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Justice Brennan | 1,983 | 13 | majority | DelCostello v. Teamsters | https://www.courtlistener.com/opinion/110956/delcostello-v-teamsters/ | of legal substance, but more important, of practical application in view of the policies of federal labor law and the practicalities of hybrid 301/fair representation litigation In we analogized the employee's claim against the employer to an action to vacate an arbitration award in a commercial setting We adhere to the view that, as between the two choices, it is more suitable to characterize the claim that way than as a suit for breach of contract Nevertheless, the parallel is imperfect in operation The main difference is that a party to commercial arbitration will ordinarily be represented by counsel or, at least, will have some experience in matters of commercial dealings and contract negotiation Moreover, an action to vacate a commercial arbitral award will rarely raise any issues not already presented and contested in the arbitration proceeding itself In the labor setting, *166 by contrast, the employee will often be unsophisticated in collective-bargaining matters, and he will almost always be represented solely by the union He is called upon, within the limitations period, to evaluate the adequacy of the union's representation, to retain counsel, to investigate substantial matters that were not at issue in the arbitration proceeding, and to frame his suit Yet state arbitration statutes typically provide very short times in which to sue for vacation of arbitration awards[15] Concededly, the very brevity of New York's 90-day arbitration limitations period was a major factor why, in we preferred it to the 6-year statute for breach of contract, 451 US, at 63-64; but it does not follow that because 6 years is too long, 90 days is long enough See also at 707, n 9 We conclude that state limitations periods for vacating arbitration awards fail to provide an aggrieved employee with a satisfactory opportunity to vindicate his rights under 301 and the fair representation doctrine[16] Moreover, as JUSTICE STEVENS pointed out in his opinion in analogy to an action to vacate an arbitration *167 award is problematic at best as applied to the employee's claim against the union: "The arbitration proceeding did not, and indeed, could not, resolve the employee's claim against the union Although though the union was a party to the arbitration, it acted only as the employee's representative; the [arbitration panel] did not address or resolve any dispute between the employee and the union Because no arbitrator has decided the primary issue presented by this claim, no arbitration award need be undone, even if the employee ultimately prevails" 451 US, at 73 (footnotes omitted) JUSTICE STEVENS suggested an alternative solution for the claim against the union: |
Justice Brennan | 1,983 | 13 | majority | DelCostello v. Teamsters | https://www.courtlistener.com/opinion/110956/delcostello-v-teamsters/ | suggested an alternative solution for the claim against the union: borrowing the state limitations period for legal malpractice Id, ; see post, at 174 (STEVENS, J, dissenting); post, at 175 (O'CONNOR, J, dissenting) The analogy here is to a lawyer who mishandles a commercial arbitration Although the short limitations period for vacating the arbitral award would protect the interest in finality of the opposing party to the arbitration, the misrepresented party would retain his right to sue his lawyer for malpractice under a longer limitations period This solution is admittedly the closest state-law analogy for the claim against the union Nevertheless, we think that it too suffers from objections peculiar to the realities of labor relations and litigation The most serious objection is that it does not solve the problem caused by the too-short time in which an employee could sue his employer under borrowed state law In a commercial setting, a party who sued his lawyer for bungling an *168 arbitration could ordinarily recover his entire damages, even if the statute of limitations foreclosed any recovery against the opposing party to the arbitration The same is not true in the 301/fair representation setting, however We held in Vaca, and reaffirmed this Term in Bowen, that the union may be held liable only for "increases if any in [the employee's] damages caused by the union's refusal to process the grievance" 386 US, at 197-198; 459 U S, at 223-224; see 397 U S, at 29 Thus, if we apply state limitations periods, a large part of the damages will remain uncollectible in almost every case unless the employee sues within the time allotted for his suit against the employer[17] Further, while application of a short arbitration period as against employers would endanger employees' ability to recover most of what is due them, application of a longer malpractice statute as against unions would preclude the relatively rapid final resolution of labor disputes favored by federal law a problem not present when a party to a commercial arbitration sues his lawyer In No 81-2408, for example, the holding of the Court of Appeals would permit a suit as long as three years after termination of the grievance proceeding; many States provide for periods even longer[18] What we said in about the 6-year contracts statute urged there can as easily be said here: "It is important to bear in mind the observations made in the Steelworkers Trilogy that `the grievance machinery under a collective bargaining agreement is at the very heart of the system of industrial self-government The processing machinery is actually |
Justice Brennan | 1,983 | 13 | majority | DelCostello v. Teamsters | https://www.courtlistener.com/opinion/110956/delcostello-v-teamsters/ | the system of industrial self-government The processing machinery is actually a vehicle by which meaning and content are given to the collective *169 bargaining agreement' Steelworkers v Warrior & Gulf Navigation Co, 363 US 574, Although the present case involves a fairly mundane and discrete wrongful-discharge complaint, the grievance and arbitration procedure often processes disputes involving interpretation of critical terms in the collective-bargaining agreement affecting the entire relationship between company and union This system, with its heavy emphasis on grievance, arbitration, and the `law of the shop,' could easily become unworkable if a decision which has given `meaning and content' to the terms of an agreement, and even affected subsequent modifications of the agreement, could suddenly be called into question as much as [three] years later" 451 US, at 63-64 See also 383 U S, at 706-707; Machinists v NLRB, 362 US 411, [19] These objections to the resort to state law might have to be tolerated if state law were the only source reasonably available for borrowing, as it often is In this case, however, we have available a federal statute of limitations actually designed to accommodate a balance of interests very similar to that at stake here a statute that is, in fact, an analogy to the present lawsuit more apt than any of the suggested state-law parallels[20] We refer to 10(b) of the National Labor Relations Act, which establishes a 6-month period for making charges of unfair labor practices to the NLRB[21] *170 The NLRB has consistently held that all breaches of a union's duty of fair representation are in fact unfair labor practices E g, Miranda Fuel Co, 140 N L R B 181 enf denied, 326 F2d 172 We have twice declined to decide the correctness of the Board's position,[22] and we need not address that question today Even if not all breaches of the duty are unfair labor practices, however, the family resemblance is undeniable, and indeed there is a substantial overlap Many fair representation claims (the one in No 81-2386, for example) include allegations of discrimination based on membership status or dissident views, which would be unfair labor practices under 8(b)(1) or (2) Aside from these clear cases, duty of fair representation claims are allegations of unfair, arbitrary, or discriminatory treatment of workers by unions as are virtually all unfair labor practice charges made by workers against unions See generally R Gorman, Labor Law 698-701 Similarly, it may be the case that alleged violations by an employer of a collective-bargaining agreement will also amount to unfair labor practices See At least |
Justice Brennan | 1,983 | 13 | majority | DelCostello v. Teamsters | https://www.courtlistener.com/opinion/110956/delcostello-v-teamsters/ | will also amount to unfair labor practices See At least as important as the similarity of the rights asserted in the two contexts, however, is the close similarity of *171 the considerations relevant to the choice of a limitations period As Justice Stewart observed in : "In 10(b) of the NLRA, Congress established a limitations period attuned to what it viewed as the proper balance between the national interests in stable bargaining relationships and finality of private settlements, and an employee's interest in setting aside what he views as an unjust settlement under the collective-bargaining system That is precisely the balance at issue in this case The employee's interest in setting aside the `final and binding' determination of a grievance through the method established by the collective-bargaining agreement unquestionably implicates `those consensual processes that federal labor law is chiefly designed to promote the formation of the agreement and the private settlement of disputes under it' 383 U S, at 702 Accordingly, `[t]he need for uniformity' among procedures followed for similar claims, ib as well as the clear congressional indication of the proper balance between the interests at stake, counsels the adoption of 10(b) of the NLRA as the appropriate limitations period for lawsuits such as this" 451 US, at 70-71 (footnote omitted) We stress that our holding today should not be taken as a departure from prior practice in borrowing limitations periods for federal causes of action, in labor law or elsewhere We do not mean to suggest that federal courts should eschew use of state limitations periods anytime state law fails to provide a perfect analogy See, e g, 451 U S, at 61, n 3 On the contrary, as the courts have often discovered, there is not always an obvious state-law choice for application to a given federal cause of action; yet resort to state law remains the norm for borrowing of limitations periods Nevertheless, *172 when a rule from elsewhere in federal law clearly provides a closer analogy than available state statutes, and when the federal policies at stake and the practicalities of litigation make that rule a significantly more appropriate vehicle for interstitial lawmaking, we have not hesitated to turn away from state law See Part supra As Justice Goldberg cautioned: "[I]n this Court's fashioning of a federal law of collective bargaining, it is of the utmost importance that the law reflect the realities of industrial life and the nature of the collective bargaining process We should not assume that doctrines evolved in other contexts will be equally well adopted to the collective bargaining process" |
Justice Brennan | 1,983 | 13 | majority | DelCostello v. Teamsters | https://www.courtlistener.com/opinion/110956/delcostello-v-teamsters/ | will be equally well adopted to the collective bargaining process" Humphrey v Moore, 375 US 335, III In No 81-2408, it is conceded that the suit was filed more than 10 months after respondents' causes of action accrued The Court of Appeals held the suit timely under a state 3-year statute for malpractice actions Since we hold that the suit is governed by the 6-month provision of 10(b), we reverse the judgment The situation is less clear in No 81-2386 Depending on when the joint committee's decision is thought to have been rendered, the suit was filed some seven or eight months afterwards Petitioner DelCostello contends, however, that certain events operated to toll the running of the statute of limitations until about three months before he filed suit Since the District Court applied a 30-day limitations period, it expressly declined to consider any tolling issue 524 F Supp, at 725 Hence, the judgment is reversed, and the case is remanded for further proceedings consistent with this opinion It is so ordered |
Justice Breyer | 2,004 | 2 | second_dissenting | Pliler v. Ford | https://www.courtlistener.com/opinion/136992/pliler-v-ford/ | I join JUSTICE GINSBURG's dissent. But I write separately to "addres[s] the propriety of" the Ninth Circuit's "stay-and-abeyance procedure." Ante, at 231 (majority opinion). That procedure would have permitted Richard Ford, the respondent, to ask the federal court to stay proceedings and hold his federal habeas petition (in abeyance) on its docket while he returned to state court to exhaust his unexhausted federal claims. Thus Ford would not have had to bring his federal petition again, after expiration of the 1-year limitations period. California's courts thereby could have considered his unexhausted claims without forcing him to forfeit his right to ask a federal court for habeas relief. What could be unlawful about this procedure? In the Court, pointing to considerations of comity, held that federal habeas courts must give state courts a first crack at deciding an issue. It prohibited the federal courts from considering unexhausted claims. The Court added that, where a habeas petition is "mixed" (containing both exhausted and unexhausted claims), the federal habeas court should dismiss the petition. Rose reassured those prisoners (typically acting pro se), however, that the dismissal would not "unreasonably impair the prisoner's right to relief." That reassurance made sense at that time because the law did not then put a time limit on refiling. It thereby permitted a prisoner to return to federal court after he had exhausted his state remedies. Of course, the law prohibits a prisoner from "abusing the writ," but ordinarily a petitioner's dismissal of his mixed petition, his presenting unexhausted claims to the state courts, and his subsequent return to federal court would not have constituted an abuse. *238 Fourteen years after Rose, Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). AEDPA imposed a 1-year statute of limitations for filing a habeas petition. 28 U.S. C. 2244(d)(1). One might have thought at first blush that the 1-year limitations period would not make much practical difference where an exhaustion-based dismissal of a mixed petition was at issue, for AEDPA tolls the limitations period while "a properly filed application for State post-conviction or other collateral review is pending." 2244(d)(2). In however, this Court held that the words "other collateral review" do not cover a federal habeas proceeding. And that fact means that a pro se habeas petitioner who mistakenly files a mixed petition in federal court may well find that he has no time to get to state court and back before his year expires. Hence, after the dismissal of such a petition will not simply give state courts a chance to consider the unexhausted issues he |
Justice Breyer | 2,004 | 2 | second_dissenting | Pliler v. Ford | https://www.courtlistener.com/opinion/136992/pliler-v-ford/ | state courts a chance to consider the unexhausted issues he raises; it often also means the permanent end of any federal habeas review. Ante, at 230; see also (citing statistics that 93% of habeas petitioners are pro se; 63% of all habeas petitions are dismissed; 57% of those are dismissed for failure to exhaust; and district courts took an average of nearly nine months to dismiss petitions on procedural grounds). Indeed, in this very case a not atypical scenario the limitations period expired while the petition was pending before the District Court. I dissented in arguing that Congress could not have intended to cause prisoners to lose their habeas rights under these Although the majority reached a different conclusion, it did so primarily upon the basis of the statute's language. See Accepting the majority's view of that language, I nonetheless believe that the other considerations that I raised in support the lawfulness of the Ninth Circuit's stay-and-abeyance *239 procedure. That procedure recognizes the comity interests that Rose identified, and it reconciles those interests with the longstanding constitutional interest in making habeas corpus available to state prisoners. There is no tension between the two. It is thus not surprising that nearly every circuit has adopted a similar procedure. E. g., ("[V]irtually every other Circuit that has considered this issue has held that, following AEDPA, while it usually is within a district court's discretion to determine whether to stay or dismiss a mixed petition, staying the petition is the only appropriate course of action where an outright dismissal could jeopardize the timeliness of a collateral attack" ); ; ; ; ; ; cf. ; but cf. See also -183 ("[T]here is no reason why a district court should not retain jurisdiction over a meritorious claim and stay further proceedings pending the complete exhaustion of state remedies"); (noting "JUSTICE STEVENS' sound suggestions that district courts hold mixed petition in abeyance"). I recognize that the majority also noted the importance of respecting AEDPA's goals of "comity, finality, and federalism." But I do not see how the Ninth Circuit's procedure could significantly undermine those goals. It is unlikely to mean that prisoners will increasingly file mixed petitions. A petitioner who believes that he is wrongly incarcerated would not deliberately file a petition with unexhausted claims in the wrong (i. e., federal) court, for that error would *240 simply prolong proceedings. Those under a sentence of death might welcome delays, but in such cases deliberate misfiling would risk a finding that the filer has abused the writ and a consequent judicial refusal to hold |
Justice Breyer | 2,004 | 2 | second_dissenting | Pliler v. Ford | https://www.courtlistener.com/opinion/136992/pliler-v-ford/ | abused the writ and a consequent judicial refusal to hold the petition in abeyance. Moreover, a habeas court may fashion a stay to prevent abusive delays; for example, by providing a time limit within which a prisoner must exhaust state-court remedies. See, e. g., at Nor does the Ninth Circuit procedure seriously undermine AEDPA's 1-year limitations period. That provision requires a prisoner to file a federal habeas petition with at least one exhausted claim within the 1-year period, and it prohibits the habeas petitioner from subsequently including any new claim. These requirements remain. Given the importance of maintaining a prisoner's access to a federal habeas court and the comparatively minor interference that the Ninth Circuit's procedure creates with comity or other AEDPA concerns, I would find use of the stay-and-abeyance procedure legally permissible. I also believe that the Magistrate Judge should have informed Ford of this important rights-preserving option. See ante, at 236 (GINSBURG, J., dissenting). For these reasons, I respectfully dissent. |
Justice Ginsburg | 1,998 | 5 | dissenting | Lunding v. New York Tax Appeals Tribunal | https://www.courtlistener.com/opinion/118165/lunding-v-new-york-tax-appeals-tribunal/ | New York and other States follow the Federal Government's lead[1] in according an income tax deduction for alimony to resident taxpayers only.[2] That tax practice, I *316 conclude, does not offend the nondiscrimination principle embodied in the Privileges and Immunities Clause of Article IV, 2. I therefore dissent from the Court's opinion. I To put this case in proper perspective, it is helpful to recognize not only that alimony payments are "surely a personal matter," ante, at 310; in addition, alimony payments are "unlike otherpersonal obligation[s]," ante, at 314. Under federal tax law, mirrored in state tax regimes, alimony is included in the recipient's gross income, 26 U.S. C. 71(a), and the payer is allowed a corresponding deduction, 215(a), 62(a)(10), for payments taxable to the recipient. This scheme "can best be seen as a determination with respect to choice of taxable person rather than as rules relating to the definition of income or expense. In effect, the [alimony payer] is treated as a conduit for gross income that legally belongs to the [alimony recipient] under the divorce decree." M. Chirelstein, Federal Income Taxation ¶ 9.05, p. 230 (8th ed. 1997) (hereinafter Chirelstein); see also B. Bittker & M. McMahon, Federal Income Taxation of Individuals ¶ 36.7, p. 36-18 (2d ed. 1995) ("Unlike most other personal deductions, [the deduction for alimony payments] is best viewed as a method of designating the proper taxpayer for a given amount of income, rather than a tax allowance for particular expenditures. In combination, 71 [allowing a deduction to the alimony payer] and 215 [requiring the alimony recipient to include the payment in gross income] treat part of the [payer]'s income as though it were received subject to an offsetting duty to pay it to the payee."). New York applies this scheme to resident alimony payers. But N. Y. Tax Law 631(b)(6) (McKinney 1987) declares that, in the case of a nonresident with New York source income, the alimony deduction for which federal law provides "shall not constitute a deduction derived from New York sources." *317 Thus, if petitioner Christopher Lunding and his former spouse were New York residents, his alimony payments would be included in his former spouse's gross income for state as well as federal income tax purposes, and he would receive a deduction for the payments. In other words, New York would tax the income once, but not twice. In fact, however, though Lunding derives a substantial part of his gross income from New York sources, he and his former spouse reside in Connecticut. That means, he urges, that New York may not |
Justice Ginsburg | 1,998 | 5 | dissenting | Lunding v. New York Tax Appeals Tribunal | https://www.courtlistener.com/opinion/118165/lunding-v-new-york-tax-appeals-tribunal/ | Connecticut. That means, he urges, that New York may not tax the alimony payments at all. Compared to New York divorced spouses, in short, Lunding seeks a windfall, not an escape from double taxation, but a total exemption from New York's tax for the income in question. This beneficence to nonresidents earning income in New York, he insists, is what the Privileges and Immunities Clause of Article IV, 2, of the United States Constitution demands. Explaining why New York must so favor Connecticut residents over New York residents, Lunding invites comparisons with other broken marriagescases in which one of the former spouses resides in New York and the other resides elsewhere. First, had Lunding's former spouse moved from Connecticut to New York, New York would count the alimony payments as income to her, but would nonetheless deny him, because of his out-of-state residence, any deduction. In such a case, New York would effectively tax the same income twice, first to the payer by giving him no deduction, then to the recipient, by taxing the payments as gross income to her. Of course, that is not Lunding's situation, and one may question his standing to demand that New York take nothing from him in order to offset the State's arguably excessive taxation of others. More engagingly, Lunding compares his situation to that of a New York resident who pays alimony to a former spouse living in another State. In such a case, New York would permit the New Yorker to deduct the alimony payments, *318 even though the recipient pays no tax to New York on the income transferred to her. New York's choice, according to Lunding, is to deny the alimony deduction to the New Yorker whose former spouse resides out of state, or else extend the deduction to him. The Court apparently agrees. At least, the Court holds, New York "has not adequately justified" the line it has drawn. Ante, at 290. The Court's condemnation of New York's law seems to me unwarranted. As applied to a universe of former marital partners who, like Lunding and his former spouse, reside in the same State, New York's attribution of income to someone (either payer or recipient) is hardly unfair. True, an occasional New York resident will be afforded a deduction though his former spouse, because she resides elsewhere, will not be chased by New York's tax collector. And an occasional New York alimony recipient will be taxed despite the nonresidence of her former spouse. But New York could legitimately assume that in most cases, as in the Lundings' case, payer |
Justice Ginsburg | 1,998 | 5 | dissenting | Lunding v. New York Tax Appeals Tribunal | https://www.courtlistener.com/opinion/118165/lunding-v-new-york-tax-appeals-tribunal/ | that in most cases, as in the Lundings' case, payer and recipient will reside in the same State. Moreover, in cases in which the State's system is overly generous (New York payer, nonresident recipient) or insufficiently generous (nonresident payer, New York recipient), there is no systematic discrimination discretely against nonresidents, for the pairs of former spouses in both cases include a resident and a nonresident. In reviewing state tax classifications, we have previously held it sufficient under the Privileges and Immunities Clause that "the State has secured a reasonably fair distribution of burdens, and that no intentional discrimination has been made against non-residents." Travellers' Ins. In Travellers, the Court upheld a state tax that was facially discriminatory: Nonresidents who held stock in Connecticut corporations owed tax to the State on the full value of their holdings, while resident stockholders were entitled to a deduction for their proportionate share of the corporation's Connecticut real estate. *319 But the State's tax system as a whole was not discriminatory, for although residents were entitled to deduct their share of the corporation's Connecticut real estate from their state taxes, they were required to pay municipal taxes on that property; nonresidents owed no municipal taxes. See Municipal taxes varied across the State, so residents in low-tax municipalities might end up paying lower taxes than nonresidents. Nonetheless, "the mere fact that in a given year the actual workings of the system may result in a larger burden on the non-resident was properly held not to vitiate the system, for a different result might obtain in a succeeding year, the results varying with the calls made in the different localities for local expenses." Travellers held that tax classifications survive Privileges and Immunities Clause scrutiny if they provide a rough parity of treatment between residents and nonresidents. See also That holding accords with the Court's observation in 436 U.S. that "[s]ome distinctions between residents and nonresidents merely reflect the fact that this is a Nation composed of individual States, and are permitted; other distinctions are prohibited because they hinder the formation, the purpose, or the development of a single Union of those States." A tax classification that does not systematically discriminate against nonresidents cannot be said to "hinder the formation, the purpose, or the development of a single Union." See McIntyre & Pomp, Post-Marriage Income Splitting through the Deduction for Alimony Payments, 13 State Tax Notes 1631, 1635 (1997) (urging that the Privileges and Immunities Clause does not require New York to forgo the incomesplitting objective served by its alimony rules when both payer and recipient are residents |
Justice Ginsburg | 1,998 | 5 | dissenting | Lunding v. New York Tax Appeals Tribunal | https://www.courtlistener.com/opinion/118165/lunding-v-new-york-tax-appeals-tribunal/ | its alimony rules when both payer and recipient are residents of the same State simply because "results may be less than ideal" "when one of the *320 parties to the alimony transaction is a resident and the other is a nonresident").[3] I would affirm the judgment of the New York Court of Appeals as consistent with the Court's precedent, and would not cast doubt, as today's decision does, on state tax provisions long considered secure. II Viewing this case as one discretely about alimony, I would accept New York's law as a fair adaptation, at the state level, of the current United States system. The Court notes but shies away from this approach, see ante, at 311-313, expressing particular concern about double taxation in the "extreme" case not before usthe "New York resident [who] receives alimony payments from a nonresident New York taxpayer," ante, at 313.[4] Instead, the Court treats alimony as one among several personal expenses a State makes deductible. Significantly, the Court's approach conforms to no historic pattern. "Historically, both alimony and child support were treated as personal expenses nondeductible [by the payer] *321 and not includable [in the recipient's income]. Successive [federal] statutory enactments beginning in 1942 allowed a deduction and corresponding inclusion for alimony payments while continuing the nondeductible-excludable treatment for child support payments." H. Ault, Comparative Income Taxation: A Structural Analysis 277 (1997). Accepting, arguendo, the Court's "personal expense deduction" in lieu of "income attribution" categorization of alimony, however, I do not read our precedent to lead in the direction the Court takes. On Lunding's analysis, which the Court essentially embraces, the core principle is that "personal deductions, no matter what they are must be allowed in the proportion that the New York State income bears to total income." Tr. of Oral Arg. 19. That has never been, nor should it be, what the Privileges and Immunities Clause teaches. A "[E]arly in this century, the Court enunciated the principle that a State may limit a nonresident's expenses, losses, and other deductions to those incurred in connection with the production of income within the taxing State." 2 J. Hellerstein & W. Hellerstein, State Taxation 20-47 (1992). In two companion and the Court considered, respectively, Oklahoma's and New York's schemes of nonresident income taxation. Both had been challenged as violating the Privileges and Immunities Upholding the Oklahoma scheme and declaring the New York scheme impermissibly discriminatory, the Court established at least three principles. First, "just as a State may impose general income taxes upon its own citizens and residents whose persons are subject to its control, |
Justice Ginsburg | 1,998 | 5 | dissenting | Lunding v. New York Tax Appeals Tribunal | https://www.courtlistener.com/opinion/118165/lunding-v-new-york-tax-appeals-tribunal/ | citizens and residents whose persons are subject to its control, it may, as a necessary consequence, levy a duty of like character, and not more onerous in its effect, upon incomes accruing to nonresidents from their property or business within the State, *322 or their occupations carried on therein." ; accord, Second, a State may not deny nonresidents personal exemptions when such exemptions are uniformly afforded to residents. See Personal exemptions, which are typically granted in a set amount "to all taxpayers, regardless of their income," Hellerstein, Some Reflections on the State Taxation of a Nonresident's Personal Income, effectively create a zero tax bracket for the amount of the exemption. See Chirelstein, p. 3. Denial of those exemptions thus amounts to an across-the-board rate increase for nonresidents, a practice impermissible under longstanding constitutional interpretation. See, e. g., ; ; see also Because New York denied nonresidents the personal exemption provided to all residents, the Court held the State's scheme an abridgment of the Privileges and Immunities 252 U.S., Finally, deductions for specific expenses are treated differently from the blanket exemptions at issue in : A State need not afford nonresidents the same deductions it extends to its residents. In the Court upheld Oklahoma's rules governing deduction of business losses. Oklahoma residents could deduct such losses wherever incurred, while nonresidents could deduct only losses incurred within the State. The Court explained that the disparate treatment was "only such as arises naturally from the extent of the jurisdiction of the State in the two classes of cases, and cannot be regarded as an unfriendly or unreasonable discrimination." A State may tax its residents on "their income from all sources, whether within or without *323 the State," but it cannot tax nonresidents on their outof-state activities. "Hence there is no obligation to accord to [nonresidents] a deduction by reason of losses elsewhere incurred." The Court stated the principle even more clearly in -76: "[T]here is no unconstitutional discrimination against citizens of other States in confining the deduction of expenses, losses, etc., in the case of non-resident taxpayers, to such as are connected with income arising from sources within the taxing State" B and plainly establish that States need not allow nonresidents to deduct out-of-state business expenses. The application of those cases to deductions for personal expenses, however, is less clear. On the one hand, ` broad language could be read to suggest that in-state business expenses are the only deductions States must extend to nonresidents. On the other hand, neither nor upheld a scheme denying nonresidents deductions for personal expenses.[5] A leading commentator |
Justice Ginsburg | 1,998 | 5 | dissenting | Lunding v. New York Tax Appeals Tribunal | https://www.courtlistener.com/opinion/118165/lunding-v-new-york-tax-appeals-tribunal/ | scheme denying nonresidents deductions for personal expenses.[5] A leading commentator has concluded that "nothing in either the or opinions indicates whether the Court was addressing itself to personal as well as business deductions." Hellerstein 1347, n. 165. *324 With rare exception, however, lower courts have applied and with equal force to both personal and business deductions. The New York court's decision in aff'd mem., exemplifies this approach. Goodwin concerned a lawyer who resided in New Jersey and practiced law in New York City. In his New York income tax return, he claimed and was allowed deductions for bar association dues, subscriptions to legal periodicals, entertainment and car expenses, and certain charitable contributions. But he was disallowed deductions for real estate taxes and mortgage interest on his New Jersey home, medical expenses, and life insurance premiums. Goodwin, 286 App. Div., at 695, 146 N. Y. S. 2d, at 174. Upholding the disallowances, the appeals court explained that the nonincome-producing personal expenses at issue were of a kind properly referred to the law and policy of the State of the taxpayer's residence. That State, if it had an income tax, might well have allowed the deductions, but the New York court did not think judgment in the matter should be shouldered by a sister State. 146 N. Y. S. 2d, at 180. Goodwin further reasoned that a State may accord certain deductions "[i]n the exercise of its general governmental power to advance the welfare of its residents." But it does not inevitably follow that the State must "extend similar aid or encouragement to the residents of other states." A State need not, in short, underwrite the social policy of the Nation. Cf. Other lower courts, upholding a variety of personal expense deductions for residents only, have agreed with Goodwin's analysis. Challenges to such rulings, like the appeal *325 in Goodwin, have been disposed of summarily by this Court. See, e. g., appeal dism'd for want of a substantial federal question, ; appeal dism'd for want of a substantial federal question, ; (upholding denial to nonresidents of deductions allowed residents for medical expenses, interest on home-state loans, and other personal items; court stated that the legislature could legitimately conclude that "personal deductions are so closely related to the state of residence that they should be allowed only by the state of residence and not by every other state in which some part of a taxpayer's income might be found and taxed"), appeal dism'd for want of a substantial federal question, But see C Goodwin's Privileges and Immunities Clause analysis is a persuasive elaboration |
Justice Ginsburg | 1,998 | 5 | dissenting | Lunding v. New York Tax Appeals Tribunal | https://www.courtlistener.com/opinion/118165/lunding-v-new-york-tax-appeals-tribunal/ | Goodwin's Privileges and Immunities Clause analysis is a persuasive elaboration of and Whether Goodwin's exposition is read broadly (as supporting the view that a State need not accord nonresidents deductions for any personal expenses) or more precisely (as holding that a State may deny nonresidents deductions for personal expenditures that are "intimately connected with the state of [the taxpayer's] residence," Goodwin, 286 App. Div., 146 N. Y. S. 2d, at 180), Christopher Lunding is not entitled to the relief he seeks. *326 Alimony payments (if properly treated as an expense at all) are a personal expense, as the Court acknowledges, see ante, at 310-311. They "ste[m] entirely from the marital relationship," United and, like other incidents of marital and family life, are principally connected to the State of residence. Unlike donations to New York-based charities or mortgage and tax payments for second homes in the State, Lunding's alimony payments cannot be said to take place in New York, nor do they inure to New York's benefit. They are payments particularly personal in character, made by one Connecticut resident to another Connecticut resident pursuant to a decree issued by a Connecticut state court. Those payments "must be deemed to take place in" Connecticut, "the state of [Lunding's] residence, the state in which his life is centered." Goodwin, 286 App. Div., 146 N. Y. S. 2d, at 180. New York is not constitutionally compelled to subsidize them. The majority is therefore wrong to fault the Court of Appeals for insufficient articulation of a "policy basis for 631(b)(6)." Ante, at 304. The Court of Appeals recalled Goodwin, characterizing it as the decision that "definitively addressed" the disallowance of personal life expenses. See The court concluded that alimony payments were no less referable to the law and policy of the taxpayer's residence than "the expenditures for life insurance, out-of-State property taxes and medical treatment at issue in Goodwin. " That policy-based justification for 631(b)(6) needed no further elaboration. III Although Lunding's alimony payments to a Connecticut resident surely do not facilitate his production of income in New York or contribute to New York's riches, the Court relies on this connection: "[A]s a personal obligation that generally correlates with a taxpayer's total income or wealth, alimony *327 bears some relationship to earnings regardless of their source." Ante, at 314; see also ante, at 310 (alimony payments "arguably bear some relationship to a taxpayer's overall earnings," and are "determined in large measure by an individual's income generally, wherever it is earned"). But all manner of spending similarly relates to an individual's income from all sources. Income |
Justice Ginsburg | 1,998 | 5 | dissenting | Lunding v. New York Tax Appeals Tribunal | https://www.courtlistener.com/opinion/118165/lunding-v-new-york-tax-appeals-tribunal/ | similarly relates to an individual's income from all sources. Income generated anywhere will determine, for example, the quality of home one can afford and the character of medical care one can purchase. Under a "correlat[ion] with a taxpayer's total income" approach, ante, at 314, it appears, the nonresident must be allowed to deduct his medical expenses and home state real estate taxes, even school district taxes, plus mortgage interest payments, if the State allows residents to deduct such expenses. And as total income also determines eligibility for tax relief aimed at low-income taxpayers, notably earned income tax credits, a State would be required to make such credits available to nonresidents if it grants them to residents.[6] The Court does not suggest that alimony correlates with a taxpayer's total income more closely than does the run of personal life expenses. Indeed, alimony may be more significantly influenced by other considerations, for example, the length of the marriage, the recipient's earnings, child custody and support arrangements, an antenuptial agreement.[7] In * short, the Court's "related-to-income" approach directly leads to what Christopher Lunding candidly argued: Any and every personal deduction allowed to residents must be allowed to nonresidents in the proportion that New York income bears to the taxpayer's total income. See Tr. of Oral Arg. 19-20. If that is the law of this case, long-settled provisions and decisions have been overturned, see beyond the capacity of any legislature to repair. The Court's "notions of fairness," ante, at 315, in my judgment, do not justify today's extraordinary resort to a Privileges and Immunities Clause "the contours of which have [not] been precisely shaped by the process and wear of constant litigation and judicial interpretation." * * * For the reasons stated, I do not agree that the Privileges and Immunities Clause of Article IV, 2, mandates the result Lunding seeksthe insulation of his 1990 alimony payments from any State's tax. Accordingly, I would affirm the judgment of the New York Court of Appeals, and I dissent from this Court's judgment. |
Justice Stevens | 1,982 | 16 | concurring | Wyrick v. Fields | https://www.courtlistener.com/opinion/110809/wyrick-v-fields/ | There is much force to what JUSTICE MARSHALL has written in dissent. I share his concern about the Court's practice of deciding cases summarily, partly because there is a special risk of error in summary dispositions and partly because the practice represents an unwise use of the Court's scarce resources. I do not, however, agree with JUSTICE MARSHALL's suggestion that we should invite the parties to submit briefs on the merits before a case is summarily decided. I fear that the institution of such a practice would tend to regularize and expand the number of our summary dispositions. *50 In this case I believe the correct procedure for the Court to have followed would have been simply to deny the petition for a writ of certiorari. No conflict has yet developed on the precise question presented and, as JUSTICE MARSHALL demonstrates, the Court of Appeals' conclusion is not without reasoned support. The Court, however, has granted the petition. Although I voted against that action, I am now persuaded that the Court's resolution of the merits is correct and therefore join its disposition. |
Justice Rehnquist | 1,982 | 19 | concurring | California Ex Rel. State Lands Comm'n v. United States | https://www.courtlistener.com/opinion/110744/california-ex-rel-state-lands-commn-v-united-states/ | I concur in the judgment. I believe that our decision in requires the application of federal common law to resolve this title dispute between the United States and California, and that 5(a) of the Submerged Lands Act indicates the source of that law. The dispute in this case concerns the ownership of artificially caused accretions on oceanfront property belonging to *289 the United States. The dispute centers on the legal effect of the movement of the "mean high-water mark." That mark separates the fastlands continuously owned by the United States from the "tidelands" the area of partially submerged lands between the mean high- and low-water marks. California's claim of title to the tidelands is based upon the equal-footing doctrine. Because the tidelands belong to it and because the accretions formed on the tidelands, California contends that state law applies to resolve this title dispute between it and the United States. The rule adopted by the California courts regarding artificially caused accretions holds that title to accreted land vests with the State rather than the riparian or littoral The United States contends that federal common law applies and argues that the federal common-law rule holds that title to land formed by accretion vests in the owner of the riparian land. The dispute in this case is similar to that in We held in Wilson that federal common law and not state law governs title disputes resulting from changes in the course of a navigable stream where an instrumentality of the Federal Government is the riparian -671. The rule of Oregon ex rel. State Land was distinguished. The Corvallis rule that state law governs applies where the dispute over the legal effect of a shifting riverbed does not involve claims of title by a federal instrumentality. I agree with the Court that the Wilson rule applies to oceanfront property as well as riverfront property where the Federal Government is the littoral Wilson should apply to the movement of the high-water mark along the ocean in a fashion similar to the way it applies to changes in the bed of a navigable stream. In the instant case, as in Wilson, it is irrelevant that the accretion, as a geographical "fact," formed on land within the State's dominion, be it a river bottom or the ocean tidelands. The fact is that both *290 Wilson and the instant case concern title disputes over changes in the shoreline where the Federal Government owns land along the shoreline. In Wilson, we held that state law supplied the applicable rule of decision even though federal |
Justice Rehnquist | 1,982 | 19 | concurring | California Ex Rel. State Lands Comm'n v. United States | https://www.courtlistener.com/opinion/110744/california-ex-rel-state-lands-commn-v-united-states/ | law supplied the applicable rule of decision even though federal common law applied to resolve the title dispute. We found no need for a uniform national rule and no reason why federal interests should not be treated under the same rules of property that would apply to private persons. In contrast to Wilson, however, I agree with the Court that Congress in 5(a) of the Submerged Lands Act has supplied the rule of decision. Section 5(a) withholds from the grant to the States all accretions to coastal lands acquired or reserved by the United States. I also agree with the Court that California did not acquire the disputed lands pursuant to the "made lands" provisions in 2(a)(3). Consequently, the Court's discussion regarding the continuing vitality of is dicta. Hughes is unnecessary to the resolution of choice-of-law issues in title disputes between the Federal Government and a State or private person. Reliance on Hughes would be necessary only if we were to hold that federal common law, rather than state law, applied in a title dispute between a federal patentee and a State or private persons as to lands fronting an ocean. The instant case does not present that issue. It is difficult to reconcile Hughes with Corvallis and we should postpone that endeavor until required to undertake it. In summary, I think this case can be easily resolved as a title dispute between the United States and California concerning the legal effect of movement of the Pacific Ocean's high-water mark. Wilson and the Submerged Lands Act resolve the dispute. The continuing vitality of Hughes should be left to another day. |
Justice Ginsburg | 2,011 | 5 | majority | American Elec. Power Co. v. Connecticut | https://www.courtlistener.com/opinion/219098/american-elec-power-co-v-connecticut/ | We address in this opinion the question whether the plaintiffs (several States, the city of New York, and three private land trusts) can maintain federal common law public nuisance claims against carbon-dioxide emitters (four private power companies and the federal Tennessee Valley Authority). As relief, the plaintiffs ask for a decree setting carbon-dioxide for each defendant at an initial cap, to be further reduced annually. The Clean Air Act and the Environmental Protection Agency action the Act authorizes, we hold, displace the claims the plaintiffs seek to pursue. n this Court held that the Clean Air Act, 42 U.S. C. et seq., authorizes federal regulation of of carbon dioxide and other greenhouse gases. “[N]aturally present in the atmosphere and also emitted by human activi ties,” greenhouse gases are so named because they “trap heat that would otherwise escape from the [Earth’s] atmosphere, and thus form the greenhouse effect that 2 AMERCAN ELEC. POWER CO. v. CONNECTCUT Opinion of the Court helps keep the Earth warm enough for life.” 74 Fed. Reg. 66499 (2009).1 Massachu held that the Environ mental Protection Agency (EPA) had misread the Clean Air Act when it denied a rulemaking petition seeking controls on greenhouse gas from new motor –511. Greenhouse gases, we determined, qualify as “air pollutant[s]” within the mean ing of the governing Clean Air Act provision, at 528– 529 (quoting they are therefore within EPA’s regulatory ken. Because EPA had authority to set green house gas emission standards and had offered no “rea soned explanation” for failing to do so, we concluded that the agency had not acted “in accordance with law” when it denied the requested rulemaking. at 534–535 (quot ing Responding to our decision in Massachu, EPA un dertook greenhouse gas regulation. n December 2009, the agency concluded that greenhouse gas from motor vehicles “cause, or contribute to, air pollution which may reasonably be anticipated to endanger public health or welfare,” the Act’s regulatory trigger. 74 Fed. Reg. 66496. The agency observed that “atmospheric greenhouse gas concentrations are now at elevated and essentially unprecedented levels,” almost entirely “due to anthropogenic” ; mean global temperatures, the agency continued, demonstrate an “unambiguous warming trend over the last 100 years,” and particularly “over the past 30 years,” Acknowl edging that not all scientists agreed on the causes and consequences of the rise in global temperatures, at 66506, 66518, 66523–66524, EPA concluded that “compel ling” evidence supported the “attribution of observed —————— 1 n addition to carbon dioxide, the primary greenhouse gases emitted by human activities include methane, nitrous oxide, hydrofluorocar bons, perfluorocarbons, and sulfur hexafluoride. |
Justice Ginsburg | 2,011 | 5 | majority | American Elec. Power Co. v. Connecticut | https://www.courtlistener.com/opinion/219098/american-elec-power-co-v-connecticut/ | include methane, nitrous oxide, hydrofluorocar bons, perfluorocarbons, and sulfur hexafluoride. Cite as: 564 U. S. (2011) 3 Opinion of the Court climate change to anthropogenic” of greenhouse gases, Consequent dangers of greenhouse gas EPA determined, included increases in heat-related deaths; coastal inundation and erosion caused by melting icecaps and rising sea levels; more frequent and intense hurricanes, floods, and other “ex treme weather events” that cause death and destroy infra structure; drought due to reductions in mountain snow pack and shifting precipitation patterns; destruction of ecosystems supporting animals and plants; and potentially “significant disruptions” of food production. at 66524– 66535.2 EPA and the Department of Transportation subse quently issued a joint final rule regulating from light-duty vehicles, see (2010), and initiated a joint rulemaking covering medium- and heavy duty vehicles, see EPA also began phasing in requirements that new or modified “[m]ajor [greenhouse gas] emitting facilities” use the “best available control technology.” –31521. Fin ally, EPA commenced a rulemaking under of the Act, 42 U.S. C. to set limits on greenhouse gas emis sions from new, modified, and existing fossil-fuel fired power plants. Pursuant to a settlement finalized in March 2011, EPA has committed to issuing a proposed rule by July 2011, and a final rule by May 2012. See 75 Fed. Reg. 82392; Reply Brief for Tennessee Valley Authority 18. The lawsuits we consider here began well before EPA initiated the efforts to regulate greenhouse gases just described. n July 2004, two groups of plaintiffs filed —————— 2 For views opposing EPA’s, see, e.g., Dawidoff, The Civil Heretic, N. Y. Times Magazine 32 (March 29, 2009). The Court, we caution, endorses no particular view of the complicated issues related to carbon dioxide and climate change. 4 AMERCAN ELEC. POWER CO. v. CONNECTCUT Opinion of the Court separate complaints in the Southern District of New York against the same five major electric power companies. The first group of plaintiffs included eight States3 and New York City, the second joined three nonprofit land trusts4; both groups are respondents here. The defen dants, now petitioners, are four private companies5 and the Tennessee Valley Authority, a federally owned corpo ration that operates fossil-fuel fired power plants in sev eral States. According to the complaints, the defendants “are the five largest emitters of carbon dioxide in the United States.” App. 57, 118. Their collective annual of 650 million tons constitute 25 percent of from the domestic electric power sector, 10 percent of from all domestic human activities, ib and 2.5 percent of all anthropogenic worldwide, App. to Pet. for Cert. 72a. By contributing to |
Justice Ginsburg | 2,011 | 5 | majority | American Elec. Power Co. v. Connecticut | https://www.courtlistener.com/opinion/219098/american-elec-power-co-v-connecticut/ | worldwide, App. to Pet. for Cert. 72a. By contributing to global warming, the plaintiffs as serted, the defendants’ carbon-dioxide created a “substantial and unreasonable interference with public rights,” in violation of the federal common law of inter state nuisance, or, in the alternative, of state tort law. App. 103–105, 145–147. The States and New York City alleged that public lands, infrastructure, and health were at risk from climate change. App. 88–. The trusts urged that climate change would destroy habitats for animals and rare species of trees and plants on land the trusts owned and conserved. App. 139–145. All plaintiffs sought injunctive relief requiring each defendant “to cap —————— 3 California, Connecticut, owa, New Jersey, New York, Rhode sland, Vermont, and Wisconsin, although New Jersey and Wisconsin are no longer participating. Brief for Respondents Connecticut et al. 3, n. 1. 4 Open Space nstitute, nc., Open Space Conservancy, nc., and Audubon Society of New Hampshire. 5 American Electric Power Company, nc. (and a wholly owned subsidi ary), Southern Company, Xcel Energy nc., and Cinergy Corporation. Cite as: 564 U. S. (2011) 5 Opinion of the Court its carbon dioxide and then reduce them by a specified percentage each year for at least a decade.” App. 110, 153. The District Court dismissed both suits as presenting non-justiciable political questions, citing but the Second Circuit reversed, 582 F.3d 309 (2009). On the threshold questions, the Court of Appeals held that the suits were not barred by the politi cal question doctrine, and that the plaintiffs had adequately alleged Article standing, Turning to the merits, the Second Circuit held that all plaintiffs had stated a claim under the “federal common law of nuisance.” For this determination, the court relied dominantly on a series of this Court’s decisions holding that States may maintain suits to abate air and water pollution produced by other States or by out of-state industry. 50–351; see, e.g., llinois v. Milwaukee, (recog nizing right of llinois to sue in federal district court to abate discharge of sewage into Lake Michigan). The Court of Appeals further determined that the Clean Air Act did not “displace” federal common law. n Mil (Milwau kee ), this Court held that Congress had displaced the federal common law right of action recognized in Milwau kee by adopting amendments to the Clean Water Act, 33 U.S. C. et seq. That legislation installed an all encompassing regulatory program, supervised by an ex pert administrative agency, to deal comprehensively with interstate water pollution. The legislation itself prohib ited the discharge of pollutants into the waters of the United |
Justice Ginsburg | 2,011 | 5 | majority | American Elec. Power Co. v. Connecticut | https://www.courtlistener.com/opinion/219098/american-elec-power-co-v-connecticut/ | the discharge of pollutants into the waters of the United States without a permit from a proper permitting authority. Milwaukee –311 (citing At the time of the Second Circuit’s decision, by contrast, EPA had not yet promulgated any rule regulat ing greenhouse gases, a fact the court thought dispositive. 6 AMERCAN ELEC. POWER CO. v. CONNECTCUT Opinion of the Court –381. “Until EPA completes the rulemak ing process,” the court reasoned, “we cannot speculate as to whether the hypothetical regulation of greenhouse gases under the Clean Air Act would in fact ‘spea[k] di rectly’ to the ‘particular issue’ raised here by Plaintiffs.” We granted certiorari. 562 U. S. (2010). The petitioners contend that the federal courts lack au thority to adjudicate this case. Four members of the Court would hold that at least some plaintiffs have Article standing under Massachu, which permitted a State to challenge EPA’s refusal to regulate greenhouse gas –526; and, further, that no other threshold obstacle bars review.6 Four members of the Court, adhering to a dissenting opinion in Massachu or regarding that decision as dis tinguishable, would hold that none of the plaintiffs have Article standing. We therefore affirm, by an equally divided Court, the Second Circuit’s exercise of jurisdiction and proceed to the merits. See Nye v. United States, 313 U.S. 33, 44 (1). V A “There is no federal general common law,” Erie R. Co. v. Tompkins, (18), famously recognized. n the wake of Erie, however, a keener understanding developed. See generally n Praise of Erie—And of the New Federal Common Law, 39 N. Y. U. L. Rev. 383 —————— 6 n addition to renewing the political question argument made below, the petitioners now assert an additional threshold obstacle: They seek dismissal because of a “prudential” bar to the adjudication of general ized grievances, purportedly distinct from Article ’s bar. See Brief for Tennessee Valley Authority 14–24; Brief for Petitioners 30–31. Cite as: 564 U. S. (2011) 7 Opinion of the Court (1964). Erie “le[ft] to the states what ought be left to them,” and thus required “federal courts [to] follow state decisions on matters of substantive law ap propriately cognizable by the states,” Erie also sparked “the emergence of a federal decisional law in areas of national concern.” The “new” federal common law addresses “subjects within national legisla tive power where Congress has so directed” or where the basic scheme of the Constitution so demands. n. 119, 421–422. Environmental protection is undoubtedly an area “within national legislative power,” one in which federal courts may fill in “statutory interstices,” and, if necessary, even |
Justice Ginsburg | 2,011 | 5 | majority | American Elec. Power Co. v. Connecticut | https://www.courtlistener.com/opinion/219098/american-elec-power-co-v-connecticut/ | courts may fill in “statutory interstices,” and, if necessary, even “fashion federal law.” at 421–422. As the Court stated in Milwaukee : “When we deal with air and water in their ambient or interstate aspects, there is a federal common law.” Decisions of this Court predating Erie, but compatible with the distinction emerging from that decision between “general common law” and “specialized federal common law,” have approved federal com mon law suits brought by one State to abate pollution emanating from another State. See, e.g., Missouri v. llinois, (permitting suit by Missouri to enjoin Chicago from discharging untreated sewage into interstate waters); New (11) (ordering New York City to stop dumping garbage off New Jersey coast); (ordering private copper companies to curtail sulfur dioxide discharges in Tennessee that caused harm in Georgia). See also Milwaukee (post- Erie decision upholding suit by llinois to abate sewage discharges into Lake Michigan). The plaintiffs contend that their right to maintain this suit follows inexorably from that line of decisions. Recognition that a subject is meet for federal law gov 8 AMERCAN ELEC. POWER CO. v. CONNECTCUT Opinion of the Court ernance, however, does not necessarily mean that federal courts should create the controlling law. Absent a demon strated need for a federal rule of decision, the Court has taken “the prudent course” of “adopt[ing] the readymade body of state law as the federal rule of decision until Con gress strikes a different accommodation.” United States v. Kimbell Foods, nc., ; see Bank of America Nat. Trust & Sav. 32–34 (1956). And where, as here, borrowing the law of a particular State would be inappropriate, the Court re mains mindful that it does not have creative power akin to that vested in Congress. See Missouri v. llinois, 200 U.S. 496, 519 (1906) (“fact that this court must decide does not mean, of course, that it takes the place of a legislature”); cf. United 308, 314 (7) (holding that federal law determines whether Government could secure indemnity from a com pany whose truck injured a United States soldier, but declining to impose such an indemnity absent action by Congress, “the primary and most often the exclusive arbi ter of federal fiscal affairs”). n the cases on which the plaintiffs heavily rely, States were permitted to sue to challenge activity harmful to their citizens’ health and welfare. We have not yet de cided whether private citizens (here, the land trusts) or political subdivisions (New York City) of a State may invoke the federal common law of nuisance to abate out-of state pollution. Nor have we ever |
Justice Ginsburg | 2,011 | 5 | majority | American Elec. Power Co. v. Connecticut | https://www.courtlistener.com/opinion/219098/american-elec-power-co-v-connecticut/ | nuisance to abate out-of state pollution. Nor have we ever held that a State may sue to abate any and all manner of pollution originating outside its borders. The defendants argue that considerations of scale and complexity distinguish global warming from the more bounded pollution giving rise to past federal nuisance suits. Greenhouse gases once emitted “become well mixed in the atmosphere,” ; in New Jersey may contribute no more to flooding in New York Cite as: 564 U. S. (2011) 9 Opinion of the Court than in China. Cf. Brief for Petitioners 18–19. The plaintiffs, on the other hand, contend that an equita ble remedy against the largest emitters of carbon dioxide in the United States is in order and not beyond judicial competence. See Brief for Respondents Open Space n stitute et al. 32–35. And we have recognized that public nuisance law, like common law generally, adapts to chang ing scientific and factual circumstances. Missouri, 200 U.S., at 522 (adjudicating claim though it did not concern “nuisance of the simple kind that was known to the older common law”); see also D’Oench, Duhme & Co. v. FDC, (“fed eral courts are free to apply the traditional common-law technique of decision” when fashioning federal common law). We need not address the parties’ dispute in this regard. For it is an academic question whether, in the absence of the Clean Air Act and the EPA actions the Act authorizes, the plaintiffs could state a federal common law claim for curtailment of greenhouse gas because of their contribution to global warming. Any such claim would be displaced by the federal legislation authorizing EPA to regulate carbon-dioxide B “[W]hen Congress addresses a question previously gov erned by a decision rested on federal common law,” the Court has explained, “the need for such an unusual exer cise of law-making by federal courts disappears.” Mil waukee (holding that amendments to the Clean Water Act displaced the nuisance claim recog nized in Milwaukee ). Legislative displacement of federal common law does not require the “same sort of evidence of a clear and manifest [congressional] purpose” demanded for preemption of state law. “ ‘[D]ue regard for the presuppositions of our embracing federal system as 10 AMERCAN ELEC. POWER CO. v. CONNECTCUT Opinion of the Court a promoter of democracy,’ ” (quoting San Diego Building Trades (1959)), does not enter the calculus, for it is primarily the office of Congress, not the federal courts, to prescribe national policy in areas of special federal interest. TVA v. Hill, (19). The test for whether congressional legislation excludes the declaration |
Justice Ginsburg | 2,011 | 5 | majority | American Elec. Power Co. v. Connecticut | https://www.courtlistener.com/opinion/219098/american-elec-power-co-v-connecticut/ | (19). The test for whether congressional legislation excludes the declaration of fed eral common law is simply whether the statute “speak[s] directly to [the] question” at issue. Mobil Oil Corp. v. Higginbotham, (19); see Milwaukee ; County of v. ndian Nation of N. Y., We hold that the Clean Air Act and the EPA actions it authorizes displace any federal common law right to seek abatement of carbon-dioxide from fossil-fuel fired power plants. Massachu made plain that emis sions of carbon dioxide qualify as air pollution subject to regulation under the –529. And we think it equally plain that the Act “speaks directly” to of carbon dioxide from the defendants’ plants. Section 111 of the Act directs the EPA Administrator to list “categories of stationary sources” that “in [her] judg ment caus[e], or contribut[e] significantly to, air pol lution which may reasonably be anticipated to endanger public health or welfare.” Once EPA lists a category, the agency must establish standards of per formance for emission of pollutants from new or modified sources within that category. see also And, most relevant here, then re quires regulation of existing sources within the same category.7 For existing sources, EPA issues —————— 7 There is an exception: EPA may not employ if existing stationary sources of the pollutant in question are regulated under the national ambient air quality standard program, §§8–7410, or the “hazardous air pollutants” program, See (1). Cite as: 564 U. S. (2011) 11 Opinion of the Court guidelines, see23 (2009); in compli ance with those guidelines and subject to federal over sight, the States then issue performance standards for stationary sources within their jurisdiction, (1). The Act provides multiple avenues for enforcement. See County of –239 (reach of remedial provisions is important to determination whether statute displaces federal common law). EPA may delegate im plementation and enforcement authority to the States, (d)(1), but the agency retains the power to in spect and monitor regulated sources, to impose adminis trative penalties for noncompliance, and to commence civil actions against polluters in federal court. (d)(2), 7413, 7414. n specified circumstances, the Act im poses criminal penalties on any person who knowingly violates standards issued under See And the Act provides for private enforcement. f States (or EPA) fail to enforce limits against regulated sources, the Act permits “any person” to bring a civil enforcement action in federal court. f EPA does not set limits for a particular pol lutant or source of pollution, States and private parties may petition for a rulemaking on the matter, and EPA’s response will be reviewable in federal |
Justice Ginsburg | 2,011 | 5 | majority | American Elec. Power Co. v. Connecticut | https://www.courtlistener.com/opinion/219098/american-elec-power-co-v-connecticut/ | the matter, and EPA’s response will be reviewable in federal court. See Massachu, –517, 529. As earlier noted, see EPA is currently engaged in a rulemaking to set standards for greenhouse gas from fossil-fuel fired power plants. To settle litigation brought under by a group that included the majority of the plaintiffs in this very case, the agency agreed to complete that rulemaking by May 2012. 75 Fed. Reg. 82392. The Act itself thus provides a means to seek limits on of carbon dioxide from domestic power plants—the same relief the plaintiffs seek by invoking federal common law. We see no room for a parallel track. 12 AMERCAN ELEC. POWER CO. v. CONNECTCUT Opinion of the Court C The plaintiffs argue, as the Second Circuit held, that federal common law is not displaced until EPA actually exercises its regulatory authority, i.e., until it sets stan dards governing from the defendants’ plants. We disagree. The sewage discharges at issue in Milwaukee we do not overlook, were subject to effluent limits set by EPA; under the displacing statute, “[e]very point source dis charge” of water pollution was “prohibited unless covered by a permit.” 451 U.S., 18–320 (emphasis deleted). As Milwaukee made clear, however, the relevant ques tion for purposes of displacement is “whether the field has been occupied, not whether it has been occupied in a particular manner.” 24. Of necessity, Congress se lects different regulatory regimes to address different problems. Congress could hardly preemptively prohibit every discharge of carbon dioxide unless covered by a permit. After all, we each emit carbon dioxide merely by breathing. The Clean Air Act is no less an exercise of the legisla ture’s “considered judgment” concerning the regulation of air pollution because it permits until EPA acts. See Middlesex County Sewerage (finding displacement although Congress “allowed some continued dumping of sludge” prior to a certain date). The critical point is that Congress delegated to EPA the decision whether and how to regulate carbon-dioxide from power plants; the delegation is what displaces federal common law. ndeed, were EPA to decline to regulate carbon-dioxide altogether at the conclusion of its ongoing rulemaking, the federal courts would have no warrant to employ the federal common law of nuisance to upset the agency’s expert determination. EPA’s judgment, we hasten to add, would not escape Cite as: 564 U. S. (2011) 13 Opinion of the Court judicial review. Federal courts, we earlier observed, see can review agency action (or a final rule declining to take action) to ensure compliance with the statute Congress enacted. As we have noted, see at 10, |
Justice Ginsburg | 2,011 | 5 | majority | American Elec. Power Co. v. Connecticut | https://www.courtlistener.com/opinion/219098/american-elec-power-co-v-connecticut/ | statute Congress enacted. As we have noted, see at 10, the Clean Air Act directs EPA to establish emis- sions standards for categories of stationary sources that, “in [the Administrator’s] judgment,” “caus[e], or contri but[e] significantly to, air pollution which may reasonably be anticipated to endanger public health or welfare.” “[T]he use of the word ‘judgment,’ ” we explained in Massachu, “is not a roving license to ignore the statutory text.” “t is but a direction to exercise discretion within defined statutory limits.” bid. EPA may not decline to regulate carbon dioxide from power plants if refusal to act would be “arbitrary, capricious, an abuse of discretion, or other wise not in accordance with law.” f the plaintiffs in this case are dissatisfied with the outcome of EPA’s forthcoming rulemaking, their recourse under federal law is to seek Court of Appeals review, and, ulti mately, to petition for certiorari in this Court. ndeed, this prescribed order of decisionmaking—the first decider under the Act is the expert administrative agency, the second, federal judges—is yet another reason to resist setting standards by judicial decree under federal tort law. The appropriate amount of regula tion in any particular greenhouse gas-producing sector cannot be prescribed in a vacuum: as with other questions of national or international policy, informed assessment of competing interests is required. Along with the environ mental benefit potentially achievable, our Nation’s energy needs and the possibility of economic disruption must weigh in the balance. The Clean Air Act entrusts such complex balancing to EPA in the first instance, in combination with state regu lators. Each “standard of performance” EPA sets must 14 AMERCAN ELEC. POWER CO. v. CONNECTCUT Opinion of the Court “tak[e] into account the cost of achieving [] re duction and any nonair quality health and environmental impact and energy requirements.” (a)(1), (b)(1)(B), (d)(1); see also (f) (EPA may permit state plans to deviate from generally applicable standards upon demonstration that costs are “[u]n reasonable”). EPA may “distinguish among classes, types, and sizes” of stationary sources in apportioning responsibility for reductions. (b)(2), (d); see also (b)(5). And the agency may waive compliance with emission limits to permit a facility to test drive an “innovative technological system” that has “not [yet] been adequately demonstrated.” (j)(1)(A). The Act envisions extensive cooperation between federal and state authorities, see (a), (b), generally permit ting each State to take the first cut at determining how best to achieve EPA standards within its do main, see (d)(1)–(2). t is altogether fitting that Congress designated an ex pert agency, here, EPA, as best suited to serve |
Justice Ginsburg | 2,011 | 5 | majority | American Elec. Power Co. v. Connecticut | https://www.courtlistener.com/opinion/219098/american-elec-power-co-v-connecticut/ | ex pert agency, here, EPA, as best suited to serve as pri- mary regulator of greenhouse gas The expert agency is surely better equipped to do the job than indi vidual district judges issuing ad hoc, case-by-case injunc tions. Federal judges lack the scientific, economic, and technological resources an agency can utilize in coping with issues of this order. See generally Chevron U. S. A. nc. v. Natural Resources Defense Council, nc., 467 U.S. 837, 865–866 (1984). Judges may not commission scien tific studies or convene groups of experts for advice, or issue rules under notice-and-comment procedures inviting input by any interested person, or seek the counsel of regulators in the States where the defendants are located. Rather, judges are confined by a record comprising the evidence the parties present. Moreover, federal district judges, sitting as sole adjudicators, lack authority to ren der precedential decisions binding other judges, even Cite as: 564 U. S. (2011) 15 Opinion of the Court members of the same court. Notwithstanding these disabilities, the plaintiffs pro pose that individual federal judges determine, in the first instance, what amount of carbon-dioxide is “unreasonable,” App. 103, 145, and then decide what level of reduction is “practical, feasible and economically vi able,” App. 58, 119. These determinations would be made for the defendants named in the two lawsuits launched by the plaintiffs. Similar suits could be mounted, counsel for the States and New York City estimated, against “thou sands or hundreds or tens” of other defendants fitting the description “large contributors” to carbon-dioxide emis sions. Tr. of Oral Arg. 57. The judgments the plaintiffs would commit to federal judges, in suits that could be filed in any federal district, cannot be reconciled with the decisionmaking scheme Congress enacted. The Second Circuit erred, we hold, in ruling that federal judges may set limits on greenhouse gas in face of a law empowering EPA to set the same limits, subject to judicial review only to ensure against action “arbitrary, capricious, or otherwise not in accordance with law.” V The plaintiffs also sought relief under state law, in particular, the law of each State where the defendants operate power plants. See App. 105, 147. The Second Circuit did not reach the state law claims because it held that federal common law 582 F.3d, 92; see nternational Paper (1987) (if a case “should be resolved by reference to federal common law[,] state common law [is] preempted”). n light of our holding that the Clean Air Act displaces fed eral common law, the availability vel non of a state law suit depends, inter |
Justice Ginsburg | 2,011 | 5 | majority | American Elec. Power Co. v. Connecticut | https://www.courtlistener.com/opinion/219098/american-elec-power-co-v-connecticut/ | availability vel non of a state law suit depends, inter alia, on the preemptive effect of the federal (holding that the Clean 16 AMERCAN ELEC. POWER CO. v. CONNECTCUT Opinion of the Court Water Act does not preclude aggrieved individuals from bringing a “nuisance claim pursuant to the law of the source State”). None of the parties have briefed preemp tion or otherwise addressed the availability of a claim under state nuisance law. We therefore leave the matter open for consideration on remand. * * * For the reasons stated, we reverse the judgment of the Second Circuit and remand the case for further proceed ings consistent with this opinion. t is so ordered. JUSTCE SOTOMAYOR took no part in the consideration or decision of this case. Cite as: 564 U. S. (2011) 1 Opinion of ALTO, J. SUPREME COURT OF THE UNTED STATES No. 10–174 AMERCAN ELECTRC POWER COMPANY, NC., ET AL., PETTONERS v. CONNECTCUT ET AL. ON WRT OF CERTORAR TO THE UNTED STATES COURT OF APPEALS FOR THE SECOND CRCUT [June 20, 2011] JUSTCE ALTO, with whom JUSTCE THOMAS joins, concurring in part and concurring in the judgment. |
Justice O'Connor | 1,987 | 14 | majority | Shearson/American Express Inc. v. McMahon | https://www.courtlistener.com/opinion/111910/shearsonamerican-express-inc-v-mcmahon/ | This case presents two questions regarding the enforceability of predispute arbitration agreements between brokerage firms and their customers. The first is whether a claim brought under 10(b) of the Securities Exchange Act of 1934 (Exchange Act), 15 U.S. C. 78j(b), must be sent to arbitration in accordance with the terms of an arbitration agreement. The second is whether a claim brought under the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S. C. 1961 et seq., must be arbitrated in accordance with the terms of such an agreement. I Between 1980 and 1982, respondents Eugene and Julia McMahon, individually and as trustees for various pension and profit-sharing plans, were customers of petitioner Shearson/American *223 Express (Shearson), a brokerage firm registered with the Securities and Exchange Commission (SEC or Commission). Two customer agreements signed by Julia McMahon provided for arbitration of any controversy relating to the accounts the McMahons maintained with Shearson. The arbitration provision provided in relevant part as follows: "Unless unenforceable due to federal or state law, any controversy arising out of or relating to my accounts, to transactions with you for me or to this agreement or the breach thereof, shall be settled by arbitration in accordance with the rules, then in effect, of the National Association of Securities Dealers, or the Boards of Directors of the New York Stock Exchange, and/or the American Stock Exchange, as I may elect." In October 1984, the McMahons filed an amended complaint against Shearson and petitioner Mary Ann McNulty, the registered representative who handled their accounts, in the United States District Court for the Southern District of New York. The complaint alleged that McNulty, with Shearson's knowledge, had violated 10(b) of the Exchange Act and Rule 10b-5, 17 CFR 0.10b-5 by engaging in fraudulent, excessive trading on respondents' accounts and by making false statements and omitting material facts from the advice given to respondents. The complaint also alleged a RICO claim, 18 U.S. C. 1962(c), and state law claims for fraud and breach of fiduciary duties. Relying on the customer agreements, petitioners moved to compel arbitration of the McMahons' claims pursuant to 3 of the Federal Arbitration Act, 9 U.S. C. 3. The District Court granted the motion in part. The court first rejected the McMahons' contention that the arbitration agreements were unenforceable as contracts of *2 adhesion. It then found that the McMahons' 10(b) claims were arbitrable under the terms of the agreement, concluding that such a result followed from this Court's decision in Dean Witter Reynolds and the "strong national policy favoring the enforcement of arbitration agreements." The District |
Justice O'Connor | 1,987 | 14 | majority | Shearson/American Express Inc. v. McMahon | https://www.courtlistener.com/opinion/111910/shearsonamerican-express-inc-v-mcmahon/ | national policy favoring the enforcement of arbitration agreements." The District Court also held that the McMahons' state law claims were arbitrable under Dean Witter Reynolds It concluded, however, that the McMahons' RICO claim was not arbitrable "because of the important federal policies inherent in the enforcement of RICO by the federal courts." The Court of Appeals affirmed the District Court on the state law and RICO claims, but it reversed on the Exchange Act With respect to the RICO claim, the Court of Appeals concluded that "public policy" considerations made it "inappropriat[e]" to apply the provisions of the Arbitration Act to RICO suits. The court reasoned that RICO claims are "not merely a private matter." Because a RICO plaintiff may be likened to a "private attorney general" protecting the public interest, ib the Court of Appeals concluded that such claims should be adjudicated only in a judicial forum. It distinguished this Court's reasoning in Motors concerning the arbitrability of antitrust claims, on the ground that it involved international business transactions and did not affect the law "as applied to agreements to arbitrate arising from domestic transactions." 788 F.2d, With respect to respondents' Exchange Act claims, the Court of Appeals noted that under claims arising under 12(2) of the Securities Act of 1933 (Securities Act), 15 U.S. C. 77l(2), are not subject to compulsory arbitration. The Court of Appeals *225 observed that it previously had extended the Wilko rule to claims arising under 10(b) of the Exchange Act and Rule 10b-5. See, e. g., (CA2), cert. denied, ; Greater Continental The court acknowledged that and Dean Witter Reynolds had "cast some doubt on the applicability of Wilko to claims under 10(b)." The Court of Appeals nevertheless concluded that it was bound by the "clear judicial precedent in this Circuit," and held that Wilko must be applied to Exchange Act 788 F.2d, We granted certiorari, to resolve the conflict among the Courts of Appeals regarding the arbitrability of 10(b)[1] and RICO[2] II The Federal Arbitration Act, 9 U.S. C. 1 et seq., provides the starting point for answering the questions raised in this case. The Act was intended to "revers[e] centuries of judicial hostility to arbitration agreements," by "plac[ing] arbitration *226 agreements `upon the same footing as other contracts.' " quoting H. R. Rep. No. 96, 68th Cong., 1st Sess., 1, 2 (19). The Arbitration Act accomplishes this purpose by providing that arbitration agreements "shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract." 9 U.S. C. 2. The |
Justice O'Connor | 1,987 | 14 | majority | Shearson/American Express Inc. v. McMahon | https://www.courtlistener.com/opinion/111910/shearsonamerican-express-inc-v-mcmahon/ | the revocation of any contract." 9 U.S. C. 2. The Act also provides that a court must stay its proceedings if it is satisfied that an issue before it is arbitrable under the agreement, 3; and it authorizes a federal district court to issue an order compelling arbitration if there has been a "failure, neglect, or refusal" to comply with the arbitration agreement, 4. The Arbitration Act thus establishes a "federal policy favoring arbitration," Moses H. Cone Memorial requiring that "we rigorously enforce agreements to arbitrate." Dean Witter Reynolds This duty to enforce arbitration agreements is not diminished when a party bound by an agreement raises a claim founded on statutory rights. As we observed in Motors "we are well past the time when judicial suspicion of the desirability of arbitration and of the competence of arbitral tribunals" should inhibit enforcement of the Act " `in controversies based on statutes.' " -627, quoting Absent a well-founded claim that an arbitration agreement resulted from the sort of fraud or excessive economic power that "would provide grounds `for the revocation of any contract,' " the Arbitration Act "provides no basis for disfavoring agreements to arbitrate statutory claims by skewing the otherwise hospitable inquiry into arbitrability." The Arbitration Act, standing alone, therefore mandates enforcement of agreements to arbitrate statutory Like any statutory directive, the Arbitration Act's mandate may be overridden by a contrary congressional command. *227 The burden is on the party opposing arbitration, however, to show that Congress intended to preclude a waiver of judicial remedies for the statutory rights at issue. See If Congress did intend to limit or prohibit waiver of a judicial forum for a particular claim, such an intent "will be deducible from [the statute's] text or legislative history," ib or from an inherent conflict between arbitration and the statute's underlying purposes. See ; Dean Witter Reynolds To defeat application of the Arbitration Act in this case, therefore, the McMahons must demonstrate that Congress intended to make an exception to the Arbitration Act for claims arising under RICO and the Exchange Act, an intention discernible from the text, history, or purposes of the statute. We examine the McMahons' arguments regarding the Exchange Act and RICO in turn. III When Congress enacted the Exchange Act in 1934, it did not specifically address the question of the arbitrability of 10(b) The McMahons contend, however, that congressional intent to require a judicial forum for the resolution of 10(b) claims can be deduced from 29(a) of the Exchange Act, 15 U.S. C. 78cc(a), which declares void "[a]ny condition, stipulation, or provision binding |
Justice O'Connor | 1,987 | 14 | majority | Shearson/American Express Inc. v. McMahon | https://www.courtlistener.com/opinion/111910/shearsonamerican-express-inc-v-mcmahon/ | 78cc(a), which declares void "[a]ny condition, stipulation, or provision binding any person to waive compliance with any provision of [the Act]." First, we reject the McMahons' argument that 29(a) forbids waiver of 27 of the Exchange Act, 15 U.S. C. 78aa. Section 27 provides in relevant part: "The district courts of the United States shall have exclusive jurisdiction of violations of this title or the rules and regulations thereunder, and of all suits in equity and actions at law brought to enforce any liability or duty created by this title or the rules and regulations thereunder." *228 The McMahons contend that an agreement to waive this jurisdictional provision is unenforceable because 29(a) voids the waiver of "any provision" of the Exchange Act. The language of 29(a), however, does not reach so far. What the antiwaiver provision of 29(a) forbids is enforcement of agreements to waive "compliance" with the provisions of the statute. But 27 itself does not impose any duty with which persons trading in securities must "comply." By its terms, 29(a) only prohibits waiver of the substantive obligations imposed by the Exchange Act. Because 27 does not impose any statutory duties, its waiver does not constitute a waiver of "compliance with any provision" of the Exchange Act under 29(a). We do not read as compelling a different result. In Wilko, the Court held that a predispute agreement could not be enforced to compel arbitration of a claim arising under 12(2) of the Securities Act, 15 U.S. C. 77l(2). The basis for the ruling was 14 of the Securities Act, which, like 29(a) of the Exchange Act, declares void any stipulation "to waive compliance with any provision" of the statute. At the beginning of its analysis, the Wilko Court stated that the Securities Act's jurisdictional provision was "the kind of `provision' that cannot be waived under 14 of the Securities Act." This statement, however, can only be understood in the context of the Court's ensuing discussion explaining why arbitration was inadequate as a means of enforcing "the provisions of the Securities Act, advantageous to the buyer." The conclusion in Wilko was expressly based on the Court's belief that a judicial forum was needed to protect the substantive rights created by the Securities Act: "As the protective provisions of the Securities Act require the exercise of judicial direction to fairly assure their effectiveness, it seems to us that Congress must have intended 14 to apply to waiver of judicial trial and review." Wilko must be understood, therefore, as holding that the plaintiff's waiver *229 of the "right to select the judicial |
Justice O'Connor | 1,987 | 14 | majority | Shearson/American Express Inc. v. McMahon | https://www.courtlistener.com/opinion/111910/shearsonamerican-express-inc-v-mcmahon/ | plaintiff's waiver *229 of the "right to select the judicial forum," was unenforceable only because arbitration was judged inadequate to enforce the statutory rights created by 12(2). Indeed, any different reading of Wilko would be inconsistent with this Court's decision in In Scherk, the Court upheld enforcement of a predispute agreement to arbitrate Exchange Act claims by parties to an international contract. The Scherk Court assumed for purposes of its opinion that Wilko applied to the Exchange Act, but it determined that an international contract "involve[d] considerations and policies significantly different from those found controlling in Wilko." The Court reasoned that arbitration reduced the uncertainty of international contracts and obviated the danger that a dispute might be submitted to a hostile or unfamiliar forum. At the same time, the Court noted that the advantages of judicial resolution were diminished by the possibility that the opposing party would make "speedy resort to a foreign court." The decision in Scherk thus turned on the Court's judgment that under the circumstances of that case, arbitration was an adequate substitute for adjudication as a means of enforcing the parties' statutory rights. Scherk supports our understanding that Wilko must be read as barring waiver of a judicial forum only where arbitration is inadequate to protect the substantive rights at issue. At the same time, it confirms that where arbitration does provide an adequate means of enforcing the provisions of the Exchange Act, 29(a) does not void a predispute waiver of 27 Scherk upheld enforcement of just such a waiver. The second argument offered by the McMahons is that the arbitration agreement effects an impermissible waiver of the substantive protections of the Exchange Act. Ordinarily, "[b]y agreeing to arbitrate a statutory claim, a party does not forgo the substantive rights afforded by the statute; it only submits to their resolution in an arbitral, rather *230 than a judicial, forum." Motors Corp. v. Soler-Chrysler-Plymouth, 473 U. S., The McMahons argue, however, that 29(a) compels a different conclusion. Initially, they contend that predispute agreements are void under 29(a) because they tend to result from broker overreaching. They reason, as do some commentators, that Wilko is premised on the belief "that arbitration clauses in securities sales agreements generally are not freely negotiated." See, e. g., Sterk, Enforceability of Agreements to Arbitrate: An Examination of the Public Policy Defense, According to this view, Wilko barred enforcement of predispute agreements because of this frequent inequality of bargaining power, reasoning that Congress intended for 14 generally to ensure that sellers did not "maneuver buyers into a position that might weaken their |
Justice O'Connor | 1,987 | 14 | majority | Shearson/American Express Inc. v. McMahon | https://www.courtlistener.com/opinion/111910/shearsonamerican-express-inc-v-mcmahon/ | not "maneuver buyers into a position that might weaken their ability to recover under the Securities Act." 346 U.S., The McMahons urge that we should interpret 29(a) in the same fashion. We decline to give Wilko a reading so far at odds with the plain language of 14, or to adopt such an unlikely interpretation of 29(a). The concern that 29(a) is directed against is evident from the statute's plain language: it is a concern with whether an agreement "waive[s] compliance with [a] provision" of the Exchange Act. The voluntariness of the agreement is irrelevant to this inquiry: if a stipulation waives compliance with a statutory duty, it is void under 29(a), whether voluntary or not. Thus, a customer cannot negotiate a reduction in commissions in exchange for a waiver of compliance with the requirements of the Exchange Act, even if the customer knowingly and voluntarily agreed to the bargain. Section 29(a) is concerned, not with whether brokers "maneuver[ed customers] into" an agreement, but with whether the agreement "weaken[s] their ability to recover under the [Exchange] Act." 346 U.S., The former is grounds for revoking the contract under ordinary *231 principles of contract law; the latter is grounds for voiding the agreement under 29(a). The other reason advanced by the McMahons for finding a waiver of their 10(b) rights is that arbitration does "weaken their ability to recover under the [Exchange] Act." That is the heart of the Court's decision in Wilko, and respondents urge that we should follow its reasoning. Wilko listed several grounds why, in the Court's view, the "effectiveness [of the Act's provisions] in application is lessened in arbitration." First, the Wilko Court believed that arbitration proceedings were not suited to cases requiring "subjective findings on the purpose and knowledge of an alleged violator." -436. Wilko also was concerned that arbitrators must make legal determinations "without judicial instruction on the law," and that an arbitration award "may be made without explanation of [the arbitrator's] reasons and without a complete record of their proceedings." Finally, Wilko noted that the "[p]ower to vacate an award is limited," and that "interpretations of the law by the arbitrators in contrast to manifest disregard are not subject, in the federal courts, to judicial review for error in interpretation." -437. Wilko concluded that in view of these drawbacks to arbitration, 12(2) claims "require[d] the exercise of judicial direction to fairly assure their effectiveness." As Justice Frankfurter noted in his dissent in Wilko, the Court's opinion did not rest on any evidence, either "in the record [or] in the facts of which [it could] |
Justice O'Connor | 1,987 | 14 | majority | Shearson/American Express Inc. v. McMahon | https://www.courtlistener.com/opinion/111910/shearsonamerican-express-inc-v-mcmahon/ | the record [or] in the facts of which [it could] take judicial notice," that "the arbitral system would not afford the plaintiff the rights to which he is entitled." Instead, the reasons given in Wilko reflect a general suspicion of the desirability of arbitration and the competence of arbitral tribunals most apply with no greater force to the arbitration of securities disputes than to the arbitration of legal disputes generally. It is difficult to reconcile Wilko's mistrust of the arbitral with this Court's subsequent *232 decisions involving the Arbitration Act. See, e. g., Motors Dean Witter Reynolds ; Southland ; Moses H. Cone Memorial ; Indeed, most of the reasons given in Wilko have been rejected subsequently by the Court as a basis for holding claims to be nonarbitrable. In for example, we recognized that arbitral tribunals are readily capable of handling the factual and legal complexities of antitrust claims, notwithstanding the absence of judicial instruction and supervision. See -634. Likewise, we have concluded that the streamlined procedures of arbitration do not entail any consequential restriction on substantive rights. Finally, we have indicated that there is no reason to assume at the outset that arbitrators will not follow the law; although judicial scrutiny of arbitration awards necessarily is limited, such review is sufficient to ensure that arbitrators comply with the requirements of the statute. See and n. 19 (declining to assume that arbitration will not be resolved in accordance with statutory law, but reserving consideration of "effect of an arbitral tribunal's failure to take cognizance of the statutory cause of action on the claimant's capacity to reinstate suit in federal court"). The suitability of arbitration as a means of enforcing Exchange Act rights is evident from our decision in Scherk. Although the holding in that case was limited to international agreements, the competence of arbitral tribunals to resolve 10(b) claims is the same in both settings. Courts likewise have routinely enforced agreements to arbitrate 10(b) claims where both parties are members of a securities exchange or the National Association of Securities Dealers (NASD), suggesting that arbitral tribunals are fully capable of handling such matters. See, e. g., Axelrod & v. Kordich, Victor *233 & aff'd, ; Brown v. Gilligan, Will & And courts uniformly have concluded that Wilko does not apply to the submission to arbitration of existing disputes, see, e. g., Gardner v. Shearson, Hammill & ; 389 F.2d 2 even though the inherent suitability of arbitration as a means of resolving 10(b) claims remains unchanged. Cf. Thus, the mistrust of arbitration that formed the basis for the |
Justice O'Connor | 1,987 | 14 | majority | Shearson/American Express Inc. v. McMahon | https://www.courtlistener.com/opinion/111910/shearsonamerican-express-inc-v-mcmahon/ | the mistrust of arbitration that formed the basis for the Wilko opinion in 3 is difficult to square with the assessment of arbitration that has prevailed since that time. This is especially so in light of the intervening changes in the regulatory structure of the securities laws. Even if Wilko's assumptions regarding arbitration were valid at the time Wilko was decided, most certainly they do not hold true today for arbitration procedures subject to the SEC's oversight authority. In 3, when Wilko was decided, the Commission had only limited authority over the rules governing self-regulatory organizations (SROs) the national securities exchanges and registered securities associations and this authority appears not to have included any authority at all over their arbitration rules. See Brief for Securities and Exchange Commission as Amicus Curiae 14-15. Since the 1975 amendments to 19 of the Exchange Act, however, the Commission has had expansive power to ensure the adequacy of the arbitration procedures employed by the SROs. No proposed rule change may take effect unless the SEC finds that the proposed rule is consistent with the requirements of the Exchange Act, 15 U.S. C. 78s(b)(2); and the Commission has the power, on its own initiative, to "abrogate, add to, and delete from" any SRO rule if it finds such changes necessary or appropriate to further the objectives of the Act, 15 U.S. C. 78s(c). In short, the Commission has broad authority to oversee and to *234 regulate the rules adopted by the SROs relating to customer disputes, including the power to mandate the adoption of any rules it deems necessary to ensure that arbitration procedures adequately protect statutory rights.[3] In the exercise of its regulatory authority, the SEC has specifically approved the arbitration procedures of the New York Stock Exchange, the American Stock Exchange, and the NASD, the organizations mentioned in the arbitration agreement at issue in this case. We conclude that where, as in this case, the prescribed procedures are subject to the Commission's 19 authority, an arbitration agreement does not effect a waiver of the protections of the Act. While stare decisis concerns may counsel against upsetting Wilko's contrary conclusion under the Securities Act, we refuse to extend Wilko's reasoning to the Exchange Act in light of these intervening regulatory developments. The McMahons' agreement to submit to arbitration therefore is not tantamount to an impermissible waiver of the McMahons' rights under 10(b), and the agreement is not void on that basis under 29(a). The final argument offered by the McMahons is that even if 29(a) as enacted does not void predispute arbitration |
Justice O'Connor | 1,987 | 14 | majority | Shearson/American Express Inc. v. McMahon | https://www.courtlistener.com/opinion/111910/shearsonamerican-express-inc-v-mcmahon/ | even if 29(a) as enacted does not void predispute arbitration agreements, Congress subsequently has indicated that it desires 29(a) to be so interpreted. According to the McMahons, Congress expressed this intent when it failed to make more *235 extensive changes to 28(b), 15 U.S. C. 78bb(b), in the 1975 amendments to the Exchange Act. Before its amendment, 28(b) provided in relevant part: "Nothing in this chapter shall be construed to modify existing law (1) with regard to the binding effect on any member of any exchange of any action taken by the authorities of such exchange to settle disputes between its members, or (2) with regard to the binding effect of such action on any person who has agreed to be bound thereby, or (3) with regard to the binding effect on any such member of any disciplinary action taken by the authorities of the exchange." The chief aim of this provision was to preserve the selfregulatory role of the securities exchanges, by giving the exchanges a means of enforcing their rules against their members. See, e. g., Tullis v. Kohlmeyer & ("[P]reserv[ing] for the stock exchanges a major self-regulatory role is the basis of 28(b)"); Axelrod & v. Kordich, Victor & 1 F. 2d, at 840-841. In 1975, Congress made extensive revisions to the Exchange Act intended to "clarify the scope of the selfregulatory responsibilities of national securities exchanges and registered securities associations and the manner in which they are to exercise those responsibilities." S. Rep. No. 94-75, p. 22 In making these changes, the Senate Report observed: "The self-regulatory organizations must exercise governmental-type powers if they are to carry out their responsibilities under the Exchange Act. When a member violates the Act or a self-regulatory organization's rules, the organization must be in a position to impose appropriate penalties or to revoke relevant privileges." at The amendments to 28 reflect this objective. Paragraph (3) of 28(b) was deleted and replaced with new 28(c), which provided that the validity of any disciplinary action taken by an SRO would not be affected by a subsequent decision by the SEC to stay or modify the sanction. See 15 U.S. C. *236 78bb(c). At the same time, 28(b) was expanded to ensure that all SROs as well as the Municipal Securities Rule-making Board had the power to enforce their substantive rules against their members. Section 28(b), as amended, provides: "Nothing in this chapter shall be construed to modify existing law with regard to the binding effect (1) on any member of or participant in any self-regulatory organization of any action taken by the |
Justice O'Connor | 1,987 | 14 | majority | Shearson/American Express Inc. v. McMahon | https://www.courtlistener.com/opinion/111910/shearsonamerican-express-inc-v-mcmahon/ | in any self-regulatory organization of any action taken by the authorities of such organization to settle disputes between its members or participants, (2) on any municipal securities dealer or municipal securities broker of any action taken pursuant to a procedure established by the Municipal Securities Rulemaking Board to settle disputes between municipal securities dealers and municipal securities brokers, or (3) of any action described in paragraph (1) or (2) on any person who has agreed to be bound thereby." Thus, the amended version of 28(b), like the original, mentions neither customers nor arbitration. It is directed at an entirely different problem: enhancing the self-regulatory function of the SROs under the Exchange Act. The McMahons nonetheless argue that we should find it significant that Congress did not take this opportunity to address the general question of the arbitrability of Exchange Act Their argument is based entirely on a sentence from the Conference Report, which they contend amounts to a ratification of Wilko's extension to Exchange Act The Conference Report states: "The Senate bill amended section 28 of the Securities Exchange Act of 1934 with respect to arbitration proceedings between self-regulatory organizations and their participants, members, or persons dealing with members or participants. The House amendment contained no comparable provision. The House receded to the Senate. It was the clear understanding of the conferees that *237 this amendment did not change existing law, as articulated in concerning the effect of arbitration proceedings provisions in agreements entered into by persons dealing with members and participants of self-regulatory organizations." H. R. Conf. Rep. No. 94-229, p. 111 The McMahons contend that the conferees would not have acknowledged Wilko in a revision of the Exchange Act unless they were aware of lower court decisions extending Wilko to 10(b) claims and intended to approve them. We find this argument fraught with difficulties. We cannot see how Congress could extend Wilko to the Exchange Act without enacting into law any provision remotely addressing that subject. See And even if it could, there is little reason to interpret the Report as the McMahons suggest. At the outset, the committee may well have mentioned Wilko for a reason entirely different from the one postulated by the McMahons lower courts had applied 28(b) to the Securities Act, see, e. g., Axelrod & v. Kordich, Victor & and the committee may simply have wished to make clear that the amendment to 28(b) was not otherwise intended to affect Wilko's construction of the Securities Act. Moreover, even if the committee were referring to the arbitrability of 10(b) claims, the quoted sentence |
Justice O'Connor | 1,987 | 14 | majority | Shearson/American Express Inc. v. McMahon | https://www.courtlistener.com/opinion/111910/shearsonamerican-express-inc-v-mcmahon/ | referring to the arbitrability of 10(b) claims, the quoted sentence does not disclose what committee members thought "existing law" provided. The conference members might have had in mind the two Court of Appeals decisions extending Wilko to the Exchange Act, as the McMahons contend. See Greater Continental ; 389 F.2d 2 It is equally likely, however, that the committee had in mind this Court's decision the year before expressing doubts as to whether Wilko should be extended to 10 (b) See ("[A] colorable argument could be made that even the *238 semantic reasoning of the Wilko opinion does not control [a case based on 10(b)]"). Finally, even assuming the conferees had an understanding of existing law that all agreed upon, they specifically disclaimed any intent to change it. Hence, the Wilko issue was left to the courts: it was unaffected by the amendment to 28(b). This statement of congressional inaction simply does not support the proposition that the 1975 Congress intended to engraft onto unamended 29(a) a meaning different from that of the enacting Congress. We conclude, therefore, that Congress did not intend for 29(a) to bar enforcement of all predispute arbitration agreements. In this case, where the SEC has sufficient statutory authority to ensure that arbitration is adequate to vindicate Exchange Act rights, enforcement does not effect a waiver of "compliance with any provision" of the Exchange Act under 29(a). Accordingly, we hold the McMahons' agreements to arbitrate Exchange Act claims "enforce[able] in accord with the explicit provisions of the Arbitration Act." IV Unlike the Exchange Act, there is nothing in the text of the RICO statute that even arguably evinces congressional intent to exclude civil RICO claims from the dictates of the Arbitration Act. This silence in the text is matched by silence in the statute's legislative history. The private treble-damages provision codified as 18 U.S. C. 1964(c) was added to the House version of the bill after the bill had been passed by the Senate, and it received only abbreviated discussion in either House. See Sedima, S. P. R. L. v. Imrex There is no hint in these legislative debates that Congress intended for RICO treble-damages claims to be excluded from the ambit of the Arbitration Act. See Genesco, v. T. Kakiuchi & Ltd., *239 ; Mayaja, v. Bodkin, Because RICO's text and legislative history fail to reveal any intent to override the provisions of the Arbitration Act, the McMahons must argue that there is an irreconcilable conflict between arbitration and RICO's underlying purposes. Our decision in Motors however, already has addressed many of the grounds given |
Justice O'Connor | 1,987 | 14 | majority | Shearson/American Express Inc. v. McMahon | https://www.courtlistener.com/opinion/111910/shearsonamerican-express-inc-v-mcmahon/ | Motors however, already has addressed many of the grounds given by the McMahons to support this claim. In we held that nothing in the nature of the federal antitrust laws prohibits parties from agreeing to arbitrate antitrust claims arising out of international commercial transactions. Although the holding in was limited to the international context, see much of its reasoning is equally applicable here. Thus, for example, the McMahons have argued that RICO claims are too complex to be subject to arbitration. We determined in however, that "potential complexity should not suffice to ward off arbitration." Antitrust matters are every bit as complex as RICO claims, but we found that the "adaptability and access to expertise" characteristic of arbitration rebutted the view "that an arbitral tribunal could not properly handle an antitrust matter." -634. Likewise, the McMahons contend that the "overlap" between RICO's civil and criminal provisions renders 1964(c) claims nonarbitrable. See Page v. Moseley, Hallgarten, Estabrook & Weeden, Yet 1964(c) is no different in this respect from the federal antitrust laws. In Sedima, S. P. R. L. v. Imrex we rejected the view that 1964(c) "provide[s] civil remedies for offenses criminal in nature." See In doing so, this Court observed: "[T]he fact that conduct can result in *0 both criminal liability and treble damages does not mean that there is not a bona fide civil action. The familiar provisions for both criminal liability and treble damages under the antitrust laws indicate as much." recognized that treble-damages suits for claims arising under 1 of the Sherman Act may be subject to arbitration, even though such conduct may also give rise to claims of criminal liability. See Motors We similarly find that the criminal provisions of RICO do not preclude arbitration of bona fide civil actions brought under 1964(c). The McMahons' final argument is that the public interest in the enforcement of RICO precludes its submission to arbitration. again is relevant to the question. In that case we thoroughly examined the legislative intent behind 4 of the Clayton Act in assaying whether the importance of the private treble-damages remedy in enforcing the antitrust laws precluded arbitration of 4 We found that "[n]otwithstanding its important incidental policing function, the treble-damages cause of action seeks primarily to enable an injured competitor to gain compensation for that injury." Emphasizing the priority of the compensatory function of 4 over its deterrent function, concluded that "so long as the prospective litigant effectively may vindicate its statutory cause of action in the arbitral forum, the statute will continue to serve both its remedial and deterrent function." The legislative |
Justice O'Connor | 1,987 | 14 | majority | Shearson/American Express Inc. v. McMahon | https://www.courtlistener.com/opinion/111910/shearsonamerican-express-inc-v-mcmahon/ | to serve both its remedial and deterrent function." The legislative history of 1964(c) reveals the same emphasis on the remedial role of the treble-damages provision. In introducing the treble-damages provision to the House Judiciary Committee, Representative Steiger stressed that "those who have been wronged by organized crime should at least be given access to a legal remedy." Hearings on S. 30 and Related Proposals before Subcommittee No. 5 of the House Committee on the Judiciary, 91st Cong., 2d Sess., 520 The policing function of 1964(c), although important, *1 was a secondary concern. See During the congressional debates on 1964(c), Representative Steiger again emphasized the remedial purpose of the provision: "It is the intent of this body, I am certain, to see that innocent parties who are the victims of organized crime have a right to obtain proper redress. It represents the one opportunity for those of us who have been seriously affected by organized crime activity to recover." 116 Cong. Rec. 35346-35347 This focus on the remedial function of 1964(c) is reinforced by the recurrent references in the legislative debates to 4 of the Clayton Act as the model for the RICO treble-damages provision. See, e. g., 116 Cong. Rec. 35346 (statement of Rep. Poff) (RICO provision "has its counterpart almost in haec verba in the antitrust statutes"); at 20 (proposed amendment would "authorize private civil damage suits based upon the concept of section 4 of the Clayton Antitrust Act"). See generally Sedima, S. P. R. L. v. Imrex Not only does support the arbitrability of RICO claims, but there is even more reason to suppose that arbitration will adequately serve the purposes of RICO than that it will adequately protect private enforcement of the antitrust laws. Antitrust violations generally have a widespread impact on national markets as a whole, and the antitrust treble-damages provision gives private parties an incentive to bring civil suits that serve to advance the national interest in a competitive economy. See Lindsay, "Public" Rights and Private Forums: Predispute Arbitration Agreements and Securities Litigation, 20 Loyola (LA) L. Rev. 643, 691-692 RICO's drafters likewise sought to provide vigorous incentives for plaintiffs to pursue RICO claims that would advance society's fight against organized crime. See Sedima, *2A S. P. R. L. v. Imrex But in fact RICO actions are seldom asserted "against the archetypal, intimidating mobster." ; see also ("[O]nly 9% of all civil RICO cases have involved allegations of criminal activity normally associated with professional criminals"). The special incentives necessary to encourage civil enforcement actions against organized crime do not support nonarbitrability of run-of-the-mill civil RICO |
Justice O'Connor | 1,987 | 14 | majority | Shearson/American Express Inc. v. McMahon | https://www.courtlistener.com/opinion/111910/shearsonamerican-express-inc-v-mcmahon/ | organized crime do not support nonarbitrability of run-of-the-mill civil RICO claims brought against legitimate enterprises. The private attorney general role for the typical RICO plaintiff is simply less plausible than it is for the typical antitrust plaintiff, and does not support a finding that there is an irreconcilable conflict between arbitration and enforcement of the RICO statute. In sum, we find no basis for concluding that Congress intended to prevent enforcement of agreements to arbitrate RICO The McMahons may effectively vindicate their RICO claim in an arbitral forum, and therefore there is no inherent conflict between arbitration and the purposes underlying 1964(c). Moreover, nothing in RICO's text or legislative history otherwise demonstrates congressional intent to make an exception to the Arbitration Act for RICO Accordingly, the McMahons, "having made the bargain to arbitrate," will be held to their bargain. Their RICO claim is arbitrable under the terms of the Arbitration Act. V Accordingly, the judgment of the Court of Appeals for the Second Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. *2B JUSTICE BLACKMUN, with whom JUSTICE BRENNAN and JUSTICE MARSHALL join, concurring in part and dissenting in part. I concur in the Court's decision to enforce the arbitration agreement with respect to respondents' RICO claims and thus *3 join Parts I, II, and IV of the Court's opinion. I disagree, however, with the Court's conclusion that respondents' 10(b) claims also are subject to arbitration. Both the Securities Act of 1933 and the Securities Exchange Act of 1934 were enacted to protect investors from predatory behavior of securities industry personnel. In the Court recognized this basic purpose when it declined to enforce a predispute agreement to compel arbitration of claims under the Securities Act. Following that decision, lower courts extended Wilko's reasoning to claims brought under 10(b) of the Exchange Act, and Congress approved of this extension. In today's decision, however, the Court effectively overrules Wilko by accepting the Securities and Exchange Commission's newly adopted position that arbitration procedures in the securities industry and the Commission's oversight of the self-regulatory organizations (SROs) have improved greatly since Wilko was decided. The Court thus approves the abandonment of the judiciary's role in the resolution of claims under the Exchange Act and leaves such claims to the arbitral forum of the securities industry at a time when the industry's abuses towards investors are more apparent than ever. I At the outset, it is useful to review the manner by which the issue decided today has been kept alive inappropriately by this Court. |
Justice O'Connor | 1,987 | 14 | majority | Shearson/American Express Inc. v. McMahon | https://www.courtlistener.com/opinion/111910/shearsonamerican-express-inc-v-mcmahon/ | decided today has been kept alive inappropriately by this Court. As the majority explains, Wilko was limited to the holding "that a predispute agreement could not be enforced to compel arbitration of a claim arising under 12(2) of the Securities Act." Ante, at 228. Relying, however, on the reasoning of Wilko and the similarity between the pertinent provisions of the Securities Act and those of the Exchange Act, lower courts extended the Wilko holding to claims under the Exchange Act and refused to enforce predispute agreements to arbitrate them as well. See, e. g., Greater Continental 1103 *4 ; 389 F.2d 2, 5-6 In the Court addressed the question whether a particular predispute agreement to arbitrate 10(b) claims should be enforced. Because that litigation involved international business concerns and because the case was decided on such grounds, the Court did not reach the issue of the extension of Wilko to 10(b) The Court, nonetheless, included in its opinion dicta noting that "a colorable argument could be made that even the semantic reasoning of the Wilko opinion does not control the case before us." There is no need to discuss in any detail that "colorable argument," which rests on alleged distinctions between pertinent provisions of the Securities Act and those of the Exchange Act, because the Court does not rely upon it today.[1] In fact, *5 the "argument" is important not so much for its substance[2] as it is for its litigation role. It simply constituted a way of keeping the issue of the arbitrability of 10(b) claims alive for those opposed to the result in Wilko. *6 If, however, there could have been any doubts about the extension of Wilko's holding to 10(b) claims, they were undermined by Congress in its 1975 amendments to the Exchange Act. The Court questions the significance of these amendments, which, as it notes, concerned, among other things, provisions dealing with dispute resolution and disciplinary action by an SRO towards its own members. See ante, at 235-236. These amendments, however, are regarded as "the `most substantial and significant revision of this country's Federal securities laws since the passage of the Securities Exchange Act in 1934.' " Herman & 9 U.S. 375, 384- quoting Securities Acts Amendments of 1975: Hearings on S. 9 before the Subcommittee on Securities of the Senate Committee on Banking, Housing and Urban Affairs, 94th Cong., 1st Sess., 1 (Hearings).[3] More importantly, in enacting these amendments, Congress specifically was considering exceptions to 29(a), 15 U.S. C. 78cc, the nonwaiver provision of the Exchange Act, a provision primarily designed with the protection of |
Justice O'Connor | 1,987 | 14 | majority | Shearson/American Express Inc. v. McMahon | https://www.courtlistener.com/opinion/111910/shearsonamerican-express-inc-v-mcmahon/ | Exchange Act, a provision primarily designed with the protection of investors in mind.[4] The statement from the *7 legislative history, cited by the Court, ante, at 236-237, on its face indicates that Congress did not want the amendments to overrule Wilko. Moreover, the fact that this statement was made in an amendment to the Exchange Act suggests that Congress was aware of the extension of Wilko to 10(b) Although the remark does not necessarily signify Congress' endorsement of this extension, in the absence of any prior congressional indication to the contrary, it implies that Congress was not concerned with arresting this trend.[5] Such inaction during a wholesale revision of the securities laws, a revision designed to further investor protection, would argue in favor of Congress' approval of Wilko and its extension to 10(b) See Wolfe v. E. F. Hutton & cert. *8 pending, No. 86-1218; cf. Herman & 9 U. S., 84-386. One would have thought that, after these amendments, the matter of Wilko's extension to Exchange Act claims at last would be uncontroversial. In the years following the Scherk decision, all the Courts of Appeals treating the issue so interpreted Wilko.[6] In Dean Witter Reynolds this Court declined to address the extension issue, which was not before it, but recognized the development in the case law. Yet, like a ghost reluctant to accept its eternal rest, the "colorable argument" surfaced again, this time in a concurring opinion. See at 2 That concurring opinion repeated the "argument," but with no more development than the Scherk Court had given it.[7] Where there had been uniformity in *9 the lower courts before there now appeared disharmony on the issue of the arbitrability of 10(b) [8] And, as the Court observes, see ante, at 225, we granted certiorari in this case to resolve this conflict among the Courts of Appeals. II There are essentially two problems with the Court's conclusion that predispute agreements to arbitrate 10(b) claims may be enforced. First, the Court gives Wilko an overly narrow reading so that it can fit into the syllogism offered by the Commission and accepted by the Court, namely, (1) Wilko *250 was really a case concerning whether arbitration was adequate for the enforcement of the substantive provisions of the securities laws; (2) all of the Wilko Court's doubts as to arbitration's adequacy are outdated; (3) thus Wilko is no longer good law. See ante, at 228-229, 232; Brief for Securities and Exchange Commission as Amicus Curiae 10. Second, the Court accepts uncritically petitioners' and the Commission's argument that the problems with arbitration, highlighted by |
Justice O'Connor | 1,987 | 14 | majority | Shearson/American Express Inc. v. McMahon | https://www.courtlistener.com/opinion/111910/shearsonamerican-express-inc-v-mcmahon/ | the Commission's argument that the problems with arbitration, highlighted by the Wilko Court, either no longer exist or are not now viewed as problems by the Court. This acceptance primarily is based upon the Court's belief in the Commission's representations that its oversight of the SROs ensures the adequacy of arbitration. A I agree with the Court's observation that, in order to establish an exception to the Arbitration Act, 9 U.S. C. 1 et seq., for a class of statutory claims, there must be "an intention discernible from the text, history, or purposes of the statute." Ante, at 227. Where the Court first goes wrong, however, is in its failure to acknowledge that the Exchange Act, like the Securities Act, constitutes such an exception. This failure is made possible only by the unduly narrow reading of Wilko that ignores the Court's determination there that the Securities Act was an exception to the Arbitration Act. The Court's reading is particularly starting because it is in direct contradiction to the interpretation of Wilko given by the Court in Motors a decision on which the Court relies for its strong statement of a federal policy in favor of arbitration. But we observed in : "Just as it is the congressional policy manifested in the Federal Arbitration Act that requires courts liberally to construe the scope of arbitration agreements covered by that Act, it is the congressional intention expressed in some other statute on which the courts must rely to identify any category of claims as to which agreements to arbitrate *251 will be held unenforceable. See -435 We must assume that if Congress intended the substantive protection afforded by a given statue to include protection against waiver of the right to a judicial forum, that intention will be deducible from text or legislative history. See " Such language clearly suggests that, in we viewed Wilko as holding that the text and legislative history of the Securities Act not general problems with arbitration established that the Securities Act constituted an exception to the Arbitration Act. In a surprising display of logic, the Court uses as support for the virtues of arbitration and thus as a means for undermining Wilko's holding, but fails to take into account the most pertinent language in It is not necessary to rely just on the statement in to realize that in Wilko the Court had before it the issue of congressional intent to exempt statutory claims from the reach of the Arbitration Act. One has only to reread the Wilko opinion without the constricted vision of the |
Justice O'Connor | 1,987 | 14 | majority | Shearson/American Express Inc. v. McMahon | https://www.courtlistener.com/opinion/111910/shearsonamerican-express-inc-v-mcmahon/ | reread the Wilko opinion without the constricted vision of the Court. The Court's misreading is possible because, while extolling the policies of the Arbitration Act, it is insensitive to, and disregards the policies of, the Securities Act. This Act was passed in 1933, eight years after the Arbitration Act of 1925, see and in response to the market crash of 1929. The Act was designed to remedy abuses in the securities industry, particularly fraud and misrepresentation by securities-industry personnel, that had contributed to that disastrous event. See Malcolm & Segall 730-731. It had as its main goal investor protection, which took the form of an effort to place investors on an equal footing with those in the securities industry by promoting full disclosure of information on investments. See L. Loss, Fundamentals of Securities Regulation 36 *252 The Court in Wilko recognized the policy of investor protection in the Securities Act. It was this recognition that animated its discussion of whether 14, 15 U.S. C. 77n, the nonwaiver provision of the Securities Act, applied to 22(a), as amended, 15 U.S. C. 77v(a), the provision that gave an investor a judicial forum for the resolution of securities disputes. In the Court's words, the Securities Act, "[d]esigned to protect investors, requires issuers, underwriters, and dealers to make full and fair disclosure of the character of securities sold in interstate and foreign commerce and to prevent fraud in their sale." The Court then noted that, to promote this policy in the Act, Congress had designed an elaborate statutory structure: it gave investors a "special right" of suit under 12(2); they could bring the suit in federal or state court pursuant to 22(a); and, if brought in federal court, there were numerous procedural advantages, such as nationwide service of In reasoning that a predispute agreement to arbitrate 12(2) claims would constitute a "waiver" of a provision of the Act, i. e., the right to the judicial forum embodied in 22(a), the Court specifically referred to the policy of investor protection underlying the Act: "While a buyer and seller of securities, under some circumstances, may deal at arm's length on equal terms, it is clear that the Securities Act was drafted with an eye to the disadvantages under which buyers labor. Issuers of and dealers in securities have better opportunities to investigate and appraise the prospective earnings and business plans affecting securities than buyers. It is therefore reasonable for Congress to put buyers of securities covered by that Act on a different basis from other purchasers. "When the security buyer, prior to any violation of the |
Justice O'Connor | 1,987 | 14 | majority | Shearson/American Express Inc. v. McMahon | https://www.courtlistener.com/opinion/111910/shearsonamerican-express-inc-v-mcmahon/ | "When the security buyer, prior to any violation of the Securities Act, waives his right to sue in courts, he gives up more than would a participant in other business transactions. The security buyer has a wider choice of courts *253 and venue. He thus surrenders one of the advantages the Act gives him and surrenders it at a time when he is less able to judge the weight of the handicap the Securities Act places upon his adversary." In the Court's view, the express language, legislative history, and purposes of the Securities Act all made predispute agreements to arbitrate 12(2) claims unenforceable despite the presence of the Arbitration Act.[9] *254 Accordingly, the Court seriously errs when it states that the result in Wilko turned only on the perceived inadequacy of arbitration for the enforcement of 12(2) It is true that the Wilko Court discussed the inadequacies of this -437, and that this discussion constituted one ground for the Court's decision. The discussion, however, occurred after the Court had concluded that the language, legislative history, and purposes of the Securities Act mandated an exception to the Arbitration Act for these securities The Court's decision in Scherk is consistent with this reading of Wilko, despite the Court's suggestion to the contrary. See ante, at 229. Indeed, in reading Scherk as a case turning on the adequacy of arbitration, the Court completely ignores the central thrust of that decision. As the Court itself notes, ante, at 229, in Scherk the Court assumed that Wilko's prohibition on enforcing predispute arbitration agreements ordinarily would extend to 10(b) claims, such as those at issue in Scherk. The Scherk Court relied on a crucial difference between the international business situation presented to it and that before the Court in Wilko, where the laws of the United States, particularly the securities laws, clearly governed the dispute. Scherk, in contrast, presented *255 a multinational conflict-of-laws puzzle.[10] In such a situation, the Court observed, a contract provision setting forth a particular forum and the law to apply for possible disputes was "an almost indispensable precondition to achievement of the orderliness and predictability essential to any international business transaction." Indeed, the Court thought that failure to enforce such an agreement to arbitrate in this international context would encourage companies to file suits in countries where the law was most favorable to them, which "would surely damage the fabric of international commerce and trade, and imperil the willingness and ability of businessmen to enter into international commercial agreements." Accordingly, the Scherk decision turned on the special nature of agreements to arbitrate |
Justice O'Connor | 1,987 | 14 | majority | Shearson/American Express Inc. v. McMahon | https://www.courtlistener.com/opinion/111910/shearsonamerican-express-inc-v-mcmahon/ | decision turned on the special nature of agreements to arbitrate in the international commercial context.[11] *256 In light of a proper reading of Wilko, the pertinent question then becomes whether the language, legislative history, and purposes of the Exchange Act call for an exception to the Arbitration Act for 10(b) The Exchange Act waiver provision is virtually identical to that of the Securities Act.[12] More importantly, the same concern with investor protection that motivated the Securities Act is evident in the Exchange Act, although the latter, in contrast to the former, is aimed at trading in the secondary securities market. See Ernst & We have recognized that both Acts were designed with this common purpose in mind. See Indeed, the application of both Acts to the same conduct, see Brown, Shell, & Tyson 16, suggests that they have the same basic goal. And we have approved a cumulative construction of remedies under the securities Acts to promote the maximum possible protection of investors. See Herman & 9 U. S., 84-.[13] In sum, the same reasons that led the Court to find an exception to the Arbitration Act for 12(2) claims exist for *257 10(b) claims as well. It is clear that Wilko, when properly read, governs the instant case and mandates that a predispute arbitration agreement should not be enforced as to 10(b) B Even if I were to accept the Court's narrow reading of Wilko as a case dealing only with the inadequacies of arbitration in 3,[14] I do not think that this case should be resolved differently today so long as the policy of investor protection is given proper consideration in the analysis. Despite improvements in the of arbitration and changes in the judicial attitude towards it, several aspects of arbitration that were seen by the Wilko court to be inimical to the policy of investor protection still remain. Moreover, I have serious reservations about the Commission's contention that its oversight of the SROs' arbitration procedures will ensure that the is adequate to protect an investor's rights under the securities Acts. As the Court observes, ante, at 231, in Wilko the Court was disturbed by several characteristics of arbitration that made such a inadequate to safeguard the special position in which the Securities Act had placed the investor. The Court concluded that judicial review of the arbitrators' application of the securities laws would be difficult because arbitrators were required neither to give the reasons for their decisions nor to make a complete record of their proceedings. See 346 U.S., The Court also observed that the grounds for vacating |
Justice O'Connor | 1,987 | 14 | majority | Shearson/American Express Inc. v. McMahon | https://www.courtlistener.com/opinion/111910/shearsonamerican-express-inc-v-mcmahon/ | U.S., The Court also observed that the grounds for vacating an arbitration award were limited. The Court noted that, under the Arbitration Act, there were only *258 four grounds for vacation of an award: fraud in procuring the award, partiality on the part of arbitrators, gross misconduct by arbitrators, and the failure of arbitrators to render a final decision. n. 22, quoting 9 U.S. C. 10 (2 ed., Supp. V). The arbitrators' interpretation of the law would be subject to judicial review only under the "manifest disregard" 346 U.S., The Court today appears to argue that the Wilko Court's assessment of arbitration's inadequacy is outdated, first, because arbitration has improved since 3, and second, because the Court no longer considers the criticisms of arbitration made in Wilko to be valid reasons why statutory claims, such as those under 10(b), should not be sent to arbitration.[15] It is true that arbitration procedures in the securities industry have improved since Wilko's day. Of particular importance has been the development of a code of arbitration by the Commission with the assistance of representatives of the securities industry and the public. See Uniform Code of Arbitration, Exh. C, Fifth Report of the Securities Industry Conference on Arbitration 29 (Fifth SICA Report).[16] *259 Even those who favor the arbitration of securities claims do not contend, however, that arbitration has changed so significantly as to eliminate the essential characteristics noted by the Wilko Court. Indeed, proponents of arbitration would not see these characteristics as "problems," because, in their view, the characteristics permit the unique "streamlined" nature of the arbitral As at the time of Wilko, preparation of a record of arbitration proceedings is not invariably required today.[17] Moreover, arbitrators are not bound by precedent and are actually discouraged by their associations from giving reasons for a decision. See R. Coulson, Business Arbitration What You Need to Know 29 ("Written opinions can be dangerous because they identify targets for the losing party to attack"); see also Duke Note 553; Fletcher 6-7. Judicial review is still substantially limited to the four grounds listed in 10 of the Arbitration Act and to the concept of "manifest disregard" of the law. See, e. g., French v. Merrill Lynch, Pierce, Fenner & Smith, citing Swift Industries, v. Botany Industries,[18] *260 The Court's "mistrust" of arbitration may have given way recently to an acceptance of this not only because of the improvements in arbitration, but also because of the Court's present assumption that the distinctive features of arbitration, its more quick and economical resolution of claims, do not render it inherently |
Justice O'Connor | 1,987 | 14 | majority | Shearson/American Express Inc. v. McMahon | https://www.courtlistener.com/opinion/111910/shearsonamerican-express-inc-v-mcmahon/ | and economical resolution of claims, do not render it inherently inadequate for the resolution of statutory See Motors Such reasoning, however, should prevail only in the absence of the congressional policy that places the statutory claimant in a special position with respect to possible violators of his statutory rights. As even the most ardent supporter of arbitration would recognize, the arbitral at best places the investor on an equal footing with the securities-industry personnel against whom the claims are brought. Furthermore, there remains the danger that, at worst, compelling an investor to arbitrate securities claims puts him in a forum controlled by the securities industry. This result directly contradicts the goal of both securities Acts to free the investor from the control of the market professional. The Uniform Code provides some safeguards[19] but despite them, and indeed because of the background of the arbitrators, the investor has the impression, frequently justified, that his claims are being judged by a forum composed of individuals sympathetic to the securities industry and not drawn *261 from the public. It is generally recognized that the codes do not define who falls into the category "not from the securities industry." Brown, Shell, & Tyson 35, and n. 94; Katsoris 309-312. Accordingly, it is often possible for the "public" arbitrators to be attorneys or consultants whose clients have been exchange members or SROs. See Panel of Arbitrators -1988, CCH American Stock Exchange Guide 158-160 (71 out of 116 "public" arbitrators are lawyers). The uniform opposition of investors to compelled arbitration and the overwhelming support of the securities industry for the suggest that there must be some truth to the investors' belief that the securities industry has an advantage in a forum under its own control. See N. Y. Times, Mar. 29, section 3, p. 8, col. 1 (statement of Sheldon H. Elsen, Chairman, American Bar Association Task Force on Securities Arbitration: "The houses basically like the present system because they own the stacked deck").[20] More surprising than the Court's acceptance of the present adequacy of arbitration for the resolution of securities claims is its confidence in the Commission's oversight of the arbitration procedures of the SROs to ensure this adequacy. Such confidence amounts to a wholesale acceptance of the Commission's present position that this oversight undermines the force of Wilko and that arbitration therefore should be compelled because the Commission has supervisory authority *262 over the SROs' arbitration procedures. The Court, however, fails to acknowledge that, until it filed an amicus brief in this case, the Commission consistently took the position that 10(b) claims, like those |
Justice O'Connor | 1,987 | 14 | majority | Shearson/American Express Inc. v. McMahon | https://www.courtlistener.com/opinion/111910/shearsonamerican-express-inc-v-mcmahon/ | Commission consistently took the position that 10(b) claims, like those under 12(2), should not be sent to arbitration, that predispute arbitration agreements, where the investor was not advised of his right to a judicial forum, were misleading, and that the very regulatory oversight upon which the Commission now relies could not alone make securities-industry arbitration adequate.[21] It is most questionable, then, whether the Commission's recently adopted position is entitled to the deference that the Court accords it. The Court is swayed by the power given to the Commission by the 1975 amendments to the Exchange Act in order to permit the Commission to oversee the rules and procedures of the SROs, including those dealing with arbitration. See ante, at 233-234. Subsequent to the passage of these amendments, however, the Commission has taken the consistent position that predispute arbitration agreements, *263 which did not disclose to an investor that he has a right to a judicial forum, were misleading and possibly actionable under the securities laws.[22] The Commission remained dissatisfied *264 with the continued use of these arbitration agreements and eventually it proposed a rule to prohibit them, explaining that such a prohibition was not inconsistent with its support of arbitration for resolving securities disputes, particularly existing ones. See Disclosure Regarding Recourse to the Federal Courts Notwithstanding Arbitration Clauses in Broker-Dealer Customer Agreements, SEC Exchange Act Rel. No. 19813 [1982-1983 Transfer Binder] CCH While emphasizing the Court's Wilko decision as a basis for its proposed rule, the Commission noted that its proposal also was in line with its own understanding of the problems with such agreements and with the "[c]ongressional determination that public investors should also have available the special protection of the federal courts for resolution of disputes arising under the federal securities laws." Although the rule met with some opposition,[23] it was adopted and remains in force today.[] *265 Moreover, the Commission's own description of its enforcement capabilities contradicts its position that its general overview of SRO rules and procedures can make arbitration adequate for resolving securities The Commission does not pretend that its oversight consists of anything other than a general review of SRO rules and the ability to require that an SRO adopt or delete a particular rule. It does not contend that its "sweeping authority," Brief 16, includes a review of specific arbitration proceedings. It thus neither polices nor monitors the results of these arbitrations for possible misapplications of securities laws or for indications of how investors fare in these proceedings. Given, in fact, the present constraints on the Commission's resources in this time of market |
Justice O'Connor | 1,987 | 14 | majority | Shearson/American Express Inc. v. McMahon | https://www.courtlistener.com/opinion/111910/shearsonamerican-express-inc-v-mcmahon/ | constraints on the Commission's resources in this time of market expansion, see General Accounting Office, Report to the Chairman, Subcommittee on Telecommunications, Consumer Protection, and Finance of the House Committee on Energy and Commerce: Securities Regulation Securities and Exchange Commission Oversight of Self-Regulation 60 (Report), it is doubtful whether the Commission could undertake to conduct any such review.[25] Finally, the Court's complacent acceptance of the Commission's oversight is alarming when almost every day brings another example of illegality on Wall Street. See, e. g., N. Y. Times, Jan. 2, p. B6, col. 3. Many of the abuses recently *266 brought to light, it is true, do not deal with the question of the adequacy of SRO arbitration. They, however, do suggest that the industry's self-regulation, of which the SRO arbitration is a part, is not functioning acceptably. See Report 63. Moreover, these abuses have highlighted the difficulty experienced by the Commission, at a time of growth in the securities market and a decrease in the Commission's staff, see to carry out its oversight task. Such inadequacies on the part of the Commission strike at the very heart of the reasoning of the Court, which is content to accept the soothing assurances of the Commission without examining the reality behind them. Indeed, while the amici cite the number of arbitrations of securities disputes as a sign of the success of this in the industry, see Brief for Securities Industry Association, et al. as Amici Curiae 10-11, these statistics have a more portentous meaning. In this era of deregulation, the growth in complaints about the securities industry, many of which find their way to arbitration, parallels the increase in securities violations and suggests a market not adequately controlled by the SROs. See General Accounting Office, Report to the Chairman, Sub-committee on Oversight and Investigation of the House Committee on Energy and Commerce: Statistics on SEC's Enforcement Program 3-4 In such a time, one would expect more, not less, judicial involvement in resolution of securities disputes. III There is, fortunately, a remedy for investors. In part as a result of the Commission's position in this case, Congress has begun to look into the adequacy of the self-regulatory arbitration and the Commission's oversight of the SROs. In a letter dated February 11, Representative Dingell, Chairman of the House Subcommittee on Oversight and Investigations, notified the Chairman of the Commission that the Subcommittee is "conducting an inquiry into the adequacy of the current self-regulatory system and the Commission's *267 oversight thereof in connection with complaints against broker-dealers for securities-law violations." Letter, p. 1, enclosed |
Justice O'Connor | 1,987 | 14 | majority | Shearson/American Express Inc. v. McMahon | https://www.courtlistener.com/opinion/111910/shearsonamerican-express-inc-v-mcmahon/ | complaints against broker-dealers for securities-law violations." Letter, p. 1, enclosed with Letter from Theodore G. Eppenstein, counsel for respondents, to Joseph F. Spaniol, Jr., Clerk of this Court Representative Dingell noted that his Subcommittee was "particularly concerned about increasing numbers of complaints in connection with churning and violations of suitability requirements, as well as complaints that arbitration procedures are rife with conflicts of interest (since the arbitrators are peers of the brokerage firm being sued) and are inadequate to enforce the statutory rights of customers against broker-dealers." To justify this inquiry, he cited several well-publicized examples of abuse of investors by securities-industry personnel and a General Accounting Office report on the increase in securities-law violations by brokers that went undetected by the SROs. In concluding the letter, Representative Dingell expressed his surprise at the Commission's position in the present case. In his view, that position was at odds with the one the Commission consistently had taken before the Subcommittee, which stressed the limitations on the Commission's authority over the SROs in general, and over arbitrations in particular. Thus, there is hope that Congress will give investors the relief that the Court denies them today. In the meantime, the Court leaves lower courts with some authority, albeit limited, to protect investors before Congress acts. Courts should take seriously their duty to review the results of arbitration to the extent possible under the Arbitration Act. As we explained in Motors "courts should remain attuned to well-supported claims that the agreement to arbitrate resulted from the sort of fraud or overwhelming economic power that would provide grounds `for the revocation of any contract.' " quoting 9 U.S. C. 2. Indeed, in light of today's decision compelling the enforcement of predispute arbitration agreements, it is likely *268 that investors will be inclined, more than ever, to bring complaints to federal courts that arbitrators were partial or acted in "manifest disregard" of the securities laws. See Brown, Shell, & Tyson 36. It is thus ironic that the Court's decision, no doubt animated by its desire to rid the federal courts of these suits, actually may increase litigation about arbitration. I therefore respectfully dissent in part. JUSTICE STEVENS, concurring in part and dissenting in part. Gaps in the law must, of course, be filled by judicial construction. But after a statute has been construed, either by this Court or by a consistent course of decision by other federal judges and agencies, it acquires a meaning that should be as clear as if the judicial gloss had been drafted by the Congress itself. This position reflects both |
Justice O'Connor | 1,987 | 14 | majority | Shearson/American Express Inc. v. McMahon | https://www.courtlistener.com/opinion/111910/shearsonamerican-express-inc-v-mcmahon/ | been drafted by the Congress itself. This position reflects both respect for Congress' role, see Boys Market, v. Retail Clerks, and the compelling need to preserve the courts' limited resources, see B. Cardozo, The Nature of the Judicial Process 149 (1921). During the 32 years immediately following this Court's decision in each of the eight Circuits that addressed the issue concluded that the holding of Wilko was fully applicable to claims arising under the Securities Exchange Act of 1934.[1] See ante, at 8, n. 6 (opinion of BLACKMUN, J.). This longstanding interpretation[2] creates a strong presumption, in my view, that any mistake *269 that the courts may have made in interpreting the statute is best remedied by the Legislative, not the Judicial, Branch. The history set forth in Part I of JUSTICE BLACKMUN's opinion adds special force to that presumption in this case. For this reason, I respectfully dissent from the portion of the Court's judgment that holds Wilko inapplicable to the 1934 Act. Like JUSTICE BLACKMUN, however, I join Parts I, II, and IV of the Court's opinion. |
Justice Blackmun | 1,989 | 11 | dissenting | Duquesne Light Co. v. Barasch | https://www.courtlistener.com/opinion/112169/duquesne-light-co-v-barasch/ | The Court, I fear, because of what it regards as the investment of time in having this case argued and briefed, is strong-arming the finality concept and finding a Cox exception that does not exist. We have jurisdiction, under 28 U.S. C. 1257, only if there is a "final judgment" by the "highest court of a State" in which a decision could be had. To be sure, we have interpreted 1257 somewhat flexibly to the effect that the finality requirement is satisfied in four discrete situations despite the need of further proceedings in the state courts: Cox Broadcasting *318 The Court here concludes that this case falls within the first of the four Cox exceptions ("the outcome of further proceedings preordained," ). With all respect, I disagree, for this case concerns rates, and there is no rate order whatsoever before this Court. The Supreme Court of Pennsylvania invalidated the rate orders set by the Pennsylvania Commission, and remanded the cases for further ratemaking. The Court deludes itself when it speaks of preordination of the Commission's further action. New rates will be set, based upon factors we do not as yet know, and only then will a final judgment possibly emerge in due course. I therefore would dismiss the appeal for want of the final judgment that 1257 requires. |
Justice Blackmun | 1,988 | 11 | majority | West v. Atkins | https://www.courtlistener.com/opinion/112116/west-v-atkins/ | This case presents the question whether a physician who is under contract with the State to provide medical services to inmates at a state-prison hospital on a part-time basis acts "under color of state law," within the meaning of 42 U.S. C. 1983, when he treats an inmate. I Petitioner, Quincy West, tore his left Achilles tendon in 1983 while playing volleyball at Odom Correctional Center, the Jackson, N. C., state prison in which he was incarcerated. A physician under contract to provide medical care to Odom inmates examined petitioner and directed that he be *44 transferred to Raleigh for orthopedic consultation at Central Prison Hospital, the acute-care medical facility operated by the State for its more than 17,500 inmates. Central Prison Hospital has one full-time staff physician, and obtains additional medical assistance under "Contracts for Professional Services" between the State and area physicians. Respondent, Samuel Atkins, M. D., a private physician, provided orthopedic services to inmates pursuant to one such contract. Under it, Doctor Atkins was paid approximately $52,000 annually to operate two "clinics" each week at Central Prison Hospital, with additional amounts for surgery.[1] Over a period of several months, he treated West's injury by placing his leg in a series of casts. West alleges that although the doctor acknowledged that surgery would be necessary, he refused to schedule it, and that he eventually discharged West while his ankle was still swollen and painful, and his movement still impeded. Because West was a prisoner in "close custody," he was not free to employ or elect to see a different physician of his own choosing.[2] *45 Pursuant to 42 U.S. C. 1983,[3] West, proceeding pro se, commenced this action against Doctor Atkins[4] in the United States District Court for the Eastern District of North Carolina for violation of his Eighth Amendment right to be free from cruel and unusual punishment.[5] West alleged that Atkins was deliberately indifferent to his serious medical needs, by failing to provide adequate treatment. Relying on a decision of its controlling court in cert. denied, the District Court granted Doctor Atkins' motion for summary judgment. In Calvert, the Fourth Circuit held that a private orthopedic specialist, employed by a nonprofit professional corporation which provided services under contract to the inmates at the Maryland House of Corrections *46 and the Maryland Penitentiary, did not act "under color of state law," a jurisdictional requisite for a 1983 action. Because Doctor Atkins was a "contract physician," the District Court concluded that he, too, was not acting under color of state law when he treated West's injury. App. 37. |
Justice Blackmun | 1,988 | 11 | majority | West v. Atkins | https://www.courtlistener.com/opinion/112116/west-v-atkins/ | of state law when he treated West's injury. App. 37. A panel of the United States Court of Appeals for the Fourth Circuit vacated the District Court's judgment. Rather than considering if Calvert could be distinguished, the panel remanded the case to the District Court for an assessment whether the record permitted a finding of deliberate indifference to a serious medical need, a showing necessary for West ultimately to prevail on his Eighth Amendment claim. See On en banc rehearing, however, a divided Court of Appeals affirmed the District Court's dismissal of West's complaint. In declining to overrule its decision in Calvert, the majority concluded: "Thus the clear and practicable principle enunciated by the Supreme Court [in Polk ], and followed in Calvert, is that a professional, when acting within the bounds of traditional professional discretion and judgment, does not act under color of state law, even where, as in Dodson, the professional is a full-time employee of the state. Where the professional exercises custodial or supervisory authority, which is to say that he is not acting in his professional capacity, then a 1983 claim can be established, provided the requisite nexus to the state is proved." The Court of Appeals acknowledged that this rule limits "the range of professionals subject to an action." [6] *47 The dissent in the Court of Appeals offered three grounds for holding that service rendered by a prison doctor whether a permanent member of a prison medical staff, or under limited contract with the prison constitutes action under color of state law for purposes of 1983. First, the dissent concluded that prison doctors are as much "state actors" as are other prison employees, finding no significant difference between Doctor Atkins and the physician-employees assumed to be state actors in and in See -998. Second, the dissent concluded that the "public function" rationale applied because, in the prison context, medical care is within "the exclusive prerogative of the State," in that the State is obligated to provide medical services for its inmates and has complete control over the circumstances and sources of a prisoner's medical treatment. citing Finally, the dissent reasoned that the integral role the prison physician plays within the prison medical system qualifies his actions as under color of state citing United ("[W]illful participant in joint activity with the State or its agents" may be liable under 1983); ; and The Fourth Circuit's ruling conflicts with decisions of the Court of Appeals for the Eleventh Circuit, and which are to the effect that a physician who contracts with the State to |
Justice Blackmun | 1,988 | 11 | majority | West v. Atkins | https://www.courtlistener.com/opinion/112116/west-v-atkins/ | effect that a physician who contracts with the State to provide medical care to prison inmates, even if employed by a private entity, acts under color of state law for purposes of 1983.[7] We *48 granted certiorari to resolve the conflict. II To state a claim under 1983, a plaintiff must allege the violation of a right secured by the Constitution and laws of the United States, and must show that the alleged deprivation was committed by a person acting under color of state ); Flagg Bros., Petitioner West sought to fulfill the first requirement by alleging a violation of his rights secured by the Eighth Amendment under There the Court held that deliberate indifference to a prisoner's serious medical needs, whether by a prison doctor or a prison guard, is prohibited by the Eighth Amendment. at -105. The adequacy of West's allegation and the sufficiency of his showing on this element of his 1983 cause of action are not contested here.[8] The only issue before *49 us is whether petitioner has established the second essential element that respondent acted under color of state law in treating West's injury. A The traditional definition of acting under color of state law requires that the defendant in a 1983 action have exercised power "possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state " United Accord, (adopting standard for purposes of 1983) ); Polk ; In the Court made clear that if a defendant's conduct satisfies the state-action requirement of the Fourteenth Amendment, "that conduct [is] also action under color of state law and will support a suit under 1983." Accord, ; United 383 U. S., at n. 7. In such circumstances, the defendant's alleged infringement of the plaintiff's federal rights is "fairly attributable to the State." To constitute state action, "the deprivation must be caused by the exercise of some right or privilege created by the State or by a person for whom the State is responsible," and "the party charged with the deprivation must be a person who may fairly be said to be a state actor." "[S]tate employment is generally sufficient to render the defendant a state actor." ; see It is firmly *50 established that a defendant in a 1983 suit acts under color of state law when he abuses the position given to him by the State. See Thus, generally, a public employee acts under color of state law while acting in his official capacity or while exercising his responsibilities pursuant to state See, e. g., |
Justice Blackmun | 1,988 | 11 | majority | West v. Atkins | https://www.courtlistener.com/opinion/112116/west-v-atkins/ | while exercising his responsibilities pursuant to state See, e. g., 451 U. S., at -536; Adickes v. S. H. Kress & See also Flagg Bros., n. 5. Indeed, Polk relied upon by the Court of Appeals, is the only case in which this Court has determined that a person who is employed by the State and who is sued under 1983 for abusing his position in the performance of his assigned tasks was not acting under color of state The Court held that "a public defender does not act under color of state law when performing a lawyer's traditional functions as counsel to a defendant in a criminal proceeding." In this capacity, the Court noted, a public defender differs from the typical government employee and state actor. While performing his duties, the public defender retains all of the essential attributes of a private attorney, including, most importantly, his "professional independence," which the State is constitutionally obliged to respect. A criminal lawyer's professional and ethical obligations require him to act in a role independent of and in opposition to the State. The Court accordingly concluded that when representing an indigent defendant in a state criminal proceeding, the public defender does not act under color of state law for purposes of 1983 because he "is not acting on behalf of the State; he is the State's adversary." See also 457 U. S., B We disagree with the Court of Appeals and respondent that Polk County dictates a conclusion that respondent did *51 not act under color of state law in providing medical treatment to petitioner. In contrast to the public defender, Doctor Atkins' professional and ethical obligation to make independent medical judgments did not set him in conflict with the State and other prison authorities. Indeed, his relationship with other prison authorities was cooperative. "Institutional physicians assume an obligation to the mission that the State, through the institution, attempts to achieve." Polk County, The Manual governing prison health care in North Carolina's institutions, which Doctor Atkins was required to observe, declares: "The provision of health care is a joint effort of correctional administrators and health care providers, and can be achieved only through mutual trust and cooperation."[9] Similarly, the American Medical Association Standards for Health Services in Prisons (1979) provide that medical personnel and other prison officials are to act in "close cooperation and coordination" in a "joint effort." Preface, at i; Standard 102, and Discussion. Doctor Atkins' professional obligations certainly did not oblige him to function as "the State's adversary." Polk County, 454 U. S., We thus find the proffered analogy |
Justice Blackmun | 1,988 | 11 | majority | West v. Atkins | https://www.courtlistener.com/opinion/112116/west-v-atkins/ | County, 454 U. S., We thus find the proffered analogy between respondent and the public defender in Polk County unpersuasive. Of course, the Court of Appeals did not perceive the adversarial role the defense lawyer plays in our criminal justice system as the decisive factor in the Polk County decision. The court, instead, appears to have misread Polk County as establishing the general principle that professionals do not act under color of state law when they act in their professional capacities. The court considered a professional not to be subject to suit under 1983 unless he was exercising "custodial or supervisory" To the extent this Court in Polk County relied on the fact that the public defender is a "professional" in concluding that he *52 was not engaged in state action, the case turned on the particular professional obligation of the criminal defense attorney to be an adversary of the State, not on the independence and integrity generally applicable to professionals as a class. Indeed, the Court of Appeals' reading would be inconsistent with cases, decided before and since Polk County, in which this Court either has identified professionals as state actors, see, e. g., or has assumed that professionals are state actors in 1983 suits, see, e. g., See also Defendants are not removed from the purview of 1983 simply because they are professionals acting in accordance with professional discretion and judgment.[10] *53 The Court of Appeals' approach to determining who is subject to suit under 1983, wholeheartedly embraced by respondent, cannot be reconciled with this Court's decision in which demonstrates that custodial and supervisory functions are irrelevant to an assessment whether the particular action challenged was performed under color of state In the inmate's Eighth Amendment claim was brought against the physician-employee, Dr. Gray, in his capacity both as treating physician and as medical director of the state prison system. See Gray was sued, however, solely on the basis of allegedly substandard medical treatment given to the plaintiff; his supervisory and custodial functions were not at issue. The Court's opinion did not suggest that Gray had not acted under color of state law in treating the inmate.[11] To the contrary, the inference *54 to be drawn from is that the medical treatment of prison inmates by prison physicians is state action. The Court explicitly held that "indifference manifested by prison doctors in their response to the prisoner's needs states a cause of action under 1983." at -105; see at n. 10 (citing with approval Courts of Appeals' decisions holding prison doctors liable for Eighth Amendment claims brought under |
Justice Blackmun | 1,988 | 11 | majority | West v. Atkins | https://www.courtlistener.com/opinion/112116/west-v-atkins/ | holding prison doctors liable for Eighth Amendment claims brought under 1983 without mention of supervisory and custodial duties). The Court of Appeals' rationale would sharply undermine this holding.[12] C We now make explicit what was implicit in our holding in : Respondent, as a physician employed by North Carolina to provide medical services to state prison inmates, acted under color of state law for purposes of 1983 when undertaking his duties in treating petitioner's injury. Such conduct is fairly attributable to the State. The Court recognized in : "An inmate must rely on prison authorities to treat his medical needs; if the authorities fail to do so, those needs will not be met." In light of this, the Court held that the State has a constitutional obligation, under the Eighth Amendment, to provide adequate medical care to those whom it has incarcerated. at See also cited in 429 U. S., at n. 9. North Carolina employs physicians, such as respondent, and defers to their professional judgment, in order to fulfill this obligation. By virtue of this relationship, effected by state law, Doctor Atkins is authorized and obliged to treat prison inmates, such as West.[13] He does so "clothed with the authority of state " United 313 U. S., at He is "a person who may fairly be said to be a state actor." It is only those physicians authorized by the State to whom the inmate may turn. Under state law, the only medical care West could receive for his injury was that provided by the State. If Doctor Atkins misused his power by demonstrating deliberate indifference to West's serious medical needs, the resultant deprivation was caused, in the sense relevant for state-action inquiry, by the State's exercise of its right to punish West by incarceration and to deny him a venue independent of the State to obtain needed medical care. The fact that the State employed respondent pursuant to a contractual arrangement that did not generate the same benefits or obligations applicable to other "state employees" does not alter the analysis. It is the physician's function within the state system, not the precise terms of his employment, that determines whether his actions can fairly be attributed *56 to the State. Whether a physician is on the state payroll or is paid by contract, the dispositive issue concerns the relationship among the State, the physician, and the prisoner. Contracting out prison medical care does not relieve the State of its constitutional duty to provide adequate medical treatment to those in its custody, and it does not deprive the State's prisoners |
Justice Blackmun | 1,988 | 11 | majority | West v. Atkins | https://www.courtlistener.com/opinion/112116/west-v-atkins/ | its custody, and it does not deprive the State's prisoners of the means to vindicate their Eighth Amendment rights.[14] The State bore an affirmative obligation to provide adequate medical care to West; the State delegated that function to respondent Atkins; and respondent voluntarily assumed that obligation by contract. Nor does the fact that Doctor Atkins' employment contract did not require him to work exclusively for the prison make him any less a state actor than if he performed those duties as a full-time, permanent member of the state prison medical staff. It is the physician's function while working for the State, not the amount of time he spends in performance of those duties or the fact that he may be employed by others to perform similar duties, that determines whether he is acting under color of state [15] In the State's employ, respondent *57 worked as a physician at the prison hospital fully vested with state authority to fulfill essential aspects of the duty, placed on the State by the Eighth Amendment and state law, to provide essential medical care to those the State had incarcerated. Doctor Atkins must be considered to be a state actor. III For the reasons stated above, we conclude that respondent's delivery of medical treatment to West was state action fairly attributable to the State, and that respondent therefore acted under color of state law for purposes of 1983. Accordingly, we reverse the judgment of the Court of Appeals *58 and remand the case for further proceedings consistent with this opinion. It is so ordered. JUSTICE SCALIA, concurring in part and concurring in the judgment. |
Justice Marshall | 1,975 | 15 | dissenting | Texas v. White | https://www.courtlistener.com/opinion/109332/texas-v-white/ | Only by misstating the holding of can the Court make that case appear dispositive of this one. The Court in its brief per curiam opinion today extends Chambers to a clearly distinguishable factual setting, without having afforded the opportunity for full briefing and oral argument. I respectfully dissent. Chambers did not hold, as the Court suggests, that "police officers with probable cause to search an automobile at the scene where it was stopped could constitutionally do so later at the station house without first obtaining a warrant." Ante, at 68. Chambers simply held that to be the rule when it is reasonable to take the car to the station house in the first place. In Chambers the Court took as its departure point this Court's holding in : "Carroll holds a search warrant unnecessary where there is probable cause to search an automobile stopped on the highway; the car is movable, the occupants are alerted, and the car's contents may never be found again if a warrant must be obtained. Hence an immediate search is constitutionally permissible." Carroll, however, did not dispose of Chambers, for in Chambers, as in this case, the police did not conduct an "immediate search," but rather seized the car and took it to the station house before searching it. The Court in Chambers went on to hold that once the car was *70 legitimately at the station house a prompt search could be conducted. But in recognition of the need to justify the seizure and removal of the car to the station house, the Court added: "It was not unreasonable in this case to take the car to the station house. All occupants in the car were arrested in a dark parking lot in the middle of the night. A careful search at that point was impractical and perhaps not safe for the officers, and it would serve the owner's convenience and the safety of his car to have the vehicle and the keys together at the station house." n. 10. In this case, the arrest took place at 1:30 in the afternoon, and there is no indication that an immediate search would have been either impractical or unsafe for the arresting officers. It may be, of course, that respondent preferred to have his car brought to the station house, but if his convenience was the concern of the police they should have consulted with him. Surely a seizure cannot be justified on the sole ground that a citizen might have consented to it as a matter of convenience. Since, then, there was no apparent |
Justice Marshall | 1,975 | 15 | dissenting | Texas v. White | https://www.courtlistener.com/opinion/109332/texas-v-white/ | a matter of convenience. Since, then, there was no apparent justification for the warrantless removal of respondent's car, it is clear that this is a different case from Chambers. It might be argued that the taking of respondent's car to the police station was neither more of a seizure, nor in practical terms more of an intrusion, than would have been involved in an immediate at-the-scene search, which was clearly permissible. Such a contention may well be substantial enough to warrant full briefing and argument, but it is not so clearly meritorious as to warrant adoption in the summary fashion in which the Court proceeds. Indeed, a reading of Chambers itself suggests that this contention is without merit. *71 In Chambers the Court considered and rejected the argument that Carroll was wrong in permitting a warrantless search of an automobilethat the immobilization of a car until a search warrant is obtained is a "lesser" intrusion and should therefore be the outer bounds of what is permitted. The Court noted that "which is the `greater' and which the `lesser' intrusion is itself a debatable question," and concluded: "For constitutional purposes, we see no difference between on the one hand seizing and holding a car before presenting the probable cause issue to a magistrate and on the other hand carrying out an immediate search without a warrant." In the Court's view, then, the intrusion involved in initially seizing a car on the highway and holding it for the short time required to seek a warrant is so substantial as to be constitutionally indistinguishable from the intrusion involved in a search of the vehicle. But the Court did not stop with that observation. It went on to note that once a car is legitimately brought to the station house, the additional intrusion involved in simply immobilizing the car until a warrant can be sought is no less significant than that involved in a station house search: "[T]here is little to choose in terms of practical consequences between an immediate search without a warrant and the car's immobilization until a warrant is obtained." It was because such temporary seizures were deemed no less intrusive than searches themselves that Chambers approved searches when temporary seizures would have been justified. In short, the basic premise of Chambers' conclusion that seizures pending the seeking of a warrant are not constitutionally preferred to warrantless *72 searches was that temporary seizures are themselves intrusive. That same premise suggests that the seizure and removal of respondent's car in this case were quite apart from the subsequent search, an intrusion of |
Justice Breyer | 2,000 | 2 | majority | Castillo v. United States | https://www.courtlistener.com/opinion/118373/castillo-v-united-states/ | [] In this case we once again decide whether words in a federal criminal statute create offense elements (determined by a jury) or sentencing factors (determined by a judge). See ; The statute in question, 18 U.S. C. 924(c) (1988 ed., Supp. V), prohibits the use or carrying of a "firearm" in relation to a crime of violence, and increases the penalty dramatically when the weapon used or carried is, for example, a "machinegun." We conclude that the statute uses the word "machinegun" (and similar words) to state an element of a separate offense. *122 I Petitioners are members of the Branch-Davidian religious sect and are among those who were involved in a violent confrontation with federal agents from the Bureau of Alcohol, Tobacco, and Firearms near Waco, Texas, in 1993. The case before us arises out of an indictment alleging that, among other things, petitioners conspired to murder federal officers. At the time of petitioners' trial, the criminal statute at issue (reprinted in its entirety in the Appendix, infra ) read in relevant part: "(c)(1) Whoever, during and in relation to any crime of violence uses or carries a firearm, shall, in addition to the punishment provided for such crime of violence be sentenced to imprisonment for five years, and if the firearm is a short-barreled rifle [or a] shortbarreled shotgun to imprisonment for ten years, and if the firearm is a machinegun, or a destructive device, or is equipped with a firearm silencer or firearm muffler, to imprisonment for thirty years." 18 U.S. C. 924(c)(1) (1988 ed., Supp. V). A jury determined that petitioners had violated this section by, in the words of the trial judge's instruction, "knowingly us[ing] or carr[ying] a firearm during and in relation to" the commission of a crime of violence. App. 29. At sentencing, the judge found that the "firearms" at issue included certain machineguns (many equipped with silencers) and handgrenades that the defendants actually or constructively had possessed. United Crim. No. W-93CR-046 reprinted in App. to Pet. for Cert. 119a, 124a125a. The judge then imposed the statute's mandatory 30-year prison sentence. at 134a. Petitioners appealed. Meanwhile, this Court decided that the word "use" in 924(c)(1) requires evidence of more than "mere possession." The Court of Appeals subsequently held that *123 our decision in necessitated a remand of the case to determine whether, in `s stronger sense of "use," petitioners had used "machineguns and other enhancing weapons." United The court also concluded that statutory words such as "machinegun" create sentencing factors, i. e., factors that enhance a sentence, not elements of a separate |
Justice Breyer | 2,000 | 2 | majority | Castillo v. United States | https://www.courtlistener.com/opinion/118373/castillo-v-united-states/ | factors that enhance a sentence, not elements of a separate crime. Hence, it specified that the jury "was not required" to determine whether petitioners used or carried "machineguns" or other enhanced weapons. Rather, it wrote that "[s]hould the district court find on remand that members of the conspiracy actively employed machineguns, it is free to reimpose the 30-year sentence." at On remand, the District Court resentenced petitioners to 30-year terms of imprisonment based on its weapons-related findings. See App. to Pet. for Cert. 119a. The Court of Appeals affirmed. The Federal Courts of Appeals have different views as to whether the statutory word "machinegun" (and similar words appearing in the version of 18 U.S. C. 924(c)(1) here at issue) refers to a sentencing factor to be assessed by the trial court or creates a new substantive crime to be determined by the jury. Compare, e. United with United We granted certiorari to resolve the conflict. II The question before us is whether Congress intended the statutory references to particular firearm types in 924(c)(1) to define a separate crime or simply to authorize an enhanced penalty. If the former, the indictment must identify the firearm type and a jury must find that element proved beyond a reasonable doubt. If the latter, the matter need not be tried before a jury but may be left for the sentencing *124 judge to decide. As petitioners note, our decision in concluded, in a similar situation, that treating facts that lead to an increase in the maximum sentence as a sentencing factor would give rise to significant constitutional questions. See -252. Here, even apart from the doctrine of constitutional doubt, our consideration of 924(c)(1)'s language, structure, context, history, and such other factors as typically help courts determine a statute's objectives, leads us to conclude that the relevant words create a separate substantive crime. First, while the statute's literal language, taken alone, appears neutral, its overall structure strongly favors the "new crime" interpretation. The relevant statutory sentence says: "Whoever, during and in relation to any crime of violence uses or carries a firearm, shall be sentenced to imprisonment for five years, and if the firearm is a machinegun, to imprisonment for thirty years." 924(c)(1). On the one hand, one could read the words "during and in relation to a crime of violence" and "uses or carries a firearm" as setting forth two basic elements of the offense, and the subsequent "machinegun" phrase as merely increasing a defendant's sentence in relevant cases. But, with equal ease, by emphasizing the phrase "if the firearm is a" one can |
Justice Breyer | 2,000 | 2 | majority | Castillo v. United States | https://www.courtlistener.com/opinion/118373/castillo-v-united-states/ | emphasizing the phrase "if the firearm is a" one can read the language as simply substituting the word "machinegun" for the initial word "firearm"; thereby both incorporating by reference the initial phrases that relate the basic elements of the crime and creating a different crime containing one new element, i. e., the use or carrying of a "machinegun" during and in relation to a crime of violence. The statute's structure clarifies any ambiguity inherent in its literal language. The first part of the opening sentence clearly and indisputably establishes the elements of the basic federal offense of using or carrying a gun during and in relation to a crime of violence. See United Congress *125 placed the element "uses or carries a firearm" and the word "machinegun" in a single sentence, not broken up with dashes or separated into subsections. Cf. The next three sentences of 924(c)(1) (which appear after the sentence quoted above (see Appendix, infra )) refer directly to sentencing: the first to recidivism, the second to concurrent sentences, the third to parole. These structural features strongly suggest that the basic job of the entire first sentence is the definition of crimes and the role of the remaining three is the description of factors (such as recidivism) that ordinarily pertain only to sentencin We concede that there are two other structural circumstances that suggest a contrary interpretation. The title of the entirety of 924 is "Penalties"; and in Congress reenacted 924(c)(1), separating different parts of the first sentence (and others) into different subsections, see Pub. L. 5 386, 1(a)(1), In this case, however, the section's title cannot help, for Congress already has determined that at least some portion of 924, including 924(c) itself, creates, not penalty enhancements, but entirely new crimes. See S. Rep. No. 98-225, pp. 312-314 (1984) ("Section 924(c) sets out an offense distinct from the underlying felony and is not simply a penalty provision"); see also ; The title alone does not tell us which are which. Nor can a new postenactment statutory restructuring help us here to determine what Congress intended at the time it enacted the earlier statutory provision that governs this case. See *126 Second, we cannot say that courts have typically or traditionally used firearm types (such as "shotgun" or "machinegun") as sentencing factors, at least not in respect to an underlying "use or carry" crime. See ; see also Traditional sentencing factors often involve either characteristics of the offender, such as recidivism, or special features of the manner in which a basic crime was carried out (e. that the defendant |
Justice Breyer | 2,000 | 2 | majority | Castillo v. United States | https://www.courtlistener.com/opinion/118373/castillo-v-united-states/ | a basic crime was carried out (e. that the defendant abused a position of trust or brandished a gun). See 18 U.S. C. 3553(a)(1) (providing that a sentencing court "shall" consider "the history and characteristics of the defendant" and "the nature and circumstances of the offense"); see also, e. United States Sentencing Commission, Guidelines Manual 4A1.1 (sentence based in part on defendant's criminal history); 3B1.3 (upward adjustment for abuse of position of trust); 5K2.6 (same for use of a dangerous instrumentality). Offender characteristics are not here at issue. And, although one might consider the use of a machinegun, or for that matter a firearm, as a means (or a manner ) in which the offender carried out the more basic underlying crime of violence, the underlying crime of violence is not the basic crime here at issue. Rather, as we have already mentioned, the use or carrying of a firearm is itself a separate substantive crime. See at ; at The Government argues that, conceptually speaking, one can refer to the use of a machinegun as simply a "metho[d]" of committing the underlying "firearms offense." Brief for United States 23. But the difference between carrying, say, a pistol and carrying a machinegun (or, to mention another factor in the same statutory sentence, a "destructive device," i. e., a bomb) is great, both in degree and kind. And, more importantly, that difference concerns the nature of the element *127 lying closest to the heart of the crime at issue. It is not surprising that numerous gun crimes make substantive distinctions between weapons such as pistols and machineguns. See, e. 18 U.S. C. 922(a)(4) (making it unlawful to "transport in interstate or foreign commerce" any "destructive device," "machine gun," or similar type of weapon unless carrier is licensed or authorized, but making no such prohibition for pistols); 922(b)(4) (prohibiting the unauthorized sale or delivery of "machine gun[s]" and similar weapons); 922(o )(1) (making it "unlawful for any person to transfer or possess a machine gun"); 922(v)(1) (making it illegal "to manufacture, transfer, or possess a semiautomatic assault weapon"). And we do not have any indication that legislatures or judges typically have viewed the difference between using a pistol and using a machinegun as insubstantial. Indeed, the fact that (a) the statute at issue prescribes a mandatory penalty for using or carrying a machinegun that is six times more severe than the punishment for using or carrying a mere "firearm," and (b) at least two Courts of Appeals have interpreted 924(c)(1) as setting forth a separate "machinegun" element in relevant cases, see 96 |
Justice Breyer | 2,000 | 2 | majority | Castillo v. United States | https://www.courtlistener.com/opinion/118373/castillo-v-united-states/ | forth a separate "machinegun" element in relevant cases, see 96 F. 3d, at ; Judicial Committee on Model Jury Instructions for the Eighth Circuit, Manual of Model Criminal Jury Instructions ¶ 6.18.924C (1997 ed.), in L. Sand, J. Siffert, W. Loughlin, & S. Reiss, Modern Federal Jury Instructions: Criminal Pattern Instructions, p. 8-153 points to the conclusion that the difference between the act of using or carrying a "firearm" and the act of using or carrying a "machinegun" is both substantive and substantiala conclusion that supports a "separate crime" interpretation. Third, to ask a jury, rather than a judge, to decide whether a defendant used or carried a machinegun would rarely complicate a trial or risk unfairness. Cf. -235 As a practical matter, in determining whether a defendant used or carried a "firearm," *128 the jury ordinarily will be asked to assess the particular weapon at issue as well as the circumstances under which it was allegedly used. Furthermore, inasmuch as the prosecution's case under 924(c) usually will involve presenting a certain weapon (or weapons) to the jury and arguing that the defendant used or carried that weapon during a crime of violence within the meaning of the statute, the evidence is unlikely to enable a defendant to respond both (1) "I did not use or carry any firearm," and (2) "even if I did, it was a pistol, not a machinegun." Hence, a rule of law that makes it difficult to make both claims at the same time to the same decisionmaker (the jury) will not often prejudice a defendant's case. At the same time, a contrary ruleone that leaves the machinegun matter to the sentencing judgemight unnecessarily produce a conflict between the judge and the jury. That is because, under our case law interpreting the statute here at issue, a jury may well have to decide which of several weapons the defendant actively used, rather than passively possessed. See 516 U. S., at And, in such a case, the sentencing judge will not necessarily know which "firearm" supports the jury's determination. Under these circumstances, a judge's later, sentencing-related decision that the defendant used the machinegun, rather than, say, the pistol, might conflict with the jury's belief that he actively used the pistol, which factual belief underlay its firearm "use" conviction. Cf. at 1234- There is no reason to think that Congress would have wanted a judge's views to prevail in a case of so direct a factual conflict, particularly when the sentencing judge applies a lower standard of proof and when 25 additional years in prison are at |
Justice Breyer | 2,000 | 2 | majority | Castillo v. United States | https://www.courtlistener.com/opinion/118373/castillo-v-united-states/ | proof and when 25 additional years in prison are at stake. *129 Fourth, the Government argues that the legislative history of the statute favors interpreting 924(c) as setting forth sentencing factors, not elements. It points out that 924(c), as originally enacted, provided a mandatory minimum prison term of at least one year (up to a maximum of years) where a person (1) "use[d] a firearm to commit any felony," or (2) "carr[ied] a firearm unlawfully during the commission of any felony." Gun Control Act of 1968, 2, ; see also Omnibus Crime Control Act of 1970, 13, In 1984, Congress amended the law, eliminating the range of permissible penalties, setting a mandatory prison term of five years, and specifying that that term was to be added on top of the prison term related to the underlying "crime of violence," including statutory sentences that imposed certain other weapons-related enhancements. See Comprehensive Crime Control Act of 1984, 05(a), In 1986, Congress again amended the law by providing for a -year mandatory prison term (20 years for subsequent offenses) "if the firearm is a machinegun, or is equipped with a firearm silencer or firearm muffler." Firearms Owners' Protection Act, 4(a)(2), 0 Stat. 456. In 1988, Congress changed the provision to its here-relevant form. Anti-Drug Abuse Act of 1988, 6460, 2 Stat. 4373. The Government finds three features of the history surrounding the enactment of the key 1986 version of the statute significant. First, the House Report spoke in terms of a sentence, not an offense. The Report stated, for example, that the relevant bill would create "a new mandatory prison term of ten years for using or carrying a machine gun during and in relation to a crime of violence or a drug trafficking offense for a first offense, and twenty years for a subsequent offense." H. R. Rep. No. 99-495, p. 28 (1986); see also Second, statements of the bill's sponsors and supporters on the floor of the House also spoke in terms of sentencing, noting, for example, that the proposed law "imposes mandatory prison terms on those [who] would use a machinegun in the commission of a violent offense." 132 Con Rec. 3809 (1986) (statement of Rep. Hughes); see also, e. (bill "includes stiff mandatory sentences for the use of firearms, including machineguns and silencers, in relation to violent or drug trafficking crimes"); (machinegun clause "strengthen[s] criminal penalties"); (proposed law "would have many benefits, including the expansion of mandatory sentencing to those persons who use a machinegun in the commission of a violent crime"). Third, and similarly, "any discussion suggesting the |
Justice Breyer | 2,000 | 2 | majority | Castillo v. United States | https://www.courtlistener.com/opinion/118373/castillo-v-united-states/ | a violent crime"). Third, and similarly, "any discussion suggesting the creation of a new offense" was "[n]oticeably absent" from the legislative record. ; Brief for United States 36. Insofar as this history may be relevant, however, it does not significantly help the Government. That is because the statute's basic "uses or carries a firearm" provision also dealt primarily with sentencing, its pre-eminent feature consisting of the creation of a new mandatory term of imprisonment additional to that for the underlying crime of violence. Cf. ; In this context, the absence of "separate offense" statements means little, and the "mandatory sentencing" statements to which the Government points show only that Congress believed that the "machinegun" and "firearm" provisions would work similarly. Indeed, the legislative statements that discuss a new prison term for the act of "us[ing] a machine gun," see, e. this page, seemingly describe offense conduct, and, thus, argue against (not for ) the Government's position. *131 Fifth and finally, the length and severity of an added mandatory sentence that turns on the presence or absence of a "machinegun" (or any of the other listed firearm types) weighs in favor of treating such offense-related words as referring to an element. Thus, if after considering traditional interpretive factors, we were left genuinely uncertain as to Congress' intent in this regard, we would assume a preference for traditional jury determination of so important a factual matter. Cf. ; United ; United U.S. 336, These considerations, in our view, make this a stronger "separate crime" case than either or AlmendarezTorres cases in which we were closely divided as to Congress' likely intent. For the reasons stated, we believe that Congress intended the firearm type-related words it used in 924(c)(1) to refer to an element of a separate, aggravated crime. Accordingly, we reverse the contrary determination of the Court of Appeals and remand the case for proceedings consistent with this opinion. It is so ordered. APPENDIX TO OPINION OF THE COURT " 924. Penalties. "(c)(1) Whoever, during and in relation to any crime of violence or drug trafficking crime (including a crime of violence or drug trafficking crime which provides for an enhanced punishment if committed by the use of a deadly or dangerous weapon or device) for which he may be prosecuted in a court of the United States, uses or carries a firearm, shall, in addition to the punishment provided for such crime of violence or drug trafficking crime, be sentenced to imprisonment for *132 five years, and if the firearm is a short-barreled rifle [or a] short-barreled shotgun to imprisonment for |
Justice Breyer | 2,000 | 2 | majority | Castillo v. United States | https://www.courtlistener.com/opinion/118373/castillo-v-united-states/ | a short-barreled rifle [or a] short-barreled shotgun to imprisonment for ten years, and if the firearm is a machinegun, or a destructive device, or is equipped with a firearm silencer or firearm muffler, to imprisonment for thirty years. In the case of his second or subsequent conviction under this subsection, such person shall be sentenced to imprisonment for twenty years, and if the firearm is a machinegun, or a destructive device, or is equipped with a firearm silencer or firearm muffler, to life imprisonment without release. Notwithstanding any other provision of law, the court shall not place on probation or suspend the sentence of any person convicted of a violation of this subsection, nor shall the term of imprisonment imposed under this subsection run concurrently with any other term of imprisonment including that imposed for the crime of violence or drug trafficking crime in which the firearm was used or carried. No person sentenced under this subsection shall be eligible for parole during the term of imprisonment imposed herein." 18 U.S. C. 924(c)(1) (1988 ed., Supp. V) (footnote omitted). |
Justice Kennedy | 2,011 | 4 | concurring | Ashcroft v. al-Kidd | https://www.courtlistener.com/opinion/217703/ashcroft-v-al-kidd/ | I join the opinion of the Court in full. In holding that the Attorney General could be liable for damages based on an unprecedented constitutional rule, the Court of Appeals for the Ninth Circuit disregarded the purposes of the doc trine of qualified immunity. This concurring opinion makes two additional observations. I The Court’s holding is limited to the arguments pre sented by the parties and leaves unresolved whether the Government’s use of the Material Witness Statute in this case was lawful. See ante, at 8 (noting that al-Kidd “does not assert that his arrest would have been unconstitu tional absent the alleged pretextual use of the warrant”). Under the statute, a Magistrate Judge may issue a war rant to arrest someone as a material witness upon a show ing by affidavit that “the testimony of a person is material in a criminal proceeding” and “that it may become imprac ticable to secure the presence of the person by subpoena.” 18 U.S. C. The scope of the statute’s lawful authorization is uncertain. For example, a law-abiding citizen might observe a crime during the days or weeks 2 ASHCROFT v. AL-KIDD KENNEDY, J., concurring before a scheduled flight abroad. It is unclear whether those facts alone might allow police to obtain a material witness warrant on the ground that it “may become im practicable” to secure the person’s presence by subpoena. The question becomes more difficult if one further assumes the traveler would be willing to testify if asked; and more difficult still if one supposes that authorities delay obtaining or executing the warrant until the traveler has arrived at the airport. These possibilities resemble the facts in this case. See ante, at 2. In considering these issues, it is important to bear in mind that the Material Witness Statute might not provide for the issuance of warrants within the meaning of the Fourth Amendment’s Warrant Clause. The typical arrest warrant is based on probable cause that the arrestee has committed a crime; but that is not the standard for the issuance of warrants under the Material Witness Statute. See ante, at 11 (reserving the possibility that probable cause for purposes of the Fourth Amendment’s Warrant Clause means “only probable cause to suspect a violation of law”). If material witness warrants do not qualify as “Warrants” under the Fourth Amendment, then material witness arrests might still be governed by the Fourth Amendment’s separate reasonableness requirement for seizures of the person. See United States v. Watson, 423 U.S. 411 (1976). Given the difficulty of these issues, the Court is correct to address |
Justice Kennedy | 2,011 | 4 | concurring | Ashcroft v. al-Kidd | https://www.courtlistener.com/opinion/217703/ashcroft-v-al-kidd/ | difficulty of these issues, the Court is correct to address only the legal theory put before it, without further exploring when material witness ar rests might be consistent with statutory and constitutional requirements. II The fact that the Attorney General holds a high office in the Government must inform what law is clearly estab lished for the purposes of this case. Some federal officers perform Cite as: 563 U. S. (2011) 3 KENNEDY, J., concurring their functions in a single jurisdiction, say within the con fines of one State or one federal judicial district. They “reasonably can anticipate when their conduct may give rise to liability for damages” and so are expected to adjust their behavior in accordance with local precedent. Davis v. Scherer, ; see also Anderson v. Creighton, In contrast the Attorney General occupies a national office and so sets policies implemented in many jurisdictions throughout the country. The official with responsibilities in many juris dictions may face ambiguous and sometimes inconsistent sources of decisional law. While it may be clear that one Court of Appeals has approved a certain course of conduct, other Courts of Appeals may have disapproved it, or at least reserved the issue. When faced with inconsistent legal rules in different jurisdictions, national officeholders should be given some deference for qualified immunity purposes, at least if they implement policies consistent with the governing law of the jurisdiction where the action is taken. As we have explained, qualified immunity is lost when plaintiffs point either to “cases of controlling authority in their jurisdic tion at the time of the incident” or to “a consensus of cases of persuasive authority such that a reasonable officer could not have believed that his actions were lawful.” ; see also ante, at 9–10. These standards ensure the officer has “fair and clear warning” of what the Constitution requires. United A national officeholder intent on retaining qualified immunity need not abide by the most stringent standard adopted anywhere in the United States. And the national officeholder need not guess at when a relatively small set of appellate precedents have established a binding legal rule. If national officeholders were subject to personal liability whenever they confronted disagreement among 4 ASHCROFT v. AL-KIDD KENNEDY, J., concurring appellate courts, those officers would be deterred from full use of their legal authority. The consequences of that deterrence must counsel caution by the Judicial Branch, particularly in the area of national security. See Ashcroft v. Iqbal, 556 U. S. (slip op., at 21). Fur thermore, too expansive a view of “clearly established law” would risk |
Justice Kennedy | 2,011 | 4 | concurring | Ashcroft v. al-Kidd | https://www.courtlistener.com/opinion/217703/ashcroft-v-al-kidd/ | too expansive a view of “clearly established law” would risk giving local judicial determinations the effect of rules with de facto national significance, contrary to the normal process of ordered appellate review. The proceedings in this case illustrate these concerns. The Court of Appeals for the Ninth Circuit appears to have reasoned that a Federal District Court sitting in New York had authority to establish a legal rule binding on the Attorney General and, therefore, on federal law enforcement operations conducted nationwide. See 580 F.3d 949, 972–973 Indeed, this case involves a material witness warrant issued in Boise, Idaho, and an arrest near Washington, D. C. Of course, district court decisions are not precedential to this extent. Ante, at 9– 10. But nationwide security operations should not have to grind to a halt even when an appellate court finds those operations unconstitutional. The doctrine of qualified immunity does not so constrain national officeholders entrusted with urgent responsibilities. Cite as: 563 U. S. (2011) 1 GINSBURG, J., concurring in judgment SUPREME COURT OF THE UNITED STATES No. 10–98 JOHN D. ASHCROFT, PETITIONER v. ABDULLAH AL-KIDD ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT [May 31, 2011] JUSTICE GINSBURG, with whom JUSTICE BREYER and JUSTICE SOTOMAYOR join, concurring in the judgment. Is a former U. S. Attorney General subject to a suit for damages on a claim that he instructed subordinates to use the Material Witness Statute, 18 U.S. C. as a pretext to detain terrorist suspects preventively? Given I agree with the Court that no “clearly established law” renders Ashcroft answerable in damages for the abuse of authority al-Kidd charged. Ante, at 12. But I join JUSTICE SOTOMAYOR in objecting to the Court’s disposition of al- Kidd’s Fourth Amendment claim on the merits; as she observes, post, at 1 (opinion concurring in judgment), that claim involves novel and trying questions that will “have no effect on the outcome of th[is] case.” In addressing al-Kidd’s Fourth Amendment claim against Ashcroft, the Court assumes at the outset the existence of a validly obtained material witness warrant. Ante, at 1, 12. That characterization is puzzling. See post, at 2 (opinion of SOTOMAYOR, J.).1 Is a warrant “validly —————— 1 Nowhere in al-Kidd’s complaint is there any concession that the warrant gained by the FBI agents was validly obtained. But cf. ante, at 8, n. 3 (majority opinion). 2 ASHCROFT v. AL-KIDD GINSBURG, J., concurring in judgment obtained” when the affidavit on which it is based fails to inform the issuing Magistrate Judge that “the Govern ment has |
Justice Kennedy | 2,011 | 4 | concurring | Ashcroft v. al-Kidd | https://www.courtlistener.com/opinion/217703/ashcroft-v-al-kidd/ | inform the issuing Magistrate Judge that “the Govern ment has no intention of using [al-Kidd as a witness] at [another’s] trial,” post, at 1, and does not disclose that al- Kidd had cooperated with FBI agents each of the several times they had asked to interview him, App. 26? Casting further doubt on the assumption that the war rant was validly obtained, the Magistrate Judge was not told that al-Kidd’s parents, wife, and children were all citizens and residents of the United States. In addition, the affidavit misrepresented that al-Kidd was about to take a one-way flight to Saudi Arabia, with a first-class ticket costing approximately $5,000; in fact, al-Kidd had a round-trip, coach-class ticket that cost $1,700.2 Given these omissions and misrepresentations, there is strong cause to question the Court’s opening assumption—a valid material-witness warrant—and equally strong reason to conclude that a merits determination was neither neces sary nor proper.3 —————— 2 Judicial officers asked to issue material witness warrants must determine whether the affidavit supporting the application shows that “the testimony of a person is material in a criminal proceeding” and that “it may become impracticable to secure the presence of the person by subpoena.” 18 U.S. C. Even if these conditions are met, issuance of the warrant is discretionary. (“judicial officer may order the arrest of the person” (emphasis added)). Al-Kidd’s experience illustrates the importance of vigilant exercise of this checking role by the judicial officer to whom the warrant application is presented. The affidavit used to secure al-Kidd’s detention was spare; it did not state with particularity the information al-Kidd purportedly possessed, nor did it specify how al-Kidd’s knowledge would be material to Sami Omar al-Hussayen’s prosecution. As to impracticability, the affidavit contained only this unelaborated statement: “It is believed that if Al- Kidd travels to Saudi Arabia, the United States Government will be unable to secure his presence at trial via subpoena.” App. 64. Had the Magistrate Judge insisted on more concrete showings of materiality and impracticability, al-Kidd might have been spared the entire ordeal. 3 The Court thrice states that the material witness warrant for al Cite as: 563 U. S. (2011) 3 GINSBURG, J., concurring in judgment —————— Kidd’s arrest was “based on individualized suspicion.” Ante, at 6, 8. The word “suspicion,” however, ordinarily indicates that the person suspected has engaged in wrongdoing. See Black’s Law Dictionary 1585 (defining “reasonable suspicion” to mean “[a] par ticularized and objective basis, supported by specific and articulable facts, for suspecting a person of criminal activity”). Material witness status does not “involv[e] suspicion, or lack of suspicion,” |
Justice Kennedy | 2,011 | 4 | concurring | Ashcroft v. al-Kidd | https://www.courtlistener.com/opinion/217703/ashcroft-v-al-kidd/ | witness status does not “involv[e] suspicion, or lack of suspicion,” of the individ ual so identified. See This Court’s decisions, until today, have uniformly used the term “individualized suspicion” to mean “individualized suspicion of wrong doing.” See (emphasis added); See also, e.g., Brigham (referring to “programmatic searches conducted without individualized suspicion— such as checkpoints to combat drunk driving or drug trafficking”); Board of Ed. of Independent School Dist. No. 92 of Pottawatomie Cty. v. Earls, (“finding of individualized suspicion may not be necessary when a school conducts drug testing”); Whren v. United States, (observed traffic violations give rise to individualized suspicion); Michigan Dept. of State Police v. Sitz, (“Detention of particular motorists for more extensive field sobriety testing may require satisfaction of an individualized suspicion standard.”); 334–335, n. 2 ] requires reasonable, individualized suspicion before a frisk for weapons can be conducted.”); Treasury (1989) (“[I]n certain limited circumstances, the Government’s need to discover latent or hidden conditions, or to prevent their develop ment, is sufficiently compelling to justify [search that intrudes] on privacy without any measure of individualized suspicion.”); (“petitioners had an ‘individualized suspicion’ of misconduct by Dr. Ortega”); United States v. Montoya de Hernandez, (“Automotive travelers may be stopped at fixed checkpoints near the border without individualized suspicion”); New 342, n. 8 (“the search of T. L. O.’s purse was based upon an individualized suspicion that she had violated school rules”); Michi (“police executing a search warrant at a tavern could not frisk a patron unless the officers had individualized suspicion that the patron might be armed or dangerous”). The Court’s suggestion that the term “individualized suspicion” is more commonly associated with “know[ing] something about [a] crime” 4 ASHCROFT v. AL-KIDD GINSBURG, J., concurring in judgment I also agree with JUSTICE KENNEDY that al-Kidd’s treatment presents serious questions, unaddressed by the Court, concerning “the [legality of] the Government’s use of the Material Witness Statute in this case.” Ante, at 1 (concurring opinion). In addition to the questions JUSTICE KENNEDY poses, and even if the initial material witness classification had been proper, what even arguably legiti mate basis could there be for the harsh custodial condi tions to which al-Kidd was subjected: Ostensibly held only to secure his testimony, al-Kidd was confined in three different detention centers during his 16 days’ incarcera tion, kept in high-security cells lit 24 hours a day, strip searched and subjected to body-cavity inspections on more than one occasion, and handcuffed and shackled about his wrists, legs, and waist. App. 29–36; cf. Bell v. Wolfish, 441 U.S. 520, 539, n. 20 (1979) (“[L]oading a detainee |
Justice Kennedy | 2,011 | 4 | concurring | Ashcroft v. al-Kidd | https://www.courtlistener.com/opinion/217703/ashcroft-v-al-kidd/ | 441 U.S. 520, 539, n. 20 (1979) (“[L]oading a detainee with chains and shackles and throwing him in a dungeon may ensure his presence at trial and preserve the security of the institution. But it would be difficult to conceive of a situation where conditions so harsh, employed to achieve objectives that could be accomplished in so many alterna tive and less harsh methods, would not support a conclu sion that the purpose for which they were imposed was to punish.”). However circumscribed al-Kidd’s Bivens claim against Ashcroft may have been, see ; ante, at 8 (majority opinion); ante, at 1 (KENNEDY, J., concurring), his remain —————— or “throwing a surprise birthday party” than with criminal suspects, ante, at 6, n. 2 (internal quotation marks omitted), is hardly credible. The import of the term in legal argot is not genuinely debatable. When the evening news reports that a murder “suspect” is on the loose, the viewer is meant to be on the lookout for the perpetrator, not the wit ness. Ashcroft understood the term as lawyers commonly do: He spoke of detaining material witnesses as a means to “tak[e] suspected terror ists off the street.” App. 41 (internal quotation marks omitted). Cite as: 563 U. S. (2011) 5 GINSBURG, J., concurring in judgment ing claims against the FBI agents who apprehended him invite consideration of the issues JUSTICE KENNEDY iden tified.4 His challenges to the brutal conditions of his confinement have been settled. But his ordeal is a grim reminder of the need to install safeguards against disre spect for human dignity, constraints that will control officialdom even in perilous times. —————— 4 The District Court determined that al-Kidd’s factual allegations against FBI agents regarding their “misrepresentations and omissions in the warrant application, if true, would negate the possibility of qualified immunity [for those agents].” Memorandum Order in No. cv:05–093 p. 18. The agents took no appeal from this threshold denial of their qualified immunity plea. Cite as: 563 U. S. (2011) 1 SOTOMAYOR, J., concurring in judgment SUPREME COURT OF THE UNITED STATES No. 10–98 JOHN D. ASHCROFT, PETITIONER v. ABDULLAH AL-KIDD ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT [May 31, 2011] JUSTICE SOTOMAYOR, with whom JUSTICE GINSBURG and JUSTICE BREYER join, concurring in the judgment. I concur in the Court’s judgment reversing the Court of Appeals because I agree with the majority’s conclusion that Ashcroft did not violate clearly established law. I cannot join the majority’s opinion, however, because it unnecessarily “resolve[s] [a] difficult and novel questio[n] of constitutional interpretation |
Justice Kennedy | 2,011 | 4 | concurring | Ashcroft v. al-Kidd | https://www.courtlistener.com/opinion/217703/ashcroft-v-al-kidd/ | unnecessarily “resolve[s] [a] difficult and novel questio[n] of constitutional interpretation that will ‘have no effect on the outcome of the case.’ ” Ante, at 3 ). Whether the Fourth Amendment permits the pretextual use of a material witness warrant for preventive detention of an individual whom the Government has no intention of using at trial is, in my view, a closer question than the majority’s opinion suggests. Although the majority is correct that a government official’s subjective intent is generally “irrelevant in determining whether that officer’s actions violate the Fourth Amendment,” none of our prior cases recognizing that principle involved prolonged deten tion of an individual without probable cause to believe he had committed any criminal offense. We have never considered whether an official’s subjective intent matters for purposes of the Fourth Amendment in that novel con text, and we need not and should not resolve that question 2 ASHCROFT v. AL-KIDD SOTOMAYOR, J., concurring in judgment in this case. All Members of the Court agree that, what ever the merits of the underlying Fourth Amendment question, Ashcroft did not violate clearly established law. The majority’s constitutional ruling is a narrow one pre mised on the existence of a “valid material-witness war ran[t],” ante, at 1—a premise that, at the very least, is questionable in light of the allegations set forth in al- Kidd’s complaint. Based on those allegations, it is not at all clear that it would have been “impracticable to secure [al-Kidd’s] presence by subpoena” or that his testimony could not “adequately be secured by deposition.” 18 U.S. C. see First Amended Complaint in No. 05– 093–EJL, ¶55, App. 26 (“Mr. al-Kidd would have complied with a subpoena had he been issued one or agreed to a deposition”). Nor is it clear that the affidavit supporting the warrant was sufficient; its failure to disclose that the Government had no intention of using al-Kidd as a wit ness at trial may very well have rendered the affidavit deliberately false and misleading. Cf. The majority assumes away these factual difficulties, but in my view, they point to the artificiality of the way the Fourth Amendment question has been presented to this Court and provide further reason to avoid rendering an unnecessary holding on the constitutional question. I also join Part I of JUSTICE KENNEDY’s concurring opinion. As that opinion makes clear, this case does not present an occasion to address the proper scope of the material witness statute or its constitutionality as applied in this case. Indeed, nothing in the majority’s opinion today should be read as placing this Court’s |
Justice Kagan | 2,020 | 3 | majority | Allen v. Cooper | https://www.courtlistener.com/opinion/4738313/allen-v-cooper/ | In two basically identical statutes passed in the early 1990s, Congress sought to strip the States of their sovereign immunity from patent and copyright infringement suits. Not long after, this Court held in Florida Prepaid Postsec- ondary Ed. Expense 527 U.S. 627 (1999), that the patent statute lacked a valid constitu- tional basis. Today, we take up the copyright statute. We find that our decision in Florida Prepaid compels the same conclusion. I In 1717, the pirate Edward Teach, better known as Blackbeard, captured a French slave ship in the West In- dies and renamed her Queen Anne’s Revenge. The vessel became his flagship. Carrying some 40 cannons and 300 men, the Revenge took many prizes as she sailed around the Caribbean and up the North American coast. But her reign over those seas was short-lived. In 1718, the ship ran aground on a sandbar a mile off Beaufort, North Carolina. Blackbeard and most of his crew escaped out 2 ALLEN v. COOPER Opinion of the Court Not so the Revenge. She sank beneath the waters, where she lay undisturbed for nearly 300 years. In 1996, a marine salvage company named Intersal, Inc., discovered the shipwreck. Under federal and state law, the wreck belongs to North Carolina. See 43 U.S. C. N. C. Gen. Stat. Ann. (2019). But the State contracted Intersal to take charge of the recovery activities. Intersal in turn retained petitioner Frederick Allen, a local videographer, to document the op- eration. For over a decade, Allen created videos and photos of divers’ efforts to salvage the Revenge’s guns, anchors, and other remains. He registered copyrights in all those works. This suit arises from North Carolina’s publication of some of Allen’s videos and photos. Allen first protested in 2013 that the State was infringing his copyrights by uploading his work to its website out permission. To address that allegation, North Carolina agreed to a settlement paying Allen $15,000 and laying out the parties’ respective rights to the materials. But Allen and the State soon found them- selves embroiled in another dispute. Allen complained that North Carolina had impermissibly posted five of his videos online and used one of his photos in a newsletter. When the State declined to admit wrongdoing, Allen filed this action in Federal District Court. It charges the State copy- right infringement (call it a modern form of piracy) and seeks money damages. North Carolina moved to dismiss the suit on the ground of sovereign It invoked the general rule that fed- eral courts cannot hear suits brought by individuals against nonconsenting States. See State |
Justice Kagan | 2,020 | 3 | majority | Allen v. Cooper | https://www.courtlistener.com/opinion/4738313/allen-v-cooper/ | hear suits brought by individuals against nonconsenting States. See State Defendants’ Memoran- dum in No. 15–627 (EDNC), Doc. 50, p. 7. But Allen re- sponded that an exception to the rule applied because Con- gress had abrogated the States’ sovereign immunity from suits like his. See Plaintiffs’ Response, Doc. 57, p. 7. The Copyright Remedy Clarification Act of 1990 (CRCA or Act) Cite as: 589 U. S. (2020) 3 Opinion of the Court provides that a State “shall not be immune, under the Elev- enth Amendment [or] any other doctrine of sovereign im- munity, from suit in Federal court” for copyright infringe- ment. 17 U.S. C. And the Act specifies that in such a suit a State will be liable, and subject to remedies, “in the same manner and to the same extent as” a private party. see That meant, Allen contended, that his suit against North Carolina could go forward. The District Court agreed. Quoting the CRCA’s text, the court first found that “Congress has stated clearly its intent to abrogate sovereign immunity for copyright claims against a state.” And that abrogation, the court next held, had a proper con- stitutional basis. Florida Prepaid and other precedent, the District Court acknowledged, precluded Congress from using its Article I powers—including its authority over copyrights—to take away a State’s sovereign See But in the court’s view, Florida Prepaid left open an alternative route to abrogation. Given the States’ “pattern” of “abus[ive]” copyright infringement, the court held, Congress could accomplish its object under Section 5 of the Fourteenth Amendment. 244 F. Supp. 3d, 35. On interlocutory appeal, the Court of Appeals for the Fourth Circuit reversed. It read Florida Prepaid to prevent recourse to Section 5 no less than to Article I. A Section 5 abrogation, the Fourth Circuit explained, must be “congru- ent and proportional” to the Fourteenth Amendment injury —————— 1 The CRCA served as the model for the Patent and Plant Variety Pro- tection Clarification Act (Patent Remedy Act), passed two years later (and repudiated by this Court in Florida Prepaid, see ). Using the same language, the latter statute provided that a State “shall not be immune, under the [E]leventh [A]mendment [or] any other doctrine of sovereign immunity, from suit in Federal court” for patent infringement. And so too, the statute specified that in such a suit, a State will be liable, and subject to remedies, “in the same manner and to the same extent as” a private party. 4 Florida Pre- paid had applied that principle to reject Congress’s at- tempt, in the Patent Remedy Act, to |
Justice Kagan | 2,020 | 3 | majority | Allen v. Cooper | https://www.courtlistener.com/opinion/4738313/allen-v-cooper/ | reject Congress’s at- tempt, in the Patent Remedy Act, to abolish the States’ im- munity from patent infringement suits. See 527 U.S., at 630. In the Fourth Circuit’s view, nothing distinguished the CRCA. That abrogation, the court reasoned, was “equally broad” and rested on a “similar legislative record” of constitutional So Section 5 could not save the law. Because the Court of Appeals held a federal statute inva- lid, this Court granted certiorari. 587 U. S. (2019). We now affirm. II In our constitutional scheme, a federal court generally may not hear a suit brought by any person against a non- consenting State. That bar is nowhere explicitly set out in the Constitution. The text of the Eleventh Amendment (the single most relevant provision) applies only if the plaintiff is not a citizen of the defendant State.2 But this Court has long understood that Amendment to “stand not so much for what it says” as for the broader “presupposition of our con- stitutional structure which it confirms.” That premise, the Court has explained, has several parts. First, “each State is a sovereign entity in our federal system.” Seminole of Next, “[i]t is inherent in the nature of sovereignty not to be amenable to [a] suit” absent consent. at n. 13 (quot- ing The Federalist No. 81, p. 487 (C. Rossiter ed. 1961) (A. Hamilton)). And last, that fundamental aspect of sover- eignty constrains federal “judicial authority.” Blatchford, —————— 2 The Eleventh Amendment reads: “The Judicial Power of the United States shall not be construed to extend to any suit in law or equity, com- menced or prosecuted against one of the United States by Citizens of an- other State, or by Citizens or Subjects of any Foreign State.” Cite as: 589 U. S. (2020) 5 Opinion of the Court 501 U.S., at But not entirely. This Court has permitted a federal court to entertain a suit against a nonconsenting State on two conditions. First, Congress must have enacted “un- equivocal statutory language” abrogating the States’ im- munity from the suit. Seminole (in- ternal quotation marks omitted); see Dellmuth v. Muth, 491 U.S. 223, 228 (1989) (requiring Congress to “mak[e] its in- tention unmistakably clear”). And second, some constitu- tional provision must allow Congress to have thus en- croached on the States’ sovereignty. Not even the most crystalline abrogation can take effect unless it is “a valid exercise of constitutional authority.” No one here disputes that Congress used clear enough language to abrogate the States’ immunity from copyright infringement suits. As described above, the CRCA provides that States “shall not be |
Justice Kagan | 2,020 | 3 | majority | Allen v. Cooper | https://www.courtlistener.com/opinion/4738313/allen-v-cooper/ | described above, the CRCA provides that States “shall not be immune” from those actions in fed- eral court. see at 2–3. And the Act specifies that a State stands in the identical position as a private defendant—exposed to liability and remedies “in the same manner and to the same extent.” see So there is no doubt what Congress meant to accomplish. In- deed, this Court held in Florida Prepaid that the essentially verbatim provisions of the Patent Remedy Act “could not have [made] any clearer” Congress’s intent to remove the States’ The contested question is whether Congress had author- ity to take that step. Allen maintains that it did, under ei- ther of two constitutional provisions. He first points to the clause in Article I empowering Congress to provide copy- right protection. If that fails, he invokes Section 5 of the Fourteenth Amendment, which authorizes Congress to “en- force” the commands of the Due Process Neither contention can succeed. The slate on which we write today is anything but clean. Florida Prepaid, along other 6 ALLEN v. COOPER Opinion of the Court precedent, forecloses each of Allen’s arguments. A Congress has power under Article I “[t]o promote the Pro- gress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” cl. 8. That provision—call it the Intellectual Property Clause—enables Congress to grant both copyrights and patents. And the monopoly rights so given impose a corresponding duty (i.e., not to infringe) on States no less than private parties. See 412 U.S. 6, In Allen’s view, Congress’s authority to abrogate sover- eign immunity from copyright suits naturally follows. Abrogation is the single best—or maybe, he says, the only— way for Congress to “secur[e]” a copyright holder’s “exclu- sive Right[s]” as against a State’s intrusion. See Brief for Petitioners 20 (quoting Art. I, cl. 8). So, Allen contends, the authority to take that step must fall in the Article I grant of power to protect intellectual property. The problem for Allen is that this Court has already re- jected his theory. The Intellectual Property Clause, as just noted, covers copyrights and patents alike. So it was the first place the Florida Prepaid Court looked when deciding whether the Patent Remedy Act validly stripped the States of immunity from infringement suits. In doing so, we acknowledged the reason for Congress to put “States on the same footing as private parties” in patent litigation. 527 U.S., It was, just as Allen says here, to ensure “uni- form, surefire protection” of intellectual property. |
Justice Kagan | 2,020 | 3 | majority | Allen v. Cooper | https://www.courtlistener.com/opinion/4738313/allen-v-cooper/ | here, to ensure “uni- form, surefire protection” of intellectual property. Reply Brief 10. That was a “proper Article I concern,” we allowed. But still, we said, Congress could not use its Article I power over patents to remove the States’ im- munity. We based that conclusion on Seminole v. Florida, decided three years earlier. There, the Court had held that “Article I cannot be used to circumvent” the limits Cite as: 589 U. S. (2020) 7 Opinion of the Court sovereign immunity “place[s] upon federal jurisdiction.” That proscription ended the matter. Be- cause Congress could not “abrogate state sovereign immun- ity [under] Article I,” Florida Prepaid explained, the Intel- lectual Property Clause could not support the Patent Remedy And to extend the point to this case: if not the Patent Remedy Act, not its copyright equivalent either, and for the same reason. Here too, the power to “secur[e ]” an intellectual property owner’s “exclu- sive Right” under Article I stops when it runs into sovereign cl. 8. Allen claims, however, that a later case offers an exit ramp from Florida Prepaid. In Central Va. Community 6 U.S. 356, we held that Ar- ticle I’s Bankruptcy Clause enables Congress to subject nonconsenting States to bankruptcy proceedings (there, to recover a preferential transfer). We thus exempted the Bankruptcy Clause from Seminole ’s general rule that Article I cannot justify haling a State into federal court. In bankruptcy, we decided, sovereign immunity has no place. But if that is true, Allen asks, why not say the same thing here? Allen reads Katz as “adopt[ing] a clause-by-clause approach to evaluating whether a particular clause of Arti- cle I” allows the abrogation of sovereign Brief for Petitioners 20. And he claims that the Intellectual Prop- erty Clause “supplies singular warrant” for Congress to take that step. That is so, Allen reiterates, because “Congress could not ‘secur[e]’ authors’ ‘exclusive Right’ to their works if [it] were powerless” to make States pay for infringing But everything in Katz is about and limited to the Bank- ruptcy Clause; the opinion reflects what might be called bankruptcy exceptionalism. In part, Katz rested on the “singular nature” of bankruptcy jurisdiction. 6 U.S., at 369, n. 9. That jurisdiction is, and was at the Founding, “principally in rem”—meaning that it is “premised on the 8 ALLEN v. COOPER Opinion of the Court debtor and his estate, and not on the creditors” (including a State). –370 (internal quotation marks omitted). For that reason, we thought, “it does not implicate States’ sovereignty to nearly the same degree as other kinds of ju- risdiction.” |
Justice Kagan | 2,020 | 3 | majority | Allen v. Cooper | https://www.courtlistener.com/opinion/4738313/allen-v-cooper/ | nearly the same degree as other kinds of ju- risdiction.” In remaining part, Katz focused on the Bankruptcy Clause’s “unique history.” The Clause emerged from a felt need to curb the States’ au- thority. The States, we explained, “had wildly divergent schemes” for discharging debt, and often “refus[ed] to re- spect one another’s discharge orders.” “[T]he Framers’ primary goal” in adopting the Clause was to address that problem—to stop “competing sovereigns[ ]” from interfering a debtor’s discharge. And in that project, the Framers intended federal courts to play a leading role. The nation’s first Bankruptcy Act, for exam- ple, empowered those courts to order that States release people they were holding in debtors’ prisons. See So through and through, we thought, the Bankruptcy Clause embraced the idea that federal courts could impose on state sovereignty. In that, it was sui generis—again, “unique”—among Article I’s grants of authority. n. 9. Indeed, Katz’s view of the Bankruptcy Clause had a yet more striking aspect, which further separates it from any other. The Court might have concluded from its analysis that the Clause allows Congress to abrogate the States’ sov- ereign immunity (as Allen argues the Intellectual Property Clause does). But it did not; it instead went further. Rely- ing on the above account of the Framers’ intentions, the Court found that the Bankruptcy Clause itself did the abro- gating. (“[T]he relevant ‘abrogation’ is the one effected in the plan of the [Constitutional] Convention”). Or stated another way, we decided that no congressional abro- gation was needed because the States had already “agreed in the plan of the Convention not to assert any sovereign immunity defense” in bankruptcy proceedings. Cite as: 589 U. S. (2020) 9 Opinion of the Court We therefore discarded our usual rule—which Allen accepts as applying here—that Congress must speak, and indeed speak unequivocally, to abrogate sovereign Compare –379 (“[O]ur decision today” does not “rest[ ] on any statement Congress ha[s] made on the sub- ject of state sovereign immunity”), (our or- dinary rule). Our decision, in short, viewed bankruptcy as on a different plane, governed by principles all its own. Nothing in that understanding invites the kind of general, “clause-by-clause” reexamination of Article I that Allen pro- poses. See To the contrary, it points to a good- for-one-clause-only holding. And even if Katz’s confines were not so clear, Florida Pre- paid, together stare decisis, would still doom Allen’s argument. As Allen recognizes, if the Intellectual Property Clause permits the CRCA’s abrogation, it also would permit the Patent Remedy Act’s. See Tr. of Oral Arg. 9 (predicting that if |
Justice Kagan | 2,020 | 3 | majority | Allen v. Cooper | https://www.courtlistener.com/opinion/4738313/allen-v-cooper/ | Act’s. See Tr. of Oral Arg. 9 (predicting that if his position prevailed, “ultimately, the Patent Rem- edy Act would be revisited and properly upheld as a valid exercise of Congress’s Article I power”). Again, there is no difference between copyrights and patents under the Clause, nor any material difference between the two stat- utes’ provisions. See and n. 1, 6. So we would have to overrule Florida Prepaid if we were to decide this case Allen’s way. But stare decisis, this Court has under- stood, is a “foundation stone of the rule of law.” Michigan v. Bay Mills Indian Community, 572 U.S. 2, To reverse a decision, we demand a “special justification,” over and above the belief “that the precedent was wrongly decided.” Halliburton Co. v. Erica P. John Fund, Inc., 573 U.S. 258, 266 Allen offers us nothing special at all; he contends only that if the Court were to use a clause-by- clause approach, it would discover that Florida Prepaid was wrong (because, he says again, the decision misjudged Con- gress’s authority under the Intellectual Property Clause). See Brief for Petitioners 37; –7. And that 10 ALLEN v. COOPER Opinion of the Court charge of error alone, Allen cannot overcome stare decisis. B Section 5 of the Fourteenth Amendment, unlike almost all of Article I, can authorize Congress to strip the States of The Fourteenth Amendment “fundamentally al- tered the balance of state and federal power” that the orig- inal Constitution and the Eleventh Amendment struck. Seminole 517 U.S., 9. Its first section imposes prohibitions on the States, including (as relevant here) that none may “deprive any person of life, liberty, or property, out due process of law.” Section 5 then gives Congress the “power to enforce, by appropriate legislation,” those lim- itations on the States’ authority. That power, the Court has long held, may enable Congress to abrogate the States’ im- munity and thus subject them to suit in federal court. See For an abrogation statute to be “appropriate” under Sec- tion 5, it must be tailored to “remedy or prevent” conduct infringing the Fourteenth Amendment’s substantive prohi- bitions. City of Congress can permit suits against States for actual viola- tions of the rights guaranteed in Section 1. See Fitzpatrick, 427 U.S., at And to deter those violations, it can allow suits against States for “a somewhat broader swath of con- duct,” including acts constitutional in themselves. But Congress cannot use its “power to en- force” the Fourteenth Amendment to alter what that Amendment bars. See (prohibiting Congress from “substantively redefin[ing]” the Fourteenth Amendment’s requirements). That |
Justice Kagan | 2,020 | 3 | majority | Allen v. Cooper | https://www.courtlistener.com/opinion/4738313/allen-v-cooper/ | (prohibiting Congress from “substantively redefin[ing]” the Fourteenth Amendment’s requirements). That means a congressional abrogation is valid under Section 5 only if it sufficiently connects to con- duct courts have held Section 1 to proscribe. To decide whether a law passes muster, this Court has framed a type of means-end test. For Congress’s action to fall in its Section 5 authority, we have said, “[t]here Cite as: 589 U. S. (2020) 11 Opinion of the Court must be a congruence and proportionality between the in- jury to be prevented or remedied and the means adopted to that end.” 521 U.S., 20. On the one hand, courts are to consider the constitutional problem Congress faced—both the nature and the extent of state conduct vio- lating the Fourteenth Amendment. That assessment usu- ally (though not inevitably) focuses on the legislative rec- ord, which shows the evidence Congress had before it of a constitutional wrong. See Florida Prepaid, 527 U.S., at 646. On the other hand, courts are to examine the scope of the response Congress chose to address that injury. Here, a critical question is how far, and for what reasons, Con- gress has gone beyond redressing actual constitutional vio- lations. Hard problems often require forceful responses and, as noted above, Section 5 allows Congress to “enact[ ] reasonably prophylactic legislation” to deter constitutional 528 U.S., ; 521 U.S., 36 (Congress’s conclusions on that score are “entitled to much deference”); 0. But “[s]trong measures appropri- ate to address one harm may be an unwarranted response to another, lesser one.” 521 U.S., 30. Always, what Congress has done must be in keeping the Four- teenth Amendment rules it has the power to “enforce.” All this raises the question: When does the Fourteenth Amendment care about copyright infringement? Some- times, no doubt. Copyrights are a form of property. See Fox Film And the Fourteenth Amendment bars the States from “depriv[ing]” a person of property “out due process of law.” But even if sometimes, by no means always. Under our precedent, a merely negligent act does not “deprive” a person of prop- erty. See So an infringement must be intentional, or at least reckless, to come in the reach of the Due Process See 34, n. 3 (reserving whether reckless conduct suffices). And more: A State cannot violate that Clause unless it fails 12 ALLEN v. COOPER Opinion of the Court to offer an adequate remedy for an infringement, because such a remedy itself satisfies the demand of “due process.” See That means in the broader world of state copyright infringe- ment is a smaller one |
Justice Kagan | 2,020 | 3 | majority | Allen v. Cooper | https://www.courtlistener.com/opinion/4738313/allen-v-cooper/ | world of state copyright infringe- ment is a smaller one where the Due Process Clause comes into play. Because the same is true of patent infringement, Florida Prepaid again serves as the critical precedent. That deci- sion defined the scope of unconstitutional infringement in line the caselaw cited above—as intentional conduct for which there is no adequate state remedy. See 527 U.S., 42–643, 645. It then searched for evidence of that sort of infringement in the legislative record of the Patent Rem- edy And it determined that the statute’s abrogation of immunity—again, the equivalent of the CRCA’s—was out of all proportion to what it found. That analysis is the start- ing point of our inquiry here. And indeed, it must be the ending point too unless the evidence of unconstitutional in- fringement is materially different for copyrights than pa- tents. Consider once more, then, Florida Prepaid, now not on Article I but on Section 5. In enacting the Patent Remedy Act, Florida Prepaid found, Congress did not identify a pattern of unconstitu- tional patent infringement. To begin we explained, there was only thin evidence of States infringing patents at all—putting aside whether those actions violated due pro- cess. The House Report, recognizing that “many states comply patent law,” offered just two examples of pa- tent infringement suits against the States. (quoting H. R. Rep. No. 101–960, pt. 1, p. 38 (1990)). The appellate court below, boasting some greater research prowess, discovered another seven in the century-plus be- tween 1880 and 1990. See 527 U.S., Even the bill’s House sponsor conceded the lack of “any evidence” of “wide- spread violation of patent laws.” (quoting state- ment of Rep. Kastenmeier). What was more, there was no Cite as: 589 U. S. (2020) 13 Opinion of the Court evidence that any instance of infringement by States crossed constitutional lines. Congress, we observed, “did not focus” on intentional or reckless conduct; to the con- trary, the legislative record suggested that “most state in- fringement was innocent or at worst negligent.” And similarly, Congress “barely considered the availability of state remedies for patent infringement.” So, we concluded, nothing could support the idea that States were more than sporadically (if that) “depriving patent owners of property out due process of law.” Given that absence of evidence, Florida Prepaid held, the Patent Remedy Act swept too far. Recall what the Patent Remedy Act did—and did not. It abrogated sovereign im- munity for any and every patent suit, thereby “plac[ing] States on the same footing as private parties.” It did not set any limits. It did not, for |
Justice Kagan | 2,020 | 3 | majority | Allen v. Cooper | https://www.courtlistener.com/opinion/4738313/allen-v-cooper/ | It did not set any limits. It did not, for example, confine the abrogation to suits alleging “nonnegligent infringement or infringement authorized [by] state policy.” Neither did it target States refusing to offer alternative remedies to patent holders. No, it exposed all States to the hilt—on a record that failed to show they had caused any discernible constitutional harm (or, indeed, much harm at all). That imbalance made it impossible to view the legislation “as re- sponsive to, or designed to prevent, unconstitutional behav- ior.” (quoting 521 U.S., 32). The statute’s “indiscriminate scope” was too “out of proportion” to any due process 527 U.S., –647. It aimed not to correct such a problem, but to “provide a uniform remedy for patent infringement” writ large. The Patent Remedy Act, in short, did not “enforce” Section 1 of the Fourteenth Amendment—and so was not “appro- priate” under Section 5. Could, then, this case come out differently? Given the identical scope of the CRCA and Patent Remedy Act, that could happen only if the former law responded to materially 14 ALLEN v. COOPER Opinion of the Court stronger evidence of infringement, especially of the uncon- stitutional kind. Allen points to a significant disparity in how Congress created a record for the two statutes. See Brief for Petitioners 7–10, 47–50. Before enacting the CRCA, Congress asked the then-Register of Copyrights, Ralph Oman, to submit a report about the effects of the Eleventh Amendment on copyright enforcement. Oman and his staff conducted a year-long examination, which in- cluded a request for public comments eliciting letters from about 40 copyright holders and industry groups. The final 158-page report concluded that “copyright proprietors have demonstrated they will suffer immediate harm if they are unable to sue infringing states in federal court.” Copyright Office, Copyright Liability of States and the Eleventh Amendment 103 (1988) (Oman Report). Is that report enough, as Allen claims, to flip Florida Prepaid’s outcome when it comes to copyright cases against the States? It is not. Behind the headline-grabbing conclusion, noth- ing in the Oman Report, or the rest of the legislative record, cures the problems we identified in Florida Prepaid. As an initial matter, the concrete evidence of States infringing copyrights (even ignoring whether those acts violate due process) is scarcely more impressive than what the Florida Prepaid Court saw. Despite undertaking an exhaustive search, Oman came up only a dozen possible examples of state infringement. He listed seven court cases brought against States ( another two dismissed on the merits) and five anecdotes taken from public comments (but not further corroborated). See |
Justice Kagan | 2,020 | 3 | majority | Allen v. Cooper | https://www.courtlistener.com/opinion/4738313/allen-v-cooper/ | anecdotes taken from public comments (but not further corroborated). See Oman Report, –9, 90–97. In testifying about the report, Oman acknowledged that state infringement is “not widespread” and “the States are not going to get involved in wholesale violation of the copyright laws.” Hearings on H. R. 1131 before the Subcommittee on Courts, Intellectual Property, and the Administration of Justice, 101st Cong., 1st Sess., 53 (1989) (House Hearings). Indeed, he opined: “They are all respectful of the copyright Cite as: 589 U. S. (2020) 15 Opinion of the Court law” and “will continue to respect the law”; what State, af- ter all, would “want[ ] to get a reputation as a copyright pi- rate?” The bill’s House and Senate sponsors got the point. The former admitted that “there have not been any significant number” of copyright violations by States. And the latter conceded he could not currently see “a big ” Hearings on S. 497 before the Subcommittee on Patents, Copyrights and Trademarks, 101st Cong., 1st Sess., 130 (1989) (Sen. DeConcini). This is not, to put the matter charitably, the stuff from which Section 5 legislation ordinarily arises. And it gets only worse. Neither the Oman Report nor any other part of the legislative record shows concern whether the States’ copyright infringements (however few and far between) violated the Due Process Of the 12 infringements listed in the report, only two appear in- tentional, as they must be to raise a constitutional issue. See Oman Report, –8, 91 (describing a judicial finding of “willful” infringement and a public comment charging continued infringement after a copyright owner com- plained). As Oman testified, the far greater problem was the frequency of “honest mistakes” or “innocent” misunder- standings; the benefit of the bill, he therefore thought, would be to “guard against sloppiness.” House Hearings, at 9. Likewise, the legislative record contains no informa- tion about the availability of state-law remedies for copyright infringement (such as contract or unjust enrichment suits)—even though they might themselves satisfy due pro- cess. Those deficiencies in the record match the ones Flor- ida Prepaid emphasized. See 527 U.S., –645. Here no less than there, they signal an absence of constitutional Under Florida Prepaid, the CRCA thus must fail our “congruence and proportionality” test. 521 U.S., at 520. As just shown, the evidence of Fourteenth Amendment injury supporting the CRCA and the Patent Remedy Act is 16 ALLEN v. COOPER Opinion of the Court equivalent—for both, that is, exceedingly slight. And the scope of the two statutes is identical—extending to every infringement case against a State. It follows that |
Justice Kagan | 2,020 | 3 | majority | Allen v. Cooper | https://www.courtlistener.com/opinion/4738313/allen-v-cooper/ | to every infringement case against a State. It follows that the bal- ance the laws strike between constitutional wrong and stat- utory remedy is correspondingly askew. In this case, as in Florida Prepaid, the law’s “indiscriminate scope” is “out of proportion” to any due process 527 U.S., – 647; see 3. In this case, as in that one, the statute aims to “provide a uniform remedy” for statutory infringe- ment, rather than to redress or prevent unconstitutional 527 U.S., ; see 3. And so in this case, as in that one, the law is invalid under Section 5. That conclusion, however, need not prevent Congress from passing a valid copyright abrogation law in the future. In doing so, Congress would presumably approach the issue differently than when it passed the CRCA. At that time, the Court had not yet decided Seminole so Congress probably thought that Article I could support its all-out ab- rogation of See And to the extent it relied on Section 5, Congress acted before this Court cre- ated the “congruence and proportionality” test. See 1. For that reason, Congress likely did not appreciate the importance of linking the scope of its abrogation to the redress or prevention of unconstitutional injuries—and of creating a legislative record to back up that connection. But going forward, Congress will know those rules. And under them, if it detects violations of due process, then it may en- act a proportionate response. That kind of tailored statute can effectively stop States from behaving as copyright pi- rates. Even while respecting constitutional limits, it can bring digital Blackbeards to justice. III Florida Prepaid all but prewrote our decision today. That precedent made clear that Article I’s Intellectual Property Cite as: 589 U. S. (2020) 17 Opinion of the Court Clause could not provide the basis for an abrogation of sov- ereign And it held that Section 5 of the Four- teenth Amendment could not support an abrogation on a legislative record like the one here. For both those reasons, we affirm the judgment below. It is so ordered. Cite as: 589 U. S. (2020) 1 HOMAS, of TOpinion J.,Tconcurring HOMAS, J. SUPREME COURT OF THE UNITED STATES No. 18–877 FREDERICK L. ALLEN, ET AL., PETITIONERS v. ROY A. COOPER, III, GOVERNOR OF NORTH CAROLINA, ET AL. ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT [March 23, 2020] JUSTICE THOMAS, concurring in part and concurring in the judgment. I agree the Court’s conclusion that the Copyright Remedy Clarification Act of 1990, 17 U.S. C. et seq., does |
Justice Kagan | 2,020 | 3 | majority | Allen v. Cooper | https://www.courtlistener.com/opinion/4738313/allen-v-cooper/ | Clarification Act of 1990, 17 U.S. C. et seq., does not validly abrogate States’ sovereign But I cannot join the Court’s opinion in its entirety. I write sep- arately to note two disagreements and one question that re- mains open for resolution in a future case. First, although I agree that Florida Prepaid Postsecond- ary Ed. Expense (1999), is binding precedent, I cannot join the Court’s dis- cussion of stare decisis. The Court claims we need “ ‘special justification[s]’ ” to overrule precedent because error alone “cannot overcome stare decisis.” Ante, at 9–10. That ap- proach “does not comport our judicial duty under Arti- cle III.” Gamble v. United States, 587 U. S. (2019) (THOMAS, J., concurring) (slip op., at 2). If our decision in Florida Prepaid were demonstrably erroneous, the Court would be obligated to “correct the error, regardless of whether other factors support overruling the precedent.” 587 U. S., at – (same) (slip op., –9). Here, adherence to our precedent is warranted because petitioners have not demonstrated that our decision in Flor- 2 ALLEN v. COOPER Opinion of THOMAS, J. ida Prepaid “is incorrect, much less demonstrably errone- ous.” Gamble, 587 U. S., at (same) (slip op., 7). The Court in Florida Prepaid correctly concluded that “Con- gress may not abrogate state sovereign immunity pursuant to its Article I powers,” including its powers under the In- tellectual Property ). Petitioners’ claims to the contrary are unpersuasive.* Second, I do not join the Court’s discussion regarding fu- ture copyright legislation. In my view, we should opine on “only the case before us in light of the record before us.” Manhattan Community Access Corp. v. Halleck, 587 U. S. (2019) (slip op., 5). We should not purport to advise Congress on how it might exercise its legislative au- thority, nor give our blessing to hypothetical statutes or leg- islative records not at issue here. Finally, I believe the question whether copyrights are property in the original meaning of the Fourteenth Amendment’s Due Process Clause remains open. The Court relies on Fox Film to conclude that “[c]opyrights are a form of prop- erty.” Ante, 1. But Fox Film Corp. addressed “property” in the context of state tax laws, not the Due Process 286 U.S., 28. And although we stated in Florida Pre- paid that patents are “property” for due process purposes, we did not analyze the Fourteenth Amendment’s text, and neither of the cases we cited involved due process. 527 U.S., 42 was wrongly decided. See at 379–385 (THOMAS, J., dissenting). The Court today rightfully limits that de- cision to the |
Justice Kagan | 2,020 | 3 | majority | Allen v. Cooper | https://www.courtlistener.com/opinion/4738313/allen-v-cooper/ | The Court today rightfully limits that de- cision to the Bankruptcy Clause context, calling it a “good-for-one-clause- only holding.” Ante, at 9. I would go a step further and recognize that the Court’s decision in Katz is not good for even that clause. Cite as: 589 U. S. (2020) 3 Opinion of THOMAS, J. (1857); Consolidated Fruit-Jar 96 (1877)); see also Merrill, The Landscape of Constitu- tional Property, (noting that the “Court has not always been attentive to the ‘property’ threshold” of the Due Process Clauses). Because the parties agree that petitioners’ copyrights are property, and because the Fourteenth Amendment does not authorize this stat- ute’s abrogation of state sovereign immunity either way, we need not resolve this open question today. I would, how- ever, be willing to consider the matter in an appropriate case. For these reasons, I join all of the Court’s opinion except for the final paragraph in Part II–A and the final paragraph in Part II–B. Cite as: 589 U. S. (2020) 1 BREYER, J., concurring in judgment SUPREME COURT OF THE UNITED STATES No. 18–877 FREDERICK L. ALLEN, ET AL., PETITIONERS v. ROY A. COOPER, III, GOVERNOR OF NORTH CAROLINA, ET AL. ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT [March 23, 2020] JUSTICE BREYER, whom JUSTICE GINSBURG joins, concurring in the judgment. |
Justice Sotomayor | 2,019 | 24 | dissenting | Manhattan Community Access Corp. v. Halleck | https://www.courtlistener.com/opinion/4630087/manhattan-community-access-corp-v-halleck/ | The Court tells a very reasonable story about a case that is not before us. I write to address the one that is. This is a case about an organization appointed by the government to administer a constitutional public forum. (It is not, as the Court suggests, about a private property owner that simply opened up its property to others.) New York City (the City) secured a property interest in public- access television channels when it granted a cable fran- chise to a cable company. State regulations require those public-access channels to be made open to the public on terms that render them a public forum. The City con- tracted out the administration of that forum to a private organization, petitioner Manhattan Community Access Corporation (MNN). By accepting that agency relation- ship, MNN stepped into the City’s shoes and thus qualifies as a state actor, subject to the First Amendment like any other. I A A cable-television franchise is, essentially, a license to create a system for distributing cable TV in a certain area. It is a valuable right, usually conferred on a private com- 2 MANHATTAN COMMUNITY ACCESS CORP. v. HALLECK SOTOMAYOR, J., dissenting pany by a local government. See 47 U.S. C. 541(a)(2), (b)(1); Broadcasting System, A private company cannot enter a local cable market without one. Cable companies transmit content through wires that stretch “between a transmission facility and the television sets of individual subscribers.” at 627–. Creating this network of wires is a disruptive undertaking that “entails the use of public rights-of-way and easements.” at New York State authorizes municipalities to grant cable franchises to cable companies of a certain size only if those companies agree to set aside at least one public access channel. 16 N. Y. Codes, Rules & Regs. ), 895.4(b)(1) (2016). New York then requires that those public-access channels be open to all comers on “a first- come, first-served, nondiscriminatory basis.” Likewise, the State prohibits both cable franchisees and local governments from “exercis[ing] any editorial control” over the channels, aside from regulating obscenity and other unprotected content. B Years ago, New York City (no longer a party to this suit) and Time Warner Entertainment Company (never a party to this suit) entered into a cable-franchise agreement. App. 22. Time Warner received a cable franchise; the City received public-access channels. The agreement also provided that the public-access channels would be operated by an independent, nonprofit corporation chosen by the Manhattan borough president. But the City, as the prac- tice of other New York municipalities confirms, could have instead chosen to run the channels |
Justice Sotomayor | 2,019 | 24 | dissenting | Manhattan Community Access Corp. v. Halleck | https://www.courtlistener.com/opinion/4630087/manhattan-community-access-corp-v-halleck/ | municipalities confirms, could have instead chosen to run the channels itself. See Brief for Respondents 35 (citing examples). MNN is the independent nonprofit that the borough president appointed to run the channels; indeed, MNN Cite as: 587 U. S. (2019) 3 SOTOMAYOR, J., dissenting appears to have been incorporated in 1991 for that precise purpose, with seven initial board members selected by the borough president (though only two thus selected today). See App. 23; Brief for Respondents 7, n. 1. The City ar- ranged for MNN to receive startup capital from Time Warner and to be funded through franchise fees from Time Warner and other Manhattan cable franchisees. App. 23; Brief for New York County Lawyers Association (NYCLA) as Amicus Curiae 27; see also App. to Brief for Respondents 19a. As the borough president announced upon MNN’s formation in 1991, MNN’s “central charge is to administer and manage all the public access channels of the cable television systems in Manhattan.” App. to Brief for NYCLA as Amicus Curiae 1. As relevant here, respondents DeeDee Halleck and Jesus Papoleto Melendez sued MNN in U. S. District Court for the Southern District of New York under 42 U.S. C. They alleged that the public-access chan- nels, “[r]equired by state regulation and [the] local fran- chise agreements,” are “a designated public forum of unlimited character”; that the City had “delegated control of that public forum to MNN”; and that MNN had, in turn, engaged in viewpoint discrimination in violation of re- spondents’ First Amendment rights. App. 39. The District Court dismissed respondents’ First Amendment claim against MNN. The U. S. Court of Appeals for the Second Circuit reversed that dismissal, concluding that the public-access channels “are public forums and that [MNN’s] employees were sufficiently alleged to be state actors taking action barred by the First Amendment.” Because the case before us arises from a motion to dismiss, re- spondents’ factual allegations must be accepted as true. Hernandez v. Mesa, 582 U. S. (2017) ( per curiam) (slip op., at 1). 4 MANHATTAN COMMUNITY ACCESS CORP. v. HALLECK SOTOMAYOR, J., dissenting II I would affirm the judgment below. The channels are clearly a public forum: The City has a property interest in them, and New York regulations require that access to those channels be kept open to all. And because the City (1) had a duty to provide that public forum once it granted a cable franchise and (2) had a duty to abide by the First Amendment once it provided that forum, those obligations did not evaporate when the City delegated the administra- |
Justice Sotomayor | 2,019 | 24 | dissenting | Manhattan Community Access Corp. v. Halleck | https://www.courtlistener.com/opinion/4630087/manhattan-community-access-corp-v-halleck/ | obligations did not evaporate when the City delegated the administra- tion of that forum to a private entity. Just as the City would have been subject to the First Amendment had it chosen to run the forum itself, MNN assumed the same responsibility when it accepted the delegation. A When a person alleges a violation of the right to free speech, courts generally must consider not only what was said but also in what context it was said. On the one hand, there are “public forums,” or settings that the government has opened in some way for speech by the public (or some subset of it). The Court’s prece- dents subdivide this broader category into various subcat- egories, with the level of leeway for government regulation of speech varying accordingly. See Minnesota Voters Alliance v. Mansky, 585 U. S. (slip op., at 7). Compare (streets and public parks, traditional public forums), with Southeastern 555 (1975) (city-leased theater, designated public forum), with Christian Legal Soc. Chapter of Univ. of Cal., Has- tings College of and n. 12 (2010) (program for registered student organiza- tions, limited public forum). But while many cases turn on which type of “forum” is implicated, the important point here is that viewpoint discrimination is impermissi- ble in them all. See Good News Club v. Milford Central Cite as: 587 U. S. (2019) 5 SOTOMAYOR, J., dissenting School, On the other hand, there are contexts that do not fall under the “forum” rubric. For one, there are contexts in which the government is simply engaging in its own speech and thus has freedom to select the views it prefers. See, e.g., Walker v. Texas Div., Sons of Confederate Veter- ans, Inc., 576 U. S. – (2015) (slip op., at 6–7) (specialty license plates); Pleasant Grove (privately donated permanent monuments in a public park). 1 In addition, there are purely private spaces, where the First Amend- ment is (as relevant here) inapplicable. The First Amendment leaves a private store owner (or homeowner), for example, free to remove a customer (or dinner guest) for expressing unwanted views. See, e.g., Lloyd Corp. v. Tanner, In these settings, there is no First Amendment right against viewpoint discrimination. Here, respondents alleged viewpoint discrimination. App. 39. So a key question in this case concerns what the Manhattan public-access channels are: a public forum of some kind, in which a claim alleging viewpoint discrimina- tion would be cognizable, or something else, such as gov- ernment speech or purely private property, where picking favored viewpoints is appropriately commonplace. 2 Nei- ther MNN nor the majority suggests |
Justice Sotomayor | 2,019 | 24 | dissenting | Manhattan Community Access Corp. v. Halleck | https://www.courtlistener.com/opinion/4630087/manhattan-community-access-corp-v-halleck/ | appropriately commonplace. 2 Nei- ther MNN nor the majority suggests that this is an in- —————— 1 That does not mean that no restrictions apply at all to the govern- ment’s expression in such spaces, but it does mean that the government can pick and choose among different views. See Walker, 576 U. S., at – (slip op., at 6, 17–18); 2 The channels are not, of course, a physical place. Under the Court’s precedents, that makes no difference: Regardless of whether something “is a forum more in a metaphysical than in a spatial or geographic sense, the same principles are applicable.” (treating “Stu- dent Activities Fund” as the forum at issue and citing cases in which a school’s mail system and a charity drive were the relevant forums). 6 MANHATTAN COMMUNITY ACCESS CORP. v. HALLECK SOTOMAYOR, J., dissenting stance of government speech. This case thus turns first and foremost on whether the public-access channels are or are not purely private property. 3 1 This Court has not defined precisely what kind of gov- ernmental property interest (if any) is necessary for a public forum to exist. See (“a speaker must seek access to public property or to private property dedicated to public use”). But see ante, at 11, n. 3 (appearing to reject the phrase “private property dedicated to public use” as “passing dicta”). I assume for the sake of argument in this case that public-forum analysis is inap- propriate where the government lacks a “significant prop- erty interest consistent with the communicative purpose of the forum.” Denver Ed. Telecommunications Consor- tium, (THOMAS, J., concurring in judgment in part and dissenting in part). Such an interest is present here. As described above, New York State required the City to obtain public-access channels from Time Warner in exchange for awarding a cable franchise. See The exclusive right to use these channels (and, as necessary, Time Warner’s infrastructure) qualifies as a property interest, akin at the very least to an easement. The last time this Court considered a case centering on public-access channels, five Justices described an interest like the one here as similar to an easement. Although JUSTICE BREYER did not conclude that a public-access channel was indeed a public forum, he likened the cable —————— 3 As discussed below, it is possible that some (or even many) public- access channels are government speech. The channels that MNN administers, however, are clearly better thought of as a public forum given the New York regulations mandating open and equal access. See infra, at 9–10, and n. 7. Cite as: 587 U. |
Justice Sotomayor | 2,019 | 24 | dissenting | Manhattan Community Access Corp. v. Halleck | https://www.courtlistener.com/opinion/4630087/manhattan-community-access-corp-v-halleck/ | infra, at 9–10, and n. 7. Cite as: 587 U. S. (2019) 7 SOTOMAYOR, J., dissenting company’s agreement to reserve such channels “to the reservation of a public easement, or a dedication of land for streets and parks, as part of a municipality’s approval of a subdivision of land.” Denver – 761 (joined by Stevens and Souter, JJ.). And Justice Kennedy observed not only that an easement would be an appropriate analogy, at 793– (opinion concurring in part, concurring in judgment in part, and dissenting in part, joined by GINSBURG, J.), but also that “[p]ublic access channels meet the definition of a public forum,” “even though they operate over property to which the cable operator holds title,” ; see also – 793 (noting that the entire cable system’s existence stems from the municipality’s decision to grant the franchise). What those five Justices suggested in 1996 remains true today. “A common idiom describes property as a ‘bun- dle of sticks’—a collection of individual rights which, in certain combinations, constitute property.” United States v. Rights to exclude and to use are two of the most crucial sticks in the bundle. See 83. “State law determines which sticks are in a person’s bundle,” 78, and therefore defining prop- erty itself is a state-law exercise. 4 As for whether there is a sufficient property interest to trigger First Amendment forum analysis, related precedents show that there is. As noted above, there is no disputing that Time Warner owns the wires themselves. See 512 U.S., at If the wires were a road, it would be easy to define the public’s right to walk on it as an easement. See, e.g., In re India Street, 100–103, 272 N. E 2d —————— 4 The parties have not pointed this Court to any New York law defini- tively establishing the status of the channels. But even if there were uncertainty about the status of the channels under New York law, that would not be a reason to resolve the case against respondents (plaintiffs below) at the motion to dismiss stage. See infra, at 12, n. 9, 14. 8 MANHATTAN COMMUNITY ACCESS CORP. v. HALLECK SOTOMAYOR, J., dissenting –0 (1971). Similarly, if the wires were a theater, there would be no question that a government’s long-term lease to use it would be sufficient for public-forum pur- poses. Southeastern 555. But some may find this case more complicated because the wires are not a road or a theater that one can physically occupy; they are a conduit for transmitting signals that appear as television channels. In other words, the ques- |
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