a ground that history tells us is a core form of race discrimi- nation.18 “It would require absolute blindness to the history —————— 18 Notably, Title VII recognizes that in light of history distinctions on the basis of race are always disadvantageous, but it permits certain dis- Cite as: 590 U. S. 21 LITO, J., dissenting of racial discrimination in this country not to understand what is at stake in such cases prohibition on ‘race- mixing’ was grounded in bigotry against a particular race and was an integral part of preserving the rigid hier- archical distinction that denominated members of the black race as inferior to whites.” –159 (Lynch, J., dissenting). Discrimination because of sexual orientation is different. It cannot be regarded as a form of sex discrimination on the ground that applies in race cases since discrimination be- cause of sexual orientation is not historically tied to a pro- ject that aims to subjugate either men or women. n em- ployer who discriminates on this ground might be called “homophobic” or “transphobic,” but not sexist. See Wittmer v. Phillips Co., (Ho, J., concurring). 3 The opinion of the Court intimates that the term “sex” was not universally understood in 194 to refer just to the categories of male and female, see ante, and while the Court does not take up any alternative definition as a ground for its decision, I will say a word on this subject. s previously noted, the definitions of “sex” in the una- bridged dictionaries in use in the 190s are reproduced in ppendix infra. nyone who examines those definitions can see that the primary definition in every one of them re- fers to the division of living things into two groups, male and female, based on biology, and most of the definitions further down the list are the same or very similar. In addi- tion, some definitions refer to heterosexual sex acts. See —————— tinctions based on sex. Title 42 U.S. C. 000e–2(e)(1) allows for “in- stances where religion, sex, or national origin is a bona fide occupational qualification reasonably necessary to the normal operation of [a] partic- ular business or enterprise.” Race is wholly absent from this list. 22 BOSTOCK v. CLYTON COUNTY LITO, J., dissenting Random House Dictionary 1307 (“coitus,” “sexual inter- course” (defs. 5–)); merican Heritage Dictionary, at 1187 (“sexual intercourse” (def. 5)).19 side from these, what is there? One definition, “to neck passionately,” Random House Dictionary 1307 (def. 8), re- fers to sexual conduct that is not necessarily heterosexual. But can it be seriously argued that one of the aims |
Justice Alito | 2,020 | 8 | dissenting | Bostock v. Clayton County | https://www.courtlistener.com/opinion/4760997/bostock-v-clayton-county/ | can it be seriously argued that one of the aims of Title VII is to outlaw employment discrimination against em- ployees, whether heterosexual or homosexual, who engage in necking? nd even if Title VII had that effect, that is not what is at issue in cases like those before us. That brings us to the two remaining subsidiary defini- tions, both of which refer to sexual urges or instincts and their manifestations. See the fourth definition in the mer- ican Heritage Dictionary, at 1187 (“the sexual urge or in- stinct as it manifests itself in behavior”), and the fourth def- inition in both Webster’s Second and Third (“[p]henomena of sexual instincts and their manifestations,” Webster’s New International Dictionary, at 229 (2d ed.); Webster’s Third New International Dictionary 2081 (19)). Since both of these come after three prior definitions that refer to men and women, they are most naturally read to have the same association, and in any event, is it plausible that Title VII prohibits discrimination based on any sexual urge or instinct and its manifestations? The urge to rape? Viewing all these definitions, the overwhelming impact is that discrimination because of “sex” was understood during the era when Title VII was enacted to refer to men and women. (The same is true of current definitions, which are reproduced in ppendix B, infra.) This no doubt explains why neither this Court nor any of the lower courts have tried to make much of the dictionary definitions of sex just —————— 19 See merican Heritage Dictionary 1188 (199) (defining “sexual in- tercourse”); Webster’s Third New International Dictionary 2082 (19) (same); Random House Dictionary of the English Language 1308 (19) (same). Cite as: 590 U. S. 23 LITO, J., dissenting discussed. II So far, I have not looked beyond dictionary definitions of “sex,” but textualists like Justice Scalia do not confine their inquiry to the scrutiny of dictionaries. See Tex- tualism and the Equity of the Statute, 101 Colum. L. Rev. 1, 109 (2001). Dictionary definitions are valuable because they are evidence of what people at the time of a statute’s enactment would have understood its words to mean. But they are not the only source of relevant evidence, and what matters in the end is the answer to the question that the evidence is gathered to resolve: How would the terms of a statute have been understood by ordinary people at the time of enactment? Justice Scalia was perfectly clear on this point. The words of a law, he insisted, “mean what they conveyed to reasonable people at the time.” Reading |
Justice Alito | 2,020 | 8 | dissenting | Bostock v. Clayton County | https://www.courtlistener.com/opinion/4760997/bostock-v-clayton-county/ | what they conveyed to reasonable people at the time.” Reading Law, at 1 (empha- sis added).20 Leading proponents of Justice Scalia’s school of textual- ism have expounded on this principle and explained that it is grounded on an understanding of the way language works. s Dean John F. explains, “the meaning of language depends on the way a linguistic community uses words and phrases in context.” What Divides Textu- alists From Purposivists? 10 Colum. L. Rev. (200). “[O]ne can make sense of others’ communications only by placing them in their appropriate social and linguistic con- text,” 9–80, and this is no less true of statutes than any other verbal communications. “[S]tatutes convey meaning only because members of a relevant linguistic —————— 20 See also (Scalia, J., dis- senting) (“We are to read the words of [a statutory] text as any ordinary Member of Congress would have read them and apply the meaning so determined”). 24 BOSTOCK v. CLYTON COUNTY LITO, J., dissenting community apply shared background conventions for un- derstanding how particular words are used in particular contexts.” The bsurdity Doctrine, 11 Harv. L. Rev. 2387, 2457 Therefore, judges should ascribe to the words of a statute “what a reasonable person conver- sant with applicable social conventions would have under- stood them to be adopting.” 10 Colum. L. Rev., 7. Or, to put the point in slightly different terms, a judge interpreting a statute should ask “ ‘what one would ordinarily be understood as saying, given the circumstances in which one said it.’ ” 11 Harv. L. Rev., at 2397– 2398. Judge Frank Easterbrook has made the same points: “Words are arbitrary signs, having meaning only to the extent writers and readers share an understanding. Language in general, and legislation in particular, is a social enterprise to which both spes and listeners contribute, drawing on background understandings and the structure and circumstances of the utterance.” 9 F.2d 9, 982 (C7 1992). Consequently, “[s]licing a statute into phrases while ig- noring the setting of the enactment is a formula for disaster.” ; see also Continental Can 91 F.2d 1154, (“You don’t have to be Ludwig Wittgenstein or Hans-Georg Gadamer to know that successful communication depends on meanings shared by interpretive communities”). Thus, when textualism is properly understood, it calls for an examination of the social context in which a statute was enacted because this may have an important bearing on what its words were understood to mean at the time of en- actment. Textualists do not read statutes as if they were messages picked up by a powerful radio telescope from |
Justice Alito | 2,020 | 8 | dissenting | Bostock v. Clayton County | https://www.courtlistener.com/opinion/4760997/bostock-v-clayton-county/ | were messages picked up by a powerful radio telescope from a Cite as: 590 U. S. 25 LITO, J., dissenting distant and utterly unknown civilization. Statutes consist of communications between members of a particular lin- guistic community, one that existed in a particular place and at a particular time, and these communications must therefore be interpreted as they were understood by that community at that time. For this reason, it is imperative to consider how meri- cans in 194 would have understood Title VII’s prohibition of discrimination because of sex. To get a picture of this, we may imagine this scene. Suppose that, while Title VII was under consideration in Congress, a group of average mer- icans decided to read the text of the bill with the aim of writing or calling their representatives in Congress and conveying their approval or disapproval. What would these ordinary citizens have taken “discrimination because of sex” to mean? Would they have thought that this language prohibited discrimination because of sexual orientation or gender identity? B The answer could not be clearer. In 194, ordinary mer- icans reading the text of Title VII would not have dreamed that discrimination because of sex meant discrimination be- cause of sexual orientation, much less gender identity. The ordinary meaning of discrimination because of “sex” was discrimination because of a person’s biological sex, not sex- ual orientation or gender identity. The possibility that dis- crimination on either of these grounds might fit within some exotic understanding of sex discrimination would not have crossed their minds. 1 In 194, the concept of prohibiting discrimination “be- cause of sex” was no novelty. It was a familiar and well- understood concept, and what it meant was equal treat- ment for men and women. 2 BOSTOCK v. CLYTON COUNTY LITO, J., dissenting Long before Title VII was adopted, many pioneering state and federal laws had used language substantively indistin- guishable from Title VII’s critical phrase, “discrimination because of sex.” For example, the California Constitution of 1879 stipulated that no one, “on account of sex, [could] be disqualified from entering upon or pursuing any lawful business, vocation, or profession.” rt. XX, (emphasis added). It also prohibited a student’s exclusion from any state university department “on account of sex.” rt. IX, accord, Mont. Const., rt. XI, (1889). Wyoming’s first Constitution proclaimed broadly that “[b]oth male and female citizens of this state shall equally enjoy all civil, political and religious rights and privileges,” rt. VI, (1890), and then provided specifically that “[i]n none of the public schools shall distinction or discrimi- nation be made on |
Justice Alito | 2,020 | 8 | dissenting | Bostock v. Clayton County | https://www.courtlistener.com/opinion/4760997/bostock-v-clayton-county/ | public schools shall distinction or discrimi- nation be made on account of sex,” rt. VII, 0 (emphasis added); see also (the “university shall be equally open to students of both sexes”). Washington’s Constitution like- wise required “ample provision for the education of all chil- dren without distinction or preference on account of sex.” rt. IX, (1889) (emphasis added). The Constitution of Utah, adopted in 1895, provided that the right to vote and hold public office “shall not be denied or abridged on account of sex.” rt. IV, (emphasis added). nd in the next sentence it made clear what “on account of sex” meant, stating that “[b]oth male and female citizens shall enjoy equally all civil, political and religious rights and privileges.” The most prominent example of a provision using this language was the Nineteenth mendment, ratified in 1920, which bans the denial or abridgment of the right to vote “on account of sex.” U. S. Const., mdt. 19. Similar language appeared in the proposal of the National Woman’s Party for an Equal Rights mendment. s framed in 1921, this pro- posal forbade all “political, civil or legal disabilities or ine- qualities on account of sex, [o]r on account of marriage.” Cite as: 590 U. S. 27 LITO, J., dissenting Women Lawyers Meet: Representatives of 20 States En- dorse Proposed Equal Rights mendment, N. Y. Times, Sept. 1, 1921, p. 10. Similar terms were used in the precursor to the Equal Pay ct. Introduced in 1944 by Congresswoman Winifred C. Stanley, it proclaimed that “[d]iscrimination against em- ployees, in rates of compensation paid, on account of sex” was “contrary to the public interest.” H. R. 505, th Cong., 2d Sess. In 1952, the new Constitution for Puerto Rico, which was approved by Congress, Stat. 327, prohibited all “discrim- ination on account of sex,” rt. II, Bill of Rights (emphasis added), and in the landmark Immigration and Nationality ct of 1952, Congress outlawed discrimination in naturalization “because of sex.” 8 U.S. C. 422 (em- phasis added). In 1958, the International Labour Organisation, a United Nations agency of which the United States is a member, recommended that nations bar employment discrimination “made on the basis of sex.” Convention (No. 111) Con- cerning Discrimination in Respect of Employment and Oc- cupation, rt. 1(a), June 25, 1958, 32 U. N. T. S. 32 (em- phasis added). In 191, President Kennedy ordered the Civil Service Commission to review and modify personnel policies “to as- sure that selection for any career position is hereinafter made solely on the basis of individual merit and fitness, without regard to |
Justice Alito | 2,020 | 8 | dissenting | Bostock v. Clayton County | https://www.courtlistener.com/opinion/4760997/bostock-v-clayton-county/ | the basis of individual merit and fitness, without regard to sex.”21 He concurrently established a “Commission on the Status of Women” and directed it to recommend policies “for overcoming discriminations in gov- ernment and private employment on the basis of sex.” Exec. Order No. 10980, 3 CFR 138 (191 Supp.) (emphasis —————— 21 J. Kennedy, Statement by the President on the Establishment of the President’s Commission on the Status of Women 3 (Dec. 14, 191) (emphasis added), https://www.jfklibrary.org/asset-viewer/archives/ JFKPOF/093/JFKPOF-093-004. 28 BOSTOCK v. CLYTON COUNTY LITO, J., dissenting added). In short, the concept of discrimination “because of,” “on account of,” or “on the basis of ” sex was well understood. It was part of the campaign for equality that had been waged by women’s rights advocates for more than a century, and what it meant was equal treatment for men and women.22 2 Discrimination “because of sex” was not understood as having anything to do with discrimination because of sex- ual orientation or transgender status. ny such notion would have clashed in spectacular fashion with the societal norms of the day. For most 21st-century mericans, it is painful to be re- minded of the way our society once treated gays and lesbi- ans, but any honest effort to understand what the terms of Title VII were understood to mean when enacted must take into account the societal norms of that time. nd the plain truth is that in 194 homosexuality was thought to be a mental disorder, and homosexual conduct was regarded as morally culpable and worthy of punishment. —————— 22 nalysis of the way Title VII’s key language was used in books and articles during the relevant time period supports this conclusion. study searched a vast database of documents from that time to determine how the phrase “discriminate against because of [some trait]” was used. Phillips, The Overlooked Evidence in the Title VII Cases: The Lin- guistic (and Therefore Textualist) Principle of Compositionality (manu- script, at 3) (brackets in original), https://ssrn.com/ abstract=3585940. The study found that the phrase was used to denote discrimination against “someone motivated by prejudice, or biased ideas or attitudes directed at people with that trait in particular.” In other words, “discriminate against” was “associated with negative treatment directed at members of a discrete group.” Thus, as used in 194, “discrimination because of sex” would have been understood to mean discrimination against a woman or a man based on “unfair beliefs or attitudes” about members of that par- ticular sex. Cite as: 590 U. S. 29 LITO, J., dissenting In its then-most recent Diagnostic and Statistical Manual |
Justice Alito | 2,020 | 8 | dissenting | Bostock v. Clayton County | https://www.courtlistener.com/opinion/4760997/bostock-v-clayton-county/ | J., dissenting In its then-most recent Diagnostic and Statistical Manual of Mental Disorders (1952) (DSM–I), the merican Psychi- atric ssociation (P) classified same-sex attraction as a “sexual deviation,” a particular type of “sociopathic person- ality disturbance,” at 38–39, and the next edition, is- sued in 198, similarly classified homosexuality as a “sex- ual deviatio[n],” Diagnostic and Statistical Manual of Mental Disorders 44 (2d ed.) (DSM–II). It was not until the sixth printing of the DSM–II in 1973 that this was changed.23 Society’s treatment of homosexuality and homosexual conduct was consistent with this understanding. Sodomy was a crime in every State but Illinois, see W. Eskridge, Dishonorable Passions 387–407 and in the District of Columbia, a law enacted by Congress made sodomy a fel- ony punishable by imprisonment for up to 10 years and per- mitted the indefinite civil commitment of “sexual psycho- path[s],” ct of June 9, 1948, §04, 201–207, 2 Stat. 347– 349.24 —————— 23 P, Homosexuality and Sexual Orientation Disturbance: Proposed Change in DSM–II, th Printing, p. 44 (P Doc. Ref. No. 730008, 1973) (reclassifying “homosexuality” as a “[s]exual orientation disturbance,” a category “for individuals whose sexual interests are directed primarily toward people of the same sex and who are either disturbed by or wish to change their sexual orientation,” and explaining that “homosex- uality by itself does not constitute a psychiatric disorder”); see also P, Diagnostic and Statistical Manual of Mental Disorders 281–282 (DSM–III) (similarly creating category of “Ego-dystonic Homo- sexuality” for “homosexuals for whom changing sexual orientation is a persistent concern,” while observing that “homosexuality itself is not con- sidered a mental disorder”); 57 U.S. 44, 1 (2015). 24 In 1981, after achieving home rule, the District attempted to decrim- inalize sodomy, see D. C. ct No. 4–9, but the House of Representatives vetoed the bill, H. Res. 208, 97th Cong., 1st Sess. (1981); 127 Cong. Rec. 2274–22779 (1981). Sodomy was not decriminalized in the District un- til 1995. See nti-Sexual buse ct of 1994, 01(b), 41 Dall. C. Reg. 53 (1995), enacted as D. C. Law 10–257. 30 BOSTOCK v. CLYTON COUNTY LITO, J., dissenting This view of homosexuality was reflected in the rules gov- erning the federal work force. In 194, federal “[a]gencies could deny homosexual men and women employment be- cause of their sexual orientation,” and this practice contin- ued until 1975. GO, D. Heivilin, Security Clearances: Consideration of Sexual Orientation in the Clearance Pro- cess 2 (GO/NSID–95–21, 1995). See, e.g., nonymous v. Macy, (C5 198) (affirming dismissal of postal employee for homosexual acts). In 194, individuals who were known to be homosexual |
Justice Alito | 2,020 | 8 | dissenting | Bostock v. Clayton County | https://www.courtlistener.com/opinion/4760997/bostock-v-clayton-county/ | acts). In 194, individuals who were known to be homosexual could not obtain security clearances, and any who possessed clearances were likely to lose them if their orientation was discovered. 1953 Executive Order provided that back- ground investigations should look for evidence of “sexual perversion,” as well as “[a]ny criminal, infamous, dishonest, immoral, or notoriously disgraceful conduct.” Exec. Order No. 10450, 3 CFR (1949–1953 Comp.). “Until about 1991, when agencies began to change their se- curity policies and practices regarding sexual orientation, there were a number of documented cases where defense civilian or contractor employees’ security clearances were denied or revoked because of their sexual orientation.” GO, Security Clearances, at 2. See, e.g., (CDC 199) (upholding denial of secu- rity clearance to defense contractor employee because he had “engaged in repeated homosexual acts”); see also Web- 48 U.S. 592, 595, 01 (concluding that decision to fire a particular individual because he was ho- mosexual fell within the “discretion” of the Director of Cen- tral Intelligence under the National Security ct of 1947 and thus was unreviewable under the P). The picture in state employment was similar. In 194, it was common for States to bar homosexuals from serving as teachers. n article summarizing the situation 15 years af- ter Title VII became law reported that “[a]ll states have statutes that permit the revocation of teaching certificates Cite as: 590 U. S. 31 LITO, J., dissenting (or credentials) for immorality, moral turpitude, or unpro- fessionalism,” and, the survey added, “[h]omosexuality is considered to fall within all three categories.”25 The situation in California is illustrative. California laws prohibited individuals who engaged in “immoral conduct” (which was construed to include homosexual behavior), as well as those convicted of “sex offenses” (like sodomy), from employment as teachers. Cal. Educ. Code nn. §3202, 13207, 13209, 13218, 13255 (West 190). The teaching cer- tificates of individuals convicted of engaging in homosexual acts were revoked. See, e.g., Sarac v. State Bd. of Ed., 249 Cal. pp. 2d 58, 2–4, 57 Cal. Rptr. 9, (197) (up- holding revocation of secondary teaching credential from teacher who was convicted of engaging in homosexual con- duct on public beach), overruled in part, 41 P.2d 375 (199). In Florida, the legislature enacted laws authorizing the revocation of teaching certificates for “misconduct involving moral turpitude,” Fla. Stat. nn. 29.08(1) (191), and this law was used to target homosexual conduct. In 194, a legislative committee was wrapping up a -year campaign to remove homosexual teachers from public schools and state universities. s a result of these efforts, the state board of education apparently revoked |
Justice Alito | 2,020 | 8 | dissenting | Bostock v. Clayton County | https://www.courtlistener.com/opinion/4760997/bostock-v-clayton-county/ | of these efforts, the state board of education apparently revoked at least 71 teachers’ certificates and removed at least 14 university professors. Eskridge, Dishonorable Passions, at 103. Individuals who engaged in homosexual acts also faced the loss of other occupational licenses, such as those needed to work as a “lawyer, doctor, mortician, [or] beautician.”2 See, e.g., Florida 232 So. 2d 3 2 Eskridge, Challenging the partheid of the Closet: Establishing Conditions for Lesbian and Gay Intimacy, Nomos, and Citizenship, 191–1981, 32 BOSTOCK v. CLYTON COUNTY LITO, J., dissenting public bathroom). In 194 and for many years thereafter, homosexuals were barred from the military. See, e.g., rmy Reg. 35–89, (a) (July 15, 19) (“Personnel who voluntarily engage in homosexual acts, irrespective of sex, will not be permitted to serve in the rmy in any capacity, and their prompt sep- aration is mandatory”); rmy Reg. 00–443, (pril 10, 1953) (similar). Prohibitions against homosexual conduct by members of the military were not eliminated until 2010. See Don’t sk, Don’t Tell Repeal ct of 2010, (repealing 10 U.S. C. 54, which required members of the rmed Forces to be separated for engaging in homosexual conduct). Homosexuals were also excluded from entry into the United States. The Immigration and Nationality ct of 1952 (IN) excluded aliens “afflicted with psychopathic per- sonality.” 8 U.S. C. 182(a)(4) (194 ed.). In v. INS, (197), this Court, relying on the IN’s legislative history, interpreted that term to en- compass homosexuals and upheld an alien’s deportation on that ground. Three Justices disagreed with the majority’s interpretation of the phrase “psychopathic personality.”27 But it apparently did not occur to anyone to argue that the Court’s interpretation was inconsistent with the IN’s ex- press prohibition of discrimination “because of sex.” That was how our society—and this Court—saw things a half century ago. Discrimination because of sex and discrimina- tion because of sexual orientation were viewed as two en- tirely different concepts. To its credit, our society has now come to recognize the injustice of past practices, and this recognition provides the impetus to “update” Title VII. But that is not our job. Our —————— 27 Justices Douglas and Fortas thought that a homosexual is merely “one, who by some freak, is the product of an arrested development.” ; see also (Brennan, J., dissenting) (based on lower court dissent). Cite as: 590 U. S. 33 LITO, J., dissenting duty is to understand what the terms of Title VII were un- derstood to mean when enacted, and in doing so, we must take into account the societal norms of that time. We must therefore |
Justice Alito | 2,020 | 8 | dissenting | Bostock v. Clayton County | https://www.courtlistener.com/opinion/4760997/bostock-v-clayton-county/ | account the societal norms of that time. We must therefore ask whether ordinary mericans in 194 would have thought that discrimination because of “sex” carried some exotic meaning under which private-sector employers would be prohibited from engaging in a practice that repre- sented the official policy of the Federal Government with respect to its own employees. We must ask whether mer- icans at that time would have thought that Title VII banned discrimination against an employee for engaging in conduct that Congress had made a felony and a ground for civil commitment. The questions answer themselves. Even if discrimination based on sexual orientation or gender identity could be squeezed into some arcane understanding of sex discrimi- nation, the context in which Title VII was enacted would tell us that this is not what the statute’s terms were under- stood to mean at that time. To paraphrase something Jus- tice Scalia once wrote, “our job is not to scavenge the world of English usage to discover whether there is any possible meaning” of discrimination because of sex that might be broad enough to encompass discrimination because of sex- ual orientation or gender identity. 501 U.S. 380, 410 (dissenting opinion). Without strong evidence to the contrary (and there is none here), our job is to ascertain and apply the “ordinary meaning” of the stat- ute. nd in 194, ordinary mericans most certainly would not have understood Title VII to ban discrimination because of sexual orientation or gender identity. The Court makes a tiny effort to suggest that at least some people in 194 might have seen what Title VII really means. nte, at 2. What evidence does it adduce? One complaint filed in 199, another filed in 1974, and argu- ments made in the mid-19s about the meaning of the Equal Rights mendment. To call this evidence 34 BOSTOCK v. CLYTON COUNTY LITO, J., dissenting merely feeble would be generous. C While mericans in 194 would have been shocked to learn that Congress had enacted a law prohibiting sexual orientation discrimination, they would have been bewil- dered to hear that this law also forbids discrimination on the basis of “transgender status” or “gender identity,” terms that would have left people at the time scratching their heads. The term “transgender” is said to have been coined “ ‘in the early 19s,’ ”28 and the term “gender identity,” now understood to mean “[a]n internal sense of being male, fe- male or something else,”29 apparently first appeared in an academic article in 194.30 Certainly, neither term was in common parlance; indeed, dictionaries of the time |
Justice Alito | 2,020 | 8 | dissenting | Bostock v. Clayton County | https://www.courtlistener.com/opinion/4760997/bostock-v-clayton-county/ | term was in common parlance; indeed, dictionaries of the time still pri- marily defined the word “gender” by reference to grammat- ical classifications. See, e.g., merican Heritage Diction- ary, 48 (def. 1(a)) (“ny set of two or more categories, such as masculine, feminine, and neuter, into which words are divided and that determine agreement with or the —————— 28 Transsexualism, Gender Identity Disorder and the DSM, 14 J. Gay & Lesbian Mental Health 109, 110 (2010). 29 merican Psychological ssociation, 49 Monitor on Psychology, at 32. 30 Green, Robert Stoller’s Sex and Gender: 40 Years On, 39 rchives Sexual Behav. 1457 (2010); see Stoller, Contribution to the Study of Gender Identity, 45 Int’l J. Psychoanalysis 220 (194). The term appears to have been coined a year or two earlier. See Haig, The Inexorable Rise of Gender and the Decline of Sex: Social Change in cademic Titles, 1945–2001, 33 rchives Sexual Behav. 87, 93 (2004) (suggesting the term was first introduced at 23rd International Psycho-nalytical Con- gress in Stockholm in 193); J. Meyerowitz, How Sex Changed 213 (2002) (referring to founding of “Gender Identity Research Clinic” at UCL in 192). In his book, Sex and Gender, published in 198, Robert Stoller referred to “gender identity” as “a working term” “associated with” his research team but noted that they were not “fixed on copyrighting the term or on defending the concept as one of the splendors of the scientific world.” Sex and Gender, p. viii. Cite as: 590 U. S. 35 LITO, J., dissenting selection of modifiers, referents, or grammatical forms”). While it is likely true that there have always been indi- viduals who experience what is now termed “gender dys- phoria,” i.e., “[d]iscomfort or distress related to an incongru- ence between an individual’s gender identity and the gender assigned at birth,”31 the current understanding of the concept postdates the enactment of Title VII. Nothing resembling what is now called gender dysphoria appeared in either DSM–I (1952) or DSM–II (198). It was not until that the P, in DSM–III, recognized two main psy- chiatric diagnoses related to this condition, “Gender Iden- tity Disorder of Childhood” and “Transsexualism” in adoles- cents and adults.32 DSM–III, at 21–2. The first widely publicized sex reassignment surgeries in the United States were not performed until 19,33 and the great majority of physicians surveyed in 199 thought that an individual who sought sex reassignment surgery was ei- ther “ ‘severely neurotic’ ” or “ ‘psychotic.’ ”34 It defies belief to suggest that the public meaning of dis- crimination because of sex in 194 encompassed discrimi- nation on the |
Justice Alito | 2,020 | 8 | dissenting | Bostock v. Clayton County | https://www.courtlistener.com/opinion/4760997/bostock-v-clayton-county/ | because of sex in 194 encompassed discrimi- nation on the basis of a concept that was essentially un- known to the public at that time. D 1 The Court’s main excuse for entirely ignoring the social context in which Title VII was enacted is that the meaning of Title VII’s prohibition of discrimination because of sex is —————— 31 merican Psychological ssociation, 49 Monitor on Psychology, at 32. 32 See 33 Buckley, Changing of Sex by Surgery Begun at Johns Hopkins, N. Y. Times, Nov. 21, 19, p. 1, col. 8; see also J. Meyerowitz, How Sex Changed 218–220 (2002). 34 ( Green, ttitudes Toward Transsex- ualism and Sex-Reassignment Procedures, in Transsexualism and Sex Reassignment 241–242 (R. Green & J. Money eds. 199)). 3 BOSTOCK v. CLYTON COUNTY LITO, J., dissenting clear, and therefore it simply does not matter whether peo- ple in 194 were “smart enough to realize” what its lan- guage means. 853 F.3d, (Posner, J., concur- ring). ccording to the Court, an argument that looks to the societal norms of those times represents an impermis- sible attempt to displace the statutory language. nte, at 25–2. The Court’s argument rests on a false premise. s al- ready explained at length, the text of Title VII does not pro- hibit discrimination because of sexual orientation or gender identity. nd what the public thought about those issues in 194 is relevant and important, not because it provides a ground for departing from the statutory text, but because it helps to explain what the text was understood to mean when adopted. In arguing that we must put out of our minds what we know about the time when Title VII was enacted, the Court relies on Justice Scalia’s opinion for the Court in Oncale v. Sundowner Offshore Services, Inc., But Oncale is nothing like these cases, and no one should be taken in by the majority’s effort to enlist Justice Scalia in its updating project. The Court’s unanimous decision in Oncale was thor- oughly unremarkable. The Court held that a male em- ployee who alleged that he had been sexually harassed at work by other men stated a claim under Title VII. lthough the impetus for Title VII’s prohibition of sex discrimination was to protect women, anybody reading its terms would im- mediately appreciate that it applies equally to both sexes, and by the time Oncale reached the Court, our precedent already established that sexual harassment may constitute sex discrimination within the meaning of Title VII. See Meritor Savings Bank, (198). Given these premises, syllogistic reasoning dictated the holding. Cite as: |
Justice Alito | 2,020 | 8 | dissenting | Bostock v. Clayton County | https://www.courtlistener.com/opinion/4760997/bostock-v-clayton-county/ | Given these premises, syllogistic reasoning dictated the holding. Cite as: 590 U. S. 37 LITO, J., dissenting What today’s decision latches onto are Oncale’s com- ments about whether “ ‘male-on-male sexual harassment’ ” was on Congress’s mind when it enacted Title VII. nte, at 28 ( 523 U.S., 9). The Court in Oncale observed that this specific type of behavior “was assuredly not the principal evil Congress was concerned with when it enacted Title VII,” but it found that immaterial because “statutory prohibitions often go beyond the principal evil to cover rea- sonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legis- lators by which we are governed.” 523 U.S., 9 (empha- sis added). It takes considerable audacity to read these comments as committing the Court to a position on deep philosophical questions about the meaning of language and their implica- tions for the interpretation of legal rules. These comments are better understood as stating mundane and uncontrover- sial truths. Who would argue that a statute applies only to the “principal evils” and not lesser evils that fall within the plain scope of its terms? Would even the most ardent “pur- posivists” and fans of legislative history contend that congressional intent is restricted to Congress’s “principal concerns”? Properly understood, Oncale does not provide the slight- est support for what the Court has done today. For one thing, it would be a wild understatement to say that dis- crimination because of sexual orientation and transgender status was not the “principal evil” on Congress’s mind in 194. Whether we like to admit it now or not, in the think- ing of Congress and the public at that time, such discrimi- nation would not have been evil at all. But the more important difference between these cases and Oncale is that here the interpretation that the Court adopts does not fall within the ordinary meaning of the stat- utory text as it would have been understood in 194. To 38 BOSTOCK v. CLYTON COUNTY LITO, J., dissenting decide for the defendants in Oncale, it would have been nec- essary to carve out an exception to the statutory text. Here, no such surgery is at issue. Even if we totally disregard the societal norms of 194, the text of Title VII does not support the Court’s holding. nd the reasoning of Oncale does not preclude or counsel against our taking those norms into ac- count. They are relevant, not for the purpose of creating an exception to the terms of the statute, but for |
Justice Alito | 2,020 | 8 | dissenting | Bostock v. Clayton County | https://www.courtlistener.com/opinion/4760997/bostock-v-clayton-county/ | an exception to the terms of the statute, but for the purpose of better appreciating how those terms would have been un- derstood at the time. 2 The Court argues that two other decisions––Phillips v. Martin Marietta Corp., and Los ngeles Dept. of Water and Power v. Manhart, 435 U.S. 2 (19)––buttress its decision, but those cases merely held that Title VII prohibits employer conduct that plainly constitutes discrimination because of biological sex. In Philips, the employer treated women with young chil- dren less favorably than men with young children. In Man- hart, the employer required women to make larger pension contributions than men. It is hard to see how these hold- ings assist the Court. The Court extracts three “lessons” from Phillips, Man- hart, and Oncale, but none sheds any light on the question before us. The first lesson is that “it’s irrelevant what an employer might call its discriminatory practice, how others might label it, or what else might motivate it.” nte, at 14. This lesson is obviously true but proves nothing. s to the label attached to a practice, has anyone ever thought that the application of a law to a person’s conduct depends on how it is labeled? Could a bank robber escape conviction by saying he was engaged in asset enhancement? So if an em- ployer discriminates because of sex, the employer is liable no matter what it calls its conduct, but if the employer’s Cite as: 590 U. S. 39 LITO, J., dissenting conduct is not sex discrimination, the statute does not ap- ply. Thus, this lesson simply takes us back to the question whether discrimination because of sexual orientation or gender identity is a form of discrimination because of bio- logical sex. For reasons already discussed, see Part I–, it is not. It likewise proves nothing of relevance here to note that an employer cannot escape liability by showing that dis- crimination on a prohibited ground was not its sole motiva- tion. So long as a prohibited ground was a motivating fac- tor, the existence of other motivating factors does not defeat liability. The Court makes much of the argument that “[i]n Phil- lips, the employer could have accurately spoken of its policy as one based on ‘motherhood.’ ” nte, at 14; see also ante, at 1. But motherhood, by definition, is a condition that can be experienced only by women, so a policy that distin- guishes between motherhood and parenthood is necessarily a policy that draws a sex-based distinction. There was sex discrimination in Phillips, because women with children were treated disadvantageously |
Justice Alito | 2,020 | 8 | dissenting | Bostock v. Clayton County | https://www.courtlistener.com/opinion/4760997/bostock-v-clayton-county/ | discrimination in Phillips, because women with children were treated disadvantageously compared to men with children. Lesson number two—“the plaintiff ’s sex need not be the sole or primary cause of the employer’s adverse action,” ante, at 14—is similarly unhelpful. The standard of causa- tion in these cases is whether sex is necessarily a “motivat- ing factor” when an employer discriminates on the basis of sexual orientation or gender identity. 42 U.S. C. 000e– 2(m). But the essential question—whether discrimination because of sexual orientation or gender identity constitutes sex discrimination—would be the same no matter what cau- sation standard applied. The Court’s extensive discussion of causation standards is so much smoke. Lesson number three––“an employer cannot escape lia- bility by demonstrating that it treats males and females comparably as groups,” ante, is also irrelevant. There 40 BOSTOCK v. CLYTON COUNTY LITO, J., dissenting is no dispute that discrimination against an individual em- ployee based on that person’s sex cannot be justified on the ground that the employer’s treatment of the average em- ployee of that sex is at least as favorable as its treatment of the average employee of the opposite sex. Nor does it mat- ter if an employer discriminates against only a subset of men or women, where the same subset of the opposite sex is treated differently, as in Phillips. That is not the issue here. n employer who discriminates equally on the basis of sexual orientation or gender identity applies the same criterion to every affected individual regardless of sex. See Part I–, III Because the opinion of the Court flies a textualist flag, I have taken pains to show that it cannot be defended on tex- tualist grounds. But even if the Court’s textualist argu- ment were stronger, that would not explain today’s deci- sion. Many Justices of this Court, both past and present, have not espoused or practiced a method of statutory inter- pretation that is limited to the analysis of statutory text. Instead, when there is ambiguity in the terms of a statute, they have found it appropriate to look to other evidence of “congressional intent,” including legislative history. So, why in these cases are congressional intent and the legislative history of Title VII totally ignored? ny assess- ment of congressional intent or legislative history seriously undermines the Court’s interpretation. B s the Court explained in General Elec. Co. v. Gilbert, 429 U.S. 125, 143 (197), the legislative history of Title VII’s prohibition of sex discrimination is brief, but it is neverthe- less revealing. The prohibition of sex discrimination was “added to Title VII |
Justice Alito | 2,020 | 8 | dissenting | Bostock v. Clayton County | https://www.courtlistener.com/opinion/4760997/bostock-v-clayton-county/ | The prohibition of sex discrimination was “added to Title VII at the last minute on the floor of the Cite as: 590 U. S. 41 LITO, J., dissenting House of Representatives,” Meritor Savings Bank, 477 U.S., at 3, by Representative Howard Smith, the Chair- man of the Rules Committee. See 110 Cong. Rec. 2577 (194). Representative Smith had been an ardent opponent of the civil rights bill, and it has been suggested that he added the prohibition against discrimination on the basis of “sex” as a poison pill. See, e.g., v. Eastern irlines, Inc., On this theory, Rep- resentative Smith thought that prohibiting employment discrimination against women would be unacceptable to Members who might have otherwise voted in favor of the bill and that the addition of this prohibition might bring about the bill’s defeat.35 But if Representative Smith had been looking for a poison pill, prohibiting discrimination on the basis of sexual orientation or gender identity would have been far more potent. However, neither Representa- tive Smith nor any other Member said one word about the possibility that the prohibition of sex discrimination might have that meaning. Instead, all the debate concerned dis- crimination on the basis of biological sex.3 See 110 Cong. Rec. 2577–2584. Representative Smith’s motivations are contested, 883 F. 3d, at 139–140 (Lynch, J., dissenting), but whatever they —————— 35 See Origins of a Myth: Why Courts, Scholars, and the Public Think Title VII’s Ban on Sex Discrimination Was an ccident, 20 Yale J. L. & Feminism 409, 409–410 (2009). 3 Recent scholarship has linked the adoption of the Smith mendment to the broader campaign for women’s rights that was underway at the time. E.g., Freeman, How Sex Got Into Title VII: Per- sistent Opportunism as a M of Public Policy, 9 L. & Ineq. 13 ; Barzilay, Parenting Title VII: Rethinking the History of the Sex Discrim- ination Provision, 28 Yale J. L. & Feminism 55 (201); Gold, Tale of Two mendments: The Reasons Congress dded Sex to Title VII and Their Implication for the Issue of Comparable Worth, 19 Duquesne L. Rev. 453 (1981). None of these studies has unearthed evidence that the amendment was understood to apply to discrimination because of sexual orientation or gender identity. 42 BOSTOCK v. CLYTON COUNTY LITO, J., dissenting were, the meaning of the adoption of the prohibition of sex discrimination is clear. It was no accident. It grew out of “a long history of women’s rights advocacy that had increas- ingly been gaining mainstream recognition and ac- ceptance,” and it marked a landmark achievement in the path |
Justice Alito | 2,020 | 8 | dissenting | Bostock v. Clayton County | https://www.courtlistener.com/opinion/4760997/bostock-v-clayton-county/ | ceptance,” and it marked a landmark achievement in the path toward fully equal rights for women. “Dis- crimination against gay women and men, by contrast, was not on the table for public debate [i]n those dark, pre- Stonewall days.” For those who regard congressional intent as the touch- stone of statutory interpretation, the message of Title VII’s legislative history cannot be missed. C Post-enactment events only clarify what was apparent when Title VII was enacted. s noted, bills to add “sexual orientation” to Title VII’s list of prohibited grounds were in- troduced in every Congress beginning in 1975, see at 2, and two such bills were before Congress in 199137 when it made major changes in Title VII. t that time, the three Courts of ppeals to reach the issue had held that Title VII does not prohibit discrimination because of sexual orienta- tion,38 two other Circuits had endorsed that interpretation in dicta,39 and no Court of ppeals had held otherwise. Sim- ilarly, the three Circuits to address the application of Title VII to transgender persons had all rejected the argument —————— 37 H. R. 1430, 102d Cong., 1st Sess., (d) ; S. 574, 102d Cong., 1st Sess., 38 See Williamson v. G. Edwards & Sons, Inc., 87 F.2d 9, cert. denied, ; 08 F.2d 327, ; 597 F.2d 93, 39 ; v. Eastern irlines, Inc., 1084– cert. denied, Cite as: 590 U. S. 43 LITO, J., dissenting that it covered discrimination on this basis.40 These were also the positions of the EEOC.41 In enacting substantial changes to Title VII, the 1991 Congress abrogated numer- ous judicial decisions with which it disagreed. If it also dis- agreed with the decisions regarding sexual orientation and transgender discrimination, it could have easily overruled those as well, but it did not do so.42 fter 1991, six other Courts of ppeals reached the issue of sexual orientation discrimination, and until every single Court of ppeals decision understood Title VII’s pro- hibition of “discrimination because of sex” to mean discrim- ination because of biological sex. See, e.g., Higgins v. New Balance thletic Shoe, Inc., (C1 1999); 3 (C2 2000); Bibby v. Philadelphia Coca Cola Bottling Co., 20 F. 3d 257, 21 (C3 2001), cert. denied, (2002); Wrightson v. Pizza Hut of m., Inc., 143 (C4 199); 102 ; ; Ev- (C11), cert. denied, 583 U. S. Similarly, the other Circuit to formally address whether Title VII applies to claims of discrimination based on transgender status had also rejected the argument, creating unanimous consensus prior to the Sixth Circuit’s decision below. See Etsitty v. Utah Transit |
Justice Alito | 2,020 | 8 | dissenting | Bostock v. Clayton County | https://www.courtlistener.com/opinion/4760997/bostock-v-clayton-county/ | the Sixth Circuit’s decision below. See Etsitty v. Utah Transit uthority, 1220–1221 ; Holloway v. rthur ndersen & Co., 5 F.2d 59, 1–3 41 WL 1111074, ; WL 7745, 42 In more recent legislation, when Congress has wanted to reach acts committed because of sexual orientation or gender identity, it has re- ferred to those grounds by name. See, e.g., 18 U.S. C. 49(a)(2)() (hate crimes) (enacted 2009); 34 U.S. C. 2291(b)(13)() (certain federally funded programs) (enacted 2013). 44 BOSTOCK v. CLYTON COUNTY LITO, J., dissenting 2007). The Court observes that “[t]he people are entitled to rely on the law as written, without fearing that courts might disregard its plain terms,” ante, at 24, but it has no qualms about disregarding over 50 years of uniform judicial inter- pretation of Title VII’s plain text. Rather, the Court makes the jaw-dropping statement that its decision exemplifies “judicial humility.” nte, at 31. Is it humble to maintain, not only that Congress did not understand the terms it en- acted in 194, but that all the Circuit Judges on all the pre- cases could not see what the phrase discrimination “because of sex” really means? If today’s decision is humble, it is sobering to imagine what the Court might do if it de- cided to be bold. IV What the Court has done today––interpreting discrimi- nation because of “sex” to encompass discrimination be- cause of sexual orientation or gender identity––is virtually certain to have far-reaching consequences. Over 100 fed- eral statutes prohibit discrimination because of sex. See ppendix C, infra; e.g., 20 U.S. C. 1(a) (Title IX); 42 U.S. C. §331 (Fair Housing ct); 15 U.S. C. 191(a)(1) (Equal Credit Opportunity ct). The briefs in these cases have called to our attention the potential effects that the Court’s reasoning may have under some of these laws, but the Court waves those considerations aside. s to Title VII itself, the Court dismisses questions about “bathrooms, locker rooms, or anything else of the kind.” nte, at 31. nd it declines to say anything about other statutes whose terms mirror Title VII’s. The Court’s brusque refusal to consider the consequences of its reasoning is irresponsible. If the Court had allowed the legislative process to take its course, Congress would have had the opportunity to consider competing interests and might have found a way of accommodating at least Cite as: 590 U. S. 45 LITO, J., dissenting some of them. In addition, Congress might have crafted special rules for some of the relevant statutes. But by in- tervening and proclaiming categorically that employment discrimination based on sexual |
Justice Alito | 2,020 | 8 | dissenting | Bostock v. Clayton County | https://www.courtlistener.com/opinion/4760997/bostock-v-clayton-county/ | tervening and proclaiming categorically that employment discrimination based on sexual orientation or gender iden- tity is simply a form of discrimination because of sex, the Court has greatly impeded—and perhaps effectively ended—any chance of a bargained legislative resolution. Before issuing today’s radical decision, the Court should have given some thought to where its decision would lead. s the briefing in these cases has warned, the position that the Court now adopts will threaten freedom of religion, freedom of speech, and personal privacy and safety. No one should think that the Court’s decision represents an unal- loyed victory for individual liberty. I will briefly note some of the potential consequences of the Court’s decision, but I do not claim to provide a compre- hensive survey or to suggest how any of these issues should necessarily play out under the Court’s reasoning.43 “[B]athrooms, locker rooms, [and other things] of [that] kind.” The Court may wish to avoid this subject, but it is a matter of concern to many people who are reticent about disrobing or using toilet facilities in the presence of individ- uals whom they regard as members of the opposite sex. For some, this may simply be a question of modesty, but for oth- ers, there is more at stake. For women who have been vic- timized by sexual assault or abuse, the experience of seeing an unclothed person with the anatomy of a male in a con- fined and sensitive location such as a bathroom or locker room can cause serious psychological harm.44 Under the Court’s decision, however, transgender per- sons will be able to argue that they are entitled to use a bathroom or locker room that is reserved for persons of the —————— 43 Contrary to the implication in the Court’s opinion, I do not label these potential consequences “undesirable.” nte, at 31. I mention them only as possible implications of the Court’s reasoning. 44 Brief for Defend My Privacy et al. as mici Curiae 7–10. 4 BOSTOCK v. CLYTON COUNTY LITO, J., dissenting sex with which they identify, and while the Court does not define what it means by a transgender person, the term may apply to individuals who are “gender fluid,” that is, in- dividuals whose gender identity is mixed or changes over time.45 Thus, a person who has not undertaken any physi- cal transitioning may claim the right to use the bathroom or locker room assigned to the sex with which the individual identifies at that particular time. The Court provides no clue why a transgender person’s claim to such bathroom or locker room |
Justice Alito | 2,020 | 8 | dissenting | Bostock v. Clayton County | https://www.courtlistener.com/opinion/4760997/bostock-v-clayton-county/ | a transgender person’s claim to such bathroom or locker room access might not succeed. similar issue has arisen under Title IX, which prohibits sex discrimination by any elementary or secondary school and any college or university that receives federal financial assistance.4 In 201, a Department of Justice advisory warned that barring a student from a bathroom assigned to individuals of the gender with which the student identifies constitutes unlawful sex discrimination,47 and some lower court decisions have agreed. See ; G. 822 F.3d 9, 715 (C4 201), vacated and remanded, 580 U. S. ; dams v. School Bd. of St. Johns Cty., F. Supp. 3d 1293, 1325 ; cf. Doe v. Boyertown rea —————— 45 See 1 Comprehensive Textbook of Psychiatry, at 203 (ex- plaining that “gender is now often regarded as more fluid” and “[t]hus, gender identity may be described as masculine, feminine, or somewhere in between”). 4 Title IX makes it unlawful to discriminate on the basis of sex in ed- ucation: “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Fed- eral financial assistance.” 20 U.S. C. 1(a). 47 See Dept. of Justice & Dept. of Education, Dear Colleague Letter on Transgender Students, May 13, 201 (Dear Colleague Letter), https://www2.ed.gov/about/offices/list/ocr/letters/colleague-20105-title- ix-transgender.pdf. Cite as: 590 U. S. 47 LITO, J., dissenting School Dist., cert. denied, 587 U. S. Women’s sports. nother issue that may come up under both Title VII and Title IX is the right of a transgender in- dividual to participate on a sports team or in an athletic competition previously reserved for members of one biolog- ical sex.48 This issue has already arisen under Title IX, where it threatens to undermine one of that law’s major achievements, giving young women an equal opportunity to participate in sports. The effect of the Court’s reasoning may be to force young women to compete against students who have a very significant biological advantage, including students who have the size and strength of a male but iden- tify as female and students who are taking male hormones in order to transition from female to male. See, e.g., Com- plaint in Soule v. Connecticut ssn. of Schools, No. 3:20–cv– 00201 (challenging Connecticut policy allowing transgender students to compete in girls’ high school sports); Complaint in Hecox v. Little, No. 1:20– cv–00184 (challenging state law that bars transgender students from participating in school sports in accordance with gender identity). Students in these latter categories have found |
Justice Alito | 2,020 | 8 | dissenting | Bostock v. Clayton County | https://www.courtlistener.com/opinion/4760997/bostock-v-clayton-county/ | with gender identity). Students in these latter categories have found success in athletic com- petitions reserved for females.49 —————— 48 regulation allows single-sex teams, 34 CFR 0.41(b) but the statute itself would of course take precedence. 49 “[S]ince two biological males [in Connecticut] have collectively won 15 women’s state championship titles (previously held by ten differ- ent Connecticut girls) against biologically female track athletes.” Brief for Independent Women’s Forum et al. as mici Curiae in No. 18–107, pp. 14–15. t the college level, a transgendered woman (biological male) switched from competing on the men’s Division II track team to the women’s Divi- sion II track team at Franklin Pierce University in New Hampshire after taking a year of testosterone suppressants. While this student had placed “eighth out of nine male athletes in the 400 meter hurdles the 48 BOSTOCK v. CLYTON COUNTY LITO, J., dissenting The logic of the Court’s decision could even affect profes- sional sports. Under the Court’s holding that Title VII pro- hibits employment discrimination because of transgender status, an athlete who has the physique of a man but iden- tifies as a woman could claim the right to play on a women’s professional sports team. The owners of the team might try to claim that biological sex is a bona fide occupational qual- ification (BFOQ) under 42 U.S. C. 000e–2(e), but the BFOQ exception has been read very narrowly. See Dothard v. Rawlinson, Housing. The Court’s decision may lead to Title IX cases against any college that resists assigning students of the opposite biological sex as roommates. provision of Title IX, 20 U.S. C. allows schools to maintain “separate living facilities for the different sexes,” but it may be argued that a student’s “sex” is the gender with which the student identifies.50 Similar claims may be brought under the Fair Housing ct. See 42 U.S. C. §304. Employment by religious organizations. Briefs filed by a wide range of religious groups––Christian, Jewish, and Muslim––express deep concern that the position now adopted by the Court “will trigger open conflict with faith- —————— year before, the student won the women’s competition by over a second and a half––a time that had garnered tenth place in the men’s conference meet just three years before.” transgender male—i.e., a biological female who was in the process of transitioning to male and actively taking testosterone injections––won the Texas girls’ state championship in high school wrestling in Babb, Transgender Issue Hits Mat in Texas, Washington Post, Feb. 2, p. 1, col. 1. 50 Indeed, the 201 advisory letter issued by the Department of Justice |
Justice Alito | 2,020 | 8 | dissenting | Bostock v. Clayton County | https://www.courtlistener.com/opinion/4760997/bostock-v-clayton-county/ | the 201 advisory letter issued by the Department of Justice took the position that under Title IX schools “must allow transgender students to access housing consistent with their gender identity.” Dear Colleague Letter 4. Cite as: 590 U. S. 49 LITO, J., dissenting based employment practices of numerous churches, syna- gogues, mosques, and other religious institutions.”51 They argue that “[r]eligious organizations need employees who actually live the faith,”52 and that compelling a religious or- ganization to employ individuals whose conduct flouts the tenets of the organization’s faith forces the group to com- municate an objectionable message. This problem is perhaps most acute when it comes to the employment of teachers. school’s standards for its faculty “communicate a particular way of life to its students,” and a “violation by the faculty of those precepts” may under- mine the school’s “moral teaching.”53 Thus, if a religious school teaches that sex outside marriage and sex reassign- ment procedures are immoral, the message may be lost if the school employs a teacher who is in a same-sex relation- ship or has undergone or is undergoing sex reassignment. Yet today’s decision may lead to Title VII claims by such teachers and applicants for employment. t least some teachers and applicants for teaching posi- tions may be blocked from recovering on such claims by the “ministerial exception” recognized in Hosanna-Tabor Evan- gelical Lutheran Church and 55 U.S. 171 Two cases now pending before the Court present the question whether teachers who provide religious in- struction can be considered to be “ministers.”54 But even if teachers with those responsibilities qualify, what about other very visible school employees who may not qualify for —————— 51 Brief for National ssociation of Evangelicals et al. as mici Curiae 3; see also Brief for United States Conference of Catholic Bishops et al. as mici Curiae in No. 18–107, pp. 8–18. 52 Brief for National ssociation of Evangelicals et al. as mici Curiae 7. 53 McConnell, cademic Freedom in Religious Colleges and Universi- ties, 53 Law & Contemp. Prob. 303, 322 54 See Our Lady of Guadalupe School v. Morrissey-Berru, No. 19–27; St. James School v. Biel, No. 19–348. 50 BOSTOCK v. CLYTON COUNTY LITO, J., dissenting the ministerial exception? Provisions of Title VII provide exemptions for certain religious organizations and schools “with respect to the employment of individuals of a partic- ular religion to perform work connected with the carrying on” of the “activities” of the organization or school, 42 U.S. C. 000e–1(a); see also 000e–2(e)(2), but the scope of these provisions is disputed, and as interpreted by some lower courts, |
Justice Alito | 2,020 | 8 | dissenting | Bostock v. Clayton County | https://www.courtlistener.com/opinion/4760997/bostock-v-clayton-county/ | provisions is disputed, and as interpreted by some lower courts, they provide only narrow protection.55 Healthcare. Healthcare benefits may emerge as an in- tense battleground under the Court’s holding. Transgender employees have brought suit under Title VII to challenge employer-provided health insurance plans that do not cover costly sex reassignment surgery.5 Similar claims have been brought under the ffordable Care ct (C), which broadly prohibits sex discrimination in the provision of healthcare.57 —————— 55 See, e.g., EEOC v. Kamehameha Schools/Bishop Estate, 990 F.2d 458, 40 (C9 1993); 1 F.2d 132, 135–137 (C9 198); Rayburn v. General Conference of Seventh-day dventists, 772 F.2d 114, 11 ; 2 F.2d 477, 484–48 ; see also Brief for United States Conference of Catholic Bishops et al. as mici Curiae in No. 18–107, at 30, n. 28 (discussing disputed scope). In addition, 42 U.S. C. 000e– 2(e)(1) provides that religion may be a BFOQ, and allows religious schools to hire religious employees, but as noted, the BFOQ exception has been read narrowly. See 5 See, e.g., mended Complaint in Toomey v. rizona, No. 4:19–cv– 00035 t least one District Court has already held that a state health insurance policy that does not provide coverage for sex reassignment surgery violates Title VII. Fletcher v. laska, F. Supp. 3d WL 2480, 57 See, e.g., Complaint in Conforti v. St. Joseph’s Healthcare System, No. 2:17–cv–00050 (transgender man claims dis- crimination under the C because a Catholic hospital refused to allow a surgeon to perform a hysterectomy). nd multiple District Courts have already concluded that the C requires health insurance coverage for sex reassignment surgery and treatment. WL 119271, 51 LITO, J., dissenting Such claims present difficult religious liberty issues be- cause some employers and healthcare providers have strong religious objections to sex reassignment procedures, and therefore requiring them to pay for or to perform these procedures will have a severe impact on their ability to honor their deeply held religious beliefs. Freedom of speech. The Court’s decision may even affect the way employers address their employees and the way teachers and school officials address students. Under es- tablished English usage, two sets of sex-specific singular personal pronouns are used to refer to someone in the third person (he, him, and his for males; she, her, and hers for females). But several different sets of gender-neutral pro- nouns have now been created and are preferred by some in- dividuals who do not identify as falling into either of the two traditional categories.58 Some jurisdictions, such as —————— claims of discrimination under C, Title IX, and Equal Protection Clause); 952–954 |
Justice Alito | 2,020 | 8 | dissenting | Bostock v. Clayton County | https://www.courtlistener.com/opinion/4760997/bostock-v-clayton-county/ | discrimination under C, Title IX, and Equal Protection Clause); 952–954 (allowing C claim). Section 1557 of the C, 42 U.S. C. 11, provides: “Except as otherwise provided for in this title (or an amendment made by this title), an individual shall not, on the ground prohibited under title VI of the Civil Rights ct of 194 (42 U.S. C. 2000d et seq.), title IX of the Education mendments of 1972 (20 U.S. C. 181 et seq.), the ge Discrimination ct of 1975 (42 U.S. C. 101 et seq.), or section 794 of title 29, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under, any health program or activity, any part of which is receiving Federal financial assistance, including credits, subsidies, or contracts of insurance, or under any program or activity that is administered by an Executive gency or any entity established under this title (or amendments). The enforcement mechanisms pro- vided for and available under such title VI, title IX, section 794, or such ge Discrimination ct shall apply for purposes of violations of this sub- section.” (Footnote omitted.) 58 See, e.g., University of Wisconsin Milwaukee Lesbian, Gay, Bisexual, Transgender, Queer Plus (LGBTQ+) Resource Center, Gender Pronouns https://uwm.edu/lgbtrc/support/gender-pronouns/ (listing six new categories of pronouns: (f )ae, (f )aer, (f )aers; e/ey, em, eir, eirs; per, pers; 52 BOSTOCK v. CLYTON COUNTY LITO, J., dissenting New York City, have ordinances making the failure to use an individual’s preferred pronoun a punishable offense,59 and some colleges have similar rules.0 fter today’s deci- sion, plaintiffs may claim that the failure to use their pre- ferred pronoun violates one of the federal laws prohibiting sex discrimination. See 25 F. Supp. 3d 1090, 1098–1100 (hospital staff ’s refusal to use preferred pronoun vio- lates C).1 The Court’s decision may also pressure employers to sup- press any statements by employees expressing disapproval of same-sex relationships and sex reassignment proce- dures. Employers are already imposing such restrictions voluntarily, and after today’s decisions employers will fear —————— ve, ver, vis; xe, xem, xyr, xyrs; ze/zie, hir, hirs). 59 See 47 N.Y. C. R. R. –0(a) (stating that a “deliberate re- fusal to use an individual’s self-identified name, pronoun and gendered title” is a violation of N. Y. C. dmin. Code “where the refusal is motivated by the individual’s gender”); see also N. Y. C. dmin. Code §(1), (4), (5) (making it unlawful to discriminate on the ba- sis of “gender” in employment, housing, and public accommodations); cf. D. C. Mun. Regs., tit. 4, (making it “unlawful to dis- criminate on the |
Justice Alito | 2,020 | 8 | dissenting | Bostock v. Clayton County | https://www.courtlistener.com/opinion/4760997/bostock-v-clayton-county/ | tit. 4, (making it “unlawful to dis- criminate on the basis of actual or perceived gender identity or expression” in “employment, housing, public accommodations, or educa- tional institutions” and further proscribing “engaging in verbal har- assment”). 0 See University of Minn., Equity and ccess: Gender Identity, Gender Expression, Names, and Pronouns, dministrative Policy https://policy.umn.edu/operations/genderequity (“University members and units are expected to use the names, gender identities, and pronouns specified to them by other University members, except as le- gally required”); Meriwether v. Trustees of Shawnee State Univ., WL 415, *1 (rejecting First mendment chal- lenge to university’s nondiscrimination policy brought by evangelical Christian professor who was subjected to disciplinary actions for failing to use student’s preferred pronouns). 1 Cf. Notice of Removal in Vlaming v. West Point School Board, No. 3:19–cv–00773 (contending that high school teacher’s firing for failure to use student’s preferred pronouns was based on nondiscrimination policy adopted pursuant to Title IX). Cite as: 590 U. S. 53 LITO, J., dissenting that allowing employees to express their religious views on these subjects may give rise to Title VII harassment claims. Constitutional claims. Finally, despite the important dif- ferences between the Fourteenth mendment and Title VII, the Court’s decision may exert a gravitational pull in constitutional cases. Under our precedents, the Equal Pro- tection Clause prohibits sex-based discrimination unless a “heightened” standard of review is met. Sessions v. Mo- rales-Santana, 582 U. S. (slip op., at 8); United (199). By equating discrimination because of sexual orientation or gender identity with discrimination because of sex, the Court’s decision will be cited as a ground for subjecting all three forms of discrimination to the same exacting standard of review. Under this logic, today’s decision may have effects that extend well beyond the domain of federal anti- discrimination statutes. This potential is illustrated by pending and recent lower court cases in which transgender individuals have challenged a variety of federal, state, and local laws and policies on constitutional grounds. See, e.g., Complaint in Hecox, No. 1: 20–CV–00184 (state law prohib- iting transgender students from competing in school sports in accordance with their gender identity); Second mended Complaint in Karnoski v. Trump, No. 2:17–cv–01297 (military’s ban on transgender mem- bers); Kadel v. Folwell, F. Supp. 3d –, WL 119271, *10– (state health plan’s exclusion of coverage for sex reassignment proce- dures); Complaint in Gore v. Lee, No. 3:19–cv–00328 (change of gender on birth certificates); Brief for ppellee in Grimm v. Gloucester Cty. School Bd., No. 19–1952 (transgender student forced to use gender neutral bathrooms at school); Com- plaint in Corbitt v. Taylor, No. |
Justice Alito | 2,020 | 8 | dissenting | Bostock v. Clayton County | https://www.courtlistener.com/opinion/4760997/bostock-v-clayton-county/ | bathrooms at school); Com- plaint in Corbitt v. Taylor, No. 2:18–cv–00091 (change of gender on driver’s licenses); Whit- (school policy requiring students to use the bathroom that corresponds to the sex on birth cer- tificate); 122–125 (transgender pris- oner denied hormone therapy and ability to dress and groom as a female); 77 (transgender prisoner requested sex reas- signment surgery); cf. 3 F.3d 1312, 1320 (C11 2011) (transgender individual fired for gender non-conformity). lthough the Court does not want to think about the consequences of its decision, we will not be able to avoid those issues for long. The entire Federal Judiciary will be mired for years in disputes about the reach of the Court’s reasoning. * * * The updating desire to which the Court succumbs no doubt arises from humane and generous impulses. Today, many mericans know individuals who are gay, lesbian, or transgender and want them to be treated with the dignity, consideration, and fairness that everyone deserves. But the authority of this Court is limited to saying what the law is. The Court itself recognizes this: “The place to make new legislation lies in Congress. When it comes to statutory interpretation, our role is limited to applying the law’s demands as faithfully as we can in the cases that come before us.” nte, at 31. It is easy to utter such words. If only the Court would live by them. I respectfully dissent. Cite as: 590 U. S. 55 LITO ppendix J., to dissenting opinion of LITO, J. |
Justice Blackmun | 1,988 | 11 | majority | Loeffler v. Frank | https://www.courtlistener.com/opinion/112094/loeffler-v-frank/ | This case presents the question whether prejudgment interest may be awarded in a suit against the United States Postal Service brought under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S. C. 2000e et seq. I Petitioner Theodore J. Loeffler was discharged from his position as a rural letter carrier for the United States Postal Service.[1] Petitioner appealed his termination to the Merit Systems Protection Board and, when his discharge was affirmed there, sought administrative relief from the Equal Employment Opportunity Commission. This, also, was without success. Contending that his discharge resulted from *552 sex discrimination, petitioner subsequently brought this suit against the Postmaster General of the United States in his official capacity,[2] pursuant to 1 of Title VII, as amended, 42 U.S. C. 2000e-16. After a bench trial, the United States District Court for the Eastern District of Missouri concluded that petitioner was a victim of discrimination and ordered his reinstatement with backpay. App. to Pet. for Cert. A-26. Relying on a decision of its controlling court, cert. denied, the District Court refused to award prejudgment interest. App. to Pet. for Cert. A-21. (In Cross, an equally divided Court of Appeals had affirmed the same District Judge's conclusion that sovereign immunity barred an award of prejudgment interest in a Title VII suit against the Postal Service.) The United States Court of Appeals for the Eighth Circuit affirmed the denial of prejudgment interest. Concluding that the District Court's reliance on Cross was "understandable and proper," the court stated: "If the question of prejudgment interest is to be reconsidered, it should be reconsidered by the Court en banc." Subsequently, the Eighth Circuit undertook that en banc reconsideration, and, by a 6-to-5 vote, affirmed the judgment of the District Court. The majority adopted the reasoning of the majority of the original panel in Cross, which the majority interpreted as "holding that Congress, in enacting Title VII, did not waive the Government's immunity from interest."[3] 806 F. 2d, at 818. In the majority's view, Congress' provision in the 190 Postal Reorganization Act, 39 U.S. C. 401(1), that the Postal Service may "sue and be sued" was irrelevant to the question before it, because "a sue-and-be-sued clause does not expand the obligations of a federal entity in a suit brought pursuant to another statute that is itself a waiver of immunity and which constitutes an exclusive remedy." The 5-judge dissent adopted the reasoning of the dissent in the Cross panel submission. That dissent had concluded that "limits on prejudgment interest have been imposed solely because of the barrier of sovereign |
Justice Blackmun | 1,988 | 11 | majority | Loeffler v. Frank | https://www.courtlistener.com/opinion/112094/loeffler-v-frank/ | have been imposed solely because of the barrier of sovereign immunity," 33 F.2d, at and that the sue-and-be-sued clause in the Postal Reorganization Act had eliminated that barrier in actions against the Postal Service. The dissent noted this Court's observation in : " `The no-interest rule is inapplicable where the Government has cast off the cloak of sovereignty and assumed the status of a private commercial enterprise.' " quoting n. 5. In the dissent's view, the Postal Service fits within this exception and, therefore, "an award of prejudgment interest against the Postal Service under Title VII is not barred by sovereign immunity." *554 Because of a conflict with the views of the Eleventh Circuit expressed in we granted certiorari to decide whether, in a Title VII suit, prejudgment interest may be awarded against the Postal Service. Sub nom. II A The question of statutory interpretation here presented, involving the interaction of the Postal Reorganization Act and Title VII, lends itself to straightforward resolution. Absent a waiver of sovereign immunity, the Federal Government is immune from suit. United Congress, however, has waived the sovereign immunity of certain federal entities from the times of their inception by including in the enabling legislation provisions that they may sue and be sued. In the Court explained: "[S]uch waivers by Congress of governmental immunity. should be liberally construed. Hence, when Congress establishes such an agency, authorizes it to engage in commercial and business transactions with the public, and permits it to `sue and be sued,' it cannot be lightly assumed that restrictions on that authority are to be implied. Rather if the general authority to `sue and be sued' is to be delimited by implied exceptions, it must be clearly shown that certain types of suits are not consistent with the statutory or constitutional scheme, that an implied restriction of the general authority is necessary to avoid grave interference with the performance of a governmental function, or that for other reasons it was plainly the purpose of Congress to use the `sue and be sued' clause in a narrow sense. In the absence of such showing, it must be presumed that when Congress *555 launched a governmental agency into the commercial world and endowed it with authority to `sue or be sued,' that agency is not less amenable to judicial process than a private enterprise under like circumstances would be." (Footnote omitted.) Accord, Franchise Tax Board of ; Reconstruction Finance ; see also Keifer & Encompassed within this liberal-construction rule is the principle "that the words `sue and be sued' normally include the natural and |
Justice Blackmun | 1,988 | 11 | majority | Loeffler v. Frank | https://www.courtlistener.com/opinion/112094/loeffler-v-frank/ | words `sue and be sued' normally include the natural and appropriate incidents of legal proceedings." J. G. Menihan In accord with this approach, this Court has recognized that authorization of suits against federal entities engaged in commercial activities may amount to a waiver of sovereign immunity from awards of interest when such awards are an incident of suit. For example, in Standard Oil the Court reviewed a suit brought under 5 of the Act of September 2, 1914, ch. 293, on insurance claims issued by the Bureau of War Risk Insurance. The Court concluded: "When the United States went into the insurance business, issued policies in familiar form and provided that in case of disagreement it might be sued, it must be assumed to have accepted the ordinary incidents of suits in such business." Accordingly, interest was allowed. See also National Home for Disabled Volunteer Cf. Library of n. 5. When Congress created the Postal Service in 190, it empowered the Service "to sue and be sued in its official name." *556 39 U.S. C. 401(1). This sue-and-be-sued clause was a part of Congress' general design that the Postal Service "be run more like a business than had its predecessor, the Post Office Department." Franchise Tax Board of In Franchise Tax Board, this Court examined, in the context of an order issued by a state administrative agency, the extent to which Congress had waived the sovereign immunity of the Postal Service. After noting that "Congress has `launched [the Postal Service] into the commercial world,' " ib the Court held that the sue-and-be-sued clause must be liberally construed and that the Postal Service's liability must be presumed to be the same as that of any other business. Because the order to the Postal Service to withhold employees' wages had precisely the same effect on the Service's ability to operate efficiently as did such orders on other employers subject to the state statute that had been invoked, and because the burden of complying with the order would not impair the Service's ability to perform its functions, the Court concluded that there was no basis for overcoming the presumption that immunity from the state order had been waived. See and n. 14. Our unanimous view of the Postal Service expressed in Franchise Tax Board is controlling here. By launching "the Postal Service into the commercial world," and including a sue-and-be-sued clause in its charter, Congress has cast off the Service's "cloak of sovereignty" and given it the "status of a private commercial enterprise." n. 5. It follows that Congress is presumed to have |
Justice Blackmun | 1,988 | 11 | majority | Loeffler v. Frank | https://www.courtlistener.com/opinion/112094/loeffler-v-frank/ | n. 5. It follows that Congress is presumed to have waived any otherwise existing immunity of the Postal Service from interest awards. None of the exceptions to the liberal-construction rule that guides our interpretation of the waiver of the Postal Service's immunity operates to overcome this presumption. Subjecting the Service to interest awards would not be inconsistent *55 with the Postal Reorganization Act, 39 U.S. C. 101 et seq., the statutory scheme that created the Postal Service, nor would it pose a threat of "grave interference" with the Service's operation. 309 U. S., at Finally, we find nothing in the statute or its legislative history to suggest that "it was plainly the purpose of Congress to use the `sue and be sued' clause in a narrow sense," ib with regard to interest awards. To the contrary, since Congress expressly included several narrow and specific limitations on the operation of the sue-and-be-sued clause, see 39 U.S. C. 409,[4] none of which is applicable here, the natural inference is that it did not intend other limitations to be implied. Accordingly, we conclude that, at the Postal Service's inception, Congress waived its immunity from interest awards, authorizing recovery of interest from the Postal Service to the extent that interest is recoverable against a private party as a normal incident of suit. B Respondent concedes, and apparently all the United States Courts of Appeals that have considered the question agree, that Title VII authorizes prejudgment interest as part of the backpay remedy in suits against private employers.[5] This *558 conclusion surely is correct. The backpay award authorized by 06(g) of Title VII, as amended, 42 U.S. C. 2000e-5(g), is a manifestation of Congress' intent to make "persons whole for injuries suffered through past discrimination." Albemarle Paper[6] Prejudgment interest, of course, is "an element of complete compensation." West Thus, since Title VII authorizes interest awards as a normal incident of suits against private parties, and since Congress has waived the Postal Service's immunity from such awards, it follows that respondent may be subjected to an interest award in this case. III A In order to address respondent's arguments, it is necessary to explain briefly the manner in which Title VII provides a cause of action to federal employees. As originally enacted in 1964, Title VII, by excluding federal entities from its definition of employer, see 01(b) of Title VII, 42 U.S. C. 2000e(b), did not provide a cause of action to federal employees. In 192, Congress amended Title VII by adding its 1, which brought federal employees, including employees of the Postal Service, within the |
Justice Blackmun | 1,988 | 11 | majority | Loeffler v. Frank | https://www.courtlistener.com/opinion/112094/loeffler-v-frank/ | federal employees, including employees of the Postal Service, within the ambit of Title VII. Equal Employment *559 Opportunity Act of 192, 42 U.S. C. 2000e-16. In so doing, Congress intended to provide federal employees with " `the full rights available in the courts as are granted to individuals in the private sector under Title VII.' " quoting S. Rep. No. 92-415, p. 16 (191). Section 1(a) mandates that all personnel actions affecting federal employees covered by that section "shall be made free from any discrimination based on race, color, religion, sex, or national origin." 42 U.S. C. 2000e-16(a). Section 1(b) provides a detailed administrative enforcement mechanism, and 1(c) permits an aggrieved employee to file a civil action in federal district court, provided the employee has met certain requirements regarding exhaustion of administrative remedies. Thus, in enacting 1, Congress simultaneously provided federal employees with a cause of action under Title VII and effected a waiver of the Government's immunity from suit. See Library of The waiver of sovereign immunity effected by 1, however, was a limited one. "In making the Government liable as a defendant under Title VII, Congress did not waive the Government's traditional immunity from interest." Based on this background, respondent channels his attack into two principal arguments. First, respondent contends that the waiver of sovereign immunity effected by the "sue-and-be-sued" clause of the Postal Reorganization Act, 39 U.S. C. 401(1), has no bearing here, regardless of its scope. In respondent's view, the only waiver of sovereign immunity relevant to a Title VII suit against the Postal Service is the waiver of sovereign immunity found in Title VII itself. Second, respondent argues that, even if the waiver of sovereign immunity provided by 401 does control, the cause of action that 1 affords to a Postal Service employee is distinct from the cause of action afforded a private-sector employee and does not provide a basis for an award of prejudgment interest. We examine these contentions in turn. *560 B In support of his argument that the sue-and-be-sued clause of the Postal Reorganization Act, 39 U.S. C. 401(1), has no force in this case, respondent initially relies on Congress' failure, at the time it created the Postal Service in 190, to extend Postal Service employees a cause of action under Title VII.[] In respondent's view, this failure constituted a decision to leave intact what respondent characterizes as the "explicit" decision of the Congress that enacted Title VII in 1964 to preserve the sovereign immunity of federal employers in Title VII suits. But the history of the Postal Reorganization Act discussed in |
Justice Blackmun | 1,988 | 11 | majority | Loeffler v. Frank | https://www.courtlistener.com/opinion/112094/loeffler-v-frank/ | But the history of the Postal Reorganization Act discussed in n. with its emphasis on the availability of strong remedies for discrimination in the federal employment context, makes clear that Congress' failure to extend Title VII protections to Postal Service employees did not reflect an intent to circumscribe the waiver of sovereign immunity effected by the sue-and-be-sued clause, but, rather, was a determination that a Title VII cause of action was unnecessary in light of these alternative remedies. The reason Postal Service employees could not bring an employment discrimination suit under Title VII in 190 indeed, the *561 reason that federal employees generally could not do so stemmed not from the Postal Reorganization Act, but from a restriction in Title VII itself: the exclusion of federal entities from the definition of the term "employer." The Postal Reorganization Act is utterly silent as to Title VII. We reject the notion that Congress' silence when it creates a new federal entity, with regard to a cause of action that is generally unavailable to federal employees, can be construed as a limitation on the waiver of that entity's sovereign immunity effected by the inclusion of a sue-and-be-sued clause. Respondent would find further support for his argument that the sue-and-be-sued clause is irrelevant to this case in the manner in which Congress extended a Title VII cause of action to federal employees in 192. Specifically, respondent relies on a distinction between causes of action that may be asserted against commercial entities generally, as, for example a state garnishment statute, see Franchise Tax Board of and causes of action, such as 1 of Title VII, that contain special procedures and limitations applicable only to federal defendants. Respondent contends that while a sue-and-be-sued clause may apply to a suit against a federal entity in the former class of actions, it has no bearing in the latter. We are not persuaded by this argument for two reasons. First, this is an argument for an implied exception to the waiver of sovereign immunity effected by a sue-and-be-sued clause. Yet respondent offers no reason for concluding that Congress intended his implied exception to be added to those that this Court articulated in 309 U. S., at and we see no reason why we should do so. Second, when Congress intends the waiver of sovereign immunity in a new cause of action directed against federal entities to be exclusive, in effect, to limit the force of "sue-and-be-sued" clauses it has said so expressly. Congress' waiver of the sovereign immunity of the United States for certain torts |
Justice Blackmun | 1,988 | 11 | majority | Loeffler v. Frank | https://www.courtlistener.com/opinion/112094/loeffler-v-frank/ | the sovereign immunity of the United States for certain torts of federal employees, in the Federal Tort Claims *562 Act (FTCA), 28 U.S. C. 1346, 261-2680, provides an example. Prior to the FTCA's enactment, certain federal agencies were already suable in tort. Although Congress enacted the FTCA to allow suits against many agencies that previously had been immune from suits in tort, it also wished to "place torts of `suable' agencies of the United States upon precisely the same footing as torts of `nonsuable' agencies." H. R. Rep. No. 128, 9th Cong., 1st Sess., 6 (1945). Accordingly, Congress expressly limited the waivers of sovereign immunity that it had previously effected through "sue-and-be-sued" clauses and stated that, in the context of suits for which it provided a cause of action under the FTCA, "sue-and-be-sued" agencies would be subject to suit only to the same limited extent as agencies whose sovereign immunity from tort suits was being waived for the first time: "The authority of any federal agency to sue and be sued in its own name shall not be construed to authorize suits against such federal agency on claims which are cognizable under section 1346(b) of this title, and the remedies provided by this title in such cases shall be exclusive." 28 U.S. C. 269(a). In contrast, neither the language of 1 of Title VII nor its legislative history contains an expression that the waiver of sovereign immunity it effected was intended also to narrow the waiver of sovereign immunity of entities subject to sue-and-be-sued clauses. Accordingly, we reject respondent's contention that 39 U.S. C. 401(1) has no application here.[8] *563 C Respondent next argues that, even if the waiver of sovereign immunity effected by 401(1) is controlling, an award of prejudgment interest is inappropriate because the statute that provides petitioner with his cause of action, 1 of Title VII, does not authorize interest awards. Respondent starts from the premise that had Congress expressly stated that prejudgment interest is unavailable in actions under 1, the outcome of this case would be beyond dispute. Therefore, it is claimed, "[t]he fact that the `no-interest' rule is not made explicit in the statute, but rather is a conclusion drawn by this Court in does not make the rule any less binding." Brief for Respondent 16. This argument, in our view, misunderstands both the nature of the remedy 1 affords and the basis of our holding in Without doubt, petitioner's cause of action in this case is derived from 1. We do not disagree with respondent that, had 1 explicitly stated that the cause of |
Justice Blackmun | 1,988 | 11 | majority | Loeffler v. Frank | https://www.courtlistener.com/opinion/112094/loeffler-v-frank/ | respondent that, had 1 explicitly stated that the cause of action it provided did not include prejudgment interest, such interest would be unavailable in this case. But Congress made no express statement of that kind. To the contrary, Congress expressly incorporated in 1 provisions of Title VII that allow an interest award. Specifically, 1(c), 42 U.S. C. 2000e-16(c), provides that, after pursuing various mandatory *564 administrative remedies, an unsatisfied 1 plaintiff "may file a civil action as provided in section 2000e-5 of this title," which governs enforcement actions against private employers. Thus, although petitioner's cause of action under 1 is circumscribed by mandatory administrative prerequisites that are distinct from the prerequisites for a civil suit brought against a private employer, a 1 suit, once commenced, is delineated by the same provisions as a suit against a private employer. Most importantly for the purposes of this case, 1(d) explicitly incorporates 06(g) of Title VII into the cause of action provided. Section 06(g) allows a court to "order such affirmative action as may be appropriate,. includ[ing] back pay or any other equitable relief as the court deems appropriate." 42 U.S. C. 2000e-5(g). This provision thus governs the remedies available in both a Title VII suit brought against a federal employer under 1 and a Title VII suit brought against a private employer. Cf. -848. And, just as this section provides for prejudgment interest in a Title VII suit against a private employer, it provides for prejudgment interest in a Title VII suit brought under 1. Respondent's view that stands for the proposition that 1 implicitly states that prejudgment interest is unavailable in all suits brought under that section misunderstands the basis of our holding in that case. In the Court faced the question whether 06(k) of Title VII, 42 U.S. C. 2000e-5(k), which provides that a party prevailing against the United States may recover attorney's fees from the United States, waived the sovereign immunity of the Library of Congress with respect to interest on an attorney's fees award. Unlike the Postal Service, the Library of Congress was not a "sue-and-be-sued" agency that Congress had " `launched into the commercial world," and thereby broadly waived sovereign immunity. Franchise Tax Board of quoting FHA v. *565 309 U. S., at Thus, the starting point for our analysis was the "no-interest rule," which is to the effect that, absent express consent by Congress, the United States is immune from interest awards. See 48 U. S., at 314. The dispositive question was not whether Title VII provided a cause of action that would allow recovery of |
Justice Blackmun | 1,988 | 11 | majority | Loeffler v. Frank | https://www.courtlistener.com/opinion/112094/loeffler-v-frank/ | provided a cause of action that would allow recovery of interest, but, rather, whether Title VII contained an express waiver of the Library of Congress' immunity from interest. Because no such waiver is contained within Title VII, the no-interest rule barred recovery of interest from the Library of Congress on the plaintiff's attorney's fees award. This conclusion had nothing to do with the scope of a 1 cause of action. The Court expressly noted in : "The no-interest rule is inapplicable where the Government has cast off the cloak of sovereignty and assumed the status of a private commercial enterprise." 48 U.S., at 31, n. 5. In creating the Postal Service, Congress did just that, and therefore, the no-interest rule does not apply to it. Thus, the search for an express waiver of immunity from interest within Title VII, which is all that was about, is unnecessary in this case. As discussed above, 401 of the Postal Reorganization Act provides the waiver of sovereign immunity from interest awards against the Postal Service, and 1 of Title VII provides the cause of action under which petitioner may recover interest. IV Accordingly, we conclude that interest may be awarded against the Postal Service in a Title VII suit. The judgment of the Court of Appeals is reversed, and the case is remanded to that court for further proceedings consistent with this opinion. It is so ordered. JUSTICE KENNEDY took no part in the consideration or decision of this case. |
Justice Powell | 1,984 | 17 | majority | Patton v. Yount | https://www.courtlistener.com/opinion/111228/patton-v-yount/ | This case brings before us a claim that pretrial publicity so infected a state criminal trial as to deny the defendant his Sixth Amendment right to an "impartial jury." I On April 28, 1966, the body of Pamela Rimer, an 18-year-old high school student, was found in a wooded area near her home in Luthersburg, Clearfield County, Pa. There were *1027 numerous wounds about her head and cuts on her throat and neck. An autopsy revealed that she died of strangulation when blood from her wounds was drawn into her lungs. The autopsy showed no indication that she had been sexually assaulted. At about 5:45 the following morning, respondent Yount appeared at the State Police Substation in nearby DuBois. Yount, who had been the victim's high school mathematics teacher, proceeded to give the police oral and written confessions to the murder. The police refused to release the confession to the press, and it was not published until after it was read at Yount's arraignment three days later. Record, Ex. P-1-a, P-1-d. At his trial in 1966, the confessions were admitted into evidence. Yount took the stand and claimed temporary insanity. The jury convicted him of first-degree murder and rape, and he was sentenced to life imprisonment. On direct appeal the Pennsylvania Supreme Court determined that under police had given Yount inadequate notice of his right to an attorney prior to his confession. The court remanded for a new trial. cert. denied, Prior to the second trial in 1970, the trial court ordered suppression of Yount's written confessions and that portion of the oral confession that was obtained after he was legally in custody. The prosecution dismissed the rape charge. There followed an extensive voir dire that is now at the heart of this case. Jury selection began on November 4, 1970, and took 10 days, 7 jury panels, 292 veniremen, and 1,186 pages of testimony. Yount moved for a change of venue before, and several times during, the voir dire. He argued that the widespread dissemination of prejudicial information could not be eradicated from the minds of potential jurors, and cited in support the difficulty of the voir dire and numerous newspaper and other articles about the case. The motions were denied. The trial court noted that the articles merely reported *1028 events without editorial comment; that the length of the voir dire resulted in part from the court's leniency in allowing examinations and challenges of the jurors; that "almost all, if not all," the jurors seated had "no prior or present fixed opinion"; and that there had been "little, |
Justice Powell | 1,984 | 17 | majority | Patton v. Yount | https://www.courtlistener.com/opinion/111228/patton-v-yount/ | or present fixed opinion"; and that there had been "little, if any, talk in public" between the two trials. The court also observed that the voir dire of the second trial had been sparsely attended. Ultimately, 12 jurors and 2 alternates were seated. At the second trial, Yount did not take the stand and did not claim temporary insanity. Instead he relied upon cross-examination and character witnesses in an attempt to undermine the State's proof of his intent. The jury convicted him again of first-degree murder, and he was resentenced to life imprisonment. The trial court denied a motion for a new trial, finding that practically no publicity had been given to the case between the two trials, and that little public interest was shown during the second trial. App. 268a. In addition, the court concluded that the jury was without bias. The Pennsylvania Supreme Court affirmed the conviction and the trial court's findings. In January 1981, Yount filed a petition for a writ of habeas corpus in United States District Court. He claimed, inter alia, that his conviction had been obtained in violation of his Sixth and Fourteenth Amendment right to a fair trial by an impartial jury. The case was assigned to a Magistrate, who conducted a hearing and recommended that the petition be granted. The District Court rejected the Magistrate's recommendation. It held that the pretrial publicity was not vicious, excessive, nor officially sponsored, and that the jurors were able to set aside any preconceived notions of guilt. It noted that the percentage of jurors excused for cause was "not remarkable to anyone familiar with the difficulty in selecting a homicide jury in Pennsylvania." In addition, the court reviewed *1029 the instances in which the state trial court had denied a challenge for cause, and upheld the trial court's view that the jury was impartial. The Court of Appeals for the Third Circuit reversed. The court relied primarily on the analysis set out in and found that pretrial publicity had made a fair trial impossible in Clearfield County. It independently examined the nature of the publicity surrounding the second trial, the testimony at voir dire of the venire as a whole, and the voir dire testimony of the jurors eventually seated. The publicity revealed Yount's prior conviction for murder, his confession, and his prior plea of temporary insanity, information not admitted into evidence at trial.[1] The voir dire showed that all but 2 of 163 veniremen questioned about the case[2] had heard of it, and that, 126, or 77%, admitted they would carry an opinion into the |
Justice Powell | 1,984 | 17 | majority | Patton v. Yount | https://www.courtlistener.com/opinion/111228/patton-v-yount/ | or 77%, admitted they would carry an opinion into the jury box. This was a higher percentage than in where 62% of the 430 veniremen were dismissed for cause because they had fixed opinions concerning the petitioner's guilt. Finally, the Court of Appeals found that 8 of the 14 jurors and alternates actually seated admitted that at *1030 some time they had formed an opinion as to Yount's guilt.[3] The court thought that many of the jurors had given equivocal responses when asked whether they could set aside these opinions, and that one juror, a Mr. Hrin, and both alternates would have required evidence to overcome their beliefs. The court concluded that "despite their assurances of impartiality, the jurors could not set aside their opinions and render a verdict based solely on the evidence presented."[4] Judge Garth concurred in the judgment. He declined to join the court's view that actual prejudice on the part of the jury might be inferred from pretrial publicity and the answers at voir dire of veniremen not selected for the jury. He wrote that "[a] thorough and skillfully conducted voir dire should be adequate to identify juror bias, even in a community saturated with publicity adverse to the defendant."[5] Judge Garth nevertheless concurred because in his view juror Hrin stated at voir dire that he would have required evidence to change his mind about Yount's *1031 guilt. This stripped the defendant of the presumption of innocence.[6] We granted certiorari, to consider, in the context of this case, the problem of pervasive media publicity that now arises so frequently in the trial of sensational criminal cases. We reverse the judgment of the Court of Appeals. As noted, the Court of Appeals rested its decision that the jury was not impartial on this Court's decision in That decision, a leading one at the time, held that adverse pretrial publicity can create such a presumption of prejudice in a community that the jurors' claims that they can be impartial should not be believed. The Court in reviewed a number of factors in determining whether the totality of the circumstances raised such a presumption. The Court noted, however, that the trial court's findings of impartiality might be overturned only for "manifest error." The Court of Appeals in this case did not address this aspect of the decision.[7] Moreover, the *1032 court below, in concentrating on the factors discussed at length in failed to give adequate weight to other significant circumstances in this case. In the Court observed that it was during the six or seven months immediately preceding trial |
Justice Powell | 1,984 | 17 | majority | Patton v. Yount | https://www.courtlistener.com/opinion/111228/patton-v-yount/ | was during the six or seven months immediately preceding trial that "a barrage of newspaper headlines, articles, cartoons and pictures was unleashed against [the defendant]." In this case, the extensive adverse publicity and the community's sense of outrage were at their height prior to Yount's first trial in 1966. The jury selection for Yount's second trial, at issue here, did not occur until four years later, at a time when prejudicial publicity was greatly diminished and community sentiment had softened. In these circumstances, we hold that the trial court did not commit manifest error in finding that the jury as a whole was impartial. The record reveals that in the year and a half from the reversal of the first conviction to the start of the second voir dire each of the two Clearfield County daily newspapers published an average of less than one article per month. App. 642a-657a; Record, Ex. P-1-v to P-1-kk, P-2. More important, many of these were extremely brief announcements of the trial dates and scheduling such as are common in rural newspapers. E. g., App. 653a-656a; Record, Ex. P-1-ff, P-1-ii, P-1-jj. The transcript of the voir dire contains numerous references to the sparse publicity and minimal public interest prior to the second trial. E. g., App. 43a, 98a, 100a; Tr. 27-28, 90, 191, 384, 771, 829, 1142. It is true that during the voir dire the newspapers published articles on an almost daily basis, but these too were purely factual articles generally discussing not the crime or prior prosecution, but the prolonged process of jury selection. App. 658a-671a. In short, the record of publicity in the *1033 months preceding, and at the time of, the second trial does not reveal the "barrage of inflammatory publicity immediately prior to trial," amounting to a "huge wave of public passion," that the Court found in The voir dire testimony revealed that this lapse in time had a profound effect on the community and, more important, on the jury, in softening or effacing opinion. Many veniremen, of course, simply had let the details of the case slip from their minds. E. g., App. 194a; Tr. 33, 284, 541-544, 991. In addition, while it is true that a number of jurors and veniremen testified that at one time they had held opinions, for many, time had weakened or eliminated any conviction they had had. See, e. g., App. 98a-100a (juror number 7), 128a (juror number 8); Tr. 384-385, 398-399, 831, 897 (semble), 1075-1076, 1144; see also App. 164a-166a (juror number 10).[8]*1034 The same is true of the testimony of the |
Justice Powell | 1,984 | 17 | majority | Patton v. Yount | https://www.courtlistener.com/opinion/111228/patton-v-yount/ | 10).[8]*1034 The same is true of the testimony of the jurors and veniremen who were seated late in the process and therefore were subjected to some of the articles and broadcasts disseminated daily during the voir dire:[9] the record suggests that their passions had not been inflamed nor their thoughts biased by the publicity. E. g., at 176a-177a, 150a-1a; Tr. 771, 959, 1027. That time soothes and erases is a perfectly natural phenomenon, familiar to all. See (A continuance should have been granted because "[t]he passage of time is a great healer," and public prejudice might have "subsid[ed]"), rev'd, ; see also ; Not all members of the venire had put aside earlier prejudice, as the voir dire disclosed. They retained their fixed opinions, and were disqualified. But the testimony suggests that the voir dire resulted in selecting those who had forgotten or would need to be persuaded again.[10] *1035 The Court of Appeals below thought that the fact that the great majority of veniremen "remembered the case" showed that time had not served "to erase highly unfavorable publicity from the memory of [the] community." This conclusion, without more, is essentially irrelevant. The relevant question is not whether the community remembered the case, but whether the jurors at Yount's trial had such fixed opinions that they could not judge impartially the guilt of the defendant. It is not unusual that one's recollection of the fact that a notorious crime was committed lingers long after the feelings of revulsion that create prejudice have passed. It would be fruitless to attempt to identify any particular lapse of time that in itself would distinguish the situation that existed in[11] But it is clear that the passage of time between a first and a second trial can be a highly relevant fact. In the circumstances of this case, we hold that it clearly rebuts any presumption of partiality or prejudice that existed at the time of the initial trial. There was fair, even abundant, support for the trial court's findings that between the two trials of this case there had been "practically no publicity given to this matter through the news media," and that there had not been "any great effect created by any publicity." App. 268a, 265a. *1036 I Yount briefly argues here that juror Hrin, as well as the two alternates, were erroneously seated over his challenges for cause. Brief for Respondent 32. There is substantial doubt whether Yount properly raised in his petition for habeas corpus the claim that the trial court erroneously denied his challenge for cause to juror Hrin. |
Justice Powell | 1,984 | 17 | majority | Patton v. Yount | https://www.courtlistener.com/opinion/111228/patton-v-yount/ | court erroneously denied his challenge for cause to juror Hrin. n. 18, with and n. 4 (Garth, J., concurring). And there is no evidence that the alternate jurors, who did not sit in judgment, actually talked with the other jurors during the 4-day trial. But Judge Garth in the court below based his concurrence on the view that Hrin would have required Yount to produce evidence to overcome his inclination to think the accused was guilty, and the majority of the panel thought that the 4-day association between the alternates and the other jurors "operate[d] to subvert the requirement that the jury's verdict be based on evidence developed from the witness stand," Therefore, we will consider briefly the claims as to all three jurors. It was the view of all three Court of Appeals judges that the question whether jurors have opinions that disqualify them is a mixed question of law and fact. See Thus, they concluded that the presumption of correctness due a state court's factual findings under 28 U.S. C. 2254(d) does not apply. The opinions below relied for this proposition on addressed the partiality of the trial jury as a whole, a question we discuss in Part We do not think its analysis can be extended to a federal habeas corpus case in which the partiality of an individual juror is placed in issue. That question is not one of mixed law and fact. Rather it is plainly one of historical fact: did a juror swear that he could set aside any opinion he might hold and decide the case on the evidence, and should the juror's protestation of impartiality have been believed. Cf.[12] *1038 There are good reasons to apply the statutory presumption of correctness to the trial court's resolution of these questions. First, the determination has been made only after an often extended voir dire proceeding designed specifically to identify biased veniremen. It is fair to assume that the method we have relied on since the beginning, e. g., United (No. 14,692g) (CC Va. 1807) (Marshall, C. J.), usually identifies bias.[13] Second, the determination is essentially one of credibility, and therefore largely one of demeanor. As we have said on numerous occasions, the trial court's resolution of such questions is entitled, even on direct appeal, to "special deference." E. g., Bose The respect paid such findings in a habeas proceeding certainly should be no less. See[14] Thus the question is whether there is fair support in the record for the state courts' conclusion that the jurors here would be impartial. See 28 U.S. C. 2254(d)(8). |
Justice Powell | 1,984 | 17 | majority | Patton v. Yount | https://www.courtlistener.com/opinion/111228/patton-v-yount/ | jurors here would be impartial. See 28 U.S. C. 2254(d)(8). The testimony *1039 of each of the three challenged jurors is ambiguous and at times contradictory. This is not unusual on voir dire examination, particularly in a highly publicized criminal case. It is well to remember that the lay persons on the panel may never have been subjected to the type of leading questions and cross-examination tactics that frequently are employed, and that were evident in this case. Prospective jurors represent a cross section of the community, and their education and experience vary widely. Also, unlike witnesses, prospective jurors have had no briefing by lawyers prior to taking the stand. Jurors thus cannot be expected invariably to express themselves carefully or even consistently. Every trial judge understands this, and under our system it is that judge who is best situated to determine competency to serve impartially. The trial judge properly may choose to believe those statements that were the most fully articulated or that appeared to have been least influenced by leading. The voir dire examination of juror Hrin was carefully scrutinized by the state courts and the Federal District Court, as he was challenged for cause and was a member of the jury that convicted the defendant. We think that the trial judge's decision to seat Hrin, despite early ambiguity in his testimony, was confirmed after he initially denied the challenge. Defense counsel sought and obtained permission to resume cross-examination. In response to a question whether Hrin could set his opinion aside before entering the jury box or would need evidence to change his mind, the juror clearly and forthrightly stated: "I think I could enter it [the jury box] with a very open mind. I think I could very easily. To say this is a requirement for some of the things you have to do every day." App. 89a. After this categorical answer, defense counsel did not renew their challenge for cause. Similarly, in the case of alternate juror Pyott, we cannot fault the trial judge for crediting her earliest testimony, in which she said that she could put her opinion aside "[i]f [she] had to," rather than the later testimony in *1040 which defense counsel persuaded her that logically she would need evidence to discard any opinion she might have. at 246a, 250a-252a. Alternate juror Chincharick's testimony is the most ambiguous, as he appears simply to have answered "yes" to almost any question put to him. It is here that the federal court's deference must operate, for while the cold record arouses some concern, only the trial |
Justice Thomas | 2,006 | 1 | majority | Texaco Inc. v. Dagher | https://www.courtlistener.com/opinion/145675/texaco-inc-v-dagher/ | From 18 until 2002, petitioners Texaco Inc. and Shell Co. collaborated in a joint venture, Equilon Enterprises, to refine and sell gasoline in the western United States under the original Texaco and Shell brand names. Respondents, a class of Texaco and Shell service station owners, allege that petitioners engaged in unlawful price fixing when Equilon set a single price for both Texaco and Shell brand gasoline. We granted certiorari to determine whether it is per se illegal under 1 of the Sherman Act, 15 U.S. C. 1, for a lawful, economically integrated joint venture to set the prices at which the joint venture sells its products. We conclude that it is not, and accordingly we reverse the contrary judgment of the Court of Appeals. I Historically, Texaco and Shell have competed with one another in the national and international oil and gasoline *4 markets. Their business activities include refining crude oil into gasoline, as well as marketing gasoline to downstream purchasers, such as the service stations represented in respondents' class action. In 18, Texaco and Shell formed a joint venture, Equilon, to consolidate their operations in the western United States, thereby ending competition between the two companies in the domestic refining and marketing of gasoline. Under the joint venture agreement, Texaco and Shell agreed to pool their resources and share the risks of and profits from Equilon's activities. Equilon's board of directors would comprise representatives of Texaco and Shell and Equilon gasoline would be sold to downstream purchasers under the original Texaco and Shell brand names. The formation of Equilon was approved by consent decree, subject to certain divestments and other modifications, by the Federal Trade Commission, see In re Shell Co., 125 F. T. C. 76 (18), as well as by the state attorneys general of California, Hawaii, Oregon, and Washington. Notably, the decrees imposed no restrictions on the pricing of Equilon gasoline. After the joint venture began to operate, respondents brought suit in District Court, alleging that, by unifying gasoline prices under the two brands, petitioners had violated the per se rule against price fixing that this Court has long recognized under 1 of the Sherman Act, ch. as amended, 15 U.S. C. 1. See, e. g., The District Court awarded summary judgment to Texaco and Shell It determined that the rule of reason, rather than a per se rule or the quick look doctrine, governs respondents' claim, and that, by eschewing rule of reason analysis, respondents had failed to raise a triable issue of fact. The Ninth Circuit reversed, characterizing petitioners' position as a request for an |
Justice Thomas | 2,006 | 1 | majority | Texaco Inc. v. Dagher | https://www.courtlistener.com/opinion/145675/texaco-inc-v-dagher/ | Circuit reversed, characterizing petitioners' position as a request for an "exception to the per se prohibition on price-fixing," and rejecting that request. We consolidated Texaco's and Shell 's separate petitions and granted certiorari to determine the extent to which the per se rule against price fixing applies to an important and increasingly popular form of business organization, the joint venture. II Section 1 of the Sherman Act prohibits "[e]very contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States." 15 U.S. C. 1. This Court has not taken a literal approach to this language, however. See, e. g., State Instead, this Court presumptively applies rule of reason analysis, under which antitrust plaintiffs must demonstrate that a particular contract or combination is in fact unreasonable and anticompetitive before it will be found unlawful. See, e. g., at -1. Per se liability is reserved for only those agreements that are "so plainly anti-competitive that no elaborate study of the industry is needed to establish their illegality." National Soc. of Professional Accordingly, "we have expressed reluctance to adopt per se rules `where the economic impact of certain practices is not immediately obvious.'" State at ). Price-fixing agreements between two or more competitors, otherwise known as horizontal price-fixing agreements, fall into the category of arrangements that are per se unlawful. See, e. g., at These cases do not present such an agreement, however, because Texaco and Shell did not compete with one another in the relevant marketnamely, the sale of gasoline to service stations in the western United Statesbut instead participated in that *6 market jointly through their investments in Equilon.[1] In other words, the pricing policy challenged here amounts to little more than price setting by a single entityalbeit within the context of a joint ventureand not a pricing agreement between competing entities with respect to their competing products. Throughout Equilon's existence, Texaco and Shell shared in the profits of Equilon's activities in their role as investors, not competitors. When "persons who would otherwise be competitors pool their capital and share the risks of loss as well as the opportunities for profit such joint ventures [are] regarded as a single firm competing with other sellers in the market." As such, though Equilon's pricing policy may be price fixing in a literal sense, it is not price fixing in the antitrust sense. See Broadcast This conclusion is confirmed by respondents' apparent concession that there would be no per se liability had Equilon simply chosen to sell its gasoline under a single brand. See |
Justice Thomas | 2,006 | 1 | majority | Texaco Inc. v. Dagher | https://www.courtlistener.com/opinion/145675/texaco-inc-v-dagher/ | chosen to sell its gasoline under a single brand. See Tr. of Oral Arg. 34. We see no reason to treat Equilon differently just because it chose to sell gasoline under two distinct *7 brands at a single price. As a single entity, a joint venture, like any other firm, must have the discretion to determine the prices of the products that it sells, including the discretion to sell a product under two different brands at a single, unified price. If Equilon's price unification policy is anticompetitive, then respondents should have challenged it pursuant to the rule of reason.[2] But it would be inconsistent with this Court's antitrust precedents to condemn the internal pricing decisions of a legitimate joint venture as per se unlawful.[3] The court below reached the opposite conclusion by invoking the ancillary restraints 36 F.3d, at 1118-1124. That doctrine governs the validity of restrictions imposed by a legitimate business collaboration, such as a business association or joint venture, on nonventure activities. See, e. g., National Collegiate Athletic (184); Citizen Publishing 34 U.S. 131, (16). Under the doctrine, courts must determine whether the nonventure restriction is a naked restraint on trade, and thus invalid, or one that is ancillary to the legitimate and competitive purposes of the business association, and thus valid. We agree with petitioners that the ancillary restraints doctrine has no application here, where the business practice being challenged involves the core activity of the joint venture itselfnamely, the pricing of the very *8 goods produced and sold by Equilon. And even if we were to invoke the doctrine in these cases, Equilon's pricing policy is clearly ancillary to the sale of its own products. Judge Fernandez, dissenting from the ruling of the court below, put it well: "In this case, nothing more radical is afoot than the fact that an entity, which now owns all of the production, transportation, research, storage, sales and distribution facilities for engaging in the gasoline business, also prices its own products. It decided to price them the same, as any other entity could. What could be more integral to the running of a business than setting a price for its goods and services?" 36 F.3d, at 1127. See also Broadcast * * * Because the pricing decisions of a legitimate joint venture do not fall within the narrow category of activity that is per se unlawful under 1 of the Sherman Act, respondents' anti-trust claim cannot prevail. Accordingly, the judgment of the Court of Appeals is reversed. It is so ordered. JUSTICE ALITO took no part in the consideration or |
Justice Brennan | 1,983 | 13 | majority | DelCostello v. Teamsters | https://www.courtlistener.com/opinion/110956/delcostello-v-teamsters/ | Each of these cases arose as a suit by an employee or employees against an employer and a union, alleging that the employer had breached a provision of a collective-bargaining agreement, and that the union had breached its duty of fair representation by mishandling the ensuing grievance-and-arbitration proceedings See infra, at 162; ; ; The issue presented is what statute of limitations should apply to such suits In United Parcel Service, we held that a similar suit was governed by a state statute of limitations for vacation of an arbitration award, rather than by a state statute for an action on a contract We left two points open, however First, our holding was limited to the employee's claim against the employer; we did not address what state statute should govern the claim against the union[1] Second, we expressly limited our consideration to a choice between two state statutes of limitations; we did not address the contention that we should instead borrow a federal statute of limitations, namely, 10(b) of the National Labor Relations Act, 29 US C 160(b)[2] These cases present these two issues *155 We conclude that 10(b) should be the applicable statute of limitations governing the suit, both against the employer and against the union I A Philip DelCostello, petitioner in No 81-2386, was employed as a driver by respondent Anchor Motor Freight, Inc, and represented by respondent Teamsters Local 557 On June 27, 1977, he quit or was discharged[3] after refusing to drive a tractor-trailer that he contended was unsafe He took his complaint to the union, which made unsuccessful informal attempts to get DelCostello reinstated and then brought a formal grievance under the collective-bargaining agreement A hearing was held before a regional joint union-management committee The committee concluded that the grievance was without merit DelCostello was informed of that decision in a letter dated August 19, 1977, forwarding the minutes of the hearing and stating that the minutes would be presented for approval at the committee's meeting on September 20 DelCostello responded in a letter, but the minutes were approved without change Under the collective-bargaining agreement, the committee's decision is final and binding on all parties On March 16, 1978, DelCostello filed this suit in the District of Maryland against the employer and the union He *156 alleged that the employer had discharged him in violation of the collective-bargaining agreement, and that the union had represented him in the grievance procedure "in a discriminatory, arbitrary and perfunctory manner," App in No 81-2386, p 19, resulting in an unfavorable decision by the joint committee Respondents asserted that |
Justice Brennan | 1,983 | 13 | majority | DelCostello v. Teamsters | https://www.courtlistener.com/opinion/110956/delcostello-v-teamsters/ | an unfavorable decision by the joint committee Respondents asserted that the suit was barred by Maryland's 30-day statute of limitations for actions to vacate arbitration awards[4] The District Court disagreed, holding that the applicable statute was the 3-year state statute for actions on contracts[5] On reconsideration following our decision in however, the court granted summary judgment for respondents, concluding that compelled application of the 30-day statute to both the claim against the employer and the claim against the union [6] The Court of Appeals affirmed on the basis of the District Court's order B Donald C Flowers and King E Jones, respondents in No 81-2408, were employed as craft welders by Bethlehem Steel Corp and represented by petitioner Steelworkers Local 2602[7] In 1975 and respondents filed several *157 grievances asserting that the employer had violated the collective-bargaining agreement by assigning certain welding duties to employees in other job categories and departments of the plant, with the result that respondents were laid off or assigned to noncraft work The union processed the grievances through the contractually established procedure and, failing to gain satisfaction, invoked arbitration On February 24, 1978, the arbitrator issued an award for the employer, ruling that the employer's job assignments were permitted by the collective-bargaining agreement Respondents filed this suit in the Western District of New York on January 9, 1979, naming both the employer and the union as defendants The complaint alleged that the company's work assignments violated the collective-bargaining agreement, and that the union's "preparation, investigation and handling" of respondents' grievances were "so inept and careless as to be arbitrary and capricious," in violation of the union's duty of fair representation App in No 81-2408, p 10 The District Court dismissed the complaint against both defendants, holding that the entire suit was governed by New York's 90-day statute of limitations for actions to vacate arbitration awards[8] The Court of Appeals reversed on the basis of its prior holding in that such actions are governed by New York's 6-year statute for actions on We granted certiorari and vacated and remanded for reconsideration in light of our reversal in On remand, the Court of Appeals rejected the argument that the 6-month period of 10(b) applies Accordingly, following our decision in it applied the 90-day arbitration statute and affirmed the dismissal as to the employer As to the union, however, the *158 court reversed, concluding that the correct statute to apply was New York's 3-year statute for malpractice actions[10] C In this Court, petitioners in both cases contend that suits under and should be governed by the 6-month limitations |
Justice Brennan | 1,983 | 13 | majority | DelCostello v. Teamsters | https://www.courtlistener.com/opinion/110956/delcostello-v-teamsters/ | suits under and should be governed by the 6-month limitations period of 10(b) of the National Labor Relations Act, 29 US C 160(b) Alternatively, the Steelworkers, petitioners in No 81-2408, argue that the state statute for vacation of arbitration awards should apply to a claim against a union as well as to one against an employer[11] We granted certiorari in both cases and consolidated them for argument II A As is often the case in federal civil law, there is no federal statute of limitations expressly applicable to this suit In such situations we do not ordinarily assume that Congress intended that there be no time limit on actions at all; rather, our task is to "borrow" the most suitable statute or other rule of timeliness from some other source We have generally concluded that Congress intended that the courts apply the most closely analogous statute of limitations under state law[12] "The implied absorption of State statutes of limitation *159 within the interstices of the federal enactments is a phase of fashioning remedial details where Congress has not spoken but left matters for judicial determination within the general framework of familiar legal principles" [13] See, e g, ; Chevron Oil ; Auto ; Chattanooga ; *161 In some circumstances, however, state statutes of limitations can be unsatisfactory vehicles for the enforcement of federal law In those instances, it may be inappropriate to conclude that Congress would choose to adopt state rules at odds with the purpose or operation of federal substantive law "[T]he Court has not mechanically applied a state statute of limitations simply because a limitations period is absent from the federal statute State legislatures do not devise their limitations periods with national interests in mind, and it is the duty of the federal courts to assure that the importation of state law will not frustrate or interfere with the implementation of national policies `Although state law is our primary guide in this area, it is not, to be sure, our exclusive guide' " Occidental Life Ins quoting *162 Hence, in some cases we have declined to borrow state statutes but have instead used timeliness rules drawn from federal law either express limitations periods from related federal statutes, or such alternatives as laches In Occidental, for example, we declined to apply state limitations periods to enforcement suits brought by the Equal Employment Opportunity Commission under Title VII of the 1964 Civil Rights Act, reasoning that such application might unduly hinder the policy of the Act by placing too great an administrative burden on the agency In we applied |
Justice Brennan | 1,983 | 13 | majority | DelCostello v. Teamsters | https://www.courtlistener.com/opinion/110956/delcostello-v-teamsters/ | great an administrative burden on the agency In we applied the federal limitations provision of the Jones Act to a seaworthiness action under general admiralty law We pointed out that the two forms of claim are almost invariably brought together Hence, "with an eye to the practicalities of admiralty personal injury litigation," we held inapplicable a shorter state statute governing personal injury suits Again, in Holmberg, we held that state statutes of limitations would not apply to a federal cause of action lying only in equity, because the principles of federal equity are hostile to the "mechanical rules" of statutes of limitations Auto was a straight-forward suit under 301 of the Labor Management Relations Act, 29 US C 185, for breach of a collective-bargaining agreement by an employer Unlike the present cases, did not involve any agreement to submit disputes to arbitration, and the suit was brought by the union itself rather than by an individual employee We held that the suit was governed by Indiana's 6-year limitations period for actions on unwritten contracts; we resisted the suggestion that we establish some uniform federal period Although we recognized that "the subject matter of 301 is `peculiarly one that calls for uniform law,' " quoting we reasoned that national uniformity is of less importance when the *163 case does not involve "those consensual processes that federal labor law is chiefly designed to promote the formation of the collective agreement and the private settlement of disputes under it," We also relied heavily on the obvious and close analogy between this variety of 301 suit and an ordinary breach-of-contract case We expressly reserved the question whether we would apply state law to 301 actions where the analogy was less direct or the relevant policy factors different: "The present suit is essentially an action for damages caused by an alleged breach of an employer's obligation embodied in a collective bargaining agreement Such an action closely resembles an action for breach of contract cognizable at common law Whether other 301 suits different from the present one might call for the application of other rules on timeliness, we are not required to decide, and we indicate no view whatsoever on that question See, e g, " n 7 Justice Stewart, who wrote the Court's opinion in took this caution to heart in He concurred separately in the judgment, arguing that the factors that compelled adoption of state law in did not apply to suits under Vaca and and that in the latter situation we should apply the federal limitations period of 10(b) -71 As we |
Justice Brennan | 1,983 | 13 | majority | DelCostello v. Teamsters | https://www.courtlistener.com/opinion/110956/delcostello-v-teamsters/ | apply the federal limitations period of 10(b) -71 As we shall explain, we agree B It has long been established that an individual employee may bring suit against his employer for breach of a collective-bargaining agreement Smith v Evening News Assn, 371 US 195 Ordinarily, however, an employee is required to attempt to exhaust any grievance or arbitration remedies provided in the collective-bargaining agreement Republic Steel Corp v Maddox, 379 US 650 ; cf Clayton v Automobile Workers, 451 US 679 *164 (exhaustion of intraunion remedies not always required) Subject to very limited judicial review, he will be bound by the result according to the finality provisions of the agreement See W R Grace & Co v Rubber Workers, 461 US 757, ; Steelworkers v Enterprise Corp, 363 US 593 In Vaca and however, we recognized that this rule works an unacceptable injustice when the union representing the employee in the grievance/arbitration procedure acts in such a discriminatory, dishonest, arbitrary, or perfunctory fashion as to breach its duty of fair representation In such an instance, an employee may bring suit against both the employer and the union, notwithstanding the outcome or finality of the grievance or arbitration proceeding ; ; United Parcel Service, ; ; v O'Mara, 397 US 25 Such a suit, as a formal matter, comprises two causes of action The suit against the employer rests on 301, since the employee is alleging a breach of the collective-bargaining agreement The suit against the union is one for breach of the union's duty of fair representation, which is implied under the scheme of the National Labor Relations Act[14] "Yet the two claims are inextricably interdependent *165 `To prevail against either the company or the Union, [employee-plaintiffs] must not only show that their discharge was contrary to the contract but must also carry the burden of demonstrating breach of duty by the Union' " (Stewart, J, concurring in judgment), quoting The employee may, if he chooses, sue one defendant and not the other; but the case he must prove is the same whether he sues one, the other, or both The suit is thus not a straightforward breach-of-contract suit under 301, as was but a hybrid 301/fair representation claim, amounting to "a direct challenge to `the private settlement of disputes under [the collective-bargaining agreement]' " (Stewart, J, concurring in judgment), quoting 383 U S, at 702 Also unlike the claim in it has no close analogy in ordinary state law The analogies suggested in both suffer from flaws, not only of legal substance, but more important, of practical application in |
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