SUPREME COURT OF THE UNITED STATES
--------------------------------------------------------------------------------
315 U.S. 203
CERTIORARI TO THE SUPREME COURT OF NEW YORK
--------------------------------------------------------------------------------
No. 42 Argued: December 15, 1941 --- Decided: February 2, 1942
--------------------------------------------------------------------------------
1. The question of the propriety, under New York practice, of grounding a motion for summary judgment in this case on the record in Moscow Fire Ins. Co. v. Bank of New York & Trust Co., 280 N.Y. 286, is one of state law, upon which the decision of the highest court of the State is final. P. 216.
2. The Moscow case is not res judicata here, since the respondent was not a party to that suit. P. 216.
3. The affirmance here by an equally divided court of the judgment in the Moscow case, 309 U.S. 624, although conclusive and binding upon the parties to that controversy, cannot be regarded as an authoritative determination of the principles of law there involved. P. 216.
4. Judicial notice may here be taken of the record in this Court of the Moscow case. P. 216.
5. The claim of the United States in this case, based on the Litvinov Assignment -- whereby the Russian Government, incidentally to its recognition by the United States in 1933, assigned certain claims to the United States -- raises a federal question. P. 217.
6. Upon review of a judgment of a state court, this Court will determine independently all questions on which a federal right is necessarily dependent. P. 217.
7. The determination of what title the United States obtained to the New York assets of a Russian insurance company by virtue of the Litvinov Assignment and the Russian decrees of 1918 and 1919 nationalizing the insurance business, involves questions of [p204] foreign law upon which the decision of the state court is not conclusive. P. 218.
8. An official declaration by the Commissariat for Justice of the R.S.F.S.R. as to the intended effect of a decree of the Russian Government nationalizing insurance companies, tendered to the court below pursuant to § 391 of the New York Civil Practice Act, was properly before that court on appeal, though not a part of the record, and may be considered here. P. 220.
9. The Russian Government's decree nationalizing the insurance business was intended to embrace the property of the New York branch of the Russian insurance company involved in this case. P. 221.
The Commissariat for Justice is empowered to interpret existing Russian law; its declaration as to the intended extraterritorial effect of the nationalization decree is conclusive.
10. Claims of the kind here in question were embraced in the Litvinov Assignment. P. 224.
11. The Litvinov Assignment is broad and inclusive as to the claims embraced. Its purpose to eliminate all possible sources of friction between the countries requires that it be construed liberally. P. 224.
12. Incidentally to its recognition by the United States in 1933, the Russian Government, by the Litvinov Assignment, assigned certain claims to the United States. Previously, the Russian Government had, by decree, nationalized the insurance business. A balance of the assets of a New York branch of a Russian insurance corporation, remaining after the payment of domestic creditors, was claimed by the United States, seeking to protect claims which it held, and claims of its nationals, against Russia or its nationals. A New York state court directed other distribution of the assets.
Held:
By the nationalization decree, the property in question became vested in the Russian Government; the right of the Russian Government passed to the United States under the Litvinov Assignment, and the United States is entitled to the property as against the corporation and its foreign creditors. P. 234.
13. Although aliens are entitled to the protection of the Fifth Amendment, that Amendment does not preclude giving full force and effect to the Litvinov Assignment. P. 228.
14. The Federal Government is not barred by the Fifth Amendment from securing for itself and its nationals priority over creditors who are nationals of foreign countries and whose claims arose abroad. P. 228. [p205]
The fact that New York has marshaled the claims of the foreign creditors here involved and authorized their payment does not except them from the application of this principle.
15. The powers of the President in the conduct of foreign relations included the power, without consent of the Senate, to determine the public policy of the United States with respect to the Russian nationalization decrees. P. 229.
16. The power of the President in respect to the recognition of a foreign government, includes the power to remove such obstacles to full recognition as the settlement of claims of our nationals. P. 229.
Recognition of the Russian Government and the Litvinov Assignment were interdependent.
17. The decision of the Executive with respect to the recognition of the Russian Government and acceptance of the Litvinov Assignment are conclusive on the courts. P. 230.
18. State law must yield when it is inconsistent with or impairs the policy or provisions of a treaty or of an international compact or agreement. P. 230.
19. Enforcement in this case of the policy of the State of New York would conflict with the federal policy, whether the State's policy was premised on the absence of extraterritorial effect of the Russian decrees, the conception of the New York branch as a distinct juristic personality, or disapproval by New York of the Russian program of nationalization. P. 231.
20. Power over external affairs is not shared by the States; it is vested exclusively in the National Government. P. 233.
CERTIORARI, 313 U.S. 553, to review a judgment affirming the dismissal of the complaint in a suit by the United States to recover a balance of the assets of the New York branch of a Russian insurance company. See 259 App.Div. 871, 20 N.Y.S.2d 665. [p210]
Wednesday, April 29, 2009
APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE DISTRICT OF ARIZONA
SUPREME COURT OF THE UNITED STATES
--------------------------------------------------------------------------------
239 U.S. 33
Truax v. Raich
--------------------------------------------------------------------------------
No. 361 Argued: October 15, 1915 --- Decided: November 1, 1915
--------------------------------------------------------------------------------
A suit against officers of the State who are about to proceed wrongfully to complainant's injury in enforcing an unconstitutional statute is not a suit against the State within the meaning of the Eleventh Amendment.
While, generally speaking, a court of equity has no jurisdiction over prosecution, punishment or pardon of crimes or misdemeanors, equity may, when such action is essential to the safeguarding of property rights, restrain criminal prosecutions under unconstitutional statutes.
The right to earn a livelihood and to continue employment unmolested by efforts to enforce void enactments is entitled to protection in equity in the absence of an adequate remedy at law.
The fact that an employment is at the will of the employer and employee does not make it one at the will of others, and unjustified interference of third parties is actionable although the employment may be at will.
Although a statute may only render an employer liable to prosecution if it operates directly upon the employment of the employee and its enforcement would compel the discharge of an employe, the latter is affected directly, has no adequate remedy at law, and if the statute is unconstitutional, is entitled to equitable relief.
An alien admitted to the United States under the Federal law has not only the privilege of entering and abiding in the United States, but also of entering and abiding in any State, and being an inhabitant of any State entitles him, under the Fourteenth Amendment, to the equal protection of its laws. [p34]
The description in the Fourteenth Amendment of any person within the jurisdiction of the United States includes aliens. Yick Wo v. Hopkins, 118 U.S. 356.
The right to work for a living in the common occupations of the community is of the essence of that personal freedom and opportunity which it was the purpose of the Fourteenth Amendment to secure.
The power to control immigration -- to admit or exclude aliens -- is vested solely in the Federal Government, and the States may not deprive aliens so admitted of the right to earn a livelihood, as that would be tantamount to denying their entrance and abode.
A State may not, in order to protect citizens of the United States, in their employment against noncitizens of the United States in that State, require that employers only employ a specified percentage of alien employes -- such a statute denies to alien inhabitants the equal protection of the law, and so held as to statute of Arizona of December 14, 1914.
Such a statute is not the less unconstitutional because it allows employers to employ a specified percentage of alien employes.
The rule that a State may recognize degrees of evil and adapt its legislation accordingly applies to matters concerning which the State has authority to legislate.
Whether the statute of Arizona attempting to regulate employment of aliens is void as conflicting with rights of aliens under treaties with their respective nations not determined in this case, as the statute is held unconstitutional under the equal protection provision of the Fourteenth Amendment.
The facts, which involve the constitutionality under the equal protection provision of the Fourteenth Amendment of the Act of December 14, 1914, of the State of Arizona relative to the employment of aliens in that State, are stated in the opinion. [p35]
--------------------------------------------------------------------------------
239 U.S. 33
Truax v. Raich
--------------------------------------------------------------------------------
No. 361 Argued: October 15, 1915 --- Decided: November 1, 1915
--------------------------------------------------------------------------------
A suit against officers of the State who are about to proceed wrongfully to complainant's injury in enforcing an unconstitutional statute is not a suit against the State within the meaning of the Eleventh Amendment.
While, generally speaking, a court of equity has no jurisdiction over prosecution, punishment or pardon of crimes or misdemeanors, equity may, when such action is essential to the safeguarding of property rights, restrain criminal prosecutions under unconstitutional statutes.
The right to earn a livelihood and to continue employment unmolested by efforts to enforce void enactments is entitled to protection in equity in the absence of an adequate remedy at law.
The fact that an employment is at the will of the employer and employee does not make it one at the will of others, and unjustified interference of third parties is actionable although the employment may be at will.
Although a statute may only render an employer liable to prosecution if it operates directly upon the employment of the employee and its enforcement would compel the discharge of an employe, the latter is affected directly, has no adequate remedy at law, and if the statute is unconstitutional, is entitled to equitable relief.
An alien admitted to the United States under the Federal law has not only the privilege of entering and abiding in the United States, but also of entering and abiding in any State, and being an inhabitant of any State entitles him, under the Fourteenth Amendment, to the equal protection of its laws. [p34]
The description in the Fourteenth Amendment of any person within the jurisdiction of the United States includes aliens. Yick Wo v. Hopkins, 118 U.S. 356.
The right to work for a living in the common occupations of the community is of the essence of that personal freedom and opportunity which it was the purpose of the Fourteenth Amendment to secure.
The power to control immigration -- to admit or exclude aliens -- is vested solely in the Federal Government, and the States may not deprive aliens so admitted of the right to earn a livelihood, as that would be tantamount to denying their entrance and abode.
A State may not, in order to protect citizens of the United States, in their employment against noncitizens of the United States in that State, require that employers only employ a specified percentage of alien employes -- such a statute denies to alien inhabitants the equal protection of the law, and so held as to statute of Arizona of December 14, 1914.
Such a statute is not the less unconstitutional because it allows employers to employ a specified percentage of alien employes.
The rule that a State may recognize degrees of evil and adapt its legislation accordingly applies to matters concerning which the State has authority to legislate.
Whether the statute of Arizona attempting to regulate employment of aliens is void as conflicting with rights of aliens under treaties with their respective nations not determined in this case, as the statute is held unconstitutional under the equal protection provision of the Fourteenth Amendment.
The facts, which involve the constitutionality under the equal protection provision of the Fourteenth Amendment of the Act of December 14, 1914, of the State of Arizona relative to the employment of aliens in that State, are stated in the opinion. [p35]
Tuesday, April 28, 2009
Metro Broadcasting, Inc. v. Federal Communications Commission
SUPREME COURT OF THE UNITED STATES
--------------------------------------------------------------------------------
497 U.S. 547
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
--------------------------------------------------------------------------------
Argued: March 28, 1990 --- Decided: June 27, 1990
--------------------------------------------------------------------------------
These cases consider the constitutionality of two minority preference policies adopted by the Federal Communications Commission (FCC). First, the FCC awards an enhancement for minority ownership and participation in management, which is weighed together with all other relevant factors in comparing mutually exclusive applications for licenses for new radio or television broadcast stations. Second, the FCC's so-called "distress sale" policy allows a radio or television broadcaster whose qualifications to hold a license have come into question to transfer that license before the FCC resolves the matter in a noncomparative hearing, but only if the transferee is a minority enterprise that meets certain requirements. The FCC adopted these policies in an attempt to satisfy its obligation under the Communications Act of 1934 to promote diversification of programming, taking the position that its past efforts to encourage minority participation in the broadcast industry had not resulted in sufficient broadcast diversity, and that this situation was detrimental not only to the minority audience but to all of the viewing and listening public. Metro Broadcasting, Inc., the petitioner in No. 89-453, sought review in the Court of Appeals of an FCC order awarding a new television license to Rainbow Broadcasting in a comparative proceeding, which action was based on the ruling that the substantial enhancement granted Rainbow because of its minority ownership outweighed factors favoring Metro. The court remanded the appeal for further consideration in light of the FCC's separate, ongoing Docket 86-484 inquiry into the validity of its minority ownership policies. Prior to completion of that inquiry, however, Congress enacted the FCC appropriations legislation for fiscal year 1988, which prohibited the FCC from spending any appropriated funds to examine or change its minority policies. Thus, the FCC closed its Docket 86-484 inquiry and reaffirmed its grant of the license to Rainbow, and the Court of Appeals affirmed. Shurberg Broadcasting of Hartford, Inc., one of the respondents in No. 89-700, [p548] sought review in the Court of Appeals of an FCC order approving Faith Center, Inc.'s distress sale of its television license to Astroline Communications Company Limited Partnership, a minority enterprise. Disposition of the appeal was delayed pending resolution of the Docket 86484 inquiry by the FCC, which, upon closing that inquiry as discussed supra, reaffirmed its order allowing the distress sale to Astroline. The court then invalidated the distress sale policy, ruling that it deprived Shurberg, a nonminority applicant for a license in the relevant market, of its right to equal protection under the Fifth Amendment.
Held: The FCC policies do not violate equal protection, since they bear the imprimatur of longstanding congressional support and direction and are substantially related to the achievement of the important governmental objective of broadcast diversity. Pp. 563-601.
(a) It is of overriding significance in these cases that the minority ownership programs have been specifically approved -- indeed mandated -- by Congress. In light of that fact, this Court owes appropriate deference to Congress' judgment, see Fullilove v. Klutznick, 448 U.S. 448, 472-478, 490, 491 (opinion of Burger, C.J.); id. at 500-510, 515-516, n. 14 (Powell, J., concurring); id. at 517-520 (MARSHALL, J., concurring in judgment), and need not apply strict scrutiny analysis, see id. at 474 (opinion of Burger, C.J.); id. at 519 (MARSHALL, J., concurring in judgment). Benign race-conscious measures mandated by Congress -- even if those measures are not "remedial" in the sense of being designed to compensate victims of past governmental or societal discrimination -- are constitutionally permissible to the extent that they serve important governmental objectives within the power of Congress and are substantially related to the achievement of those objectives. Richmond v. J.A. Croson Co., 488 U.S. 469, distinguished and reconciled. Pp. 563-566.
(b) The minority ownership policies serve an important governmental objective. Congress and the FCC do not justify the policies strictly as remedies for victims of demonstrable discrimination in the communications media, but rather have selected them primarily to promote broadcast diversity. This Court has long recognized as axiomatic that broadcasting may be regulated in light of the rights of the viewing and listening audience, and that the widest possible dissemination of information from diverse and antagonistic sources is essential to the public welfare. Associated Press v. United States, 326 U.S. 1, 20. Safeguarding the public's right to receive a diversity of views and information over the airwaves is therefore an integral component of the FCC's mission, serves important First Amendment values, and is, at the very least, an important governmental objective that is a sufficient basis for the policies in question. Pp. 566-568. [p549]
(c) The minority ownership policies are substantially related to the achievement of the Government's interest in broadcast diversity. First, the FCC's conclusion that there is an empirical nexus between minority ownership and greater diversity, which is consistent with its longstanding view that ownership is a prime determinant of the range of programming available, is a product of its expertise and is entitled to deference. Second, by means of the recent appropriations legislation and by virtue of a long history of support for minority participation in the broadcasting industry, Congress has also made clear its view that the minority ownership policies advance the goal of diverse programming. Great weight must be given to the joint determination of the FCC and Congress. Pp. 569-579.
(d) The judgment that there is a link between expanded minority ownership and broadcast diversity does not rest on impermissible stereotyping. Neither Congress nor the FCC assumes that, in every case, minority ownership and management will lead to more minority-oriented programming or to the expression of a discrete "minority viewpoint" on the airwaves. Nor do they pretend that all programming that appeals to minorities can be labeled "minority" or that programming that might be so described does not appeal to nonminorities. Rather, they maintain simply that expanded minority ownership of broadcast outlets will, in the aggregate, result in greater broadcast diversity. This judgment is corroborated by a host of empirical evidence suggesting that an owner's minority status influences the selection of topics for news coverage and the presentation of editorial viewpoint, especially on matters of particular concern to minorities, and has a special impact on the way in which images of minorities are presented. In addition, studies show that a minority owner is more likely to employ minorities in managerial and other important roles where they can have an impact on station policies. The FCC's policies are thus a product of analysis, rather than a stereotyped reaction based on habit. Cf. Fullilove, supra, 448 U.S. at 604, n. 4. The type of reasoning employed by the FCC and Congress is not novel, but is utilized in many areas of the law, including the selection of jury venires on the basis of a fair cross section and the reapportionment of electoral districts to preserve minority voting strength. Pp. 579-584.
(e) The minority ownership policies are in other relevant respects substantially related to the goal of promoting broadcast diversity. The FCC adopted and Congress endorsed minority ownership preferences only after long study, painstaking consideration of all available alternatives, and the emergence of evidence demonstrating that race-neutral means had not produced adequate broadcasting diversity. Moreover, the FCC did not act precipitately in devising the policies, having undertaken [p550] thorough evaluations in 1960, 1971, and 1978 before adopting them. Furthermore, the considered nature of the FCC's judgment in selecting these particular policies is illustrated by the fact that it has rejected other more expansive types of minority preferences -- e.g., set-asides of certain frequencies for minority broadcasters. In addition, the minority ownership policies are aimed directly at the barriers that minorities face in entering the broadcasting industry. Thus, the FCC assigned a preference to minority status in the comparative licensing proceeding in order to compensate for a dearth of minority broadcasting experience. Similarly, the distress sale policy addresses the problem of inadequate access to capital by effectively lowering the sale price of existing stations and the problem of lack of information regarding license availability by providing existing licensees with an incentive to seek out minority buyers. The policies are also appropriately limited in extent and duration and subject to reassessment and reevaluation before renewal, since Congress has manifested its support for them through a series of appropriations acts of finite duration, and has continued to hold hearings on the subject of minority ownership. Provisions for administrative and judicial review also guarantee that the policies are applied correctly in individual cases and that there will be frequent opportunities to revisit their merits. Finally, the policies impose only slight burdens on nonminorities. Award of a preference contravenes no legitimate, firmly rooted expectation of competing applicants, since the limited number of frequencies available means that no one has First Amendment right to a license, and the granting of licenses requires consideration of public interest factors. Nor does the distress sale policy impose an undue burden on nonminorities, since it may be invoked only with respect to a small fraction of broadcast licenses, only when the licensee chooses to sell out at a low price rather than risk a hearing, and only when no competing application has been filed. It is not a quota or fixed quantity set-aside, and nonminorities are free to compete for the vast remainder of other available license opportunities. Pp. 584-600.
BRENNAN, J., delivered the opinion of the Court, in which WHITE, MARSHALL, BLACKMUN, and STEVENS, JJ., joined. STEVENS, J., filed a concurring opinion, post, p. 601. O'CONNOR, J., filed a dissenting opinion, in which REHNQUIST, C.J., and SCALIA and KENNEDY, JJ., joined, post, p. 602. KENNEDY, J., filed a dissenting opinion, in which SCALIA, J., joined, post, p. 631. [p552]
--------------------------------------------------------------------------------
497 U.S. 547
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
--------------------------------------------------------------------------------
Argued: March 28, 1990 --- Decided: June 27, 1990
--------------------------------------------------------------------------------
These cases consider the constitutionality of two minority preference policies adopted by the Federal Communications Commission (FCC). First, the FCC awards an enhancement for minority ownership and participation in management, which is weighed together with all other relevant factors in comparing mutually exclusive applications for licenses for new radio or television broadcast stations. Second, the FCC's so-called "distress sale" policy allows a radio or television broadcaster whose qualifications to hold a license have come into question to transfer that license before the FCC resolves the matter in a noncomparative hearing, but only if the transferee is a minority enterprise that meets certain requirements. The FCC adopted these policies in an attempt to satisfy its obligation under the Communications Act of 1934 to promote diversification of programming, taking the position that its past efforts to encourage minority participation in the broadcast industry had not resulted in sufficient broadcast diversity, and that this situation was detrimental not only to the minority audience but to all of the viewing and listening public. Metro Broadcasting, Inc., the petitioner in No. 89-453, sought review in the Court of Appeals of an FCC order awarding a new television license to Rainbow Broadcasting in a comparative proceeding, which action was based on the ruling that the substantial enhancement granted Rainbow because of its minority ownership outweighed factors favoring Metro. The court remanded the appeal for further consideration in light of the FCC's separate, ongoing Docket 86-484 inquiry into the validity of its minority ownership policies. Prior to completion of that inquiry, however, Congress enacted the FCC appropriations legislation for fiscal year 1988, which prohibited the FCC from spending any appropriated funds to examine or change its minority policies. Thus, the FCC closed its Docket 86-484 inquiry and reaffirmed its grant of the license to Rainbow, and the Court of Appeals affirmed. Shurberg Broadcasting of Hartford, Inc., one of the respondents in No. 89-700, [p548] sought review in the Court of Appeals of an FCC order approving Faith Center, Inc.'s distress sale of its television license to Astroline Communications Company Limited Partnership, a minority enterprise. Disposition of the appeal was delayed pending resolution of the Docket 86484 inquiry by the FCC, which, upon closing that inquiry as discussed supra, reaffirmed its order allowing the distress sale to Astroline. The court then invalidated the distress sale policy, ruling that it deprived Shurberg, a nonminority applicant for a license in the relevant market, of its right to equal protection under the Fifth Amendment.
Held: The FCC policies do not violate equal protection, since they bear the imprimatur of longstanding congressional support and direction and are substantially related to the achievement of the important governmental objective of broadcast diversity. Pp. 563-601.
(a) It is of overriding significance in these cases that the minority ownership programs have been specifically approved -- indeed mandated -- by Congress. In light of that fact, this Court owes appropriate deference to Congress' judgment, see Fullilove v. Klutznick, 448 U.S. 448, 472-478, 490, 491 (opinion of Burger, C.J.); id. at 500-510, 515-516, n. 14 (Powell, J., concurring); id. at 517-520 (MARSHALL, J., concurring in judgment), and need not apply strict scrutiny analysis, see id. at 474 (opinion of Burger, C.J.); id. at 519 (MARSHALL, J., concurring in judgment). Benign race-conscious measures mandated by Congress -- even if those measures are not "remedial" in the sense of being designed to compensate victims of past governmental or societal discrimination -- are constitutionally permissible to the extent that they serve important governmental objectives within the power of Congress and are substantially related to the achievement of those objectives. Richmond v. J.A. Croson Co., 488 U.S. 469, distinguished and reconciled. Pp. 563-566.
(b) The minority ownership policies serve an important governmental objective. Congress and the FCC do not justify the policies strictly as remedies for victims of demonstrable discrimination in the communications media, but rather have selected them primarily to promote broadcast diversity. This Court has long recognized as axiomatic that broadcasting may be regulated in light of the rights of the viewing and listening audience, and that the widest possible dissemination of information from diverse and antagonistic sources is essential to the public welfare. Associated Press v. United States, 326 U.S. 1, 20. Safeguarding the public's right to receive a diversity of views and information over the airwaves is therefore an integral component of the FCC's mission, serves important First Amendment values, and is, at the very least, an important governmental objective that is a sufficient basis for the policies in question. Pp. 566-568. [p549]
(c) The minority ownership policies are substantially related to the achievement of the Government's interest in broadcast diversity. First, the FCC's conclusion that there is an empirical nexus between minority ownership and greater diversity, which is consistent with its longstanding view that ownership is a prime determinant of the range of programming available, is a product of its expertise and is entitled to deference. Second, by means of the recent appropriations legislation and by virtue of a long history of support for minority participation in the broadcasting industry, Congress has also made clear its view that the minority ownership policies advance the goal of diverse programming. Great weight must be given to the joint determination of the FCC and Congress. Pp. 569-579.
(d) The judgment that there is a link between expanded minority ownership and broadcast diversity does not rest on impermissible stereotyping. Neither Congress nor the FCC assumes that, in every case, minority ownership and management will lead to more minority-oriented programming or to the expression of a discrete "minority viewpoint" on the airwaves. Nor do they pretend that all programming that appeals to minorities can be labeled "minority" or that programming that might be so described does not appeal to nonminorities. Rather, they maintain simply that expanded minority ownership of broadcast outlets will, in the aggregate, result in greater broadcast diversity. This judgment is corroborated by a host of empirical evidence suggesting that an owner's minority status influences the selection of topics for news coverage and the presentation of editorial viewpoint, especially on matters of particular concern to minorities, and has a special impact on the way in which images of minorities are presented. In addition, studies show that a minority owner is more likely to employ minorities in managerial and other important roles where they can have an impact on station policies. The FCC's policies are thus a product of analysis, rather than a stereotyped reaction based on habit. Cf. Fullilove, supra, 448 U.S. at 604, n. 4. The type of reasoning employed by the FCC and Congress is not novel, but is utilized in many areas of the law, including the selection of jury venires on the basis of a fair cross section and the reapportionment of electoral districts to preserve minority voting strength. Pp. 579-584.
(e) The minority ownership policies are in other relevant respects substantially related to the goal of promoting broadcast diversity. The FCC adopted and Congress endorsed minority ownership preferences only after long study, painstaking consideration of all available alternatives, and the emergence of evidence demonstrating that race-neutral means had not produced adequate broadcasting diversity. Moreover, the FCC did not act precipitately in devising the policies, having undertaken [p550] thorough evaluations in 1960, 1971, and 1978 before adopting them. Furthermore, the considered nature of the FCC's judgment in selecting these particular policies is illustrated by the fact that it has rejected other more expansive types of minority preferences -- e.g., set-asides of certain frequencies for minority broadcasters. In addition, the minority ownership policies are aimed directly at the barriers that minorities face in entering the broadcasting industry. Thus, the FCC assigned a preference to minority status in the comparative licensing proceeding in order to compensate for a dearth of minority broadcasting experience. Similarly, the distress sale policy addresses the problem of inadequate access to capital by effectively lowering the sale price of existing stations and the problem of lack of information regarding license availability by providing existing licensees with an incentive to seek out minority buyers. The policies are also appropriately limited in extent and duration and subject to reassessment and reevaluation before renewal, since Congress has manifested its support for them through a series of appropriations acts of finite duration, and has continued to hold hearings on the subject of minority ownership. Provisions for administrative and judicial review also guarantee that the policies are applied correctly in individual cases and that there will be frequent opportunities to revisit their merits. Finally, the policies impose only slight burdens on nonminorities. Award of a preference contravenes no legitimate, firmly rooted expectation of competing applicants, since the limited number of frequencies available means that no one has First Amendment right to a license, and the granting of licenses requires consideration of public interest factors. Nor does the distress sale policy impose an undue burden on nonminorities, since it may be invoked only with respect to a small fraction of broadcast licenses, only when the licensee chooses to sell out at a low price rather than risk a hearing, and only when no competing application has been filed. It is not a quota or fixed quantity set-aside, and nonminorities are free to compete for the vast remainder of other available license opportunities. Pp. 584-600.
BRENNAN, J., delivered the opinion of the Court, in which WHITE, MARSHALL, BLACKMUN, and STEVENS, JJ., joined. STEVENS, J., filed a concurring opinion, post, p. 601. O'CONNOR, J., filed a dissenting opinion, in which REHNQUIST, C.J., and SCALIA and KENNEDY, JJ., joined, post, p. 602. KENNEDY, J., filed a dissenting opinion, in which SCALIA, J., joined, post, p. 631. [p552]
City of Richmond v. J. A. Croson Co.
SUPREME COURT OF THE UNITED STATES
--------------------------------------------------------------------------------
488 U.S. 469
APPEAL FROM THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
--------------------------------------------------------------------------------
No. 87-998 Argued: October 5, 1988 --- Decided: January 23, 1989
--------------------------------------------------------------------------------
Appellant city adopted a Minority Business Utilization Plan (Plan) requiring prime contractors awarded city construction contracts to subcontract at least 30% of the dollar amount of each contract to one or more "Minority Business Enterprises" (MBE's), which the Plan defined to include a business from anywhere in the country at least 51% of which is owned and controlled by black, Spanish-speaking, Oriental, Indian, Eskimo, or Aleut citizens. Although the Plan declared that it was "remedial" in nature, it was adopted after a public hearing at which no direct evidence was presented that the city had discriminated on the basis of race in letting contracts, or that its prime contractors had discriminated against minority subcontractors. The evidence that was introduced included: a statistical study indicating that, although the city's population was 50% black, only 0.67% of its prime construction contracts had been awarded to minority businesses in recent years; figures establishing that a variety of local contractors' associations had virtually no MBE members; the city's counsel's conclusion that the Plan was constitutional under Fullilove v. Klutznick, 448 U.S. 448; and the statements of Plan proponents indicating that there had been widespread racial discrimination in the local, state, and national construction industries. Pursuant to the Plan, the city adopted rules requiring individualized consideration of each bid or request for a waiver of the 30% set-aside, and providing that a waiver could be granted only upon proof that sufficient qualified MBE's were unavailable or unwilling to participate. After appellee construction company, the sole bidder on a city contract, was denied a waiver and lost its contract, it brought suit under 42 U.S.C. § 1983 alleging that the Plan was unconstitutional under the Fourteenth Amendment's Equal Protection Clause. The Federal District Court upheld the Plan in all respects, and the Court of Appeals affirmed, applying a test derived from the principal opinion in Fullilove, supra, which accorded great deference to Congress' findings of past societal discrimination in holding that a 10% minority set-aside for certain federal construction grants did not violate the equal protection component of the Fifth Amendment. However, on appellee's petition for certiorari in this case, this Court vacated and remanded for further consideration in light of its intervening decision in Wygant v. Jackson Board of Education, 476 U.S. 267, in [p470] which the plurality applied a strict scrutiny standard in holding that a race-based layoff program agreed to by a school board and the local teachers' union violated the Fourteenth Amendment's Equal Protection Clause. On remand, the Court of Appeals held that the city's Plan violated both prongs of strict scrutiny, in that (1) the Plan was not justified by a compelling governmental interest, since the record revealed no prior discrimination by the city itself in awarding contracts, and (2) the 30% set-aside was not narrowly tailored to accomplish a remedial purpose.
Held: The judgment is affirmed.
822 F.2d 1355, affirmed.
JUSTICE O'CONNOR delivered the opinion of the Court with respect to Parts I, III-B, and IV, concluding that:
1. The city has failed to demonstrate a compelling governmental interest justifying the Plan, since the factual predicate supporting the Plan does not establish the type of identified past discrimination in the city's construction industry that would authorize race-based relief under the Fourteenth Amendment's Equal Protection Clause. Pp. 498-506.
(a) A generalized assertion that there has been past discrimination in the entire construction industry cannot justify the use of an unyielding racial quota, since it provides no guidance for the city's legislative body to determine the precise scope of the injury it seeks to remedy, and would allow race-based decisionmaking essentially limitless in scope and duration. The city's argument that it is attempting to remedy various forms of past societal discrimination that are alleged to be responsible for the small number of minority entrepreneurs in the local contracting industry fails, since the city also lists a host of nonracial factors which would seem to face a member of any racial group seeking to establish a new business enterprise, such as deficiencies in working capital, inability to meet bonding requirements, unfamiliarity with bidding procedures, and disability caused by an inadequate track record. Pp. 498-499.
(b) None of the "facts" cited by the city or relied on by the District Court, singly or together, provide a basis for a prima facie case of a constitutional or statutory violation by anyone in the city's construction industry. The fact that the Plan declares itself to be "remedial" is insufficient, since the mere recitation of a "benign" or legitimate purpose for a racial classification is entitled to little or no weight. Similarly, the views of Plan proponents as to past and present discrimination in the industry are highly conclusory, and of little probative value. Reliance on the disparity between the number of prime contracts awarded to minority businesses and the city's minority population is also misplaced, since the proper statistical evaluation would compare the percentage of MBE's [p471] in the relevant market that are qualified to undertake city subcontracting work with the percentage of total city construction dollars that are presently awarded to minority subcontractors, neither of which is known to the city. The fact that MBE membership in local contractors' associations was extremely low is also not probative, absent some link to the number of MBE's eligible for membership, since there are numerous explanations for the dearth of minority participation, including past societal discrimination in education and economic opportunities, as well as both black and white career and entrepreneurial choices. Congress' finding in connection with the set-aside approved in Fullilove that there had been nationwide discrimination in the construction industry also has extremely limited probative value, since, by including a waiver procedure in the national program, Congress explicitly recognized that the scope of the problem would vary from market area to market area. In any event, Congress was acting pursuant to its unique enforcement powers under § 5 of the Fourteenth Amendment. Pp. 499-504.
(c) The "evidence" relied upon by JUSTICE MARSHALL's dissent -- the city's history of school desegregation and numerous congressional reports -- does little to define the scope of any injury to minority contractors in the city or the necessary remedy, and could justify a preference of any size or duration. Moreover, JUSTICE MARSHALL's suggestion that discrimination findings may be "shared" from jurisdiction to jurisdiction is unprecedented, and contrary to this Court's decisions. Pp. 504-506.
(d) Since there is absolutely no evidence of past discrimination against Spanish-speaking, Oriental, Indian, Eskimo, or Aleut persons in any aspect of the city's construction industry, the Plan's random inclusion of those groups strongly impugns the city's claim of remedial motivation. Pp. 506.
2. The Plan is not narrowly tailored to remedy the effects of prior discrimination, since it entitles a black, Hispanic, or Oriental entrepreneur from anywhere in the country to an absolute preference over other citizens based solely on their race. Although many of the barriers to minority participation in the construction industry relied upon by the city to justify the Plan appear to be race neutral, there is no evidence that the city considered using alternative, race-neutral means to increase minority participation in city contracting. Moreover, the Plan's rigid 30% quota rests upon the completely unrealistic assumption that minorities will choose to enter construction in lockstep proportion to their representation in the local population. Unlike the program upheld in Fullilove, the Plan's waiver system focuses upon the availability of MBE's, and does not inquire whether the particular MBE seeking a racial preference has suffered from the effects of past discrimination by the city or prime contractors. Given the fact that the city must already consider bids and [p472] waivers on a case-by-case basis, the city's only interest in maintaining a quota system, rather than investigating the need for remedial action in particular cases, would seem to be simply administrative convenience, which, standing alone, cannot justify the use of a suspect classification under equal protection strict scrutiny. Pp. 507-508.
JUSTICE O'CONNOR, joined by THE CHIEF JUSTICE and JUSTICE WHITE, concluded in Part II that, if the city could identify past discrimination in the local construction industry with the particularity required by the Equal Protection Clause, it would have the power to adopt race-based legislation designed to eradicate the effects of that discrimination. The principal opinion in Fullilove cannot be read to relieve the city of the necessity of making the specific findings of discrimination required by the Clause, since the congressional finding of past discrimination relied on in that case was made pursuant to Congress' unique power under § 5 of the Amendment to enforce, and therefore to identify and redress violations of, the Amendment's provisions. Conversely, § 1 of the Amendment, which includes the Equal Protection Clause, is an explicit constraint upon the power of States and political subdivisions, which must undertake any remedial efforts in accordance with the dictates of that section. However, the Court of Appeals erred to the extent that it followed by rote the Wygant plurality's ruling that the Equal Protection Clause requires a showing of prior discrimination by the governmental unit involved, since that ruling was made in the context of a race-based policy that affected the particular public employer's own workforce, whereas this case involves a state entity which has specific state law authority to address discriminatory practices within local commerce under its jurisdiction. Pp. 486-493.
JUSTICE O'CONNOR, joined by THE CHIEF JUSTICE, JUSTICE WHITE, and JUSTICE KENNEDY, concluded in Parts III-A and V that:
1. Since the Plan denies certain citizens the opportunity to compete for a fixed percentage of public contracts based solely on their race, Wygant's strict scrutiny standard of review must be applied, which requires a firm evidentiary basis for concluding that the underrepresentation of minorities is a product of past discrimination. Application of that standard, which is not dependent on the race of those burdened or benefited by the racial classification, assures that the city is pursuing a remedial goal important enough to warrant use of a highly suspect tool, and that the means chosen "fit" this compelling goal so closely that there is little or no possibility that the motive for the classification was illegitimate racial prejudice or stereotype. The relaxed standard of review proposed by JUSTICE MARSHALL's dissent does not provide a means for determining that a racial classification is in fact "designed to further remedial goals," since it accepts the remedial nature of the classification [p473] before examination of the factual basis for the classification's enactment and the nexus between its scope and that factual basis. Even if the level of equal protection scrutiny could be said to vary according to the ability of different groups to defend their interests in the representative process, heightened scrutiny would still be appropriate in the circumstances of this case, since blacks comprise approximately 50% of the city's population and hold five of nine seats on the City Council, thereby raising the concern that the political majority may have acted to disadvantage a minority based on unwarranted assumptions or incomplete facts. Pp. 493-498.
2. Even in the absence of evidence of discrimination in the local construction industry, the city has at its disposal an array of race-neutral devices to increase the accessibility of city contracting opportunities to small entrepreneurs of all races who have suffered the effects of past societal discrimination, including simplification of bidding procedures, relaxation of bonding requirements, training, financial aid, elimination or modification of formal barriers caused by bureaucratic inertia, and the prohibition of discrimination in the provision of credit or bonding by local suppliers and banks. Pp. 509-511.
JUSTICE STEVENS, although agreeing that the Plan cannot be justified as a remedy for past discrimination, concluded that the Fourteenth Amendment does not limit permissible racial classifications to those that remedy past wrongs, but requires that race-based governmental decisions be evaluated primarily by studying their probable impact on the future. Pp. 511-518.
(a) Disregarding the past history of racial injustice, there is not even an arguable basis for suggesting that the race of a subcontractor or contractor on city projects should have any relevance to his or her access to the market. Although race is not always irrelevant to sound governmental decisionmaking, the city makes no claim that the public interest in the efficient performance of its construction contracts will be served by granting a preference to minority business enterprises. Pp. 512-513.
(b) Legislative bodies such as the city council, which are primarily policymaking entities that promulgate rules to govern future conduct, raise valid constitutional concerns when they use the political process to punish or characterize past conduct of private citizens. Courts, on the other hand, are well equipped to identify past wrongdoers and to fashion remedies that will create the conditions that presumably would have existed had no wrong been committed, and should have the same broad discretion in racial discrimination cases that chancellors enjoy in other areas of the law to fashion remedies against persons who have been proved guilty of violations of law. Pp. 513-514. [p474]
(c) Rather than engaging in debate over the proper standard of review to apply in affirmative action litigation, it is more constructive to try to identify the characteristics of the advantaged and disadvantaged classes that may justify their disparate treatment. Here, instead of carefully identifying those characteristics, the city has merely engaged in the type of stereotypical analysis that is the hallmark of Equal Protection Clause violations. The class of persons benefited by the Plan is not limited to victims of past discrimination by white contractors in the city, but encompasses persons who have never been in business in the city, minority contractors who may have themselves been guilty of discrimination against other minority group members, and firms that have prospered notwithstanding discriminatory treatment. Similarly, although the Plan unquestionably disadvantages some white contractors who are guilty of past discrimination against blacks, it also punishes some who discriminated only before it was forbidden by law, and some who have never discriminated against anyone. Pp. 514-517.
JUSTICE KENNEDY concluded that the Fourteenth Amendment ought not to be interpreted to reduce a State's power to eradicate racial discrimination and its effects in both the public and private sectors, or its absolute duty to do so where those wrongs were caused intentionally by the State itself, except where there is a conflict with federal law or where, as here, a state remedy itself violates equal protection. Although a rule striking down all racial preferences which are not necessary remedies to victims of unlawful discrimination would serve important structural goals by eliminating the necessity for courts to pass on each such preference that is enacted, that rule would be a significant break with this Court's precedents that require a case-by-case test, and need not be adopted. Rather, it may be assumed that the principle of race neutrality found in the Equal Protection Clause will be vindicated by the less absolute strict scrutiny standard, the application of which demonstrates that the city's Plan is not a remedy, but is itself an unconstitutional preference. Pp. 518-520.
JUSTICE SCALIA, agreeing that strict scrutiny must be applied to all governmental racial classifications, concluded that:
1. The Fourteenth Amendment prohibits state and local governments from discriminating on the basis of race in order to undo the effects of past discrimination, except in one circumstance: where that is necessary to eliminate their own maintenance of a system of unlawful racial classification. Moreover, the State's remedial power in that instance extends no further than the scope of the constitutional violation, and does not encompass the continuing effects of a discriminatory system once the system itself has been eliminated. Pp. 520-525. [p475]
2. The State remains free to undo the effects of past discrimination in permissible ways that do not involve classification by race -- for example, by according a contracting preference to small or new businesses or to actual victims of discrimination who can be identified. In the latter instance, the classification would not be based on race, but on the fact that the victims were wronged. Pp. 526-528.
O'CONNOR, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, III-B, and IV, in which REHNQUIST, C.J., and WHITE, STEVENS, and KENNEDY, JJ., joined, an opinion with respect to Part II, in which REHNQUIST, C.J., and WHITE, J., joined, and an opinion with respect to Parts III-A and V, in which REHNQUIST, C.J., and WHITE and KENNEDY, JJ., joined. STEVENS, J., post, p. 511, and KENNEDY, J., post, p. 518, filed opinions concurring in part and concurring in the judgment. SCALIA, J., filed an opinion concurring in the judgment, post, p. 520. MARSHALL, J., filed a dissenting opinion, in which BRENNAN and BLACKMUN, JJ., joined, post, p. 528. BLACKMUN., J., filed a dissenting opinion, in which BRENNAN, J., joined, post, p. 561. [p476]
--------------------------------------------------------------------------------
488 U.S. 469
APPEAL FROM THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
--------------------------------------------------------------------------------
No. 87-998 Argued: October 5, 1988 --- Decided: January 23, 1989
--------------------------------------------------------------------------------
Appellant city adopted a Minority Business Utilization Plan (Plan) requiring prime contractors awarded city construction contracts to subcontract at least 30% of the dollar amount of each contract to one or more "Minority Business Enterprises" (MBE's), which the Plan defined to include a business from anywhere in the country at least 51% of which is owned and controlled by black, Spanish-speaking, Oriental, Indian, Eskimo, or Aleut citizens. Although the Plan declared that it was "remedial" in nature, it was adopted after a public hearing at which no direct evidence was presented that the city had discriminated on the basis of race in letting contracts, or that its prime contractors had discriminated against minority subcontractors. The evidence that was introduced included: a statistical study indicating that, although the city's population was 50% black, only 0.67% of its prime construction contracts had been awarded to minority businesses in recent years; figures establishing that a variety of local contractors' associations had virtually no MBE members; the city's counsel's conclusion that the Plan was constitutional under Fullilove v. Klutznick, 448 U.S. 448; and the statements of Plan proponents indicating that there had been widespread racial discrimination in the local, state, and national construction industries. Pursuant to the Plan, the city adopted rules requiring individualized consideration of each bid or request for a waiver of the 30% set-aside, and providing that a waiver could be granted only upon proof that sufficient qualified MBE's were unavailable or unwilling to participate. After appellee construction company, the sole bidder on a city contract, was denied a waiver and lost its contract, it brought suit under 42 U.S.C. § 1983 alleging that the Plan was unconstitutional under the Fourteenth Amendment's Equal Protection Clause. The Federal District Court upheld the Plan in all respects, and the Court of Appeals affirmed, applying a test derived from the principal opinion in Fullilove, supra, which accorded great deference to Congress' findings of past societal discrimination in holding that a 10% minority set-aside for certain federal construction grants did not violate the equal protection component of the Fifth Amendment. However, on appellee's petition for certiorari in this case, this Court vacated and remanded for further consideration in light of its intervening decision in Wygant v. Jackson Board of Education, 476 U.S. 267, in [p470] which the plurality applied a strict scrutiny standard in holding that a race-based layoff program agreed to by a school board and the local teachers' union violated the Fourteenth Amendment's Equal Protection Clause. On remand, the Court of Appeals held that the city's Plan violated both prongs of strict scrutiny, in that (1) the Plan was not justified by a compelling governmental interest, since the record revealed no prior discrimination by the city itself in awarding contracts, and (2) the 30% set-aside was not narrowly tailored to accomplish a remedial purpose.
Held: The judgment is affirmed.
822 F.2d 1355, affirmed.
JUSTICE O'CONNOR delivered the opinion of the Court with respect to Parts I, III-B, and IV, concluding that:
1. The city has failed to demonstrate a compelling governmental interest justifying the Plan, since the factual predicate supporting the Plan does not establish the type of identified past discrimination in the city's construction industry that would authorize race-based relief under the Fourteenth Amendment's Equal Protection Clause. Pp. 498-506.
(a) A generalized assertion that there has been past discrimination in the entire construction industry cannot justify the use of an unyielding racial quota, since it provides no guidance for the city's legislative body to determine the precise scope of the injury it seeks to remedy, and would allow race-based decisionmaking essentially limitless in scope and duration. The city's argument that it is attempting to remedy various forms of past societal discrimination that are alleged to be responsible for the small number of minority entrepreneurs in the local contracting industry fails, since the city also lists a host of nonracial factors which would seem to face a member of any racial group seeking to establish a new business enterprise, such as deficiencies in working capital, inability to meet bonding requirements, unfamiliarity with bidding procedures, and disability caused by an inadequate track record. Pp. 498-499.
(b) None of the "facts" cited by the city or relied on by the District Court, singly or together, provide a basis for a prima facie case of a constitutional or statutory violation by anyone in the city's construction industry. The fact that the Plan declares itself to be "remedial" is insufficient, since the mere recitation of a "benign" or legitimate purpose for a racial classification is entitled to little or no weight. Similarly, the views of Plan proponents as to past and present discrimination in the industry are highly conclusory, and of little probative value. Reliance on the disparity between the number of prime contracts awarded to minority businesses and the city's minority population is also misplaced, since the proper statistical evaluation would compare the percentage of MBE's [p471] in the relevant market that are qualified to undertake city subcontracting work with the percentage of total city construction dollars that are presently awarded to minority subcontractors, neither of which is known to the city. The fact that MBE membership in local contractors' associations was extremely low is also not probative, absent some link to the number of MBE's eligible for membership, since there are numerous explanations for the dearth of minority participation, including past societal discrimination in education and economic opportunities, as well as both black and white career and entrepreneurial choices. Congress' finding in connection with the set-aside approved in Fullilove that there had been nationwide discrimination in the construction industry also has extremely limited probative value, since, by including a waiver procedure in the national program, Congress explicitly recognized that the scope of the problem would vary from market area to market area. In any event, Congress was acting pursuant to its unique enforcement powers under § 5 of the Fourteenth Amendment. Pp. 499-504.
(c) The "evidence" relied upon by JUSTICE MARSHALL's dissent -- the city's history of school desegregation and numerous congressional reports -- does little to define the scope of any injury to minority contractors in the city or the necessary remedy, and could justify a preference of any size or duration. Moreover, JUSTICE MARSHALL's suggestion that discrimination findings may be "shared" from jurisdiction to jurisdiction is unprecedented, and contrary to this Court's decisions. Pp. 504-506.
(d) Since there is absolutely no evidence of past discrimination against Spanish-speaking, Oriental, Indian, Eskimo, or Aleut persons in any aspect of the city's construction industry, the Plan's random inclusion of those groups strongly impugns the city's claim of remedial motivation. Pp. 506.
2. The Plan is not narrowly tailored to remedy the effects of prior discrimination, since it entitles a black, Hispanic, or Oriental entrepreneur from anywhere in the country to an absolute preference over other citizens based solely on their race. Although many of the barriers to minority participation in the construction industry relied upon by the city to justify the Plan appear to be race neutral, there is no evidence that the city considered using alternative, race-neutral means to increase minority participation in city contracting. Moreover, the Plan's rigid 30% quota rests upon the completely unrealistic assumption that minorities will choose to enter construction in lockstep proportion to their representation in the local population. Unlike the program upheld in Fullilove, the Plan's waiver system focuses upon the availability of MBE's, and does not inquire whether the particular MBE seeking a racial preference has suffered from the effects of past discrimination by the city or prime contractors. Given the fact that the city must already consider bids and [p472] waivers on a case-by-case basis, the city's only interest in maintaining a quota system, rather than investigating the need for remedial action in particular cases, would seem to be simply administrative convenience, which, standing alone, cannot justify the use of a suspect classification under equal protection strict scrutiny. Pp. 507-508.
JUSTICE O'CONNOR, joined by THE CHIEF JUSTICE and JUSTICE WHITE, concluded in Part II that, if the city could identify past discrimination in the local construction industry with the particularity required by the Equal Protection Clause, it would have the power to adopt race-based legislation designed to eradicate the effects of that discrimination. The principal opinion in Fullilove cannot be read to relieve the city of the necessity of making the specific findings of discrimination required by the Clause, since the congressional finding of past discrimination relied on in that case was made pursuant to Congress' unique power under § 5 of the Amendment to enforce, and therefore to identify and redress violations of, the Amendment's provisions. Conversely, § 1 of the Amendment, which includes the Equal Protection Clause, is an explicit constraint upon the power of States and political subdivisions, which must undertake any remedial efforts in accordance with the dictates of that section. However, the Court of Appeals erred to the extent that it followed by rote the Wygant plurality's ruling that the Equal Protection Clause requires a showing of prior discrimination by the governmental unit involved, since that ruling was made in the context of a race-based policy that affected the particular public employer's own workforce, whereas this case involves a state entity which has specific state law authority to address discriminatory practices within local commerce under its jurisdiction. Pp. 486-493.
JUSTICE O'CONNOR, joined by THE CHIEF JUSTICE, JUSTICE WHITE, and JUSTICE KENNEDY, concluded in Parts III-A and V that:
1. Since the Plan denies certain citizens the opportunity to compete for a fixed percentage of public contracts based solely on their race, Wygant's strict scrutiny standard of review must be applied, which requires a firm evidentiary basis for concluding that the underrepresentation of minorities is a product of past discrimination. Application of that standard, which is not dependent on the race of those burdened or benefited by the racial classification, assures that the city is pursuing a remedial goal important enough to warrant use of a highly suspect tool, and that the means chosen "fit" this compelling goal so closely that there is little or no possibility that the motive for the classification was illegitimate racial prejudice or stereotype. The relaxed standard of review proposed by JUSTICE MARSHALL's dissent does not provide a means for determining that a racial classification is in fact "designed to further remedial goals," since it accepts the remedial nature of the classification [p473] before examination of the factual basis for the classification's enactment and the nexus between its scope and that factual basis. Even if the level of equal protection scrutiny could be said to vary according to the ability of different groups to defend their interests in the representative process, heightened scrutiny would still be appropriate in the circumstances of this case, since blacks comprise approximately 50% of the city's population and hold five of nine seats on the City Council, thereby raising the concern that the political majority may have acted to disadvantage a minority based on unwarranted assumptions or incomplete facts. Pp. 493-498.
2. Even in the absence of evidence of discrimination in the local construction industry, the city has at its disposal an array of race-neutral devices to increase the accessibility of city contracting opportunities to small entrepreneurs of all races who have suffered the effects of past societal discrimination, including simplification of bidding procedures, relaxation of bonding requirements, training, financial aid, elimination or modification of formal barriers caused by bureaucratic inertia, and the prohibition of discrimination in the provision of credit or bonding by local suppliers and banks. Pp. 509-511.
JUSTICE STEVENS, although agreeing that the Plan cannot be justified as a remedy for past discrimination, concluded that the Fourteenth Amendment does not limit permissible racial classifications to those that remedy past wrongs, but requires that race-based governmental decisions be evaluated primarily by studying their probable impact on the future. Pp. 511-518.
(a) Disregarding the past history of racial injustice, there is not even an arguable basis for suggesting that the race of a subcontractor or contractor on city projects should have any relevance to his or her access to the market. Although race is not always irrelevant to sound governmental decisionmaking, the city makes no claim that the public interest in the efficient performance of its construction contracts will be served by granting a preference to minority business enterprises. Pp. 512-513.
(b) Legislative bodies such as the city council, which are primarily policymaking entities that promulgate rules to govern future conduct, raise valid constitutional concerns when they use the political process to punish or characterize past conduct of private citizens. Courts, on the other hand, are well equipped to identify past wrongdoers and to fashion remedies that will create the conditions that presumably would have existed had no wrong been committed, and should have the same broad discretion in racial discrimination cases that chancellors enjoy in other areas of the law to fashion remedies against persons who have been proved guilty of violations of law. Pp. 513-514. [p474]
(c) Rather than engaging in debate over the proper standard of review to apply in affirmative action litigation, it is more constructive to try to identify the characteristics of the advantaged and disadvantaged classes that may justify their disparate treatment. Here, instead of carefully identifying those characteristics, the city has merely engaged in the type of stereotypical analysis that is the hallmark of Equal Protection Clause violations. The class of persons benefited by the Plan is not limited to victims of past discrimination by white contractors in the city, but encompasses persons who have never been in business in the city, minority contractors who may have themselves been guilty of discrimination against other minority group members, and firms that have prospered notwithstanding discriminatory treatment. Similarly, although the Plan unquestionably disadvantages some white contractors who are guilty of past discrimination against blacks, it also punishes some who discriminated only before it was forbidden by law, and some who have never discriminated against anyone. Pp. 514-517.
JUSTICE KENNEDY concluded that the Fourteenth Amendment ought not to be interpreted to reduce a State's power to eradicate racial discrimination and its effects in both the public and private sectors, or its absolute duty to do so where those wrongs were caused intentionally by the State itself, except where there is a conflict with federal law or where, as here, a state remedy itself violates equal protection. Although a rule striking down all racial preferences which are not necessary remedies to victims of unlawful discrimination would serve important structural goals by eliminating the necessity for courts to pass on each such preference that is enacted, that rule would be a significant break with this Court's precedents that require a case-by-case test, and need not be adopted. Rather, it may be assumed that the principle of race neutrality found in the Equal Protection Clause will be vindicated by the less absolute strict scrutiny standard, the application of which demonstrates that the city's Plan is not a remedy, but is itself an unconstitutional preference. Pp. 518-520.
JUSTICE SCALIA, agreeing that strict scrutiny must be applied to all governmental racial classifications, concluded that:
1. The Fourteenth Amendment prohibits state and local governments from discriminating on the basis of race in order to undo the effects of past discrimination, except in one circumstance: where that is necessary to eliminate their own maintenance of a system of unlawful racial classification. Moreover, the State's remedial power in that instance extends no further than the scope of the constitutional violation, and does not encompass the continuing effects of a discriminatory system once the system itself has been eliminated. Pp. 520-525. [p475]
2. The State remains free to undo the effects of past discrimination in permissible ways that do not involve classification by race -- for example, by according a contracting preference to small or new businesses or to actual victims of discrimination who can be identified. In the latter instance, the classification would not be based on race, but on the fact that the victims were wronged. Pp. 526-528.
O'CONNOR, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, III-B, and IV, in which REHNQUIST, C.J., and WHITE, STEVENS, and KENNEDY, JJ., joined, an opinion with respect to Part II, in which REHNQUIST, C.J., and WHITE, J., joined, and an opinion with respect to Parts III-A and V, in which REHNQUIST, C.J., and WHITE and KENNEDY, JJ., joined. STEVENS, J., post, p. 511, and KENNEDY, J., post, p. 518, filed opinions concurring in part and concurring in the judgment. SCALIA, J., filed an opinion concurring in the judgment, post, p. 520. MARSHALL, J., filed a dissenting opinion, in which BRENNAN and BLACKMUN, JJ., joined, post, p. 528. BLACKMUN., J., filed a dissenting opinion, in which BRENNAN, J., joined, post, p. 561. [p476]
Johnson v. Transportation Agency
SUPREME COURT OF THE UNITED STATES
--------------------------------------------------------------------------------
480 U.S. 616
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
--------------------------------------------------------------------------------
No. 85-1129 Argued: November 12, 1986 --- Decided: March 25, 1987
--------------------------------------------------------------------------------
In 1978, an Affirmative Action Plan (Plan) for hiring and promoting minorities and women was voluntarily adopted by respondent Santa Clara County Transportation Agency (Agency). The Plan provides, inter alia, that, in making promotions to positions within a traditionally segregated job classification in which women have been significantly underrepresented, the Agency is authorized to consider as one factor the sex of a qualified applicant. The Plan is intended to achieve a statistically measurable yearly improvement in hiring and promoting minorities and women in job classifications where they are underrepresented, and the long-term goal is to attain a workforce whose composition reflects the proportion of minorities and women in the area labor force. The Plan sets aside no specific number of positions for minorities or women, but requires that short-range goals be established and annually adjusted to serve as the most realistic guide for actual employment decisions. When the Agency announced a vacancy for the promotional position of road dispatcher, none of the 238 positions in the pertinent Skilled Craft Worker job classification, which included the dispatcher position, was held by a woman. The qualified applicants for the position were interviewed and the Agency, pursuant to the Plan, ultimately passed over petitioner, a male employee, and promoted a female, Diane Joyce, both of whom were rated as well qualified for the job. After receiving a right-to-sue letter from the Equal Employment Opportunity Commission, petitioner filed suit in Federal District Court, which held that the Agency had violated Title VII of the Civil Rights Act of 1964. The court found that Joyce's sex was the determining factor in her selection, and that the Agency's Plan was invalid under the criterion announced in Steelworkers v. Weber, 443 U.S. 193, that the Plan be temporary. The Court of Appeals reversed.
Held: The Agency appropriately took into account Joyce's sex as one factor in determining that she should be promoted. The Agency's Plan represents a moderate, flexible, case-by-case approach to effecting a gradual improvement in the representation of minorities and women [p617] in the Agency's workforce, and is fully consistent with Title VII. Pp. 626-640.
(a) Petitioner bears the burden of proving that the Agency's Plan violates Title VII. Once a plaintiff establishes a prima facie case that race or sex has been taken into account in an employer's employment decision, the burden shifts to the employer to articulate a nondiscriminatory rationale for its decision, such as the existence of an affirmative action plan. The burden then shifts to the plaintiff to prove that the plan is invalid and that the employer's justification is pretextual. Pp. 626-627.
(b) Assessment of the legality of the Agency's Plan must be guided by the decision in Weber. An employer seeking to justify the adoption of an affirmative action plan need not point to its own prior discriminatory practices, but need point only to a conspicuous imbalance in traditionally segregated job categories. Voluntary employer action can play a crucial role in furthering Title VII's purpose of eliminating the effects of discrimination in the workplace, and Title VII should not be read to thwart such efforts. Pp. 627-630.
(c) The employment decision here was made pursuant to a plan prompted by concerns similar to those of the employer in Weber, supra. Consideration of the sex of applicants for skilled craft jobs was justified by the existence of a "manifest imbalance" that reflected underrepresentation of women in "traditionally segregated job categories." Id. at 197. Where a job requires special training, the comparison for determining whether an imbalance exists should be between the employer's workforce and those in the area labor force who possess the relevant qualifications. If a plan failed to take distinctions in qualifications into account in providing guidance for actual employment decisions, it would improperly dictate mere blind hiring by the numbers. However, the Agency's Plan did not authorize such blind hiring, but expressly directed that numerous factors be taken into account in making employment decisions, including specifically the number of female applicants qualified for particular jobs. Thus, despite the fact that no precise short-term goal was yet in place for the Skilled Craft Worker job category when Joyce was promoted, the Agency's management had been clearly instructed that they were not to hire solely by reference to statistics. The fact that only the long-term goal had been established for the job category posed no danger that personnel decisions would be made by reflexive adherence to a numerical standard. Pp. 631-637.
(d) The Agency Plan did not unnecessarily trammel male employees' rights or create an absolute bar to their advancement. The Plan sets aside no positions for women, and expressly states that its goals should [p618] not be construed as "quotas" that must be met. Denial of the promotion to petitioner unsettled no legitimate, firmly rooted expectation on his part, since the Agency Director was authorized to select any of the seven applicants deemed qualified for the job. Express assurance that a program is only temporary may be necessary if the program actually sets aside positions according to specific numbers. However, substantial evidence shows that the Agency has sought to take a moderate, gradual approach to eliminating the imbalance in its workforce, one which establishes realistic guidance for employment decisions, and which visits minimal intrusion on the legitimate expectations of other employees. Given this fact, as well as the Agency's express commitment to "attain" a balanced workforce, there is ample assurance that the Agency does not seek to use its Plan to "maintain" a permanent racial and sexual balance. Pp. 637-640.
770 F.2d 752, affirmed.
BRENNAN, J., delivered the opinion of the Court, in which MARSHALL, BLACKMUN, POWELL, and STEVENS, JJ., joined. STEVENS, J., filed a concurring opinion, post, p. 642. O'CONNOR, J., filed an opinion concurring in the judgment, post, p. 647. WHITE, J., filed a dissenting opinion, post, p. 657. SCALIA, J., filed a dissenting opinion, in which REHNQUIST, C.J., joined, and in Parts I and II of which WHITE, J., joined, post, p. 657. [p619]
--------------------------------------------------------------------------------
480 U.S. 616
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
--------------------------------------------------------------------------------
No. 85-1129 Argued: November 12, 1986 --- Decided: March 25, 1987
--------------------------------------------------------------------------------
In 1978, an Affirmative Action Plan (Plan) for hiring and promoting minorities and women was voluntarily adopted by respondent Santa Clara County Transportation Agency (Agency). The Plan provides, inter alia, that, in making promotions to positions within a traditionally segregated job classification in which women have been significantly underrepresented, the Agency is authorized to consider as one factor the sex of a qualified applicant. The Plan is intended to achieve a statistically measurable yearly improvement in hiring and promoting minorities and women in job classifications where they are underrepresented, and the long-term goal is to attain a workforce whose composition reflects the proportion of minorities and women in the area labor force. The Plan sets aside no specific number of positions for minorities or women, but requires that short-range goals be established and annually adjusted to serve as the most realistic guide for actual employment decisions. When the Agency announced a vacancy for the promotional position of road dispatcher, none of the 238 positions in the pertinent Skilled Craft Worker job classification, which included the dispatcher position, was held by a woman. The qualified applicants for the position were interviewed and the Agency, pursuant to the Plan, ultimately passed over petitioner, a male employee, and promoted a female, Diane Joyce, both of whom were rated as well qualified for the job. After receiving a right-to-sue letter from the Equal Employment Opportunity Commission, petitioner filed suit in Federal District Court, which held that the Agency had violated Title VII of the Civil Rights Act of 1964. The court found that Joyce's sex was the determining factor in her selection, and that the Agency's Plan was invalid under the criterion announced in Steelworkers v. Weber, 443 U.S. 193, that the Plan be temporary. The Court of Appeals reversed.
Held: The Agency appropriately took into account Joyce's sex as one factor in determining that she should be promoted. The Agency's Plan represents a moderate, flexible, case-by-case approach to effecting a gradual improvement in the representation of minorities and women [p617] in the Agency's workforce, and is fully consistent with Title VII. Pp. 626-640.
(a) Petitioner bears the burden of proving that the Agency's Plan violates Title VII. Once a plaintiff establishes a prima facie case that race or sex has been taken into account in an employer's employment decision, the burden shifts to the employer to articulate a nondiscriminatory rationale for its decision, such as the existence of an affirmative action plan. The burden then shifts to the plaintiff to prove that the plan is invalid and that the employer's justification is pretextual. Pp. 626-627.
(b) Assessment of the legality of the Agency's Plan must be guided by the decision in Weber. An employer seeking to justify the adoption of an affirmative action plan need not point to its own prior discriminatory practices, but need point only to a conspicuous imbalance in traditionally segregated job categories. Voluntary employer action can play a crucial role in furthering Title VII's purpose of eliminating the effects of discrimination in the workplace, and Title VII should not be read to thwart such efforts. Pp. 627-630.
(c) The employment decision here was made pursuant to a plan prompted by concerns similar to those of the employer in Weber, supra. Consideration of the sex of applicants for skilled craft jobs was justified by the existence of a "manifest imbalance" that reflected underrepresentation of women in "traditionally segregated job categories." Id. at 197. Where a job requires special training, the comparison for determining whether an imbalance exists should be between the employer's workforce and those in the area labor force who possess the relevant qualifications. If a plan failed to take distinctions in qualifications into account in providing guidance for actual employment decisions, it would improperly dictate mere blind hiring by the numbers. However, the Agency's Plan did not authorize such blind hiring, but expressly directed that numerous factors be taken into account in making employment decisions, including specifically the number of female applicants qualified for particular jobs. Thus, despite the fact that no precise short-term goal was yet in place for the Skilled Craft Worker job category when Joyce was promoted, the Agency's management had been clearly instructed that they were not to hire solely by reference to statistics. The fact that only the long-term goal had been established for the job category posed no danger that personnel decisions would be made by reflexive adherence to a numerical standard. Pp. 631-637.
(d) The Agency Plan did not unnecessarily trammel male employees' rights or create an absolute bar to their advancement. The Plan sets aside no positions for women, and expressly states that its goals should [p618] not be construed as "quotas" that must be met. Denial of the promotion to petitioner unsettled no legitimate, firmly rooted expectation on his part, since the Agency Director was authorized to select any of the seven applicants deemed qualified for the job. Express assurance that a program is only temporary may be necessary if the program actually sets aside positions according to specific numbers. However, substantial evidence shows that the Agency has sought to take a moderate, gradual approach to eliminating the imbalance in its workforce, one which establishes realistic guidance for employment decisions, and which visits minimal intrusion on the legitimate expectations of other employees. Given this fact, as well as the Agency's express commitment to "attain" a balanced workforce, there is ample assurance that the Agency does not seek to use its Plan to "maintain" a permanent racial and sexual balance. Pp. 637-640.
770 F.2d 752, affirmed.
BRENNAN, J., delivered the opinion of the Court, in which MARSHALL, BLACKMUN, POWELL, and STEVENS, JJ., joined. STEVENS, J., filed a concurring opinion, post, p. 642. O'CONNOR, J., filed an opinion concurring in the judgment, post, p. 647. WHITE, J., filed a dissenting opinion, post, p. 657. SCALIA, J., filed a dissenting opinion, in which REHNQUIST, C.J., joined, and in Parts I and II of which WHITE, J., joined, post, p. 657. [p619]
Monday, April 27, 2009
United States v. Paradise
SUPREME COURT OF THE UNITED STATES
--------------------------------------------------------------------------------
480 U.S. 149
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT
--------------------------------------------------------------------------------
No. 85-999 Argued: November 12, 1986 --- Decided: February 25, 1987
--------------------------------------------------------------------------------
In 1972, upon finding that, for almost four decades, the Alabama Department of Public Safety (Department) had systematically excluded blacks from employment as state troopers in violation of the Fourteenth Amendment, the District Court issued an order imposing a hiring quota and requiring the Department to refrain from engaging in discrimination in its employment practices, including promotions. By 1979, no blacks had attained the upper ranks of the Department. The court therefore approved a partial consent decree in which the Department agreed to develop within one year a procedure for promotion to corporal that would have no adverse impact on blacks and would comply with the Uniform Guidelines on Employee Selection Procedures (Guidelines), and thereafter to develop similar procedures for the other upper ranks (1979 Decree). As of 1981, however, more than a year after the 1979 Decree's deadline, no black troopers had been promoted. The court approved a second consent decree in which the parties agreed that the Department's proposed corporal promotion test would be administered to applicants, that the results would be reviewed to determine any adverse impact on blacks under the Guidelines, that the determination of a procedure would be submitted to the court if the parties were unable to agree thereon, and that no promotions would occur until the parties agreed or the court ruled upon the promotion method to be used (1981 Decree). Of the 60 blacks to whom the test was administered, only 5 (8.3%) were listed in the top half of the promotional register, and the highest ranked black was number 80. The Department then declared that it had an immediate need for between 8 and 10 new corporals, and stated its intention to elevate between 16 and 20 individuals before constructing a new list. The United States objected to any use of the list in making promotions. In 1983, the District Court held that the test had an adverse impact on blacks, and ordered the Department to submit a plan to promote at least 15 qualified candidates to corporal in a manner that would not have an adverse racial impact. The Department proposed to promote 4 blacks among the 15 new corporals, but the court rejected that proposal and ordered that "for a period of time," at least 50% of those promoted to corporal must be black, if qualified black candidates were available, and imposed a 50% promotional requirement in the other upper ranks, but only [p150] if there were qualified black candidates, if a particular rank were less than 25% black, and if the Department had not developed and implemented a promotion plan without adverse impact for the relevant rank. The Department was also ordered to submit a realistic schedule for the development of promotional procedures for all ranks above the entry level. Subsequently, the Department promoted eight blacks and eight whites under the court's order, and submitted its proposed corporal and sergeant promotional procedures, at which times the court suspended the 50% requirement for those ranks. The United States appealed the court's order on the ground that it violated the Fourteenth Amendment's equal protection guarantee. The Court of Appeals affirmed the order.
Held: The judgment is affirmed.
767 F.2d 1614, affirmed.
JUSTICE BRENNAN, joined by JUSTICE MARSHALL, JUSTICE BLACKMUN, and JUSTICE POWELL, concluded that, even under a strict scrutiny analysis, the one-black-for-one-white promotion requirement is permissible under the Equal Protection Clause of the Fourteenth Amendment. Pp. 166-186.
1. The race-conscious relief ordered by the District Court is justified by a compelling governmental interest in eradicating the Department's pervasive, systematic, and obstinate discriminatory exclusion of blacks. The contention that promotion relief is unjustified because the Department has been found to have committed only hiring discrimination is without merit, since promotion, like hiring, has been a central concern of the District Court since the action's commencement. The Department's intentional hiring discrimination had a profound effect on the force's upper ranks by precluding blacks from competing for promotions. Moreover, the record amply demonstrates that the Department's promotional procedure is itself discriminatory, resulting in an upper rank structure that totally excludes blacks. Pp. 166-170.
2. The District Court's enforcement order is also supported by the societal interest in compliance with federal court judgments. The Department has had a consistent history of resistance to the District Court's orders, and relief was imposed only after the Department failed to live up to its court-approved commitments. Pp. 170-171.
3. The one-for-one promotional requirement is narrowly tailored to serve its purposes, both as applied to the initial corporal promotions and as a continuing contingent order with respect to the upper ranks. Pp. 171-186.
(a) The one-for-one requirement is necessary to eliminate the effects of the Department's long-term, open, and pervasive discrimination, including the absolute exclusion of blacks in the upper ranks; to ensure [p151] expeditious compliance with the 1979 and 1981 Decrees by inducing the implementation of a promotional procedure that would not have an adverse racial impact; and to eradicate the ill effects of the Department's delay in producing such a procedure. The option proffered by the Department -- to promote 4 blacks and 11 whites as a stopgap measure, and to allow additional time for the development and submission of a nondiscriminatory procedure -- would not have satisfied any of the above purposes. Furthermore, the heavy fines and fees suggested by the Government as an alternative were never actually proposed to the District Court; were likely to be.ineffective, since the imposition of attorney's fees and costs in the past had not prevented delays; would not have compensated the plaintiffs for the delays; and would not have satisfied the Department's need to make 15 promotions immediately. Pp. 171-177.
(b) The one-for-one requirement is flexible in application at all ranks, in that it applies only when the Department needs to make promotions and does not require gratuitous promotions. Furthermore, the requirement may be waived by the court if there are no qualified black troopers, and, in fact, this has already happened with respect to lieutenant and captain positions. Moreover, the requirement is temporary, its term being contingent upon the Department's successful implementation of valid promotional procedures. It was, in fact, suspended upon the timely submission of procedures for promotion to corporal and sergeant. Pp. 177-178.
(c) The numerical relief ordered bears a proper relation to the percentage of nonwhites in the relevant work force, since the District Court ordered 50% black promotions until each rank is 25% black, whereas blacks constitute 25% of the relevant labor market. The one-for-one requirement is not arbitrary when compared to the 25% minority labor pool, since the 50% figure is not itself the goal, but merely represents the speed at which the 25% goal will be achieved, some promptness being justified by the Department's history of discrimination and delays. Although the 50% figure necessarily involves a degree of imprecision, it represents the District Court's informed attempt to balance the rights and interests of the plaintiffs, the Department, and white troopers. Pp. 179-182.
(d) The one-for-one requirement does not impose an unacceptable burden on innocent white promotion applicants. The requirement is temporary and limited in nature, has only been used once, and may never be used again. It does not bar, but simply postpones, advancement by some whites, and does not require the layoff or discharge of whites or the promotion of unqualified blacks over qualified whites.
(e) District judges, having firsthand experience with the parties and the particular situation, are given broad discretion to fashion appropriate [p152] remedies to cure Fourteenth Amendment violations, and the exercise of that discretion is entitled to substantial respect. Pp. 183-185.
JUSTICE STEVENS concluded that Swann v. Charlotte-Mecklenburg Bd. of Education, 402 U.S. 1, sets forth the appropriate governing standards for district court remedial orders in cases such as the present that involve racially discriminatory state actions violative of the Fourteenth Amendment. Because the record here discloses an egregious violation of the Equal Protection Clause, the District Court had broad and flexible authority to fashion race-conscious relief under the Swann standards. There has been no showing that the District Judge abused his discretion in doing so. Pp. 189-195.
BRENNAN, J., announced the judgment of the Court and delivered an opinion in which MARSHALL, BLACKMUN, and POWELL, JJ., joined. POWELL, J., filed a concurring opinion, post, p. 186. STEVENS, J., filed an opinion concurring in the judgment, post, p. 189. WHITE, J., filed a dissenting statement, post, p. 196. O'CONNOR, J., filed a dissenting opinion, in which REHNQUIST, C.J., and SCALIA, J., joined, post, p. 196. [p153]
--------------------------------------------------------------------------------
480 U.S. 149
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT
--------------------------------------------------------------------------------
No. 85-999 Argued: November 12, 1986 --- Decided: February 25, 1987
--------------------------------------------------------------------------------
In 1972, upon finding that, for almost four decades, the Alabama Department of Public Safety (Department) had systematically excluded blacks from employment as state troopers in violation of the Fourteenth Amendment, the District Court issued an order imposing a hiring quota and requiring the Department to refrain from engaging in discrimination in its employment practices, including promotions. By 1979, no blacks had attained the upper ranks of the Department. The court therefore approved a partial consent decree in which the Department agreed to develop within one year a procedure for promotion to corporal that would have no adverse impact on blacks and would comply with the Uniform Guidelines on Employee Selection Procedures (Guidelines), and thereafter to develop similar procedures for the other upper ranks (1979 Decree). As of 1981, however, more than a year after the 1979 Decree's deadline, no black troopers had been promoted. The court approved a second consent decree in which the parties agreed that the Department's proposed corporal promotion test would be administered to applicants, that the results would be reviewed to determine any adverse impact on blacks under the Guidelines, that the determination of a procedure would be submitted to the court if the parties were unable to agree thereon, and that no promotions would occur until the parties agreed or the court ruled upon the promotion method to be used (1981 Decree). Of the 60 blacks to whom the test was administered, only 5 (8.3%) were listed in the top half of the promotional register, and the highest ranked black was number 80. The Department then declared that it had an immediate need for between 8 and 10 new corporals, and stated its intention to elevate between 16 and 20 individuals before constructing a new list. The United States objected to any use of the list in making promotions. In 1983, the District Court held that the test had an adverse impact on blacks, and ordered the Department to submit a plan to promote at least 15 qualified candidates to corporal in a manner that would not have an adverse racial impact. The Department proposed to promote 4 blacks among the 15 new corporals, but the court rejected that proposal and ordered that "for a period of time," at least 50% of those promoted to corporal must be black, if qualified black candidates were available, and imposed a 50% promotional requirement in the other upper ranks, but only [p150] if there were qualified black candidates, if a particular rank were less than 25% black, and if the Department had not developed and implemented a promotion plan without adverse impact for the relevant rank. The Department was also ordered to submit a realistic schedule for the development of promotional procedures for all ranks above the entry level. Subsequently, the Department promoted eight blacks and eight whites under the court's order, and submitted its proposed corporal and sergeant promotional procedures, at which times the court suspended the 50% requirement for those ranks. The United States appealed the court's order on the ground that it violated the Fourteenth Amendment's equal protection guarantee. The Court of Appeals affirmed the order.
Held: The judgment is affirmed.
767 F.2d 1614, affirmed.
JUSTICE BRENNAN, joined by JUSTICE MARSHALL, JUSTICE BLACKMUN, and JUSTICE POWELL, concluded that, even under a strict scrutiny analysis, the one-black-for-one-white promotion requirement is permissible under the Equal Protection Clause of the Fourteenth Amendment. Pp. 166-186.
1. The race-conscious relief ordered by the District Court is justified by a compelling governmental interest in eradicating the Department's pervasive, systematic, and obstinate discriminatory exclusion of blacks. The contention that promotion relief is unjustified because the Department has been found to have committed only hiring discrimination is without merit, since promotion, like hiring, has been a central concern of the District Court since the action's commencement. The Department's intentional hiring discrimination had a profound effect on the force's upper ranks by precluding blacks from competing for promotions. Moreover, the record amply demonstrates that the Department's promotional procedure is itself discriminatory, resulting in an upper rank structure that totally excludes blacks. Pp. 166-170.
2. The District Court's enforcement order is also supported by the societal interest in compliance with federal court judgments. The Department has had a consistent history of resistance to the District Court's orders, and relief was imposed only after the Department failed to live up to its court-approved commitments. Pp. 170-171.
3. The one-for-one promotional requirement is narrowly tailored to serve its purposes, both as applied to the initial corporal promotions and as a continuing contingent order with respect to the upper ranks. Pp. 171-186.
(a) The one-for-one requirement is necessary to eliminate the effects of the Department's long-term, open, and pervasive discrimination, including the absolute exclusion of blacks in the upper ranks; to ensure [p151] expeditious compliance with the 1979 and 1981 Decrees by inducing the implementation of a promotional procedure that would not have an adverse racial impact; and to eradicate the ill effects of the Department's delay in producing such a procedure. The option proffered by the Department -- to promote 4 blacks and 11 whites as a stopgap measure, and to allow additional time for the development and submission of a nondiscriminatory procedure -- would not have satisfied any of the above purposes. Furthermore, the heavy fines and fees suggested by the Government as an alternative were never actually proposed to the District Court; were likely to be.ineffective, since the imposition of attorney's fees and costs in the past had not prevented delays; would not have compensated the plaintiffs for the delays; and would not have satisfied the Department's need to make 15 promotions immediately. Pp. 171-177.
(b) The one-for-one requirement is flexible in application at all ranks, in that it applies only when the Department needs to make promotions and does not require gratuitous promotions. Furthermore, the requirement may be waived by the court if there are no qualified black troopers, and, in fact, this has already happened with respect to lieutenant and captain positions. Moreover, the requirement is temporary, its term being contingent upon the Department's successful implementation of valid promotional procedures. It was, in fact, suspended upon the timely submission of procedures for promotion to corporal and sergeant. Pp. 177-178.
(c) The numerical relief ordered bears a proper relation to the percentage of nonwhites in the relevant work force, since the District Court ordered 50% black promotions until each rank is 25% black, whereas blacks constitute 25% of the relevant labor market. The one-for-one requirement is not arbitrary when compared to the 25% minority labor pool, since the 50% figure is not itself the goal, but merely represents the speed at which the 25% goal will be achieved, some promptness being justified by the Department's history of discrimination and delays. Although the 50% figure necessarily involves a degree of imprecision, it represents the District Court's informed attempt to balance the rights and interests of the plaintiffs, the Department, and white troopers. Pp. 179-182.
(d) The one-for-one requirement does not impose an unacceptable burden on innocent white promotion applicants. The requirement is temporary and limited in nature, has only been used once, and may never be used again. It does not bar, but simply postpones, advancement by some whites, and does not require the layoff or discharge of whites or the promotion of unqualified blacks over qualified whites.
(e) District judges, having firsthand experience with the parties and the particular situation, are given broad discretion to fashion appropriate [p152] remedies to cure Fourteenth Amendment violations, and the exercise of that discretion is entitled to substantial respect. Pp. 183-185.
JUSTICE STEVENS concluded that Swann v. Charlotte-Mecklenburg Bd. of Education, 402 U.S. 1, sets forth the appropriate governing standards for district court remedial orders in cases such as the present that involve racially discriminatory state actions violative of the Fourteenth Amendment. Because the record here discloses an egregious violation of the Equal Protection Clause, the District Court had broad and flexible authority to fashion race-conscious relief under the Swann standards. There has been no showing that the District Judge abused his discretion in doing so. Pp. 189-195.
BRENNAN, J., announced the judgment of the Court and delivered an opinion in which MARSHALL, BLACKMUN, and POWELL, JJ., joined. POWELL, J., filed a concurring opinion, post, p. 186. STEVENS, J., filed an opinion concurring in the judgment, post, p. 189. WHITE, J., filed a dissenting statement, post, p. 196. O'CONNOR, J., filed a dissenting opinion, in which REHNQUIST, C.J., and SCALIA, J., joined, post, p. 196. [p153]
Wygant v. Jackson Board of Education
SUPREME COURT OF THE UNITED STATES
--------------------------------------------------------------------------------
476 U.S. 267
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
--------------------------------------------------------------------------------
No. 84-1340 Argued: November 6, 1985 --- Decided: May 19, 1986
--------------------------------------------------------------------------------
The collective bargaining agreement between respondent Board of Education (Board) and a teachers' union provided that, if it became necessary to lay off teachers, those with the most seniority would be retained, except that at no time would there be a greater percentage of minority personnel laid off than the current percentage of minority personnel employed at the time of the layoff. After this layoff provision was upheld in litigation arising from the Board's noncompliance with the provision, the Board adhered to it, with the result that, during certain school years, nonminority teachers were laid off, while minority teachers with less seniority were retained. Petitioners, displaced nonminority teachers, brought suit in Federal District Court, alleging violations of the Equal Protection Clause and certain federal and state statutes. Dismissing the suit on cross-motions for summary judgment, the District Court upheld the constitutionality of the layoff provision, holding that the racial preferences granted by the Board need not be grounded on a finding of prior discrimination but were permissible under the Equal Protection Clause as an attempt to remedy societal discrimination by providing "role models" for minority schoolchildren. The Court of Appeals affirmed.
Held: The judgment is reversed.
746 F.2d 1152, reversed.
JUSTICE POWELL, joined by THE CHIEF JUSTICE, JUSTICE REHNQUIST, and JUSTICE O'CONNOR, concluded that the layoff provision violates the Equal Protection Clause. Pp. 273-278.
(a) In the context of affirmative action, racial classifications must be justified by a compelling state purpose, and the means chosen by the State to effectuate that purpose must be narrowly tailored. Pp. 273-274.
(b) Societal discrimination alone is insufficient to justify a racial classification. Rather, there must be convincing evidence of prior discrimination by the governmental unit involved before allowing limited use of racial classifications to remedy such discrimination. The "role model" theory employed by the District Court would allow the Board to engage in discriminatory hiring and layoff practices long past the point required by any legitimate remedial purpose. Moreover, it does not [p268] bear any relationship to the harm caused by prior discriminatory hiring practices. Societal discrimination, without more, is too amorphous a basis for finding race-conscious state action and for imposing a racially classified remedy. Pp. 274-276.
(c) If the purpose of the layoff provision was to remedy prior discrimination, as the Board claims, such purpose, to be constitutionally valid, would require the District Court to make a factual determination that the Board had a strong basis in evidence for its conclusion that remedial action was necessary. No such finding has ever been made. Pp. 277-278.
JUSTICE POWELL, joined by THE CHIEF JUSTICE and JUSTICE REHNQUIST, concluded that, as a means of accomplishing purposes that otherwise may be legitimate, the layoff provision is not sufficiently narrowly tailored. Other, less intrusive means of accomplishing similar purposes -- such as the adoption of hiring goals -- are available . Pp. 279-284.
JUSTICE WHITE concluded that respondent Board of Education's layoff policy has the same effect, and is equally violative of the Equal Protection Clause, as integrating a workforce by discharging whites and hiring blacks until the latter comprise a suitable percentage of the workforce. Pp. 294-295.
JUSTICE O'CONNOR concluded that the layoff provision is not "narrowly tailored" to achieve its asserted remedial purpose, because it acts to maintain levels of minority hiring set by a hiring goal that has no relation to the remedying of employment discrimination. Pp. 293-294.
POWELL, J., announced the judgment of the Court and delivered an opinion in which BURGER, C.J., and REHNQUIST, J., joined, and in all but Part IV of which O'CONNOR, J., joined. O'CONNOR, J., filed an opinion concurring in part and concurring in the judgment, post, p. 284. WHITE, J., filed an opinion concurring in the judgment, post, p. 294. MARSHALL, J., filed a dissenting opinion in which BRENNAN and BLACKMUN, JJ., joined, post, p. 295. STEVENS, J., filed a dissenting opinion, post, p. 313. [p269]
--------------------------------------------------------------------------------
476 U.S. 267
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
--------------------------------------------------------------------------------
No. 84-1340 Argued: November 6, 1985 --- Decided: May 19, 1986
--------------------------------------------------------------------------------
The collective bargaining agreement between respondent Board of Education (Board) and a teachers' union provided that, if it became necessary to lay off teachers, those with the most seniority would be retained, except that at no time would there be a greater percentage of minority personnel laid off than the current percentage of minority personnel employed at the time of the layoff. After this layoff provision was upheld in litigation arising from the Board's noncompliance with the provision, the Board adhered to it, with the result that, during certain school years, nonminority teachers were laid off, while minority teachers with less seniority were retained. Petitioners, displaced nonminority teachers, brought suit in Federal District Court, alleging violations of the Equal Protection Clause and certain federal and state statutes. Dismissing the suit on cross-motions for summary judgment, the District Court upheld the constitutionality of the layoff provision, holding that the racial preferences granted by the Board need not be grounded on a finding of prior discrimination but were permissible under the Equal Protection Clause as an attempt to remedy societal discrimination by providing "role models" for minority schoolchildren. The Court of Appeals affirmed.
Held: The judgment is reversed.
746 F.2d 1152, reversed.
JUSTICE POWELL, joined by THE CHIEF JUSTICE, JUSTICE REHNQUIST, and JUSTICE O'CONNOR, concluded that the layoff provision violates the Equal Protection Clause. Pp. 273-278.
(a) In the context of affirmative action, racial classifications must be justified by a compelling state purpose, and the means chosen by the State to effectuate that purpose must be narrowly tailored. Pp. 273-274.
(b) Societal discrimination alone is insufficient to justify a racial classification. Rather, there must be convincing evidence of prior discrimination by the governmental unit involved before allowing limited use of racial classifications to remedy such discrimination. The "role model" theory employed by the District Court would allow the Board to engage in discriminatory hiring and layoff practices long past the point required by any legitimate remedial purpose. Moreover, it does not [p268] bear any relationship to the harm caused by prior discriminatory hiring practices. Societal discrimination, without more, is too amorphous a basis for finding race-conscious state action and for imposing a racially classified remedy. Pp. 274-276.
(c) If the purpose of the layoff provision was to remedy prior discrimination, as the Board claims, such purpose, to be constitutionally valid, would require the District Court to make a factual determination that the Board had a strong basis in evidence for its conclusion that remedial action was necessary. No such finding has ever been made. Pp. 277-278.
JUSTICE POWELL, joined by THE CHIEF JUSTICE and JUSTICE REHNQUIST, concluded that, as a means of accomplishing purposes that otherwise may be legitimate, the layoff provision is not sufficiently narrowly tailored. Other, less intrusive means of accomplishing similar purposes -- such as the adoption of hiring goals -- are available . Pp. 279-284.
JUSTICE WHITE concluded that respondent Board of Education's layoff policy has the same effect, and is equally violative of the Equal Protection Clause, as integrating a workforce by discharging whites and hiring blacks until the latter comprise a suitable percentage of the workforce. Pp. 294-295.
JUSTICE O'CONNOR concluded that the layoff provision is not "narrowly tailored" to achieve its asserted remedial purpose, because it acts to maintain levels of minority hiring set by a hiring goal that has no relation to the remedying of employment discrimination. Pp. 293-294.
POWELL, J., announced the judgment of the Court and delivered an opinion in which BURGER, C.J., and REHNQUIST, J., joined, and in all but Part IV of which O'CONNOR, J., joined. O'CONNOR, J., filed an opinion concurring in part and concurring in the judgment, post, p. 284. WHITE, J., filed an opinion concurring in the judgment, post, p. 294. MARSHALL, J., filed a dissenting opinion in which BRENNAN and BLACKMUN, JJ., joined, post, p. 295. STEVENS, J., filed a dissenting opinion, post, p. 313. [p269]
Firefighters Local Union No. 1784 v. Stotts
SUPREME COURT OF THE UNITED STATES
--------------------------------------------------------------------------------
467 U.S. 561
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
--------------------------------------------------------------------------------
No. 82-206 Argued: December 6, 1984 --- Decided: June 12, 1984 [*]
--------------------------------------------------------------------------------
Respondent Stotts, a black member of petitioner Memphis, Tenn., Fire Department, filed a class action in Federal District Court charging that the Department and certain city officials were engaged in a pattern or practice of making hiring and promotion decisions on the basis of race in violation of, inter alia, Title VII of the Civil Rights Act of 1964. This action was consolidated with an action filed by respondent Jones, also a black member of the Department, who claimed that he had been denied a promotion because of his race. Thereafter, a consent decree was entered with the stated purpose of remedying the Department's hiring and promotion practices with respect to blacks. Subsequently, when the city announced that projected budget deficits required a reduction of city employees, the District Court entered an order preliminarily enjoining the Department from following its seniority system in determining who would be laid off as a result of the budgetary shortfall, since the proposed layoffs would have a racially discriminatory effect and the seniority system was not a bona fide one. A modified layoff plan, aimed at protecting black employees so as to comply with the court's order, was then presented and approved, and layoffs pursuant to this plan were carried out. This resulted in white employees with more seniority than black employees being laid off when the otherwise applicable seniority system would have called for the layoff of black employees with less seniority. The Court of Appeals affirmed, holding that, although the District Court was wrong in holding that the seniority system was not bona fide, it had acted properly in modifying the consent decree.
Held:
1. These cases are not rendered moot by the facts that the preliminary injunction purportedly applied only to 1981 layoffs, that all white employees laid off as a result of the injunction were restored to duty only one month after their layoff, and that others who were demoted have been offered back their old positions. First, the injunction is still in force, and, unless set aside, must be complied with in connection with any [p562] future layoffs. Second, even if the injunction applied only to the 1981 layoffs, the predicate for it was the ruling that the consent decree must be modified to provide that the layoffs were not to reduce the percentage of black employees, and the lower courts' rulings that the seniority system must be disregarded for the purpose of achieving the mandated result remain undisturbed. Accordingly, the inquiry is not merely whether the injunction is still in effect, but whether the mandated modification of the consent decree continues to have an impact on the parties such that the cases remain alive. Respondents have failed to convince this Court that the modification and the pro tanto invalidation of the seniority system are of no real concern to the city because it will never again contemplate layoffs that, if carried out in accordance with the seniority system, would violate the modified decree. Finally, the judgment below will have a continuing effect on management of the Fire Department with respect to making whole the white employees who were laid off and thereby lost a month's pay and seniority, or who were demoted and thereby may have backpay claims. Unless that judgment is reversed, the layoffs and demotions were in accordance with the law. The fact that not much money and seniority are involved does not determine mootness. Pp. 568-572.
2. The District Court's preliminary injunction cannot be justified either as an effort to enforce the consent decree or as a valid modification thereof. Pp. 572-583.
(a) The injunction does not merely enforce the agreement of the parties as reflected in the consent decree. The scope of a consent decree must be discerned within its four corners. Here, the consent decree makes no mention of layoffs or demotions, nor is there any suggestion of an intention to depart from the existing seniority system or from the Department's arrangement with the union. It therefore cannot be said that the decree's express terms contemplated that such an injunction would be entered. Nor is the injunction proper as carrying out the stated purpose of the decree. The remedy outlined in the decree did not include the displacement of white employees with seniority over blacks, and cannot reasonably be construed to exceed the bounds of remedies that are appropriate under Title VII. Title VII protects bona fide seniority systems, and it is inappropriate to deny an innocent employee the benefits of his seniority in order to provide a remedy in a pattern-or-practice suit such as this. Moreover, since neither the union nor the white employees were parties to the suit when the consent decree was entered, the entry of such decree cannot be said to indicate any agreement by them to any of its terms. Pp. 573-576.
(b) The theory that the strong policy favoring voluntary settlement of Title VII actions permits consent decrees that encroach on seniority [p563] systems does not justify the preliminary injunction as a legitimate modification of the consent decree. That theory has no application when there is no "settlement" with respect to the disputed issue, such as here, where the consent decree neither awarded competitive seniority to the minority employees nor purported to depart from the existing seniority system. Nor can the injunction be so justified on the basis that, if the allegations in the complaint had been proved, the District Court could have entered an order overriding the seniority provisions. This approach overstates a trial court's authority to disregard a seniority system in fashioning a remedy after a plaintiff has proved that an employer has followed a pattern or practice having a discriminatory effect on black employees. Here, there was no finding that any of the blacks protected from layoff had been a victim of discrimination nor any award of competitive seniority to any of them. The Court of Appeals' holding that the District Court's order modifying the consent decree was permissible as a valid Title VII remedial order ignores not only the ruling in Teamsters v. United States, 431 U.S. 324, that a court can award competitive seniority only when the beneficiary of the award has actually been a victim of illegal discrimination, but also the policy behind § 706(g) of Title VII of providing make-whole relief only to such victims. And there is no merit to the argument that the District Court ordered no more than that which the city could have done by way of adopting an affirmative action program, since the city took no such action, and the modification of the decree was imposed over its objection. Pp. 576-583.
679 F.2d 541, reversed.
WHITE, J., delivered the opinion of the Court, in which BURGER, C.J., and POWELL, REHNQUIST, and O'CONNOR, JJ., joined. O'CONNOR, J., filed a concurring opinion, post, p. 583. STEVENS, J., filed an opinion concurring in the judgment, post, p. 590. BLACKMUN, J., filed a dissenting opinion, in which BRENNAN and MARSHALL, JJ., joined, post, p. 593. [p564]
--------------------------------------------------------------------------------
467 U.S. 561
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
--------------------------------------------------------------------------------
No. 82-206 Argued: December 6, 1984 --- Decided: June 12, 1984 [*]
--------------------------------------------------------------------------------
Respondent Stotts, a black member of petitioner Memphis, Tenn., Fire Department, filed a class action in Federal District Court charging that the Department and certain city officials were engaged in a pattern or practice of making hiring and promotion decisions on the basis of race in violation of, inter alia, Title VII of the Civil Rights Act of 1964. This action was consolidated with an action filed by respondent Jones, also a black member of the Department, who claimed that he had been denied a promotion because of his race. Thereafter, a consent decree was entered with the stated purpose of remedying the Department's hiring and promotion practices with respect to blacks. Subsequently, when the city announced that projected budget deficits required a reduction of city employees, the District Court entered an order preliminarily enjoining the Department from following its seniority system in determining who would be laid off as a result of the budgetary shortfall, since the proposed layoffs would have a racially discriminatory effect and the seniority system was not a bona fide one. A modified layoff plan, aimed at protecting black employees so as to comply with the court's order, was then presented and approved, and layoffs pursuant to this plan were carried out. This resulted in white employees with more seniority than black employees being laid off when the otherwise applicable seniority system would have called for the layoff of black employees with less seniority. The Court of Appeals affirmed, holding that, although the District Court was wrong in holding that the seniority system was not bona fide, it had acted properly in modifying the consent decree.
Held:
1. These cases are not rendered moot by the facts that the preliminary injunction purportedly applied only to 1981 layoffs, that all white employees laid off as a result of the injunction were restored to duty only one month after their layoff, and that others who were demoted have been offered back their old positions. First, the injunction is still in force, and, unless set aside, must be complied with in connection with any [p562] future layoffs. Second, even if the injunction applied only to the 1981 layoffs, the predicate for it was the ruling that the consent decree must be modified to provide that the layoffs were not to reduce the percentage of black employees, and the lower courts' rulings that the seniority system must be disregarded for the purpose of achieving the mandated result remain undisturbed. Accordingly, the inquiry is not merely whether the injunction is still in effect, but whether the mandated modification of the consent decree continues to have an impact on the parties such that the cases remain alive. Respondents have failed to convince this Court that the modification and the pro tanto invalidation of the seniority system are of no real concern to the city because it will never again contemplate layoffs that, if carried out in accordance with the seniority system, would violate the modified decree. Finally, the judgment below will have a continuing effect on management of the Fire Department with respect to making whole the white employees who were laid off and thereby lost a month's pay and seniority, or who were demoted and thereby may have backpay claims. Unless that judgment is reversed, the layoffs and demotions were in accordance with the law. The fact that not much money and seniority are involved does not determine mootness. Pp. 568-572.
2. The District Court's preliminary injunction cannot be justified either as an effort to enforce the consent decree or as a valid modification thereof. Pp. 572-583.
(a) The injunction does not merely enforce the agreement of the parties as reflected in the consent decree. The scope of a consent decree must be discerned within its four corners. Here, the consent decree makes no mention of layoffs or demotions, nor is there any suggestion of an intention to depart from the existing seniority system or from the Department's arrangement with the union. It therefore cannot be said that the decree's express terms contemplated that such an injunction would be entered. Nor is the injunction proper as carrying out the stated purpose of the decree. The remedy outlined in the decree did not include the displacement of white employees with seniority over blacks, and cannot reasonably be construed to exceed the bounds of remedies that are appropriate under Title VII. Title VII protects bona fide seniority systems, and it is inappropriate to deny an innocent employee the benefits of his seniority in order to provide a remedy in a pattern-or-practice suit such as this. Moreover, since neither the union nor the white employees were parties to the suit when the consent decree was entered, the entry of such decree cannot be said to indicate any agreement by them to any of its terms. Pp. 573-576.
(b) The theory that the strong policy favoring voluntary settlement of Title VII actions permits consent decrees that encroach on seniority [p563] systems does not justify the preliminary injunction as a legitimate modification of the consent decree. That theory has no application when there is no "settlement" with respect to the disputed issue, such as here, where the consent decree neither awarded competitive seniority to the minority employees nor purported to depart from the existing seniority system. Nor can the injunction be so justified on the basis that, if the allegations in the complaint had been proved, the District Court could have entered an order overriding the seniority provisions. This approach overstates a trial court's authority to disregard a seniority system in fashioning a remedy after a plaintiff has proved that an employer has followed a pattern or practice having a discriminatory effect on black employees. Here, there was no finding that any of the blacks protected from layoff had been a victim of discrimination nor any award of competitive seniority to any of them. The Court of Appeals' holding that the District Court's order modifying the consent decree was permissible as a valid Title VII remedial order ignores not only the ruling in Teamsters v. United States, 431 U.S. 324, that a court can award competitive seniority only when the beneficiary of the award has actually been a victim of illegal discrimination, but also the policy behind § 706(g) of Title VII of providing make-whole relief only to such victims. And there is no merit to the argument that the District Court ordered no more than that which the city could have done by way of adopting an affirmative action program, since the city took no such action, and the modification of the decree was imposed over its objection. Pp. 576-583.
679 F.2d 541, reversed.
WHITE, J., delivered the opinion of the Court, in which BURGER, C.J., and POWELL, REHNQUIST, and O'CONNOR, JJ., joined. O'CONNOR, J., filed a concurring opinion, post, p. 583. STEVENS, J., filed an opinion concurring in the judgment, post, p. 590. BLACKMUN, J., filed a dissenting opinion, in which BRENNAN and MARSHALL, JJ., joined, post, p. 593. [p564]
Sunday, April 26, 2009
Building Trades & Construction Trades Council of Camden County and Vicinity v. Mayor and Council of the City of Camden
SUPREME COURT OF THE UNITED STATES
--------------------------------------------------------------------------------
465 U.S. 208
APPEAL FROM THE SUPREME COURT OF NEW JERSEY
--------------------------------------------------------------------------------
No. 81-2110 Argued: November 28, 1983 --- Decided: February 21, 1984
--------------------------------------------------------------------------------
Acting pursuant to a statewide affirmative action program, the city of Camden, N.J., adopted an ordinance requiring that at least 40% of the employees of contractors and subcontractors working on city construction projects be Camden residents. After the ordinance was approved by the New Jersey Treasury Department, appellant, an association of labor organizations representing private employees in the building and construction trades, filed an appeal with the Appellate Division of the New Jersey Superior Court challenging the Treasury Department's approval of the ordinance. The New Jersey Supreme Court certified the appeal directly to that court and rejected appellant's challenges to the ordinance's validity, including the claim that the ordinance violated the Privileges and Immunities Clause of Art. IV of the Federal Constitution. The court held that the Clause did not apply, because the ordinance discriminated on the basis of municipal, not state, residency, and had identical effects upon out-of-state citizens and New Jersey citizens not residing in Camden.
Held:
1. The ordinance is properly subject to the strictures of the Privileges and Immunities Clause. Pp. 214-218.
(a) That the ordinance is a municipal, rather than a state, law does not place it outside the Clause's scope. Here, municipal action cannot be distinguished easily from state action, since the ordinance would not have gone into effect without the Treasury Department's approval. Moreover, a municipality is merely a political subdivision of the State, and what would be unconstitutional if done directly by the State can no more readily be accomplished by a city deriving its authority from the State. Pp. 214-215.
(b) The Clause applies not only to laws that discriminate on the basis of state citizenship, but also to laws that discriminate on the basis of municipal residency. For purposes of analysis of most cases under the Clause, the terms "citizen" and "resident" are essentially interchangeable. Camden's ordinance is not immune from constitutional review [p209] at the behest of out-of-state residents merely because in-state residents who do not live in Camden are similarly disadvantaged. While such in-state residents have no claim under the Clause, nevertheless they at least have a chance to remedy at the polls the discrimination against them. Pp. 215-218.
2. On remand, the determination of whether the Camden ordinance violates the Privileges and Immunities Clause should be made under the appropriate constitutional standard, which requires determination of whether the ordinance burdens one of those privileges and immunities protected by the Clause, and, if so, whether there is a "substantial reason" for the discrimination against citizens of other States. Pp. 218-223.
(a) Although Camden may, without fear of violating the Commerce Clause, pressure private employers engaged in public works projects funded in whole or in part by the city to hire city residents, cf. White v. Massachusetts Council of Construction Employers, Inc., 460 U.S. 204, an out-of-state resident's interest in employment by private employers on public works projects in another State is sufficiently fundamental to the promotion of interstate harmony and sufficiently basic to the livelihood of the Nation as to fall within the purview of the Privileges and Immunities Clause. Pp. 218-222.
(b) However, it is impossible on the record as it now stands to evaluate Camden's contention that its ordinance is carefully tailored to counteract grave economic and social ills involving unemployment of city residents and a sharp decline in the city's population. On remand, the New Jersey Supreme Court may decide, consistent with state procedures, on the best method for making the necessary findings of fact. Pp. 222-223.
REHNQUIST, J., delivered the opinion of the Court, in which BURGER, C.J., and BRENNAN, WHITE, MARSHALL, POWELL, STEVENS, and O'CONNOR, JJ., joined. BLACKMUN, J., filed a dissenting opinion, post, p. 223. [p210]
--------------------------------------------------------------------------------
465 U.S. 208
APPEAL FROM THE SUPREME COURT OF NEW JERSEY
--------------------------------------------------------------------------------
No. 81-2110 Argued: November 28, 1983 --- Decided: February 21, 1984
--------------------------------------------------------------------------------
Acting pursuant to a statewide affirmative action program, the city of Camden, N.J., adopted an ordinance requiring that at least 40% of the employees of contractors and subcontractors working on city construction projects be Camden residents. After the ordinance was approved by the New Jersey Treasury Department, appellant, an association of labor organizations representing private employees in the building and construction trades, filed an appeal with the Appellate Division of the New Jersey Superior Court challenging the Treasury Department's approval of the ordinance. The New Jersey Supreme Court certified the appeal directly to that court and rejected appellant's challenges to the ordinance's validity, including the claim that the ordinance violated the Privileges and Immunities Clause of Art. IV of the Federal Constitution. The court held that the Clause did not apply, because the ordinance discriminated on the basis of municipal, not state, residency, and had identical effects upon out-of-state citizens and New Jersey citizens not residing in Camden.
Held:
1. The ordinance is properly subject to the strictures of the Privileges and Immunities Clause. Pp. 214-218.
(a) That the ordinance is a municipal, rather than a state, law does not place it outside the Clause's scope. Here, municipal action cannot be distinguished easily from state action, since the ordinance would not have gone into effect without the Treasury Department's approval. Moreover, a municipality is merely a political subdivision of the State, and what would be unconstitutional if done directly by the State can no more readily be accomplished by a city deriving its authority from the State. Pp. 214-215.
(b) The Clause applies not only to laws that discriminate on the basis of state citizenship, but also to laws that discriminate on the basis of municipal residency. For purposes of analysis of most cases under the Clause, the terms "citizen" and "resident" are essentially interchangeable. Camden's ordinance is not immune from constitutional review [p209] at the behest of out-of-state residents merely because in-state residents who do not live in Camden are similarly disadvantaged. While such in-state residents have no claim under the Clause, nevertheless they at least have a chance to remedy at the polls the discrimination against them. Pp. 215-218.
2. On remand, the determination of whether the Camden ordinance violates the Privileges and Immunities Clause should be made under the appropriate constitutional standard, which requires determination of whether the ordinance burdens one of those privileges and immunities protected by the Clause, and, if so, whether there is a "substantial reason" for the discrimination against citizens of other States. Pp. 218-223.
(a) Although Camden may, without fear of violating the Commerce Clause, pressure private employers engaged in public works projects funded in whole or in part by the city to hire city residents, cf. White v. Massachusetts Council of Construction Employers, Inc., 460 U.S. 204, an out-of-state resident's interest in employment by private employers on public works projects in another State is sufficiently fundamental to the promotion of interstate harmony and sufficiently basic to the livelihood of the Nation as to fall within the purview of the Privileges and Immunities Clause. Pp. 218-222.
(b) However, it is impossible on the record as it now stands to evaluate Camden's contention that its ordinance is carefully tailored to counteract grave economic and social ills involving unemployment of city residents and a sharp decline in the city's population. On remand, the New Jersey Supreme Court may decide, consistent with state procedures, on the best method for making the necessary findings of fact. Pp. 222-223.
REHNQUIST, J., delivered the opinion of the Court, in which BURGER, C.J., and BRENNAN, WHITE, MARSHALL, POWELL, STEVENS, and O'CONNOR, JJ., joined. BLACKMUN, J., filed a dissenting opinion, post, p. 223. [p210]
Mississippi University for Women v. Hogan
SUPREME COURT OF THE UNITED STATES
--------------------------------------------------------------------------------
458 U.S. 718
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
--------------------------------------------------------------------------------
No. 81-406 Argued: March 22, 1982 --- Decided: July 1, 1982
--------------------------------------------------------------------------------
Held: The policy of petitioner Mississippi University for Women (MUW), a state-supported university which has from its inception limited its enrollment to women, of denying otherwise qualified males (such as respondent) the right to enroll for credit in its School of Nursing violates the Equal Protection Clause of the Fourteenth Amendment. Pp. 723-733.
(a) The party seeking to uphold a statute that classifies individuals on the basis of their gender must carry the burden of showing an "exceedingly persuasive justification" for the classification. Kirchberg v. Feenstra, 450 U.S. 455, 461; Personnel Administrator of Mass. v. Feeney, 442 U.S. 256, 273. The burden is met only by showing at least that the classification serves "important governmental objectives and that the discriminatory means employed" are "substantially related to the achievement of those objectives." Wengler v. Druggists Mutual Insurance Co., 446 U.S. 142, 150. The test must be applied free of fixed notions concerning the roles and abilities of males and females. Pp. 723-727.
(b) The single-sex admissions policy of MUW's School of Nursing cannot be justified on the asserted ground that it compensates for discrimination against women and, therefore, constitutes educational affirmative action. A State can evoke a compensatory purpose to justify an otherwise discriminatory classification only if members of the gender benefited by the classification actually suffer a disadvantage related to the classification. Rather than compensating for discriminatory barriers faced by women, MUW's policy tends to perpetuate the stereotyped view of nursing as an exclusively woman's job. Moreover, the State has not shown that the gender-based classification is substantially and directly related to its proposed compensatory objective. To the contrary, MUW's policy of permitting men to attend classes as auditors fatally undermines its claim that women, at least those in the School of Nursing, are adversely affected by the presence of men. Thus, the State has fallen far short of establishing the "exceedingly persuasive justification" needed to sustain the gender-based classification. Pp. 727-731.
(c) Nor can the exclusion of men from MUW's School of Nursing be justified on the basis of the language of § 901(a)(5) of Title IX of the Education Amendments of 1972, which exempts from § 901(a)'s general prohibition [p719] of gender discrimination in federally funded education programs the admissions policies of public institutions of undergraduate higher education "that traditionally and continually from [their] establishment [have] had a policy of admitting only students of one sex." It is not clear that, as argued by the State, Congress enacted the statute pursuant to its power granted by § 5 of the Fourteenth Amendment to enforce that Amendment, and thus placed a limitation upon the broad prohibitions of the Equal Protection Clause. Rather, Congress apparently intended, at most, to create an exemption from Title IX's requirements. In any event, Congress' power under § 5
is limited to adopting measures to enforce the guarantees of the Amendment; § 5 grants Congress no power to restrict, abrogate, or dilute these guarantees.
Katzenbach v. Morgan, 384 U.S. 641, 651, n. 10. Pp. 731-733.
646 F.2d 1116 and 653 F.2d 222, affirmed.
O'CONNOR, J., delivered the opinion of the Court, in which BRENNAN, WHITE, MARSHALL, and STEVENS, JJ., joined. BURGER, C.J., post p. 733, and BLACKMUN, J., post, p. 733, filed dissenting opinions. POWELL, J., filed a dissenting opinion, in which REHNQUIST, J., joined, post, p. 735.
--------------------------------------------------------------------------------
458 U.S. 718
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
--------------------------------------------------------------------------------
No. 81-406 Argued: March 22, 1982 --- Decided: July 1, 1982
--------------------------------------------------------------------------------
Held: The policy of petitioner Mississippi University for Women (MUW), a state-supported university which has from its inception limited its enrollment to women, of denying otherwise qualified males (such as respondent) the right to enroll for credit in its School of Nursing violates the Equal Protection Clause of the Fourteenth Amendment. Pp. 723-733.
(a) The party seeking to uphold a statute that classifies individuals on the basis of their gender must carry the burden of showing an "exceedingly persuasive justification" for the classification. Kirchberg v. Feenstra, 450 U.S. 455, 461; Personnel Administrator of Mass. v. Feeney, 442 U.S. 256, 273. The burden is met only by showing at least that the classification serves "important governmental objectives and that the discriminatory means employed" are "substantially related to the achievement of those objectives." Wengler v. Druggists Mutual Insurance Co., 446 U.S. 142, 150. The test must be applied free of fixed notions concerning the roles and abilities of males and females. Pp. 723-727.
(b) The single-sex admissions policy of MUW's School of Nursing cannot be justified on the asserted ground that it compensates for discrimination against women and, therefore, constitutes educational affirmative action. A State can evoke a compensatory purpose to justify an otherwise discriminatory classification only if members of the gender benefited by the classification actually suffer a disadvantage related to the classification. Rather than compensating for discriminatory barriers faced by women, MUW's policy tends to perpetuate the stereotyped view of nursing as an exclusively woman's job. Moreover, the State has not shown that the gender-based classification is substantially and directly related to its proposed compensatory objective. To the contrary, MUW's policy of permitting men to attend classes as auditors fatally undermines its claim that women, at least those in the School of Nursing, are adversely affected by the presence of men. Thus, the State has fallen far short of establishing the "exceedingly persuasive justification" needed to sustain the gender-based classification. Pp. 727-731.
(c) Nor can the exclusion of men from MUW's School of Nursing be justified on the basis of the language of § 901(a)(5) of Title IX of the Education Amendments of 1972, which exempts from § 901(a)'s general prohibition [p719] of gender discrimination in federally funded education programs the admissions policies of public institutions of undergraduate higher education "that traditionally and continually from [their] establishment [have] had a policy of admitting only students of one sex." It is not clear that, as argued by the State, Congress enacted the statute pursuant to its power granted by § 5 of the Fourteenth Amendment to enforce that Amendment, and thus placed a limitation upon the broad prohibitions of the Equal Protection Clause. Rather, Congress apparently intended, at most, to create an exemption from Title IX's requirements. In any event, Congress' power under § 5
is limited to adopting measures to enforce the guarantees of the Amendment; § 5 grants Congress no power to restrict, abrogate, or dilute these guarantees.
Katzenbach v. Morgan, 384 U.S. 641, 651, n. 10. Pp. 731-733.
646 F.2d 1116 and 653 F.2d 222, affirmed.
O'CONNOR, J., delivered the opinion of the Court, in which BRENNAN, WHITE, MARSHALL, and STEVENS, JJ., joined. BURGER, C.J., post p. 733, and BLACKMUN, J., post, p. 733, filed dissenting opinions. POWELL, J., filed a dissenting opinion, in which REHNQUIST, J., joined, post, p. 735.
Fullilove v. Klutznick
SUPREME COURT OF THE UNITED STATES
--------------------------------------------------------------------------------
448 U.S. 448
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
--------------------------------------------------------------------------------
No. 78-1007 Argued: November 27, 1979 --- Decided: July 2, 1980
--------------------------------------------------------------------------------
The "minority business enterprise" (MBE) provision of the Public Works Employment Act of 1977 (1977 Act) requires that, absent an administrative waiver, at least 10% of federal funds granted for local public works projects must be used by the state or local grantee to procure services or supplies from businesses owned by minority group members, defined as United States citizens "who are Negroes, Spanish-speaking, Orientals, Indians, Eskimos, and Aleuts." Under implementing regulations and guidelines, grantees and their private prime contractors are required, to the extent feasible, in fulfilling the 10% MBE requirement, to seek out all available, qualified, bona fide MBE's, to provide technical assistance as needed, to lower or waive bonding requirements where feasible, to solicit the aid of the Office of Minority Business Enterprise, the Small Business Administration, or other sources for assisting MBE's in obtaining required working capital, and to give guidance through the intricacies of the bidding process. The administrative program, which recognizes that contracts will be awarded to bona fide MBE's even though they are not the lowest bidders if their bids reflect merely attempts to cover costs inflated by the present effects of prior disadvantage and discrimination, provides for handling grantee applications for administrative waiver of the 10% MBE requirement on a case-by-case basis if infeasibility is demonstrated by a showing that, despite affirmative efforts, such level of participation cannot be achieved without departing from the program's objectives. The program also provides an administrative mechanism to ensure that only bona fide MBE's are encompassed by the program, and to prevent unjust participation by minority firms whose access to public contracting opportunities is not impaired by the effects of prior discrimination.
Petitioners, several associations of construction contractors and subcontractors and a firm engaged in heating, ventilation, and air conditioning work, filed suit for declaratory and injunctive relief in Federal District Court, alleging that they had sustained economic injury due to enforcement of the MBE requirement, and that the MBE provision, on its face, violated, inter alia, the Equal Protection Clause of the Fourteenth [p449] Amendment and the equal protection component of the Due Process Clause of the Fifth Amendment. The District Court upheld the validity of the MBE program, and the Court of Appeals affirmed.
Held: The judgment is affirmed. Pp. 456-492; 517-522.
584 F.2d 600, affirmed.
MR. CHIEF .JUSTICE BURGER, joined by MR. JUSTICE WHITE and MR. JUSTICE POWELL, concluded that the MBE provision of the 1977 Act, on its face, does not violate the Constitution. Pp. 456-492.
(a) Viewed against the legislative and administrative background of the 1977 Act, the legislative objectives of the MBE provision and of the administrative program thereunder were to ensure -- without mandating the allocation of federal funds according to inflexible percentages solely based on race or ethnicity -- that, to the extent federal funds were granted under the 1977 Act, grantees who elected to participate would not employ procurement practices that Congress had decided might result in perpetuation of the effects of prior discrimination which had impaired or foreclosed access by minority businesses to public contracting opportunities. Pp. 456-472.
(b) In considering the constitutionality of the MBE provision, it first must be determined whether the objectives of the legislation are within Congress' power. Pp. 472-480.
(i) The 1977 Act, as primarily an exercise of Congress' Spending Power under Art. I, § 8, cl. 1, "to provide for the . . . general Welfare," conditions receipt of federal moneys upon the receipt's compliance with federal statutory and administrative directives. Since the reach of the Spending Power is at least as broad as Congress' regulatory powers, if Congress, pursuant to its regulatory powers, could have achieved the objectives of the MBE program, then it may do so under the Spending Power. Pp. 473-475
(ii) Insofar as the MBE program pertains to the actions of private prime contractors, including those not responsible for any violation of antidiscrimination laws, Congress could have achieved its objectives under the Commerce Clause. The legislative history shows that there was a rational basis for Congress to conclude that the subcontracting practices of prime contractors could perpetuate the prevailing impaired access by minority businesses to public contracting opportunities, and that this inequity has an effect on interstate commerce. Pp. 475-476.
(iii) Insofar as the MBE program pertains to the actions of state and local grantees, Congress could have achieved its objectives by use of its power under § 5 of the Fourteenth Amendment "to enforce, by appropriate legislation" the equal protection guarantee of that Amendment. Congress had abundant historical basis from which it could conclude [p450] that traditional procurement practices, when applied to minority businesses, could perpetuate the effects of prior discrimination, and that the prospective elimination of such barriers to minority-firm access to public contracting opportunities was appropriate to ensure that those businesses were not denied equal opportunity to participate in federal grants to state and local governments, which is one aspect of the equal protection of the laws. Cf., e.g., Katzenbach v. Morgan, 384 U.S. 641"]384 U.S. 641; 384 U.S. 641; Oregon v. Mitchell, 400 U.S. 112. Pp. 476-478.
(iv) Thus, the objectives of the MBE provision are within the scope of Congress' Spending Power. Cf. Lau v. Nichols, 414 U.S. 563. Pp. 479-480.
(c) Congress' use here of racial and ethnic criteria as a condition attached to a federal grant is a valid means to accomplish its constitutional objectives, and the MBE provision, on its face, does not violate the equal protection component of the Due Process Clause of the Fifth Amendment. Pp. 480-492.
(i) In the MBE program's remedial context, there is no requirement that Congress act in a wholly "color-blind" fashion. Cf., e.g., Swann v. Charlotte-Mecklenberg Board of Education, 402 U.S. l; McDaniel v. Barresi, 402 U.S. 39; North Carolina Board of Education v. Swann, 402 U.S. 43. Pp. 482-484.
(ii) The MBE program is not constitutionally defective because it may disappoint the expectations of access to a portion of government contracting opportunities of nonminority firms who may themselves be innocent of any prior discriminatory actions. When effectuating a limited and properly tailored remedy to cure the effects of prior discrimination, such "a sharing of the burden" by innocent parties is not impermissible. Franks v. Bowman Transportation Co., 424 U.S. 747, 777. Pp. 484-485.
(iii) Nor is the MBE program invalid as being underinclusive in that it limits its benefit to specified minority groups, rather than extending its remedial objectives to all businesses whose access to government contracting is impaired by the effects of disadvantage or discrimination. Congress has not sought to give select minority groups a preferred standing in the construction industry, but has embarked on a remedial program to place them on a more equitable footing with respect to public contracting opportunities, and there has been no showing that Congress inadvertently effected an invidious discrimination by excluding from coverage an identifiable minority group that has been the victim of a degree of disadvantage and discrimination equal to or greater than that suffered by the groups encompassed by the MBE program. Pp. 485-486. [p451]
(iv) The contention that the MBE program, on its face, is overinclusive in that it bestows a benefit on businesses identified by racial or ethnic criteria which cannot be justified on the basis of competitive criteria or as a remedy for the present effects of identified prior discrimination is also without merit. The MBE provision, with due account for its administrative program, provides a reasonable assurance that application of racial or ethnic criteria will be narrowly limited to accomplishing Congress' remedial objectives, and that misapplications of the program will be promptly and adequately remedied administratively. In particular, the administrative program provides waiver and exemption procedures to identify and eliminate from participation MBE's who are not "bona fide," or who attempt to exploit the remedial aspects of the program by charging an unreasonable price not attributable to the present effects of past discrimination. Moreover, grantees may obtain a waiver if they demonstrate that their best efforts will not achieve or have not achieved the 10% target for minority firm participation within the limitations of the program's remedial objectives. The MBE provision may be viewed as a pilot project, appropriately limited in extent and duration and subject to reassessment and reevaluation by the Congress prior to any extension or reenactment. Pp. 486-489.
(d) In the continuing effort to achieve the goal of equality of economic opportunity, Congress has latitude to try new techniques such as the limited use of racial and ethnic criteria to accomplish remedial objectives, especially in programs where voluntary cooperation is induced by placing conditions on federal expenditures. When a program narrowly tailored by Congress to achieve its objectives comes under judicial review, it should be upheld if the courts are satisfied that the legislative objectives and projected administration of the program give reasonable assurance that the program will function within constitutional limitations. Pp. 490-492.
MR. JUSTICE MARSHALL, joined by MR. JUSTICE BRENNAN and MR. JUSTICE BLACKMUN, concurring in the judgment, concluded that the proper inquiry for determining the constitutionality of racial classifications that provide benefits to minorities for the purpose of remedying the present effects of past racial discrimination is whether the classifications serve important governmental objectives and are substantially related to achievement of those objectives, University of California Regents v. Bakke, 438 U.S. 265, 359 (opinion of BRENNAN, WHITE, MARSHALL, and BLACKMUN, JJ., concurring in judgment in part and dissenting in part), and that, judged under this standard, the 10% minority set-aside provision of the 1977 Act is plainly constitutional, the racial classifications being substantially related to the achievement of the important and [p452] congressionally articulated goal of remedying the present effects of past racial discrimination. Pp. 517-521.
BURGER, C.J., announced the judgment of the Court and delivered an opinion, in which WHITE and POWELL, JJ., joined. POWELL, J., filed a concurring opinion, post, p. 495. MARSHALL, J., filed an opinion concurring in the judgment, in which BRENNAN and BLACKMUN, J.J., joined, post p. 517. STEWART, J., filed a dissenting opinion, in which REHNQUIST, J., joined, post, p. 522. STEVENS, J., filed a dissenting opinion, post, p. 532. [p453]
--------------------------------------------------------------------------------
448 U.S. 448
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
--------------------------------------------------------------------------------
No. 78-1007 Argued: November 27, 1979 --- Decided: July 2, 1980
--------------------------------------------------------------------------------
The "minority business enterprise" (MBE) provision of the Public Works Employment Act of 1977 (1977 Act) requires that, absent an administrative waiver, at least 10% of federal funds granted for local public works projects must be used by the state or local grantee to procure services or supplies from businesses owned by minority group members, defined as United States citizens "who are Negroes, Spanish-speaking, Orientals, Indians, Eskimos, and Aleuts." Under implementing regulations and guidelines, grantees and their private prime contractors are required, to the extent feasible, in fulfilling the 10% MBE requirement, to seek out all available, qualified, bona fide MBE's, to provide technical assistance as needed, to lower or waive bonding requirements where feasible, to solicit the aid of the Office of Minority Business Enterprise, the Small Business Administration, or other sources for assisting MBE's in obtaining required working capital, and to give guidance through the intricacies of the bidding process. The administrative program, which recognizes that contracts will be awarded to bona fide MBE's even though they are not the lowest bidders if their bids reflect merely attempts to cover costs inflated by the present effects of prior disadvantage and discrimination, provides for handling grantee applications for administrative waiver of the 10% MBE requirement on a case-by-case basis if infeasibility is demonstrated by a showing that, despite affirmative efforts, such level of participation cannot be achieved without departing from the program's objectives. The program also provides an administrative mechanism to ensure that only bona fide MBE's are encompassed by the program, and to prevent unjust participation by minority firms whose access to public contracting opportunities is not impaired by the effects of prior discrimination.
Petitioners, several associations of construction contractors and subcontractors and a firm engaged in heating, ventilation, and air conditioning work, filed suit for declaratory and injunctive relief in Federal District Court, alleging that they had sustained economic injury due to enforcement of the MBE requirement, and that the MBE provision, on its face, violated, inter alia, the Equal Protection Clause of the Fourteenth [p449] Amendment and the equal protection component of the Due Process Clause of the Fifth Amendment. The District Court upheld the validity of the MBE program, and the Court of Appeals affirmed.
Held: The judgment is affirmed. Pp. 456-492; 517-522.
584 F.2d 600, affirmed.
MR. CHIEF .JUSTICE BURGER, joined by MR. JUSTICE WHITE and MR. JUSTICE POWELL, concluded that the MBE provision of the 1977 Act, on its face, does not violate the Constitution. Pp. 456-492.
(a) Viewed against the legislative and administrative background of the 1977 Act, the legislative objectives of the MBE provision and of the administrative program thereunder were to ensure -- without mandating the allocation of federal funds according to inflexible percentages solely based on race or ethnicity -- that, to the extent federal funds were granted under the 1977 Act, grantees who elected to participate would not employ procurement practices that Congress had decided might result in perpetuation of the effects of prior discrimination which had impaired or foreclosed access by minority businesses to public contracting opportunities. Pp. 456-472.
(b) In considering the constitutionality of the MBE provision, it first must be determined whether the objectives of the legislation are within Congress' power. Pp. 472-480.
(i) The 1977 Act, as primarily an exercise of Congress' Spending Power under Art. I, § 8, cl. 1, "to provide for the . . . general Welfare," conditions receipt of federal moneys upon the receipt's compliance with federal statutory and administrative directives. Since the reach of the Spending Power is at least as broad as Congress' regulatory powers, if Congress, pursuant to its regulatory powers, could have achieved the objectives of the MBE program, then it may do so under the Spending Power. Pp. 473-475
(ii) Insofar as the MBE program pertains to the actions of private prime contractors, including those not responsible for any violation of antidiscrimination laws, Congress could have achieved its objectives under the Commerce Clause. The legislative history shows that there was a rational basis for Congress to conclude that the subcontracting practices of prime contractors could perpetuate the prevailing impaired access by minority businesses to public contracting opportunities, and that this inequity has an effect on interstate commerce. Pp. 475-476.
(iii) Insofar as the MBE program pertains to the actions of state and local grantees, Congress could have achieved its objectives by use of its power under § 5 of the Fourteenth Amendment "to enforce, by appropriate legislation" the equal protection guarantee of that Amendment. Congress had abundant historical basis from which it could conclude [p450] that traditional procurement practices, when applied to minority businesses, could perpetuate the effects of prior discrimination, and that the prospective elimination of such barriers to minority-firm access to public contracting opportunities was appropriate to ensure that those businesses were not denied equal opportunity to participate in federal grants to state and local governments, which is one aspect of the equal protection of the laws. Cf., e.g., Katzenbach v. Morgan, 384 U.S. 641"]384 U.S. 641; 384 U.S. 641; Oregon v. Mitchell, 400 U.S. 112. Pp. 476-478.
(iv) Thus, the objectives of the MBE provision are within the scope of Congress' Spending Power. Cf. Lau v. Nichols, 414 U.S. 563. Pp. 479-480.
(c) Congress' use here of racial and ethnic criteria as a condition attached to a federal grant is a valid means to accomplish its constitutional objectives, and the MBE provision, on its face, does not violate the equal protection component of the Due Process Clause of the Fifth Amendment. Pp. 480-492.
(i) In the MBE program's remedial context, there is no requirement that Congress act in a wholly "color-blind" fashion. Cf., e.g., Swann v. Charlotte-Mecklenberg Board of Education, 402 U.S. l; McDaniel v. Barresi, 402 U.S. 39; North Carolina Board of Education v. Swann, 402 U.S. 43. Pp. 482-484.
(ii) The MBE program is not constitutionally defective because it may disappoint the expectations of access to a portion of government contracting opportunities of nonminority firms who may themselves be innocent of any prior discriminatory actions. When effectuating a limited and properly tailored remedy to cure the effects of prior discrimination, such "a sharing of the burden" by innocent parties is not impermissible. Franks v. Bowman Transportation Co., 424 U.S. 747, 777. Pp. 484-485.
(iii) Nor is the MBE program invalid as being underinclusive in that it limits its benefit to specified minority groups, rather than extending its remedial objectives to all businesses whose access to government contracting is impaired by the effects of disadvantage or discrimination. Congress has not sought to give select minority groups a preferred standing in the construction industry, but has embarked on a remedial program to place them on a more equitable footing with respect to public contracting opportunities, and there has been no showing that Congress inadvertently effected an invidious discrimination by excluding from coverage an identifiable minority group that has been the victim of a degree of disadvantage and discrimination equal to or greater than that suffered by the groups encompassed by the MBE program. Pp. 485-486. [p451]
(iv) The contention that the MBE program, on its face, is overinclusive in that it bestows a benefit on businesses identified by racial or ethnic criteria which cannot be justified on the basis of competitive criteria or as a remedy for the present effects of identified prior discrimination is also without merit. The MBE provision, with due account for its administrative program, provides a reasonable assurance that application of racial or ethnic criteria will be narrowly limited to accomplishing Congress' remedial objectives, and that misapplications of the program will be promptly and adequately remedied administratively. In particular, the administrative program provides waiver and exemption procedures to identify and eliminate from participation MBE's who are not "bona fide," or who attempt to exploit the remedial aspects of the program by charging an unreasonable price not attributable to the present effects of past discrimination. Moreover, grantees may obtain a waiver if they demonstrate that their best efforts will not achieve or have not achieved the 10% target for minority firm participation within the limitations of the program's remedial objectives. The MBE provision may be viewed as a pilot project, appropriately limited in extent and duration and subject to reassessment and reevaluation by the Congress prior to any extension or reenactment. Pp. 486-489.
(d) In the continuing effort to achieve the goal of equality of economic opportunity, Congress has latitude to try new techniques such as the limited use of racial and ethnic criteria to accomplish remedial objectives, especially in programs where voluntary cooperation is induced by placing conditions on federal expenditures. When a program narrowly tailored by Congress to achieve its objectives comes under judicial review, it should be upheld if the courts are satisfied that the legislative objectives and projected administration of the program give reasonable assurance that the program will function within constitutional limitations. Pp. 490-492.
MR. JUSTICE MARSHALL, joined by MR. JUSTICE BRENNAN and MR. JUSTICE BLACKMUN, concurring in the judgment, concluded that the proper inquiry for determining the constitutionality of racial classifications that provide benefits to minorities for the purpose of remedying the present effects of past racial discrimination is whether the classifications serve important governmental objectives and are substantially related to achievement of those objectives, University of California Regents v. Bakke, 438 U.S. 265, 359 (opinion of BRENNAN, WHITE, MARSHALL, and BLACKMUN, JJ., concurring in judgment in part and dissenting in part), and that, judged under this standard, the 10% minority set-aside provision of the 1977 Act is plainly constitutional, the racial classifications being substantially related to the achievement of the important and [p452] congressionally articulated goal of remedying the present effects of past racial discrimination. Pp. 517-521.
BURGER, C.J., announced the judgment of the Court and delivered an opinion, in which WHITE and POWELL, JJ., joined. POWELL, J., filed a concurring opinion, post, p. 495. MARSHALL, J., filed an opinion concurring in the judgment, in which BRENNAN and BLACKMUN, J.J., joined, post p. 517. STEWART, J., filed a dissenting opinion, in which REHNQUIST, J., joined, post, p. 522. STEVENS, J., filed a dissenting opinion, post, p. 532. [p453]
Friday, April 24, 2009
United Steelworkers of America, AFL-CIO-CLC v. Weber
SUPREME COURT OF THE UNITED STATES
--------------------------------------------------------------------------------
443 U.S. 193
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
--------------------------------------------------------------------------------
No. 78-432 Argued: March 28, 1979 --- Decided: June 27, 1979 [*]
--------------------------------------------------------------------------------
In 1974, petitioners United Steelworkers of America (USWA) and Kaiser Aluminum Chemical Corp. (Kaiser) entered into a master collective bargaining agreement covering terms and conditions of employment at 15 Kaiser plants. The agreement included an affirmative action plan designed to eliminate conspicuous racial imbalances in Kaiser's then almost exclusively white craft work forces by reserving for black employees 50% of the openings in in-plant craft training programs until the percentage of black craft workers in a plant is commensurate with the percentage of blacks in the local labor force. This litigation arose from the operation of the affirmative action plan at one of Kaiser's plants where, prior to 1974, only 1.83% of the skilled craft workers were black, even though the local workforce was approximately 39% black. Pursuant to the national agreement, Kaiser, rather than continuing its practice of hiring trained outsiders, established a training program to train its production workers to fill craft openings, selecting trainees on the basis of seniority, with the proviso that at least 50% of the trainees were to be black until the percentage of black skilled craft workers in the plant approximated the percentage of blacks in the local labor force. During the plan's first year of operation, seven black and six white craft trainees were selected from the plant's production workforce, with the most senior black trainee having less seniority than several white production workers whose bids for admission were rejected. Thereafter, respondent Weber, one of those white production workers, instituted this class action in Federal District Court, alleging that, because the affirmative action program had resulted in junior black employees' receiving training in preference to senior white employees, respondent and other similarly situated white employees had been discriminated against in violation of the provisions of §§ 703(a) and(d) of Title VII of the Civil Rights Act of 1964 that make it unlawful to "discriminate . . . because [p194] of . . . race" in hiring and in the selection of apprentices for training programs. The District Court held that the affirmative action plan violated Title VII, entered judgment in favor of the plaintiff class, and granted injunctive relief. The Court of Appeals affirmed, holding that all employment preferences based upon race, including those preferences incidental to bona fide affirmative action plans, violated Title VII's prohibition against racial discrimination in employment.
Held:
1. Title VII's prohibition in §§ 703(a) and (d) against racial discrimination does not condemn all private, voluntary, race-conscious affirmative action plans. Pp. 200-208.
(a) Respondent Weber's reliance upon a literal construction of the statutory provisions and upon McDonald v. Santa Fe Trail Transp. Co., 427 U.S. 273, which held, in a case not involving affirmative action, that Title VII protects whites as well as blacks from certain forms of racial discrimination, is misplaced, since the Kaiser-USWA plan is an affirmative action plan voluntarily adopted by private parties to eliminate traditional patterns of racial segregation. "[A] thing may be within the letter of the statute and yet not within the statute, because not within its spirit, nor within the intention of its makers," Holy Trinity Church v. United States, 143 U.S. 457, 459, and, thus, the prohibition against racial discrimination in §§ 703(a) and (d) must be read against the background of the legislative history of Title VII and the historical context from which the Act arose. P. 201.
(b) Examination of those sources makes clear that an interpretation of §§ 703(a) and (d) that forbids all race-conscious affirmative action would bring about an end completely at variance with the purpose of the statute, and must be rejected. Congress' primary concern in enacting the prohibition against racial discrimination in Title VII was with the plight of the Negro in our economy, and the prohibition against racial discrimination in employment was primarily addressed to the problem of opening opportunities for Negroes in occupations which have been traditionally closed to them. In view of the legislative history, the very statutory words intended as a spur or catalyst to cause
employers and unions to self-examine and to self-evaluate their employment practices and to endeavor to eliminate, so far as possible, the last vestiges of an unfortunate and ignominious page in this country's history,
Albemarle Paper Co. v. Moody, 422 U.S. 405, 418, cannot be interpreted as an absolute prohibition against all private, voluntary, race-conscious affirmative action efforts to hasten the elimination of such vestiges. Pp. 201-204. [p195]
(c) This conclusion is further reinforced by examination of the language and legislative history of § 703(j) of Title VII, which provides that nothing contained in Title VII
shall be interpreted to require any employer . . . to grant preferential treatment . . . to any group because of the race . . . of such . . . group on account of
a de facto racial imbalance in the employer's workforce. Had Congress meant to prohibit all race-conscious affirmative action, it could have provided that Title VII would not require or permit racially preferential integration efforts. The legislative record shows that § 703(j) was designed to prevent § 703 from being interpreted in such a way as to lead to undue federal regulation of private businesses, and thus use of the word "require," rather than the phrase "require or permit," in § 703(j) fortifies the conclusion that Congress did not intend to limit traditional business freedom to such a degree as to prohibit all voluntary, race-conscious affirmative action. Pp. 204-207.
2. It is not necessary in these cases to define the line of demarcation between permissible and impermissible affirmative action plans; it suffices to hold that the challenged Kaiser-USWA plan falls on the permissible side of the line. The purposes of the plan mirror those of the statute, being designed to break down old patterns of racial segregation and hierarchy, and being structured to open employment opportunities for Negroes in occupations which have been traditionally closed to them. At the same time, the plan does not unnecessarily trammel the interests of white employees, neither requiring the discharge of white workers and their replacement with new black hirees, nor creating an absolute bar to the advancement of white employees, since half of those trained in the program will be white. Moreover, the plan is a temporary measure, not intended to maintain racial balance, but simply to eliminate a manifest racial imbalance. Pp. 209-209.
563 F.2d 216, reversed.
BRENNAN, J., delivered the opinion of the Court, in which STEWART, WHITE, MARSHALL, and BLACKMUN, JJ., joined. BLACKMUN, J., filed a concurring opinion, post 209. BURGER, C.J., filed a dissenting opinion, post, p. 216. REHNQUIST, J., filed a dissenting opinion, in which BURGER, C.J., joined, post, p. 219. POWELL and STEVENS, JJ., took no part in the consideration or decision of the cases. [p197]
--------------------------------------------------------------------------------
443 U.S. 193
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
--------------------------------------------------------------------------------
No. 78-432 Argued: March 28, 1979 --- Decided: June 27, 1979 [*]
--------------------------------------------------------------------------------
In 1974, petitioners United Steelworkers of America (USWA) and Kaiser Aluminum Chemical Corp. (Kaiser) entered into a master collective bargaining agreement covering terms and conditions of employment at 15 Kaiser plants. The agreement included an affirmative action plan designed to eliminate conspicuous racial imbalances in Kaiser's then almost exclusively white craft work forces by reserving for black employees 50% of the openings in in-plant craft training programs until the percentage of black craft workers in a plant is commensurate with the percentage of blacks in the local labor force. This litigation arose from the operation of the affirmative action plan at one of Kaiser's plants where, prior to 1974, only 1.83% of the skilled craft workers were black, even though the local workforce was approximately 39% black. Pursuant to the national agreement, Kaiser, rather than continuing its practice of hiring trained outsiders, established a training program to train its production workers to fill craft openings, selecting trainees on the basis of seniority, with the proviso that at least 50% of the trainees were to be black until the percentage of black skilled craft workers in the plant approximated the percentage of blacks in the local labor force. During the plan's first year of operation, seven black and six white craft trainees were selected from the plant's production workforce, with the most senior black trainee having less seniority than several white production workers whose bids for admission were rejected. Thereafter, respondent Weber, one of those white production workers, instituted this class action in Federal District Court, alleging that, because the affirmative action program had resulted in junior black employees' receiving training in preference to senior white employees, respondent and other similarly situated white employees had been discriminated against in violation of the provisions of §§ 703(a) and(d) of Title VII of the Civil Rights Act of 1964 that make it unlawful to "discriminate . . . because [p194] of . . . race" in hiring and in the selection of apprentices for training programs. The District Court held that the affirmative action plan violated Title VII, entered judgment in favor of the plaintiff class, and granted injunctive relief. The Court of Appeals affirmed, holding that all employment preferences based upon race, including those preferences incidental to bona fide affirmative action plans, violated Title VII's prohibition against racial discrimination in employment.
Held:
1. Title VII's prohibition in §§ 703(a) and (d) against racial discrimination does not condemn all private, voluntary, race-conscious affirmative action plans. Pp. 200-208.
(a) Respondent Weber's reliance upon a literal construction of the statutory provisions and upon McDonald v. Santa Fe Trail Transp. Co., 427 U.S. 273, which held, in a case not involving affirmative action, that Title VII protects whites as well as blacks from certain forms of racial discrimination, is misplaced, since the Kaiser-USWA plan is an affirmative action plan voluntarily adopted by private parties to eliminate traditional patterns of racial segregation. "[A] thing may be within the letter of the statute and yet not within the statute, because not within its spirit, nor within the intention of its makers," Holy Trinity Church v. United States, 143 U.S. 457, 459, and, thus, the prohibition against racial discrimination in §§ 703(a) and (d) must be read against the background of the legislative history of Title VII and the historical context from which the Act arose. P. 201.
(b) Examination of those sources makes clear that an interpretation of §§ 703(a) and (d) that forbids all race-conscious affirmative action would bring about an end completely at variance with the purpose of the statute, and must be rejected. Congress' primary concern in enacting the prohibition against racial discrimination in Title VII was with the plight of the Negro in our economy, and the prohibition against racial discrimination in employment was primarily addressed to the problem of opening opportunities for Negroes in occupations which have been traditionally closed to them. In view of the legislative history, the very statutory words intended as a spur or catalyst to cause
employers and unions to self-examine and to self-evaluate their employment practices and to endeavor to eliminate, so far as possible, the last vestiges of an unfortunate and ignominious page in this country's history,
Albemarle Paper Co. v. Moody, 422 U.S. 405, 418, cannot be interpreted as an absolute prohibition against all private, voluntary, race-conscious affirmative action efforts to hasten the elimination of such vestiges. Pp. 201-204. [p195]
(c) This conclusion is further reinforced by examination of the language and legislative history of § 703(j) of Title VII, which provides that nothing contained in Title VII
shall be interpreted to require any employer . . . to grant preferential treatment . . . to any group because of the race . . . of such . . . group on account of
a de facto racial imbalance in the employer's workforce. Had Congress meant to prohibit all race-conscious affirmative action, it could have provided that Title VII would not require or permit racially preferential integration efforts. The legislative record shows that § 703(j) was designed to prevent § 703 from being interpreted in such a way as to lead to undue federal regulation of private businesses, and thus use of the word "require," rather than the phrase "require or permit," in § 703(j) fortifies the conclusion that Congress did not intend to limit traditional business freedom to such a degree as to prohibit all voluntary, race-conscious affirmative action. Pp. 204-207.
2. It is not necessary in these cases to define the line of demarcation between permissible and impermissible affirmative action plans; it suffices to hold that the challenged Kaiser-USWA plan falls on the permissible side of the line. The purposes of the plan mirror those of the statute, being designed to break down old patterns of racial segregation and hierarchy, and being structured to open employment opportunities for Negroes in occupations which have been traditionally closed to them. At the same time, the plan does not unnecessarily trammel the interests of white employees, neither requiring the discharge of white workers and their replacement with new black hirees, nor creating an absolute bar to the advancement of white employees, since half of those trained in the program will be white. Moreover, the plan is a temporary measure, not intended to maintain racial balance, but simply to eliminate a manifest racial imbalance. Pp. 209-209.
563 F.2d 216, reversed.
BRENNAN, J., delivered the opinion of the Court, in which STEWART, WHITE, MARSHALL, and BLACKMUN, JJ., joined. BLACKMUN, J., filed a concurring opinion, post 209. BURGER, C.J., filed a dissenting opinion, post, p. 216. REHNQUIST, J., filed a dissenting opinion, in which BURGER, C.J., joined, post, p. 219. POWELL and STEVENS, JJ., took no part in the consideration or decision of the cases. [p197]
Regents of the University of California v. Bakke
SUPREME COURT OF THE UNITED STATES
--------------------------------------------------------------------------------
438 U.S. 265
--------------------------------------------------------------------------------
No. 7811 Argued: October 12, 1977 --- Decided: June 28, 1978
--------------------------------------------------------------------------------
The Medical School of the University of California at Davis (hereinafter Davis) had two admissions programs for the entering class of 100 students -- the regular admissions program and the special admissions program. Under the regular procedure, candidates whose overall undergraduate grade point averages fell below 2.5 on a scale of 4.0 were summarily rejected. About one out of six applicants was then given an interview, following which he was rated on a scale of 1 to 100 by each of the committee members (five in 1973 and six in 1974), his rating being based on the interviewers' summaries, his overall grade point average, his science courses grade point average, his Medical College Admissions Test (MCAT) scores, letters of recommendation, extracurricular activities, and other biographical data, all of which resulted in a total "benchmark score." The full admissions committee then made offers of admission on the basis of their review of the applicant's file and his score, considering and acting upon applications as they were received. The committee chairman was responsible for placing names on the waiting list and had discretion to include persons with "special skills." A separate committee, a majority of whom were members of minority groups, operated the special admissions program. The 1973 and 1974 application forms, respectively, asked candidates whether they wished to be considered as "economically and/or educationally disadvantaged" applicants and members of a "minority group" (blacks, Chicanos, Asians, American Indians). If an applicant of a minority group was found to be "disadvantaged," he would be rated in a manner similar to the one employed by the general admissions committee. Special candidates, however, did not have to meet the 2.5 grade point cutoff and were not ranked against candidates in the general admissions process. About one-fifth of the special applicants were invited for interviews in 1973 and 1974, following which they were given benchmark scores, and the top choices were then given to the general admissions committee, which could reject special candidates for failure to meet course requirements or other specific deficiencies. The special committee continued to recommend candidates until 16 special admission selections had been made. During a four-year period, 63 minority [p266] students were admitted to Davis under the special program and 44 under the general program. No disadvantaged whites were admitted under the special program, though many applied. Respondent, a white male, applied to Davis in 1973 and 1974, in both years being considered only under the general admissions program. Though he had a 468 out of 500 score in 1973, he was rejected, since no general applicants with scores less than 470 were being accepted after respondent's application, which was filed late in the year, had been processed and completed. At that time, four special admission slots were still unfilled. In 1974 respondent applied early, and though he had a total score of 549 out of 600, he was again rejected. In neither year was his name placed on the discretionary waiting list. In both years, special applicants were admitted with significantly lower scores than respondent's. After his second rejection, respondent filed this action in state court for mandatory, injunctive, and declaratory relief to compel his admission to Davis, alleging that the special admissions program operated to exclude him on the basis of his race in violation of the Equal Protection Clause of the Fourteenth Amendment, a provision of the California Constitution, and § 601 of Title VI of the Civil Rights Act of 1964, which provides, inter alia, that no person shall on the ground of race or color be excluded from participating in any program receiving federal financial assistance. Petitioner cross-claimed for a declaration that its special admissions program was lawful. The trial court found that the special program operated as a racial quota, because minority applicants in that program were rated only against one another, and 16 places in the class of 100 were reserved for them. Declaring that petitioner could not take race into account in making admissions decisions, the program was held to violate the Federal and State Constitutions and Title VI. Respondent's admission was not ordered, however, for lack of proof that he would have been admitted but for the special program. The California Supreme Court, applying a strict scrutiny standard, concluded that the special admissions program was not the least intrusive means of achieving the goals of the admittedly compelling state interests of integrating the medical profession and increasing the number of doctors willing to serve minority patients. Without passing on the state constitutional or federal statutory grounds, the court held that petitioner's special admissions program violated the Equal Protection Clause. Since petitioner could not satisfy its burden of demonstrating that respondent, absent the special program, would not have been admitted, the court ordered his admission to Davis.
Held: The judgment below is affirmed insofar as it orders respondent's admission to Davis and invalidates petitioner's special admissions program, [p267] but is reversed insofar as it prohibits petitioner from taking race into account as a factor in its future admissions decisions.
MR. JUSTICE POWELL concluded:
1. Title VI proscribes only those racial classifications that would violate the Equal Protection Clause if employed by a State or its agencies. Pp. 281-287.
2. Racial and ethnic classifications of any sort are inherently suspect and call for the most exacting judicial scrutiny. While the goal of achieving a diverse student body is sufficiently compelling to justify consideration of race in admissions decisions under some circumstances, petitioner's special admissions program, which forecloses consideration to persons like respondent, is unnecessary to the achievement of this compelling goal, and therefore invalid under the Equal Protection Clause. Pp. 287-320.
3. Since petitioner could not satisfy its burden of proving that respondent would not have been admitted even if there had been no special admissions program, he must be admitted. P. 320.
MR. JUSTICE BRENNAN, MR. JUSTICE WHITE, MR. JUSTICE MARSHALL, and MR. JUSTICE BLACKMUN concluded:
1. Title VI proscribes only those racial classifications that would violate the Equal Protection Clause if employed by a State or its agencies. Pp. 328-355.
2. Racial classifications call for strict judicial scrutiny. Nonetheless, the purpose of overcoming substantial, chronic minority underrepresentation in the medical profession is sufficiently important to justify petitioner's remedial use of race. Thus, the judgment below must be reversed in that it prohibits race from being used as a factor in university admissions. Pp. 355-379.
MR. JUSTICE STEVENS, joined by THE CHIEF JUSTICE, MR. JUSTICE STEWART, and MR. JUSTICE REHNQUIST, being of the view that whether race can ever be a factor in an admissions policy is not an issue here; that Title VI applies; and that respondent was excluded from Davis in violation of Title VI, concurs in the Court's judgment insofar as it affirms the judgment of the court below ordering respondent admitted to Davis. Pp. 408-421.
POWELL, J., announced the Court's judgment and filed an opinion expressing his views of the case, in Parts I, III-A, and V-C of which WHITE, J., joined; and in Parts I and V-C of which BRENNAN, MARSHALL, and BLACKMUN, JJ., joined. BRENNAN, WHITE, MARSHALL, and BLACKMUN, [p268] JJ., filed an opinion concurring in the judgment in part and dissenting in part, post, p. 324. WHITE, J., post, p. 379, MARSHALL, J., post, p. 387, and BLACKMUN, J., post, p. 402, filed separate opinions. STEVENS, J., filed an opinion concurring in the judgment in part and dissenting in part, in which BURGER, C.J., and STEWART and REHNQUIST, JJ., joined, post, p. 408. [p269]
--------------------------------------------------------------------------------
438 U.S. 265
--------------------------------------------------------------------------------
No. 7811 Argued: October 12, 1977 --- Decided: June 28, 1978
--------------------------------------------------------------------------------
The Medical School of the University of California at Davis (hereinafter Davis) had two admissions programs for the entering class of 100 students -- the regular admissions program and the special admissions program. Under the regular procedure, candidates whose overall undergraduate grade point averages fell below 2.5 on a scale of 4.0 were summarily rejected. About one out of six applicants was then given an interview, following which he was rated on a scale of 1 to 100 by each of the committee members (five in 1973 and six in 1974), his rating being based on the interviewers' summaries, his overall grade point average, his science courses grade point average, his Medical College Admissions Test (MCAT) scores, letters of recommendation, extracurricular activities, and other biographical data, all of which resulted in a total "benchmark score." The full admissions committee then made offers of admission on the basis of their review of the applicant's file and his score, considering and acting upon applications as they were received. The committee chairman was responsible for placing names on the waiting list and had discretion to include persons with "special skills." A separate committee, a majority of whom were members of minority groups, operated the special admissions program. The 1973 and 1974 application forms, respectively, asked candidates whether they wished to be considered as "economically and/or educationally disadvantaged" applicants and members of a "minority group" (blacks, Chicanos, Asians, American Indians). If an applicant of a minority group was found to be "disadvantaged," he would be rated in a manner similar to the one employed by the general admissions committee. Special candidates, however, did not have to meet the 2.5 grade point cutoff and were not ranked against candidates in the general admissions process. About one-fifth of the special applicants were invited for interviews in 1973 and 1974, following which they were given benchmark scores, and the top choices were then given to the general admissions committee, which could reject special candidates for failure to meet course requirements or other specific deficiencies. The special committee continued to recommend candidates until 16 special admission selections had been made. During a four-year period, 63 minority [p266] students were admitted to Davis under the special program and 44 under the general program. No disadvantaged whites were admitted under the special program, though many applied. Respondent, a white male, applied to Davis in 1973 and 1974, in both years being considered only under the general admissions program. Though he had a 468 out of 500 score in 1973, he was rejected, since no general applicants with scores less than 470 were being accepted after respondent's application, which was filed late in the year, had been processed and completed. At that time, four special admission slots were still unfilled. In 1974 respondent applied early, and though he had a total score of 549 out of 600, he was again rejected. In neither year was his name placed on the discretionary waiting list. In both years, special applicants were admitted with significantly lower scores than respondent's. After his second rejection, respondent filed this action in state court for mandatory, injunctive, and declaratory relief to compel his admission to Davis, alleging that the special admissions program operated to exclude him on the basis of his race in violation of the Equal Protection Clause of the Fourteenth Amendment, a provision of the California Constitution, and § 601 of Title VI of the Civil Rights Act of 1964, which provides, inter alia, that no person shall on the ground of race or color be excluded from participating in any program receiving federal financial assistance. Petitioner cross-claimed for a declaration that its special admissions program was lawful. The trial court found that the special program operated as a racial quota, because minority applicants in that program were rated only against one another, and 16 places in the class of 100 were reserved for them. Declaring that petitioner could not take race into account in making admissions decisions, the program was held to violate the Federal and State Constitutions and Title VI. Respondent's admission was not ordered, however, for lack of proof that he would have been admitted but for the special program. The California Supreme Court, applying a strict scrutiny standard, concluded that the special admissions program was not the least intrusive means of achieving the goals of the admittedly compelling state interests of integrating the medical profession and increasing the number of doctors willing to serve minority patients. Without passing on the state constitutional or federal statutory grounds, the court held that petitioner's special admissions program violated the Equal Protection Clause. Since petitioner could not satisfy its burden of demonstrating that respondent, absent the special program, would not have been admitted, the court ordered his admission to Davis.
Held: The judgment below is affirmed insofar as it orders respondent's admission to Davis and invalidates petitioner's special admissions program, [p267] but is reversed insofar as it prohibits petitioner from taking race into account as a factor in its future admissions decisions.
MR. JUSTICE POWELL concluded:
1. Title VI proscribes only those racial classifications that would violate the Equal Protection Clause if employed by a State or its agencies. Pp. 281-287.
2. Racial and ethnic classifications of any sort are inherently suspect and call for the most exacting judicial scrutiny. While the goal of achieving a diverse student body is sufficiently compelling to justify consideration of race in admissions decisions under some circumstances, petitioner's special admissions program, which forecloses consideration to persons like respondent, is unnecessary to the achievement of this compelling goal, and therefore invalid under the Equal Protection Clause. Pp. 287-320.
3. Since petitioner could not satisfy its burden of proving that respondent would not have been admitted even if there had been no special admissions program, he must be admitted. P. 320.
MR. JUSTICE BRENNAN, MR. JUSTICE WHITE, MR. JUSTICE MARSHALL, and MR. JUSTICE BLACKMUN concluded:
1. Title VI proscribes only those racial classifications that would violate the Equal Protection Clause if employed by a State or its agencies. Pp. 328-355.
2. Racial classifications call for strict judicial scrutiny. Nonetheless, the purpose of overcoming substantial, chronic minority underrepresentation in the medical profession is sufficiently important to justify petitioner's remedial use of race. Thus, the judgment below must be reversed in that it prohibits race from being used as a factor in university admissions. Pp. 355-379.
MR. JUSTICE STEVENS, joined by THE CHIEF JUSTICE, MR. JUSTICE STEWART, and MR. JUSTICE REHNQUIST, being of the view that whether race can ever be a factor in an admissions policy is not an issue here; that Title VI applies; and that respondent was excluded from Davis in violation of Title VI, concurs in the Court's judgment insofar as it affirms the judgment of the court below ordering respondent admitted to Davis. Pp. 408-421.
POWELL, J., announced the Court's judgment and filed an opinion expressing his views of the case, in Parts I, III-A, and V-C of which WHITE, J., joined; and in Parts I and V-C of which BRENNAN, MARSHALL, and BLACKMUN, JJ., joined. BRENNAN, WHITE, MARSHALL, and BLACKMUN, [p268] JJ., filed an opinion concurring in the judgment in part and dissenting in part, post, p. 324. WHITE, J., post, p. 379, MARSHALL, J., post, p. 387, and BLACKMUN, J., post, p. 402, filed separate opinions. STEVENS, J., filed an opinion concurring in the judgment in part and dissenting in part, in which BURGER, C.J., and STEWART and REHNQUIST, JJ., joined, post, p. 408. [p269]
Wednesday, April 22, 2009
Adarand Constructors, Inc. v. Pena
SUPREME COURT OF THE UNITED STATES
--------------------------------------------------------------------------------
515 U.S. 200
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT
--------------------------------------------------------------------------------
No. 93-1841 Argued: January 17, 1995 --- Decided:
--------------------------------------------------------------------------------
Most federal agency contracts must contain a subcontractor compensation clause, which gives a prime contractor a financial incentive to hire subcontractors certified as small businesses controlled by socially and economically disadvantaged individuals, and requires the contractor to presume that such individuals include minorities or any other individuals found to be disadvantaged by the Small Business Administration (SBA). The prime contractor under a federal highway construction contract containing such a clause awarded a subcontract to a company that was certified as a small disadvantaged business. The record does not reveal how the company obtained its certification, but it could have been by any one of three routes: under one of two SBA programs -- known as the 8(a) and 8(d) programs -- or by a state agency under relevant Department of Transportation regulations. Petitioner Adarand Constructors, Inc., which submitted the low bid on the subcontract but was not a certified business, filed suit against respondent federal officials, claiming that the race-based presumptions used in subcontractor compensation clauses violate the equal protection component of the Fifth Amendment's Due Process Clause. The District Court granted respondents summary judgment. In affirming, the Court of Appeals assessed the constitutionality of the federal race-based action under a lenient standard, resembling intermediate scrutiny, which it determined was required by Fullilove v. Klutznick, 448 U.S. 448, and Metro Broadcasting, Inc. v. FCC, 497 U.S. 547.
Held: The judgment is vacated, and the case is remanded.
JUSTICE O'CONNOR delivered an opinion with respect to Parts I, II, III-A, III-B, III-D, and IV, which was for the Court except insofar as it might be inconsistent with the views expressed in JUSTICE SCALIA's concurrence, concluding that:
1. Adarand has standing to seek forward-looking relief. It has met the requirements necessary to maintain its claim by alleging an invasion of a legally protected interest in a particularized manner, and by showing that it is very likely to bid, in the relatively near future, on another Government contract offering financial incentives to a prime contractor for hiring disadvantaged subcontractors. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560. Pp. ___.
2. All racial classifications, imposed by whatever federal, state, or local governmental actor, must be analyzed by a reviewing court under strict scrutiny. Pp. ___.
(a) In Richmond v. J. A. Croson Co., 488 U.S. 469, a majority of the Court held that the Fourteenth Amendment requires strict scrutiny of all race-based action by state and local governments. While Croson did not consider what standard of review the Fifth Amendment requires for such action taken by the Federal Government, the Court's cases through Croson had established three general propositions with respect to governmental racial classifications. First, skepticism: "'[a]ny preference based on racial or ethnic criteria must necessarily receive a most searching examination,'" Wygant v. Jackson Board of Ed., 476 U.S. 267, 273-274. Second, consistency:
the standard of review under the Equal Protection Clause is not dependent on the race of those burdened or benefited by a particular classification,
Croson, supra, at 494. And third, congruence: "[e]qual protection analysis in the Fifth Amendment area is the same as that under the Fourteenth Amendment," Buckley v. Valeo, 424 U.S. 1, 93. Taken together, these propositions lead to the conclusion that any person, of whatever race, has the right to demand that any governmental actor subject to the Constitution justify any racial classification subjecting that person to unequal treatment under the strictest judicial scrutiny. Pp. ___.
(b) However, a year after Croson, the Court, in Metro Broadcasting, upheld two federal race-based policies against a Fifth Amendment challenge. The Court repudiated the long-held notion that "it would be unthinkable that the same Constitution would impose a lesser duty on the Federal Government" than it does on a State to afford equal protection of the laws, Bolling v. Sharpe, 347 U.S. 497, 500, by holding that congressionally mandated "benign" racial classifications need only satisfy intermediate scrutiny. By adopting that standard, Metro Broadcasting departed from prior cases in two significant respects. First, it turned its back on Croson's explanation that strict scrutiny of governmental racial classifications is essential because it may not always be clear that a so-called preference is in fact benign. Second, it squarely rejected one of the three propositions established by this Court's earlier cases, namely, congruence between the standards applicable to federal and state race-based action, and in doing so also undermined the other two. Pp. ___.
(c) The propositions undermined by Metro Broadcasting all derive from the basic principle that the Fifth and Fourteenth Amendments protect persons, not groups. It follows from that principle that all governmental action based on race -- a group classification long recognized as in most circumstances irrelevant and therefore prohibited -- should be subjected to detailed judicial inquiry to ensure that the personal right to equal protection has not been infringed. Thus, strict scrutiny is the proper standard for analysis of all racial classifications, whether imposed by a federal, state, or local actor. To the extent that Metro Broadcasting is inconsistent with that holding, it is overruled. Pp. ___.
(d) The decision here makes explicit that federal racial classifications, like those of a State, must serve a compelling governmental interest, and must be narrowly tailored to further that interest. Thus, to the extent that Fullilove held federal racial classifications to be subject to a less rigorous standard, it is no longer controlling. Requiring strict scrutiny is the best way to ensure that courts will consistently give racial classifications a detailed examination, as to both ends and means. It is not true that strict scrutiny is strict in theory, but fatal in fact. Government is not disqualified from acting in response to the unhappy persistence of both the practice and the lingering effects of racial discrimination against minority groups in this country. When race-based action is necessary to further a compelling interest, such action is within constitutional constraints if it satisfies the "narrow tailoring" test set out in this Court's previous cases. Pp. ___.
3. Because this decision alters the playing field in some important respects, the case is remanded to the lower courts for further consideration. The Court of Appeals did not decide whether the interests served by the use of subcontractor compensation clauses are properly described as "compelling." Nor did it address the question of narrow tailoring in terms of this Court's strict scrutiny cases. Unresolved questions also remain concerning the details of the complex regulatory regimes implicated by the use of such clauses. Pp. ___.
JUSTICE SCALIA agreed that strict scrutiny must be applied to racial classifications imposed by all governmental actors, but concluded that government can never have a "compelling interest" in discriminating on the basis of race in order to "make up" for past racial discrimination in the opposite direction. Under the Constitution, there can be no such thing as either a creditor or a debtor race. We are just one race in the eyes of government. Pp. ___.
O'CONNOR, J., announced the judgment of the Court and delivered an opinion with respect to Parts I, II, III-A, III-B, III-D, and IV, which was for the Court except insofar as it might be inconsistent with the views expressed in the concurrence of SCALIA, J., and an opinion with respect to Part III-C. Parts I, II, III-A, III-B, III-D, and IV of that opinion were joined by REHNQUIST, C.J., and KENNEDY and THOMAS, JJ., and by SCALIA, J., to the extent heretofore indicated; and Part III-C was joined by KENNEDY, J. SCALIA, J., and THOMAS, J., filed opinions concurring in part and concurring in the judgment. STEVENS, J., filed a dissenting opinion, in which GINSBURG, J., joined. SOUTER, J., filed a dissenting opinion, in which GINSBURG and BREYER, JJ., joined. GINSBURG, J., filed a dissenting opinion, in which BREYER, J., joined.
--------------------------------------------------------------------------------
515 U.S. 200
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT
--------------------------------------------------------------------------------
No. 93-1841 Argued: January 17, 1995 --- Decided:
--------------------------------------------------------------------------------
Most federal agency contracts must contain a subcontractor compensation clause, which gives a prime contractor a financial incentive to hire subcontractors certified as small businesses controlled by socially and economically disadvantaged individuals, and requires the contractor to presume that such individuals include minorities or any other individuals found to be disadvantaged by the Small Business Administration (SBA). The prime contractor under a federal highway construction contract containing such a clause awarded a subcontract to a company that was certified as a small disadvantaged business. The record does not reveal how the company obtained its certification, but it could have been by any one of three routes: under one of two SBA programs -- known as the 8(a) and 8(d) programs -- or by a state agency under relevant Department of Transportation regulations. Petitioner Adarand Constructors, Inc., which submitted the low bid on the subcontract but was not a certified business, filed suit against respondent federal officials, claiming that the race-based presumptions used in subcontractor compensation clauses violate the equal protection component of the Fifth Amendment's Due Process Clause. The District Court granted respondents summary judgment. In affirming, the Court of Appeals assessed the constitutionality of the federal race-based action under a lenient standard, resembling intermediate scrutiny, which it determined was required by Fullilove v. Klutznick, 448 U.S. 448, and Metro Broadcasting, Inc. v. FCC, 497 U.S. 547.
Held: The judgment is vacated, and the case is remanded.
JUSTICE O'CONNOR delivered an opinion with respect to Parts I, II, III-A, III-B, III-D, and IV, which was for the Court except insofar as it might be inconsistent with the views expressed in JUSTICE SCALIA's concurrence, concluding that:
1. Adarand has standing to seek forward-looking relief. It has met the requirements necessary to maintain its claim by alleging an invasion of a legally protected interest in a particularized manner, and by showing that it is very likely to bid, in the relatively near future, on another Government contract offering financial incentives to a prime contractor for hiring disadvantaged subcontractors. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560. Pp. ___.
2. All racial classifications, imposed by whatever federal, state, or local governmental actor, must be analyzed by a reviewing court under strict scrutiny. Pp. ___.
(a) In Richmond v. J. A. Croson Co., 488 U.S. 469, a majority of the Court held that the Fourteenth Amendment requires strict scrutiny of all race-based action by state and local governments. While Croson did not consider what standard of review the Fifth Amendment requires for such action taken by the Federal Government, the Court's cases through Croson had established three general propositions with respect to governmental racial classifications. First, skepticism: "'[a]ny preference based on racial or ethnic criteria must necessarily receive a most searching examination,'" Wygant v. Jackson Board of Ed., 476 U.S. 267, 273-274. Second, consistency:
the standard of review under the Equal Protection Clause is not dependent on the race of those burdened or benefited by a particular classification,
Croson, supra, at 494. And third, congruence: "[e]qual protection analysis in the Fifth Amendment area is the same as that under the Fourteenth Amendment," Buckley v. Valeo, 424 U.S. 1, 93. Taken together, these propositions lead to the conclusion that any person, of whatever race, has the right to demand that any governmental actor subject to the Constitution justify any racial classification subjecting that person to unequal treatment under the strictest judicial scrutiny. Pp. ___.
(b) However, a year after Croson, the Court, in Metro Broadcasting, upheld two federal race-based policies against a Fifth Amendment challenge. The Court repudiated the long-held notion that "it would be unthinkable that the same Constitution would impose a lesser duty on the Federal Government" than it does on a State to afford equal protection of the laws, Bolling v. Sharpe, 347 U.S. 497, 500, by holding that congressionally mandated "benign" racial classifications need only satisfy intermediate scrutiny. By adopting that standard, Metro Broadcasting departed from prior cases in two significant respects. First, it turned its back on Croson's explanation that strict scrutiny of governmental racial classifications is essential because it may not always be clear that a so-called preference is in fact benign. Second, it squarely rejected one of the three propositions established by this Court's earlier cases, namely, congruence between the standards applicable to federal and state race-based action, and in doing so also undermined the other two. Pp. ___.
(c) The propositions undermined by Metro Broadcasting all derive from the basic principle that the Fifth and Fourteenth Amendments protect persons, not groups. It follows from that principle that all governmental action based on race -- a group classification long recognized as in most circumstances irrelevant and therefore prohibited -- should be subjected to detailed judicial inquiry to ensure that the personal right to equal protection has not been infringed. Thus, strict scrutiny is the proper standard for analysis of all racial classifications, whether imposed by a federal, state, or local actor. To the extent that Metro Broadcasting is inconsistent with that holding, it is overruled. Pp. ___.
(d) The decision here makes explicit that federal racial classifications, like those of a State, must serve a compelling governmental interest, and must be narrowly tailored to further that interest. Thus, to the extent that Fullilove held federal racial classifications to be subject to a less rigorous standard, it is no longer controlling. Requiring strict scrutiny is the best way to ensure that courts will consistently give racial classifications a detailed examination, as to both ends and means. It is not true that strict scrutiny is strict in theory, but fatal in fact. Government is not disqualified from acting in response to the unhappy persistence of both the practice and the lingering effects of racial discrimination against minority groups in this country. When race-based action is necessary to further a compelling interest, such action is within constitutional constraints if it satisfies the "narrow tailoring" test set out in this Court's previous cases. Pp. ___.
3. Because this decision alters the playing field in some important respects, the case is remanded to the lower courts for further consideration. The Court of Appeals did not decide whether the interests served by the use of subcontractor compensation clauses are properly described as "compelling." Nor did it address the question of narrow tailoring in terms of this Court's strict scrutiny cases. Unresolved questions also remain concerning the details of the complex regulatory regimes implicated by the use of such clauses. Pp. ___.
JUSTICE SCALIA agreed that strict scrutiny must be applied to racial classifications imposed by all governmental actors, but concluded that government can never have a "compelling interest" in discriminating on the basis of race in order to "make up" for past racial discrimination in the opposite direction. Under the Constitution, there can be no such thing as either a creditor or a debtor race. We are just one race in the eyes of government. Pp. ___.
O'CONNOR, J., announced the judgment of the Court and delivered an opinion with respect to Parts I, II, III-A, III-B, III-D, and IV, which was for the Court except insofar as it might be inconsistent with the views expressed in the concurrence of SCALIA, J., and an opinion with respect to Part III-C. Parts I, II, III-A, III-B, III-D, and IV of that opinion were joined by REHNQUIST, C.J., and KENNEDY and THOMAS, JJ., and by SCALIA, J., to the extent heretofore indicated; and Part III-C was joined by KENNEDY, J. SCALIA, J., and THOMAS, J., filed opinions concurring in part and concurring in the judgment. STEVENS, J., filed a dissenting opinion, in which GINSBURG, J., joined. SOUTER, J., filed a dissenting opinion, in which GINSBURG and BREYER, JJ., joined. GINSBURG, J., filed a dissenting opinion, in which BREYER, J., joined.
HARBISON v. BELL, WARDEN
SUPREME COURT OF THE UNITED STATES
HARBISON v. BELL, WARDEN
certiorari to the united states court of appeals for the sixth circuit
--------------------------------------------------------------------------------
No. 07–8521. Argued January 12, 2009—Decided April 1, 2009
--------------------------------------------------------------------------------
After the Tennessee state courts rejected petitioner Harbison’s conviction and death sentence challenges, the Federal District Court appointed a federal public defender to represent him in filing a habeas petition under 28 U. S. C. §2254. That petition was denied. Harbison then sought appointment of counsel for state clemency proceedings. Because Tennessee law no longer authorizes the appointment of state public defenders as clemency counsel, his federal counsel moved to expand the scope of her representation to include the state proceedings. In denying the motion, the District Court relied on Circuit precedent construing 18 U. S. C. §3599, which provides for the appointment of federal counsel. The Sixth Circuit affirmed.
Held:
1. A certificate of appealability pursuant to 28 U. S. C. §2253(c)(1)(A) is not required to appeal an order denying a request for federally appointed counsel under §3599 because §2253(c)(1)(A) governs only final orders that dispose of a habeas corpus proceeding’s merits. Pp. 2–3.
2. Section 3599 authorizes federally appointed counsel to represent their clients in state clemency proceedings and entitles them to compensation for that representation. Pp. 3–14.
(a) Section 3599(a)(2), which refers to both §2254 and §2255 proceedings, triggers the appointment of counsel for both state and federal postconviction litigants, and §3599(e) governs the scope of appointed counsel’s duties. Thus, federally funded counsel appointed to represent a state prisoner in §2254 proceedings “shall also represent the defendant in such … proceedings for executive or other clemency as may be available to the defendant.” §3599(e). Because state clemency proceedings are “available” to state petitioners who obtain subsection (a)(2) representation, the statute’s plain language indicates that appointed counsel’s authorized representation includes such proceedings. Moreover, subsection (e)’s reference to “proceedings for … other clemency” refers to state proceedings, as federal clemency is exclusively executive, while States administer clemency in various ways. The Government is correct that appointed counsel is not expected to provide each service enumerated in subsection (e) for every client. Rather, counsel’s representation includes only those judicial proceedings transpiring “subsequent” to her appointment, which under subsection (a)(2) begins with the §2254 or §2255 “post-conviction process.” Pp. 3–8.
(b) The Government’s attempts to overcome §3599’s plain language are not persuasive. First, our reading of the statute does not produce absurd results. Contrary to the Government’s contention, a lawyer is not required to represent her client during a state retrial following postconviction relief because the retrial marks the commencement of new judicial proceedings, not a subsequent stage of existing proceedings; state postconviction proceedings are also not “subsequent” to federal habeas proceedings. Second, the legislative history does not support the Government's argument that Congress intended §3599 to apply only to federal defendants. Congress’ decision to furnish counsel for state clemency proceedings reflects both clemency’s role as the “ ‘fail safe’ of our criminal justice system,” Herrera v. Collins, 506 U. S. 390 , and the fact that federal habeas counsel are well positioned to represent their clients in clemency proceedings. Pp. 8–14.
503 F. 3d 566, reversed.
Stevens, J., delivered the opinion of the Court, in which Kennedy, Souter, Ginsburg, and Breyer, JJ., joined. Roberts, C. J., and Thomas, J., filed opinions concurring in the judgment. Scalia, J., filed an opinion concurring in part and dissenting in part, in which Alito, J., joined.
HARBISON v. BELL, WARDEN
certiorari to the united states court of appeals for the sixth circuit
--------------------------------------------------------------------------------
No. 07–8521. Argued January 12, 2009—Decided April 1, 2009
--------------------------------------------------------------------------------
After the Tennessee state courts rejected petitioner Harbison’s conviction and death sentence challenges, the Federal District Court appointed a federal public defender to represent him in filing a habeas petition under 28 U. S. C. §2254. That petition was denied. Harbison then sought appointment of counsel for state clemency proceedings. Because Tennessee law no longer authorizes the appointment of state public defenders as clemency counsel, his federal counsel moved to expand the scope of her representation to include the state proceedings. In denying the motion, the District Court relied on Circuit precedent construing 18 U. S. C. §3599, which provides for the appointment of federal counsel. The Sixth Circuit affirmed.
Held:
1. A certificate of appealability pursuant to 28 U. S. C. §2253(c)(1)(A) is not required to appeal an order denying a request for federally appointed counsel under §3599 because §2253(c)(1)(A) governs only final orders that dispose of a habeas corpus proceeding’s merits. Pp. 2–3.
2. Section 3599 authorizes federally appointed counsel to represent their clients in state clemency proceedings and entitles them to compensation for that representation. Pp. 3–14.
(a) Section 3599(a)(2), which refers to both §2254 and §2255 proceedings, triggers the appointment of counsel for both state and federal postconviction litigants, and §3599(e) governs the scope of appointed counsel’s duties. Thus, federally funded counsel appointed to represent a state prisoner in §2254 proceedings “shall also represent the defendant in such … proceedings for executive or other clemency as may be available to the defendant.” §3599(e). Because state clemency proceedings are “available” to state petitioners who obtain subsection (a)(2) representation, the statute’s plain language indicates that appointed counsel’s authorized representation includes such proceedings. Moreover, subsection (e)’s reference to “proceedings for … other clemency” refers to state proceedings, as federal clemency is exclusively executive, while States administer clemency in various ways. The Government is correct that appointed counsel is not expected to provide each service enumerated in subsection (e) for every client. Rather, counsel’s representation includes only those judicial proceedings transpiring “subsequent” to her appointment, which under subsection (a)(2) begins with the §2254 or §2255 “post-conviction process.” Pp. 3–8.
(b) The Government’s attempts to overcome §3599’s plain language are not persuasive. First, our reading of the statute does not produce absurd results. Contrary to the Government’s contention, a lawyer is not required to represent her client during a state retrial following postconviction relief because the retrial marks the commencement of new judicial proceedings, not a subsequent stage of existing proceedings; state postconviction proceedings are also not “subsequent” to federal habeas proceedings. Second, the legislative history does not support the Government's argument that Congress intended §3599 to apply only to federal defendants. Congress’ decision to furnish counsel for state clemency proceedings reflects both clemency’s role as the “ ‘fail safe’ of our criminal justice system,” Herrera v. Collins, 506 U. S. 390 , and the fact that federal habeas counsel are well positioned to represent their clients in clemency proceedings. Pp. 8–14.
503 F. 3d 566, reversed.
Stevens, J., delivered the opinion of the Court, in which Kennedy, Souter, Ginsburg, and Breyer, JJ., joined. Roberts, C. J., and Thomas, J., filed opinions concurring in the judgment. Scalia, J., filed an opinion concurring in part and dissenting in part, in which Alito, J., joined.
ENTERGY CORP. v. RIVERKEEPER, INC., et al.
SUPREME COURT OF THE UNITED STATES
ENTERGY CORP. v. RIVERKEEPER, INC., et al.
certiorari to the united states court of appeals for the second circuit
--------------------------------------------------------------------------------
No. 07–588. Argued December 2, 2008—Decided April 1, 2009*
--------------------------------------------------------------------------------
Petitioners’ powerplants have “cooling water intake structures” that threaten the environment by squashing against intake screens (“impingement”) or suctioning into the cooling system (“entrainment”) aquatic organisms from the water sources tapped to cool the plants. Thus, the facilities are subject to regulation under the Clean Water Act, which mandates that “[a]ny standard established pursuant to section 1311 … or section 1316 … and applicable to a point source shall require that the location, design, construction, and capacity of cooling water intake structures reflect the best technology available for minimizing adverse environmental impact.” 33 U. S. C. §1326(b). Sections 1311 and 1316, in turn, employ a variety of “best technology” standards to regulate effluent discharge into the Nation’s waters. The Environmental Protection Agency (EPA) promulgated the §1326(b) regulations at issue after nearly three decades of making the “best technology available” determination on a case-by-case basis. Its “Phase I” regulations govern new cooling water intake structures, while the “Phase II” rules at issue apply to certain large existing facilities. In the latter rules, the EPA set “national performance standards,” requiring most Phase II facilities to reduce “impingement mortality for [aquatic organisms] by 80 to 95 percent from the calculation baseline,” and requiring a subset of facilities to reduce entrainment of such organisms by “60 to 90 percent from [that] baseline.” 40 CFR §125.94(b)(1), (2). However, the EPA expressly declined to mandate closed-cycle cooling systems, or equivalent reductions in impingement and entrainment, as it had done in its Phase I rules, in part because the cost of rendering existing facilities closed-cycle compliant would be nine times the estimated cost of compliance with the Phase II performance standards, and because other technologies could approach the performance of closed-cycle operation. The Phase II rules also permit site-specific variances from the national performance standards, provided that the permit-issuing authority imposes remedial measures that yield results “as close as practicable to the applicable performance standards.” §125.94(a)(5)(i), (ii). Respondents—environmental groups and various States—challenged the Phase II regulations. Concluding that cost-benefit analysis is impermissible under 33 U. S. C. §1326(b), the Second Circuit found the site-specific cost-benefit variance provision unlawful and remanded the regulations to the EPA for it to clarify whether it had relied on cost-benefit analysis in setting the national performance standards.
Held: The EPA permissibly relied on cost-benefit analysis in setting the national performance standards and in providing for cost-benefit variances from those standards as part of the Phase II regulations. Pp. 7–16.
(a) The EPA’s view that §1326(b)’s “best technology available for minimizing adverse environmental impact” standard permits consideration of the technology’s costs and of the relationship between those costs and the environmental benefits produced governs if it is a reasonable interpretation of the statute—not necessarily the only possible interpretation, nor even the interpretation deemed most reasonable by the courts. Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837 . The Second Circuit took “best technology” to mean the technology that achieves the greatest reduction in adverse environmental impacts at a reasonable cost to the industry, but it may also describe the technology that most efficiently produces a good, even if it produces a lesser quantity of that good than other available technologies. This reading is not precluded by the phrase “for minimizing adverse environmental impact.” Minimizing admits of degree and is not necessarily used to refer exclusively to the “greatest possible reduction.” Other Clean Water Act provisions show that when Congress wished to mandate the greatest feasible reduction in water pollution, it used plain language, e.g., “elimination of discharges of all pollutants,” §1311(b)(2)(A). Thus, §1326(b)’s use of the less ambitious goal of “minimizing adverse environmental impact” suggests that the EPA has some discretion to determine the extent of reduction warranted under the circumstances, plausibly involving a consideration of the benefits derived from reductions and the costs of achieving them. Pp. 7–9.
(b) Considering §1326(b)’s text, and comparing it with the text and statutory factors applicable to parallel Clean Water Act provisions, prompts the conclusion that it was well within the bounds of reasonable interpretation for the EPA to conclude that cost-benefit analysis is not categorically forbidden. In the Phase II rules the EPA sought only to avoid extreme disparities between costs and benefits, limiting variances from Phase II’s “national performance standards” to circumstances where the costs are “significantly greater than the benefits” of compliance. 40 CFR §125.94(a)(5)(ii). In defining “national performance standards” the EPA assumed the application of technologies whose benefits approach those estimated for closed-cycle cooling systems at a fraction of the cost. That the EPA has for over thirty years interpreted §1326(b) to permit a comparison of costs and benefits, while not conclusive, also tends to show that its interpretation is reasonable and hence a legitimate exercise of its discretion. Even respondents and the Second Circuit ultimately recognize that some comparison of costs and benefits is permitted. The Second Circuit held that §1326(b) mandates only those technologies whose costs can be reasonably borne by the industry. But whether it is reasonable to bear a particular cost can very well depend on the resulting benefits. Likewise, respondents concede that the EPA need not require that industry spend billions to save one more fish. This concedes the principle, and there is no statutory basis for limiting the comparison of costs and benefits to situations where the benefits are de minimis rather than significantly disproportionate. Pp. 9–16.
475 F. 3d 83, reversed and remanded.
Scalia, J., delivered the opinion of the Court, in which Roberts, C. J., and Kennedy, Thomas, and Alito, JJ., joined. Breyer, J., filed an opinion concurring in part and dissenting in part. Stevens, J.,filed a dissenting opinion, in which Souter and Ginsburg, JJ., joined.
--------------------------------------------------------------------------------
Notes
* Together with No. 07–589, PSEG Fossil LLC et al. v. Riverkeeper, Inc., et al., and No. 07–597, Utility Water Act Group v. Riverkeeper, Inc., et al., also on certiorari to the same court.
ENTERGY CORP. v. RIVERKEEPER, INC., et al.
certiorari to the united states court of appeals for the second circuit
--------------------------------------------------------------------------------
No. 07–588. Argued December 2, 2008—Decided April 1, 2009*
--------------------------------------------------------------------------------
Petitioners’ powerplants have “cooling water intake structures” that threaten the environment by squashing against intake screens (“impingement”) or suctioning into the cooling system (“entrainment”) aquatic organisms from the water sources tapped to cool the plants. Thus, the facilities are subject to regulation under the Clean Water Act, which mandates that “[a]ny standard established pursuant to section 1311 … or section 1316 … and applicable to a point source shall require that the location, design, construction, and capacity of cooling water intake structures reflect the best technology available for minimizing adverse environmental impact.” 33 U. S. C. §1326(b). Sections 1311 and 1316, in turn, employ a variety of “best technology” standards to regulate effluent discharge into the Nation’s waters. The Environmental Protection Agency (EPA) promulgated the §1326(b) regulations at issue after nearly three decades of making the “best technology available” determination on a case-by-case basis. Its “Phase I” regulations govern new cooling water intake structures, while the “Phase II” rules at issue apply to certain large existing facilities. In the latter rules, the EPA set “national performance standards,” requiring most Phase II facilities to reduce “impingement mortality for [aquatic organisms] by 80 to 95 percent from the calculation baseline,” and requiring a subset of facilities to reduce entrainment of such organisms by “60 to 90 percent from [that] baseline.” 40 CFR §125.94(b)(1), (2). However, the EPA expressly declined to mandate closed-cycle cooling systems, or equivalent reductions in impingement and entrainment, as it had done in its Phase I rules, in part because the cost of rendering existing facilities closed-cycle compliant would be nine times the estimated cost of compliance with the Phase II performance standards, and because other technologies could approach the performance of closed-cycle operation. The Phase II rules also permit site-specific variances from the national performance standards, provided that the permit-issuing authority imposes remedial measures that yield results “as close as practicable to the applicable performance standards.” §125.94(a)(5)(i), (ii). Respondents—environmental groups and various States—challenged the Phase II regulations. Concluding that cost-benefit analysis is impermissible under 33 U. S. C. §1326(b), the Second Circuit found the site-specific cost-benefit variance provision unlawful and remanded the regulations to the EPA for it to clarify whether it had relied on cost-benefit analysis in setting the national performance standards.
Held: The EPA permissibly relied on cost-benefit analysis in setting the national performance standards and in providing for cost-benefit variances from those standards as part of the Phase II regulations. Pp. 7–16.
(a) The EPA’s view that §1326(b)’s “best technology available for minimizing adverse environmental impact” standard permits consideration of the technology’s costs and of the relationship between those costs and the environmental benefits produced governs if it is a reasonable interpretation of the statute—not necessarily the only possible interpretation, nor even the interpretation deemed most reasonable by the courts. Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837 . The Second Circuit took “best technology” to mean the technology that achieves the greatest reduction in adverse environmental impacts at a reasonable cost to the industry, but it may also describe the technology that most efficiently produces a good, even if it produces a lesser quantity of that good than other available technologies. This reading is not precluded by the phrase “for minimizing adverse environmental impact.” Minimizing admits of degree and is not necessarily used to refer exclusively to the “greatest possible reduction.” Other Clean Water Act provisions show that when Congress wished to mandate the greatest feasible reduction in water pollution, it used plain language, e.g., “elimination of discharges of all pollutants,” §1311(b)(2)(A). Thus, §1326(b)’s use of the less ambitious goal of “minimizing adverse environmental impact” suggests that the EPA has some discretion to determine the extent of reduction warranted under the circumstances, plausibly involving a consideration of the benefits derived from reductions and the costs of achieving them. Pp. 7–9.
(b) Considering §1326(b)’s text, and comparing it with the text and statutory factors applicable to parallel Clean Water Act provisions, prompts the conclusion that it was well within the bounds of reasonable interpretation for the EPA to conclude that cost-benefit analysis is not categorically forbidden. In the Phase II rules the EPA sought only to avoid extreme disparities between costs and benefits, limiting variances from Phase II’s “national performance standards” to circumstances where the costs are “significantly greater than the benefits” of compliance. 40 CFR §125.94(a)(5)(ii). In defining “national performance standards” the EPA assumed the application of technologies whose benefits approach those estimated for closed-cycle cooling systems at a fraction of the cost. That the EPA has for over thirty years interpreted §1326(b) to permit a comparison of costs and benefits, while not conclusive, also tends to show that its interpretation is reasonable and hence a legitimate exercise of its discretion. Even respondents and the Second Circuit ultimately recognize that some comparison of costs and benefits is permitted. The Second Circuit held that §1326(b) mandates only those technologies whose costs can be reasonably borne by the industry. But whether it is reasonable to bear a particular cost can very well depend on the resulting benefits. Likewise, respondents concede that the EPA need not require that industry spend billions to save one more fish. This concedes the principle, and there is no statutory basis for limiting the comparison of costs and benefits to situations where the benefits are de minimis rather than significantly disproportionate. Pp. 9–16.
475 F. 3d 83, reversed and remanded.
Scalia, J., delivered the opinion of the Court, in which Roberts, C. J., and Kennedy, Thomas, and Alito, JJ., joined. Breyer, J., filed an opinion concurring in part and dissenting in part. Stevens, J.,filed a dissenting opinion, in which Souter and Ginsburg, JJ., joined.
--------------------------------------------------------------------------------
Notes
* Together with No. 07–589, PSEG Fossil LLC et al. v. Riverkeeper, Inc., et al., and No. 07–597, Utility Water Act Group v. Riverkeeper, Inc., et al., also on certiorari to the same court.
14 PENN PLAZA LLC et al. v. PYETT et al.
SUPREME COURT OF THE UNITED STATES
14 PENN PLAZA LLC et al. v. PYETT et al.
certiorari to the united states court of appeals for the second circuit
--------------------------------------------------------------------------------
No. 07–581. Argued December 1, 2008—Decided April 1, 2009
--------------------------------------------------------------------------------
Respondents are members of the Service Employees International Union, Local 32BJ (Union). Under the National Labor Relations Act, the Union is the exclusive bargaining representative of employees within the building-services industry in New York City, which includes building cleaners, porters, and doorpersons. The Union has exclusive authority to bargain on behalf of its members over their “rates of pay, wages, hours of employment, or other conditions of employment,” 29 U. S. C. §159(a), and engages in industry-wide collective bargaining with the Realty Advisory Board on Labor Relations, Inc. (RAB), a multiemployer bargaining association for the New York City real-estate industry. The agreement between the Union and the RAB is embodied in their Collective Bargaining Agreement for Contractors and Building Owners (CBA). The CBA requires union members to submit all claims of employment discrimination to binding arbitration under the CBA’s grievance and dispute resolution procedures.
Petitioner 14 Penn Plaza LLC is a member of the RAB. It owns and operates the New York City office building where respondents worked as night lobby watchmen and in other similar capacities. Respondents were directly employed by petitioner Temco Service Industries, Inc. (Temco), a maintenance service and cleaning contractor. After 14 Penn Plaza, with the Union’s consent, engaged a unionized security contractor affiliated with Temco to provide licensed security guards for the building, Temco reassigned respondents to jobs as porters and cleaners. Contending that these reassignments led to a loss in income, other damages, and were otherwise less desirable than their former positions, respondents asked the Union to file grievances alleging, among other things, that petitioners violated the CBA’s ban on workplace discrimination by reassigning respondents on the basis of their age in violation of Age Discrimination in Employment Act of 1967 (ADEA), 29 U. S. C. §621 et seq. The Union requested arbitration under the CBA, but after the initial hearing, withdrew the age-discrimination claims on the ground that its consent to the new security contract precluded it from objecting to respondents’ reassignments as discriminatory. Respondents then filed a complaint with the Equal Employment Opportunity Commission (EEOC) alleging that petitioners had violated their ADEA rights, and the EEOC issued each of them a right-to-sue notice. In the ensuing lawsuit, the District Court denied petitioners’ motion to compel arbitration of respondents’ age discrimination claims. The Second Circuit affirmed, holding that Alexander v. Gardner-Denver Co., 415 U. S. 36 , forbids enforcement of collective-bargaining provisions requiring arbitration of ADEA claims.
Held: A provision in a collective-bargaining agreement that clearly and unmistakably requires union members to arbitrate ADEA claims is enforceable as a matter of federal law. Pp. 6–25.
(a) Examination of the two federal statutes at issue here, the ADEA and the National Labor Relations Act (NLRA), yields a straightforward answer to the question presented. The Union and the RAB, negotiating on behalf of 14 Penn Plaza, collectively bargained in good faith and agreed that employment-related discrimination claims, including ADEA claims, would be resolved in arbitration. This freely negotiated contractual term easily qualifies as a “conditio[n] of employment” subject to mandatory bargaining under the NLRA, 29 U. S. C. §159(a). See, e.g., Litton Financial Printing Div., Litton Business Systems, Inc. v. NLRB, 501 U. S. 190 . As in any contractual negotiation, a union may agree to the inclusion of an arbitration provision in a collective-bargaining agreement in return for other concessions from the employer, and courts generally may not interfere in this bargained-for exchange. See NLRB v. Magnavox Co., 415 U. S. 322 . Thus, the CBA’s arbitration provision must be honored unless the ADEA itself removes this particular class of grievances from the NLRA’s broad sweep. See Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U. S. 614 . It does not. This Court has squarely held that the ADEA does not preclude arbitration of claims brought under the statute. See Gilmer v. Interstate/Johnson Lane Corp., 500 U. S. 20 . Pp. 6–10. Accordingly, there is no legal basis for the Court to strike down the arbitration clause in this CBA, which was freely negotiated by the Union and the RAB, and which clearly and unmistakably requires respondents to arbitrate the age-discrimination claims at issue in this appeal. Pp. 6–10.
(b) The CBA’s arbitration provision is also fully enforceable under the Gardner-Denver line of cases. Respondents incorrectly interpret Gardner-Denver and its progeny as holding that an agreement to arbitrate ADEA claims provided for in a collective-bargaining agreement cannot waive an individual employee’s right to a judicial forum under federal antidiscrimination statutes.. Pp. 11–23.
(i) The facts underlying Gardner-Denver and its progeny reveal the narrow scope of the legal rule they engendered. Those cases “did not involve the issue of the enforceability of an agreement to arbitrate statutory claims,” but “the quite different issue whether arbitration of contract-based claims precluded subsequent judicial resolution of statutory claims.” Gilmer, supra, at 35. Gardner-Denver does not control the outcome where, as here, the collective-bargaining agreement’s arbitration provision expressly covers both statutory and contractual discrimination claims. Pp. 11–15.
(ii) Apart from their narrow holdings, the Gardner-Denver line of cases included broad dicta highly critical of using arbitration to vindicate statutory antidiscrimination rights. That skepticism, however, rested on a misconceived view of arbitration that this Court has since abandoned. First, contrary to Gardner-Denver’s erroneous assumption, 415 U. S., at 51, the decision to resolve ADEA claims by way of arbitration instead of litigation does not waive the statutory right to be free from workplace age discrimination; it waives only the right to seek relief from a court in the first instance, see, e.g., Gilmer, supra, at 26. Second, Gardner-Denver’s mistaken suggestion that certain informal features of arbitration made it a forum “well suited to the resolution of contractual disputes,” but “a comparatively inappropriate forum for the final resolution of [employment] rights.” 415 U. S., at 56, has been corrected. See, e.g., Shearson/American Express Inc. v. McMahon, 482 U. S. 220 . Third, Gardner-Denver’s concern that, in arbitration, a union may subordinate an individual employee’s interests to the collective interests of all employees in the bargaining unit, 415 U. S., at 58, n. 19, cannot be relied on to introduce a qualification into the ADEA that is not found in its text. Until Congress amends the ADEA to meet the conflict-of-interest concern identified in the Gardner-Denver dicta, there is “no reason to color the lens through which the arbitration clause is read.” Mitsubishi, supra, at 628. In any event, the conflict-of-interest argument amounts to an unsustainable collateral attack on the NLRA, see Emporium Capwell Co. v. Western Addition Community Organization, 420 U. S. 50 , and Congress has accounted for the conflict in several ways: union members may bring a duty of fair representation claim against the union; a union can be subjected to direct liability under the ADEA if it discriminates on the basis of age; and union members may also file age-discrimination claims with the EEOC and the National Labor Relations Board. Pp. 15–23.
(c) Because respondents’ arguments that the CBA does not clearly and unmistakably require them to arbitrate their ADEA claims were not raised in the lower courts, they have been forfeited. Moreover, although a substantive waiver of federally protected civil rights will not be upheld, see, e.g., Mitsubishi, supra, at 637, and n. 19, this Court is not positioned to resolve in the first instance respondents’ claim that the CBA allows the Union to prevent them from effectively vindicating their federal statutory rights in the arbitral forum, given that this question would require resolution of contested factual allegations, was not fully briefed here or below, and is not fairly encompassed within the question presented. Resolution now would be particularly inappropriate in light of the Court’s hesitation to invalidate arbitration agreements based on speculation. See, e.g., Green Tree Financial Corp.-Ala. v. Randolph, 531 U. S. 79 .Pp. 23–25.
498 F. 3d 88, reversed and remanded.
Thomas, J., delivered the opinion of the Court, in which Roberts, C. J., and Scalia, Kennedy, and Alito, JJ., joined. Stevens, J., filed a dissenting opinion. Souter, J., filed a dissenting opinion, in which Stevens, Ginsburg, and Breyer, JJ., joined.
14 PENN PLAZA LLC et al. v. PYETT et al.
certiorari to the united states court of appeals for the second circuit
--------------------------------------------------------------------------------
No. 07–581. Argued December 1, 2008—Decided April 1, 2009
--------------------------------------------------------------------------------
Respondents are members of the Service Employees International Union, Local 32BJ (Union). Under the National Labor Relations Act, the Union is the exclusive bargaining representative of employees within the building-services industry in New York City, which includes building cleaners, porters, and doorpersons. The Union has exclusive authority to bargain on behalf of its members over their “rates of pay, wages, hours of employment, or other conditions of employment,” 29 U. S. C. §159(a), and engages in industry-wide collective bargaining with the Realty Advisory Board on Labor Relations, Inc. (RAB), a multiemployer bargaining association for the New York City real-estate industry. The agreement between the Union and the RAB is embodied in their Collective Bargaining Agreement for Contractors and Building Owners (CBA). The CBA requires union members to submit all claims of employment discrimination to binding arbitration under the CBA’s grievance and dispute resolution procedures.
Petitioner 14 Penn Plaza LLC is a member of the RAB. It owns and operates the New York City office building where respondents worked as night lobby watchmen and in other similar capacities. Respondents were directly employed by petitioner Temco Service Industries, Inc. (Temco), a maintenance service and cleaning contractor. After 14 Penn Plaza, with the Union’s consent, engaged a unionized security contractor affiliated with Temco to provide licensed security guards for the building, Temco reassigned respondents to jobs as porters and cleaners. Contending that these reassignments led to a loss in income, other damages, and were otherwise less desirable than their former positions, respondents asked the Union to file grievances alleging, among other things, that petitioners violated the CBA’s ban on workplace discrimination by reassigning respondents on the basis of their age in violation of Age Discrimination in Employment Act of 1967 (ADEA), 29 U. S. C. §621 et seq. The Union requested arbitration under the CBA, but after the initial hearing, withdrew the age-discrimination claims on the ground that its consent to the new security contract precluded it from objecting to respondents’ reassignments as discriminatory. Respondents then filed a complaint with the Equal Employment Opportunity Commission (EEOC) alleging that petitioners had violated their ADEA rights, and the EEOC issued each of them a right-to-sue notice. In the ensuing lawsuit, the District Court denied petitioners’ motion to compel arbitration of respondents’ age discrimination claims. The Second Circuit affirmed, holding that Alexander v. Gardner-Denver Co., 415 U. S. 36 , forbids enforcement of collective-bargaining provisions requiring arbitration of ADEA claims.
Held: A provision in a collective-bargaining agreement that clearly and unmistakably requires union members to arbitrate ADEA claims is enforceable as a matter of federal law. Pp. 6–25.
(a) Examination of the two federal statutes at issue here, the ADEA and the National Labor Relations Act (NLRA), yields a straightforward answer to the question presented. The Union and the RAB, negotiating on behalf of 14 Penn Plaza, collectively bargained in good faith and agreed that employment-related discrimination claims, including ADEA claims, would be resolved in arbitration. This freely negotiated contractual term easily qualifies as a “conditio[n] of employment” subject to mandatory bargaining under the NLRA, 29 U. S. C. §159(a). See, e.g., Litton Financial Printing Div., Litton Business Systems, Inc. v. NLRB, 501 U. S. 190 . As in any contractual negotiation, a union may agree to the inclusion of an arbitration provision in a collective-bargaining agreement in return for other concessions from the employer, and courts generally may not interfere in this bargained-for exchange. See NLRB v. Magnavox Co., 415 U. S. 322 . Thus, the CBA’s arbitration provision must be honored unless the ADEA itself removes this particular class of grievances from the NLRA’s broad sweep. See Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U. S. 614 . It does not. This Court has squarely held that the ADEA does not preclude arbitration of claims brought under the statute. See Gilmer v. Interstate/Johnson Lane Corp., 500 U. S. 20 . Pp. 6–10. Accordingly, there is no legal basis for the Court to strike down the arbitration clause in this CBA, which was freely negotiated by the Union and the RAB, and which clearly and unmistakably requires respondents to arbitrate the age-discrimination claims at issue in this appeal. Pp. 6–10.
(b) The CBA’s arbitration provision is also fully enforceable under the Gardner-Denver line of cases. Respondents incorrectly interpret Gardner-Denver and its progeny as holding that an agreement to arbitrate ADEA claims provided for in a collective-bargaining agreement cannot waive an individual employee’s right to a judicial forum under federal antidiscrimination statutes.. Pp. 11–23.
(i) The facts underlying Gardner-Denver and its progeny reveal the narrow scope of the legal rule they engendered. Those cases “did not involve the issue of the enforceability of an agreement to arbitrate statutory claims,” but “the quite different issue whether arbitration of contract-based claims precluded subsequent judicial resolution of statutory claims.” Gilmer, supra, at 35. Gardner-Denver does not control the outcome where, as here, the collective-bargaining agreement’s arbitration provision expressly covers both statutory and contractual discrimination claims. Pp. 11–15.
(ii) Apart from their narrow holdings, the Gardner-Denver line of cases included broad dicta highly critical of using arbitration to vindicate statutory antidiscrimination rights. That skepticism, however, rested on a misconceived view of arbitration that this Court has since abandoned. First, contrary to Gardner-Denver’s erroneous assumption, 415 U. S., at 51, the decision to resolve ADEA claims by way of arbitration instead of litigation does not waive the statutory right to be free from workplace age discrimination; it waives only the right to seek relief from a court in the first instance, see, e.g., Gilmer, supra, at 26. Second, Gardner-Denver’s mistaken suggestion that certain informal features of arbitration made it a forum “well suited to the resolution of contractual disputes,” but “a comparatively inappropriate forum for the final resolution of [employment] rights.” 415 U. S., at 56, has been corrected. See, e.g., Shearson/American Express Inc. v. McMahon, 482 U. S. 220 . Third, Gardner-Denver’s concern that, in arbitration, a union may subordinate an individual employee’s interests to the collective interests of all employees in the bargaining unit, 415 U. S., at 58, n. 19, cannot be relied on to introduce a qualification into the ADEA that is not found in its text. Until Congress amends the ADEA to meet the conflict-of-interest concern identified in the Gardner-Denver dicta, there is “no reason to color the lens through which the arbitration clause is read.” Mitsubishi, supra, at 628. In any event, the conflict-of-interest argument amounts to an unsustainable collateral attack on the NLRA, see Emporium Capwell Co. v. Western Addition Community Organization, 420 U. S. 50 , and Congress has accounted for the conflict in several ways: union members may bring a duty of fair representation claim against the union; a union can be subjected to direct liability under the ADEA if it discriminates on the basis of age; and union members may also file age-discrimination claims with the EEOC and the National Labor Relations Board. Pp. 15–23.
(c) Because respondents’ arguments that the CBA does not clearly and unmistakably require them to arbitrate their ADEA claims were not raised in the lower courts, they have been forfeited. Moreover, although a substantive waiver of federally protected civil rights will not be upheld, see, e.g., Mitsubishi, supra, at 637, and n. 19, this Court is not positioned to resolve in the first instance respondents’ claim that the CBA allows the Union to prevent them from effectively vindicating their federal statutory rights in the arbitral forum, given that this question would require resolution of contested factual allegations, was not fully briefed here or below, and is not fairly encompassed within the question presented. Resolution now would be particularly inappropriate in light of the Court’s hesitation to invalidate arbitration agreements based on speculation. See, e.g., Green Tree Financial Corp.-Ala. v. Randolph, 531 U. S. 79 .Pp. 23–25.
498 F. 3d 88, reversed and remanded.
Thomas, J., delivered the opinion of the Court, in which Roberts, C. J., and Scalia, Kennedy, and Alito, JJ., joined. Stevens, J., filed a dissenting opinion. Souter, J., filed a dissenting opinion, in which Stevens, Ginsburg, and Breyer, JJ., joined.
CORLEY v. UNITED STATES
SUPREME COURT OF THE UNITED STATES
CORLEY v. UNITED STATES
certiorari to the united states court of appeals for the third circuit
--------------------------------------------------------------------------------
No. 07–10441. Argued January 21, 2009—Decided April 6, 2009
--------------------------------------------------------------------------------
McNabb v. United States, 318 U. S. 332 , and Mallory v. United States, 354 U. S. 449 , “generally rende[r] inadmissible confessions made during periods of detention that violat[e] the prompt presentment requirement of [Federal Rule of Criminal Procedure] 5(a).” United States v. Alvarez-Sanchez, 511 U. S. 350 . Rule 5(a), in turn, provides that a “person making an arrest … must take the defendant without unnecessary delay before a magistrate judge … .” Congress enacted 18 U. S. C. §3501 in response to Miranda v. Arizona, 384 U. S. 436 , and some applications of the McNabb-Mallory rule. In an attempt to eliminate Miranda, §3501(a) provides that “a confession … shall be admissible in evidence if it is voluntarily given,” and §3501(b) lists several considerations for courts to address in assessing voluntariness. Subsection (c), which focuses on McNabb-Mallory, provides that “a confession made … by … a defendant … , while … under arrest … , shall not be inadmissible solely because of delay in bringing such person before a magistrate judge … if such confession is found by the trial judge to have been made voluntarily and … within six hours [of arrest]”; it extends that time limit when further delay is “reasonable considering the means of transportation and the distance to … the nearest available [magistrate].”
Petitioner Corley was arrested for assaulting a federal officer at about 8 a.m. Around 11:45 FBI agents took him to a Philadelphia hospital to treat a minor injury. At 3:30 p.m. he was taken from the hospital to the local FBI office and told that he was a suspect in a bank robbery. Though the office was in the same building as the nearest magistrate judges, the agents did not bring him before a magistrate judge, but questioned him, hoping for a confession. At 5:27 p.m., some 9.5 hours after his arrest, Corley began an oral confession that he robbed the bank. He asked for a break at 6:30 and was held overnight. The interrogation resumed the next morning, ending with his signed written confession. He was finally presented to a Magistrate Judge at 1:30 p.m., 29.5 hours after his arrest, and charged with armed bank robbery and related charges. The District Court denied his motion to suppress his confessions under Rule 5(a) and McNabb-Mallory. It reasoned that the oral confession occurred within §3501(c)’s six-hour window because the time of Corley’s medical treatment should be excluded from the delay. It also found the written confession admissible, explaining there was no unreasonable delay under Rule 5(a) because Corley had requested the break. He was convicted of conspiracy and bank robbery. The Third Circuit affirmed. Relying on Circuit precedent to the effect that §3501 abrogated McNabb-Mallory and replaced it with a pure voluntariness test, it concluded that if a district court found a confession voluntary after considering the points listed in §3501(b), it would be admissible, even if the presentment delay was unreasonable.
Held: Section 3501 modified McNabb-Mallory but did not supplant it. Pp. 8–18.
(a) The Government claims that because §3501(a) makes a confession “admissible” “if it is voluntarily given,” it entirely eliminates McNabb-Mallory with its bar to admitting even a voluntary confession if given during an unreasonable presentment delay. Corley argues that §3501(a) was only meant to overrule Miranda, and notes that only §3501(c) touches on McNabb-Mallory, making the rule inapplicable to confessions given within six hours of an arrest. He has the better argument. Pp. 8–16.
(1) The Government’s reading renders §3501(c) nonsensical and superfluous. If subsection (a) really meant that any voluntary confession was admissible, then subsection (c) would add nothing; if a confession was “made voluntarily” it would be admissible, period, and never “inadmissible solely because of delay,” even a delay beyond six hours. The Government’s reading is thus at odds with the basic interpretive canon that “ ‘[a] statute should be construed [to give effect] to all its provisions, so that no part will be inoperative or superfluous, void or insignificant.’ ” Hibbs v. Winn, 542 U. S. 88 . The Government claims that in providing that a confession “shall not be admissible,” Congress meant that a confession “shall not be [involuntary].” Thus read, (c) would specify a bright-line rule applying (a) to cases of delay: it would tell courts that delay alone does not make a confession involuntary unless the delay exceeds six hours. But “ ‘Congress did not write the statute that way.’ ” Russello v. United States, 464 U. S. 16 . The terms “inadmissible” and “involuntary” are not synonymous. Congress used both in (c), and this Court “would not presume to ascribe this difference to a simple mistake in draftsmanship.” Ibid. There is also every reason to believe that Congress used the distinct terms deliberately, specifying two criteria that must be satisfied to prevent a confession from being “inadmissible solely because of delay”: the confession must be “[1] made voluntarily and … [2] within six hours [of arrest].” Moreover, under the McNabb-Mallory rule, “inadmissible” and “involuntary” mean different things. Corley’s position, in contrast, gives effect to both (c) and (a), by reading (a) as overruling Miranda and (c) as qualifying McNabb-Mallory. The Government’s counterargument—that Corley’s reading would also create a conflict, since (a) makes all voluntary confessions admissible while (c) would leave some voluntary confessions inadmissible—falls short. First, (a) is a broad directive while (c) aims only at McNabb-Mallory, and “a more specific statute [is] given precedence over a more general one.” Busic v. United States, 446 U. S. 398 . Second, reading (a) to create a conflict with (c) not only would make (c) superfluous, but would also create conflicts with so many other Rules of Evidence that the subsection cannot possibly be given its literal scope. Pp. 8–12.
(2) The legislative history strongly favors Corley’s reading. The Government points to nothing in this history supporting its contrary view. Pp. 13–15.
(3) The Government’s position would leave the Rule 5 presentment requirement without teeth, for if there is no McNabb-Mallory there is no apparent remedy for a presentment delay. The prompt presentment requirement is not just an administrative nicety. It dates back to the common law. Under Rule 5, presentment is the point at which the judge must take several key steps to foreclose Government overreaching: e.g., informing the defendant of the charges against him and giving the defendant a chance to consult with counsel. Without McNabb-Mallory, federal agents would be free to question suspects for extended periods before bringing them out in the open, even though “custodial police interrogation, by its very nature, isolates and pressures the individual,” Dickerson v. United States, 530 U. S. 428 , inducing people to confess to crimes they never committed. Pp. 15–16.
(b) There is no merit to the Government’s fallback claim that even if §3501 preserved a limited version of McNabb-Mallory, Congress cut it out by enacting Federal Rule of Evidence 402, which provides that “[a]ll relevant evidence is admissible, except as otherwise provided by the Constitution of the United States, by Act of Congress, by these rules, or by other rules prescribed by the Supreme Court … .” The Advisory Committee’s Notes expressly identified McNabb-Mallory as a statutorily authorized rule that would survive Rule 402, and the Government has previously conceded before this Court that Rule 402 preserved McNabb-Mallory. Pp. 16–18.
500 F. 3d 210, vacated and remanded.
Souter, J., delivered the opinion of the Court, in which Stevens, Kennedy, Ginsburg, and Breyer, JJ., joined. Alito, J., filed a dissenting opinion, in which Roberts, C. J., and Scalia and Thomas, JJ., joined.
CORLEY v. UNITED STATES
certiorari to the united states court of appeals for the third circuit
--------------------------------------------------------------------------------
No. 07–10441. Argued January 21, 2009—Decided April 6, 2009
--------------------------------------------------------------------------------
McNabb v. United States, 318 U. S. 332 , and Mallory v. United States, 354 U. S. 449 , “generally rende[r] inadmissible confessions made during periods of detention that violat[e] the prompt presentment requirement of [Federal Rule of Criminal Procedure] 5(a).” United States v. Alvarez-Sanchez, 511 U. S. 350 . Rule 5(a), in turn, provides that a “person making an arrest … must take the defendant without unnecessary delay before a magistrate judge … .” Congress enacted 18 U. S. C. §3501 in response to Miranda v. Arizona, 384 U. S. 436 , and some applications of the McNabb-Mallory rule. In an attempt to eliminate Miranda, §3501(a) provides that “a confession … shall be admissible in evidence if it is voluntarily given,” and §3501(b) lists several considerations for courts to address in assessing voluntariness. Subsection (c), which focuses on McNabb-Mallory, provides that “a confession made … by … a defendant … , while … under arrest … , shall not be inadmissible solely because of delay in bringing such person before a magistrate judge … if such confession is found by the trial judge to have been made voluntarily and … within six hours [of arrest]”; it extends that time limit when further delay is “reasonable considering the means of transportation and the distance to … the nearest available [magistrate].”
Petitioner Corley was arrested for assaulting a federal officer at about 8 a.m. Around 11:45 FBI agents took him to a Philadelphia hospital to treat a minor injury. At 3:30 p.m. he was taken from the hospital to the local FBI office and told that he was a suspect in a bank robbery. Though the office was in the same building as the nearest magistrate judges, the agents did not bring him before a magistrate judge, but questioned him, hoping for a confession. At 5:27 p.m., some 9.5 hours after his arrest, Corley began an oral confession that he robbed the bank. He asked for a break at 6:30 and was held overnight. The interrogation resumed the next morning, ending with his signed written confession. He was finally presented to a Magistrate Judge at 1:30 p.m., 29.5 hours after his arrest, and charged with armed bank robbery and related charges. The District Court denied his motion to suppress his confessions under Rule 5(a) and McNabb-Mallory. It reasoned that the oral confession occurred within §3501(c)’s six-hour window because the time of Corley’s medical treatment should be excluded from the delay. It also found the written confession admissible, explaining there was no unreasonable delay under Rule 5(a) because Corley had requested the break. He was convicted of conspiracy and bank robbery. The Third Circuit affirmed. Relying on Circuit precedent to the effect that §3501 abrogated McNabb-Mallory and replaced it with a pure voluntariness test, it concluded that if a district court found a confession voluntary after considering the points listed in §3501(b), it would be admissible, even if the presentment delay was unreasonable.
Held: Section 3501 modified McNabb-Mallory but did not supplant it. Pp. 8–18.
(a) The Government claims that because §3501(a) makes a confession “admissible” “if it is voluntarily given,” it entirely eliminates McNabb-Mallory with its bar to admitting even a voluntary confession if given during an unreasonable presentment delay. Corley argues that §3501(a) was only meant to overrule Miranda, and notes that only §3501(c) touches on McNabb-Mallory, making the rule inapplicable to confessions given within six hours of an arrest. He has the better argument. Pp. 8–16.
(1) The Government’s reading renders §3501(c) nonsensical and superfluous. If subsection (a) really meant that any voluntary confession was admissible, then subsection (c) would add nothing; if a confession was “made voluntarily” it would be admissible, period, and never “inadmissible solely because of delay,” even a delay beyond six hours. The Government’s reading is thus at odds with the basic interpretive canon that “ ‘[a] statute should be construed [to give effect] to all its provisions, so that no part will be inoperative or superfluous, void or insignificant.’ ” Hibbs v. Winn, 542 U. S. 88 . The Government claims that in providing that a confession “shall not be admissible,” Congress meant that a confession “shall not be [involuntary].” Thus read, (c) would specify a bright-line rule applying (a) to cases of delay: it would tell courts that delay alone does not make a confession involuntary unless the delay exceeds six hours. But “ ‘Congress did not write the statute that way.’ ” Russello v. United States, 464 U. S. 16 . The terms “inadmissible” and “involuntary” are not synonymous. Congress used both in (c), and this Court “would not presume to ascribe this difference to a simple mistake in draftsmanship.” Ibid. There is also every reason to believe that Congress used the distinct terms deliberately, specifying two criteria that must be satisfied to prevent a confession from being “inadmissible solely because of delay”: the confession must be “[1] made voluntarily and … [2] within six hours [of arrest].” Moreover, under the McNabb-Mallory rule, “inadmissible” and “involuntary” mean different things. Corley’s position, in contrast, gives effect to both (c) and (a), by reading (a) as overruling Miranda and (c) as qualifying McNabb-Mallory. The Government’s counterargument—that Corley’s reading would also create a conflict, since (a) makes all voluntary confessions admissible while (c) would leave some voluntary confessions inadmissible—falls short. First, (a) is a broad directive while (c) aims only at McNabb-Mallory, and “a more specific statute [is] given precedence over a more general one.” Busic v. United States, 446 U. S. 398 . Second, reading (a) to create a conflict with (c) not only would make (c) superfluous, but would also create conflicts with so many other Rules of Evidence that the subsection cannot possibly be given its literal scope. Pp. 8–12.
(2) The legislative history strongly favors Corley’s reading. The Government points to nothing in this history supporting its contrary view. Pp. 13–15.
(3) The Government’s position would leave the Rule 5 presentment requirement without teeth, for if there is no McNabb-Mallory there is no apparent remedy for a presentment delay. The prompt presentment requirement is not just an administrative nicety. It dates back to the common law. Under Rule 5, presentment is the point at which the judge must take several key steps to foreclose Government overreaching: e.g., informing the defendant of the charges against him and giving the defendant a chance to consult with counsel. Without McNabb-Mallory, federal agents would be free to question suspects for extended periods before bringing them out in the open, even though “custodial police interrogation, by its very nature, isolates and pressures the individual,” Dickerson v. United States, 530 U. S. 428 , inducing people to confess to crimes they never committed. Pp. 15–16.
(b) There is no merit to the Government’s fallback claim that even if §3501 preserved a limited version of McNabb-Mallory, Congress cut it out by enacting Federal Rule of Evidence 402, which provides that “[a]ll relevant evidence is admissible, except as otherwise provided by the Constitution of the United States, by Act of Congress, by these rules, or by other rules prescribed by the Supreme Court … .” The Advisory Committee’s Notes expressly identified McNabb-Mallory as a statutorily authorized rule that would survive Rule 402, and the Government has previously conceded before this Court that Rule 402 preserved McNabb-Mallory. Pp. 16–18.
500 F. 3d 210, vacated and remanded.
Souter, J., delivered the opinion of the Court, in which Stevens, Kennedy, Ginsburg, and Breyer, JJ., joined. Alito, J., filed a dissenting opinion, in which Roberts, C. J., and Scalia and Thomas, JJ., joined.
UNITED STATES v. NAVAJO NATION
SUPREME COURT OF THE UNITED STATES
UNITED STATES v. NAVAJO NATION
certiorari to the united states court of appeals for the federal circuit
--------------------------------------------------------------------------------
No. 07–1410. Argued February 23, 2009—Decided April 6, 2009
--------------------------------------------------------------------------------
The Navajo Nation has long sought damages under the Indian Tucker Act (ITA) for an asserted breach of fiduciary duty by the Secretary of the Interior in connection with his failure promptly to approve a royalty rate increase under a coal lease (Lease 8580) the Tribe executed in 1964. Six years ago, this Court held that “the Tribe’s claim for compensation … fails.” United States v. Navajo Nation, 537 U. S. 488 (Navajo I). The Court explained that in order to invoke the ITA and thereby bypass federal sovereign immunity, a tribe “must identify a substantive source of law that establishes specific fiduciary or other duties, and allege that the Government has failed faithfully to perform those duties.” Id., at 506. Holding that such duties were not imposed by the Indian Mineral Leasing Act of 1938 (IMLA), by the Indian Mineral Development Act of 1982 (IMDA), or by 25 U. S. C. §399, the Court reversed a judgment for the Tribe and remanded. The Court of Federal Claims then dismissed the Tribe’s claim, but the Federal Circuit reversed, finding violations of duties imposed by the Navajo-Hopi Rehabilitation Act of 1950, 25 U. S. C. §§635(a), and the Surface Mining Control and Reclamation Act of 1977, 30 U. S. C. §1300(e), as well as common-law duties arising from the Government’s “comprehensive control” over tribal coal.
Held: The Tribe’s claim for compensation fails. None of the sources of law cited by the Federal Circuit and relied upon by the Tribe provides any more sound a basis for its lawsuit than those analyzed in Navajo I. Pp. 8–14.
(a) Navajo I did not definitively terminate the Tribe’s claim. Because the Court in that case did not analyze statutes other than the IMLA, the IMDA, and §399, it is conceivable, albeit unlikely, that another relevant statute might have provided a basis for the suit. However, Navajo I’s reasoning—particularly its instruction to “train on specific rights-creating or duty-imposing statutory or regulatory prescriptions,” 537 U. S., at 506—left no room for that result based on the sources of law relied on below. P. 8.
(b) Lease 8580 was not issued under §635(a), so the Tribe cannot invoke that law as a source of money-mandating duties. Section 635(a) authorizes leases only for terms of up to 25 years, renewable for up to another 25 years. In contrast, the IMLA allows “terms not to exceed ten years and as long thereafter as minerals are produced in paying quantities.” §396a. Mirroring the latter language, Lease 8580’s indefinite term strongly suggests that it was negotiated and approved under the IMLA. This conclusion is not refuted by §635(a)’s saving clause or by testimony that coal leasing was a centerpiece of the Rehabilitation Act’s program. Pp. 8–11.
(c) Also unavailing is the argument that the Secretary violated §638’s requirement that he follow the Tribe’s recommendations in administering the “program authorized by this subchapter.” The word “program” refers back to §631, which directs the Secretary to undertake “a program of basic improvements for the conservation and development of the [Tribe’s] resources” and lists various projects to be included in the program. The statute certainly does not require the Secretary to follow recommendations of the Tribe as to royalty rates under coal leases executed pursuant to another Act. Pp. 11–12.
(d) Title 30 U. S. C. §1300(e) is irrelevant. That provision applies only “[w]ith respect to leases issued after” the statute was enacted in 1977. Lease 8580 was issued in 1964; §1300(e) is therefore inapplicable. Pp. 12–13.
(e) The Government’s “comprehensive control” over Indian coal, alone, does not create enforceable fiduciary duties. The ITA limits cognizable claims to those arising under, inter alia, “the … laws … of the United States,” 28 U. S. C. §1505, and Navajo I reiterated that the analysis must begin with “specific rights-creating or duty-imposing statutory or regulatory prescriptions,” 537 U. S., at 506. If a statute or regulation imposes a trust relationship, then common-law principles are relevant in determining whether damages are available for breach of the duty, but the Tribe cannot identify a specific, applicable, trust-creating statute or regulation that the Government violated, so trust principles do not come into play here. Pp. 13–14.
501 F. 3d 1327, reversed and remanded.
Scalia, J., delivered the opinion for a unanimous Court. Souter, J., filed a concurring opinion, in which Stevens, J., joined.
UNITED STATES v. NAVAJO NATION
certiorari to the united states court of appeals for the federal circuit
--------------------------------------------------------------------------------
No. 07–1410. Argued February 23, 2009—Decided April 6, 2009
--------------------------------------------------------------------------------
The Navajo Nation has long sought damages under the Indian Tucker Act (ITA) for an asserted breach of fiduciary duty by the Secretary of the Interior in connection with his failure promptly to approve a royalty rate increase under a coal lease (Lease 8580) the Tribe executed in 1964. Six years ago, this Court held that “the Tribe’s claim for compensation … fails.” United States v. Navajo Nation, 537 U. S. 488 (Navajo I). The Court explained that in order to invoke the ITA and thereby bypass federal sovereign immunity, a tribe “must identify a substantive source of law that establishes specific fiduciary or other duties, and allege that the Government has failed faithfully to perform those duties.” Id., at 506. Holding that such duties were not imposed by the Indian Mineral Leasing Act of 1938 (IMLA), by the Indian Mineral Development Act of 1982 (IMDA), or by 25 U. S. C. §399, the Court reversed a judgment for the Tribe and remanded. The Court of Federal Claims then dismissed the Tribe’s claim, but the Federal Circuit reversed, finding violations of duties imposed by the Navajo-Hopi Rehabilitation Act of 1950, 25 U. S. C. §§635(a), and the Surface Mining Control and Reclamation Act of 1977, 30 U. S. C. §1300(e), as well as common-law duties arising from the Government’s “comprehensive control” over tribal coal.
Held: The Tribe’s claim for compensation fails. None of the sources of law cited by the Federal Circuit and relied upon by the Tribe provides any more sound a basis for its lawsuit than those analyzed in Navajo I. Pp. 8–14.
(a) Navajo I did not definitively terminate the Tribe’s claim. Because the Court in that case did not analyze statutes other than the IMLA, the IMDA, and §399, it is conceivable, albeit unlikely, that another relevant statute might have provided a basis for the suit. However, Navajo I’s reasoning—particularly its instruction to “train on specific rights-creating or duty-imposing statutory or regulatory prescriptions,” 537 U. S., at 506—left no room for that result based on the sources of law relied on below. P. 8.
(b) Lease 8580 was not issued under §635(a), so the Tribe cannot invoke that law as a source of money-mandating duties. Section 635(a) authorizes leases only for terms of up to 25 years, renewable for up to another 25 years. In contrast, the IMLA allows “terms not to exceed ten years and as long thereafter as minerals are produced in paying quantities.” §396a. Mirroring the latter language, Lease 8580’s indefinite term strongly suggests that it was negotiated and approved under the IMLA. This conclusion is not refuted by §635(a)’s saving clause or by testimony that coal leasing was a centerpiece of the Rehabilitation Act’s program. Pp. 8–11.
(c) Also unavailing is the argument that the Secretary violated §638’s requirement that he follow the Tribe’s recommendations in administering the “program authorized by this subchapter.” The word “program” refers back to §631, which directs the Secretary to undertake “a program of basic improvements for the conservation and development of the [Tribe’s] resources” and lists various projects to be included in the program. The statute certainly does not require the Secretary to follow recommendations of the Tribe as to royalty rates under coal leases executed pursuant to another Act. Pp. 11–12.
(d) Title 30 U. S. C. §1300(e) is irrelevant. That provision applies only “[w]ith respect to leases issued after” the statute was enacted in 1977. Lease 8580 was issued in 1964; §1300(e) is therefore inapplicable. Pp. 12–13.
(e) The Government’s “comprehensive control” over Indian coal, alone, does not create enforceable fiduciary duties. The ITA limits cognizable claims to those arising under, inter alia, “the … laws … of the United States,” 28 U. S. C. §1505, and Navajo I reiterated that the analysis must begin with “specific rights-creating or duty-imposing statutory or regulatory prescriptions,” 537 U. S., at 506. If a statute or regulation imposes a trust relationship, then common-law principles are relevant in determining whether damages are available for breach of the duty, but the Tribe cannot identify a specific, applicable, trust-creating statute or regulation that the Government violated, so trust principles do not come into play here. Pp. 13–14.
501 F. 3d 1327, reversed and remanded.
Scalia, J., delivered the opinion for a unanimous Court. Souter, J., filed a concurring opinion, in which Stevens, J., joined.
MINISTRY OF DEFENSE AND SUPPORT FOR THE ARMED FORCES OF THE ISLAMIC REPUBLIC OF IRAN v. ELAHI
SUPREME COURT OF THE UNITED STATES
MINISTRY OF DEFENSE AND SUPPORT FOR THE ARMED FORCES OF THE ISLAMIC REPUBLIC OF IRAN v. ELAHI
certiorari to the united states court of appeals for the ninth circuit
--------------------------------------------------------------------------------
No. 07–615. Argued January 12, 2009—Decided April 21, 2009
--------------------------------------------------------------------------------
In 1997, the International Court of Arbitration awarded petitioner Iranian Ministry of Defense (hereinafter Iran) $2.8 million to settle a dispute with Cubic Defense Systems, Inc., a California company, over a 1977 contract that would have provided Iran with an air combat training system. When Cubic refused to pay, Iran sued in the Federal District Court in San Diego, which ordered Cubic to pay the award plus interest (Cubic Judgment). In 2000, respondent Elahi sued Iran in the D.C. Federal District Court, claiming that Iranian agents had murdered his brother. He obtained a default judgment of about $312 million and sought to collect some of the money by attaching the Cubic Judgment. Iran opposed the lien under the Foreign Sovereign Immunities Act of 1976 (FSIA). The California District Court denied Iran’s immunity claim, and the Ninth Circuit affirmed, finding an exception to sovereign immunity. This Court vacated and remanded. Ministry of Defense and Support for Armed Forces of Islamic Republic of Iran v. Elahi, 546 U. S. 450 .
On remand, the Ninth Circuit found that a different immunity exception applied, citing the Terrorism Risk Insurance Act of 2002 (TRIA), which permitted holders of terrorism-related judgments against Iran to attach “blocked” Iranian assets. The United States had blocked Iranian assets following the Iranian hostage crisis in 1979, and the court held that the asset Elahi sought to attach had remained blocked notwithstanding the unblocking orders issued after the crisis was resolved by the Algiers Accords in 1981. The court reasoned that those unblocking orders had omitted military goods such as the training system underlying the Cubic Judgment. The court further rejected Iran’s argument that Elahi had waivedhis right of attachment, and concluded that he could attach the Cubic Judgment.
Held:
1. The asset in question was not “blocked” at the time of the Ninth Circuit’s decision. Contrary to that court’s holding, the relevant asset is not Iran’s interest in the air combat training system, but, rather, a judgment enforcing an arbitration award based upon Cubic’s failure to account to Iran for its share of the proceeds of the system’s eventual sale to Canada. And neither the Cubic Judgment nor the sale proceeds it represents were blocked assets at the time of the Court of Appeals’ 2007 decision. In a 1981 order, the Treasury Department unblocked transactions involving property in which Iran’s interest arose after January 19, 1981. Iran’s interest in the Cubic Judgment itself arose on December 7, 1998, when the District Court confirmed the arbitration award. And Iran’s interest in the property underlying the judgment arose, as the arbitrators ruled, when Cubic completed its sale of the air combat system in October 1982. Thus, whether Iran’s “interest in property” is considered to be its interest in the Cubic Judgment itself or its underlying interest in the sale proceeds, the interest falls within the terms of the Treasury Department’s general unblocking order. Even assuming (as the Ninth Circuit held) that the relevant asset was Iran’s pre-1981 interest in the training system itself, that asset still was not “blocked” at the time of the decision below. Such an interest would fall directly within the scope of Executive Order No. 12281, which required that property owned by Iran be transferred “as directed … by the Government of Iran.” No authority supports the contrary conclusion. Pp. 8–11.
2. Elahi cannot attach the Cubic Judgment because he has waived his right to do so. Section 2002 of the Victims of Trafficking and Violence Protection Act of 2000 (VPA) offers compensation to individuals holding terrorism-related judgments against Iran. It requires those receiving payment to relinquish “all rights to … attach property that is at issue in claims against the United States before an international tribunal.” §2002(a)(2)(D). In 2003, the U. S. Government paid Elahi $2.3 million under the VPA as partial compensation for his judgment against Iran, and he signed a waiver form that mirrors the statutory language. A review of the record in Iran-U. S. Claims Tribunal Case No. B61 demonstrates that the Cubic Judgment falls within the terms of Elahi’s waiver. Iran filed that case in 1982, claiming that between 1979 and 1981 the United States had wrongly barred the transfer of the Cubic training system and other military equipment to Iran. Iran asked the Tribunal to order the United States, among other things, to pay Iran damages. The United States answered that the Tribunal should set off the $2.8 million represented by the Cubic Judgment against any award. Iran argued that the Tribunal should not set off the $2.8 million insofar as third parties have attached the judgment. In the terms of Elahi’s waiver, therefore, the Cubic Judgment is “property,” and Case No. B61 itself is a “clai[m] against the United States before an international tribunal.” And there remains a significant dispute about whether the Cubic Judgment can be used by the Tribunal as a setoff, placing the Judgment “at issue” in Case No. B61. Elahi’s arguments to the contrary are unavailing. Pp. 12–20.
3. Given Elahi’s waiver, this Court need not decide whether the Cubic Judgment was blocked by new Executive Branch actions following the Ninth Circuit’s decision. P. 20.
495 F. 3d 1024, reversed.
Breyer, J., delivered the opinion of the Court, in which Roberts, C. J., and Stevens, Scalia, Thomas, and Alito, JJ., joined, and in which Kennedy, Souter, and Ginsburg, JJ., joined as to Parts I and II. Kennedy, J., filed an opinion concurring in part and dissenting in part, in which Souter and Ginsburg, JJ., joined.
MINISTRY OF DEFENSE AND SUPPORT FOR THE ARMED FORCES OF THE ISLAMIC REPUBLIC OF IRAN v. ELAHI
certiorari to the united states court of appeals for the ninth circuit
--------------------------------------------------------------------------------
No. 07–615. Argued January 12, 2009—Decided April 21, 2009
--------------------------------------------------------------------------------
In 1997, the International Court of Arbitration awarded petitioner Iranian Ministry of Defense (hereinafter Iran) $2.8 million to settle a dispute with Cubic Defense Systems, Inc., a California company, over a 1977 contract that would have provided Iran with an air combat training system. When Cubic refused to pay, Iran sued in the Federal District Court in San Diego, which ordered Cubic to pay the award plus interest (Cubic Judgment). In 2000, respondent Elahi sued Iran in the D.C. Federal District Court, claiming that Iranian agents had murdered his brother. He obtained a default judgment of about $312 million and sought to collect some of the money by attaching the Cubic Judgment. Iran opposed the lien under the Foreign Sovereign Immunities Act of 1976 (FSIA). The California District Court denied Iran’s immunity claim, and the Ninth Circuit affirmed, finding an exception to sovereign immunity. This Court vacated and remanded. Ministry of Defense and Support for Armed Forces of Islamic Republic of Iran v. Elahi, 546 U. S. 450 .
On remand, the Ninth Circuit found that a different immunity exception applied, citing the Terrorism Risk Insurance Act of 2002 (TRIA), which permitted holders of terrorism-related judgments against Iran to attach “blocked” Iranian assets. The United States had blocked Iranian assets following the Iranian hostage crisis in 1979, and the court held that the asset Elahi sought to attach had remained blocked notwithstanding the unblocking orders issued after the crisis was resolved by the Algiers Accords in 1981. The court reasoned that those unblocking orders had omitted military goods such as the training system underlying the Cubic Judgment. The court further rejected Iran’s argument that Elahi had waivedhis right of attachment, and concluded that he could attach the Cubic Judgment.
Held:
1. The asset in question was not “blocked” at the time of the Ninth Circuit’s decision. Contrary to that court’s holding, the relevant asset is not Iran’s interest in the air combat training system, but, rather, a judgment enforcing an arbitration award based upon Cubic’s failure to account to Iran for its share of the proceeds of the system’s eventual sale to Canada. And neither the Cubic Judgment nor the sale proceeds it represents were blocked assets at the time of the Court of Appeals’ 2007 decision. In a 1981 order, the Treasury Department unblocked transactions involving property in which Iran’s interest arose after January 19, 1981. Iran’s interest in the Cubic Judgment itself arose on December 7, 1998, when the District Court confirmed the arbitration award. And Iran’s interest in the property underlying the judgment arose, as the arbitrators ruled, when Cubic completed its sale of the air combat system in October 1982. Thus, whether Iran’s “interest in property” is considered to be its interest in the Cubic Judgment itself or its underlying interest in the sale proceeds, the interest falls within the terms of the Treasury Department’s general unblocking order. Even assuming (as the Ninth Circuit held) that the relevant asset was Iran’s pre-1981 interest in the training system itself, that asset still was not “blocked” at the time of the decision below. Such an interest would fall directly within the scope of Executive Order No. 12281, which required that property owned by Iran be transferred “as directed … by the Government of Iran.” No authority supports the contrary conclusion. Pp. 8–11.
2. Elahi cannot attach the Cubic Judgment because he has waived his right to do so. Section 2002 of the Victims of Trafficking and Violence Protection Act of 2000 (VPA) offers compensation to individuals holding terrorism-related judgments against Iran. It requires those receiving payment to relinquish “all rights to … attach property that is at issue in claims against the United States before an international tribunal.” §2002(a)(2)(D). In 2003, the U. S. Government paid Elahi $2.3 million under the VPA as partial compensation for his judgment against Iran, and he signed a waiver form that mirrors the statutory language. A review of the record in Iran-U. S. Claims Tribunal Case No. B61 demonstrates that the Cubic Judgment falls within the terms of Elahi’s waiver. Iran filed that case in 1982, claiming that between 1979 and 1981 the United States had wrongly barred the transfer of the Cubic training system and other military equipment to Iran. Iran asked the Tribunal to order the United States, among other things, to pay Iran damages. The United States answered that the Tribunal should set off the $2.8 million represented by the Cubic Judgment against any award. Iran argued that the Tribunal should not set off the $2.8 million insofar as third parties have attached the judgment. In the terms of Elahi’s waiver, therefore, the Cubic Judgment is “property,” and Case No. B61 itself is a “clai[m] against the United States before an international tribunal.” And there remains a significant dispute about whether the Cubic Judgment can be used by the Tribunal as a setoff, placing the Judgment “at issue” in Case No. B61. Elahi’s arguments to the contrary are unavailing. Pp. 12–20.
3. Given Elahi’s waiver, this Court need not decide whether the Cubic Judgment was blocked by new Executive Branch actions following the Ninth Circuit’s decision. P. 20.
495 F. 3d 1024, reversed.
Breyer, J., delivered the opinion of the Court, in which Roberts, C. J., and Stevens, Scalia, Thomas, and Alito, JJ., joined, and in which Kennedy, Souter, and Ginsburg, JJ., joined as to Parts I and II. Kennedy, J., filed an opinion concurring in part and dissenting in part, in which Souter and Ginsburg, JJ., joined.
ARIZONA v. GANT
SUPREME COURT OF THE UNITED STATES
ARIZONA v. GANT
certiorari to the supreme court of arizona
--------------------------------------------------------------------------------
No. 07–542. Argued October 7, 2008—Decided April 21, 2009
--------------------------------------------------------------------------------
Respondent Gant was arrested for driving on a suspended license, handcuffed, and locked in a patrol car before officers searched his car and found cocaine in a jacket pocket. The Arizona trial court denied his motion to suppress the evidence, and he was convicted of drug offenses. Reversing, the State Supreme Court distinguished New York v. Belton, 453 U. S. 454 —which held that police may search the passenger compartment of a vehicle and any containers therein as a contemporaneous incident of a recent occupant’s lawful arrest—on the ground that it concerned the scope of a search incident to arrest but did not answer the question whether officers may conduct such a search once the scene has been secured. Because Chimel v. California, 395 U. S. 752 , requires that a search incident to arrest be justified by either the interest in officer safety or the interest in preserving evidence and the circumstances of Gant’s arrest implicated neither of those interests, the State Supreme Court found the search unreasonable.
Held: Police may search the passenger compartment of a vehicle incident to a recent occupant’s arrest only if it is reasonable to believe that the arrestee might access the vehicle at the time of the search or that the vehicle contains evidence of the offense of arrest. Pp. 5–18.
(a) Warrantless searches “are per se unreasonable,” “subject only to a few specifically established and well-delineated exceptions.” Katz v. United States, 389 U. S. 347 . The exception for a search incident to a lawful arrest applies only to “the area from within which [an arrestee] might gain possession of a weapon or destructible evidence.” Chimel, 395 U. S., at 763. This Court applied that exception to the automobile context in Belton, the holding of which rested in large part on the assumption that articles inside a vehicle’s passenger compartment are “generally … within ‘the area into which an arrestee might reach.’ ” 453 U. S., at 460. Pp. 5–8.
(b) This Court rejects a broad reading of Belton that would permit a vehicle search incident to a recent occupant’s arrest even if there were no possibility the arrestee could gain access to the vehicle at the time of the search. The safety and evidentiary justifications underlying Chimel’s exception authorize a vehicle search only when there is a reasonable possibility of such access. Although it does not follow from Chimel, circumstances unique to the automobile context also justify a search incident to a lawful arrest when it is “reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle.” Thornton v. United States, 541 U. S. 615 (Scalia, J., concurring in judgment). Neither Chimel’s reaching-distancerule nor Thornton’s allowance for evidentiary searches authorized the search in this case. In contrast to Belton, which involved a single officer confronted with four unsecured arrestees, five officers handcuffed and secured Gant and the two other suspects in separate patrol cars before the search began. Gant clearly could not have accessed his car at the time of the search. An evidentiary basis for the search was also lacking. Belton and Thornton were both arrested for drug offenses, but Gant was arrested for driving with a suspended license—an offense for which police could not reasonably expect to find evidence in Gant’s car. Cf. Knowles v. Iowa, 525 U. S. 113 . The search in this case was therefore unreasonable. Pp. 8–11.
(c) This Court is unpersuaded by the State’s argument that its expansive reading of Belton correctly balances law enforcement interests with an arrestee’s limited privacy interest in his vehicle. The State seriously undervalues the privacy interests at stake, and it exaggerates both the clarity provided by a broad reading of Belton and its importance to law enforcement interests. A narrow reading of Belton and Thornton,together with this Court’s other Fourth Amendment decisions, e.g., Michigan v. Long, 463 U. S. 103 , and United States v. Ross, 456 U. S. 798 , permit an officer to search a vehicle when safety or evidentiary concerns demand. Pp. 11–14.
(d) Stare decisis does not require adherence to a broad reading of Belton. The experience of the 28 years since Belton has shown that the generalization underpinning the broad reading of that decision is unfounded, and blind adherence to its faulty assumption would authorize myriad unconstitutional searches. Pp. 15–18.
216 Ariz. 1, 162 P. 3d 640, affirmed.
Stevens, J., delivered the opinion of the Court, in which Scalia, Souter, Thomas, and Ginsburg, JJ., joined. Scalia, J., filed a concurring opinion. Breyer, J., filed a dissenting opinion. Alito, J., filed a dissenting opinion, in which Roberts, C. J., and Kennedy, J., joined, and in which Breyer, J., joined except as to Part II–E.
ARIZONA v. GANT
certiorari to the supreme court of arizona
--------------------------------------------------------------------------------
No. 07–542. Argued October 7, 2008—Decided April 21, 2009
--------------------------------------------------------------------------------
Respondent Gant was arrested for driving on a suspended license, handcuffed, and locked in a patrol car before officers searched his car and found cocaine in a jacket pocket. The Arizona trial court denied his motion to suppress the evidence, and he was convicted of drug offenses. Reversing, the State Supreme Court distinguished New York v. Belton, 453 U. S. 454 —which held that police may search the passenger compartment of a vehicle and any containers therein as a contemporaneous incident of a recent occupant’s lawful arrest—on the ground that it concerned the scope of a search incident to arrest but did not answer the question whether officers may conduct such a search once the scene has been secured. Because Chimel v. California, 395 U. S. 752 , requires that a search incident to arrest be justified by either the interest in officer safety or the interest in preserving evidence and the circumstances of Gant’s arrest implicated neither of those interests, the State Supreme Court found the search unreasonable.
Held: Police may search the passenger compartment of a vehicle incident to a recent occupant’s arrest only if it is reasonable to believe that the arrestee might access the vehicle at the time of the search or that the vehicle contains evidence of the offense of arrest. Pp. 5–18.
(a) Warrantless searches “are per se unreasonable,” “subject only to a few specifically established and well-delineated exceptions.” Katz v. United States, 389 U. S. 347 . The exception for a search incident to a lawful arrest applies only to “the area from within which [an arrestee] might gain possession of a weapon or destructible evidence.” Chimel, 395 U. S., at 763. This Court applied that exception to the automobile context in Belton, the holding of which rested in large part on the assumption that articles inside a vehicle’s passenger compartment are “generally … within ‘the area into which an arrestee might reach.’ ” 453 U. S., at 460. Pp. 5–8.
(b) This Court rejects a broad reading of Belton that would permit a vehicle search incident to a recent occupant’s arrest even if there were no possibility the arrestee could gain access to the vehicle at the time of the search. The safety and evidentiary justifications underlying Chimel’s exception authorize a vehicle search only when there is a reasonable possibility of such access. Although it does not follow from Chimel, circumstances unique to the automobile context also justify a search incident to a lawful arrest when it is “reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle.” Thornton v. United States, 541 U. S. 615 (Scalia, J., concurring in judgment). Neither Chimel’s reaching-distancerule nor Thornton’s allowance for evidentiary searches authorized the search in this case. In contrast to Belton, which involved a single officer confronted with four unsecured arrestees, five officers handcuffed and secured Gant and the two other suspects in separate patrol cars before the search began. Gant clearly could not have accessed his car at the time of the search. An evidentiary basis for the search was also lacking. Belton and Thornton were both arrested for drug offenses, but Gant was arrested for driving with a suspended license—an offense for which police could not reasonably expect to find evidence in Gant’s car. Cf. Knowles v. Iowa, 525 U. S. 113 . The search in this case was therefore unreasonable. Pp. 8–11.
(c) This Court is unpersuaded by the State’s argument that its expansive reading of Belton correctly balances law enforcement interests with an arrestee’s limited privacy interest in his vehicle. The State seriously undervalues the privacy interests at stake, and it exaggerates both the clarity provided by a broad reading of Belton and its importance to law enforcement interests. A narrow reading of Belton and Thornton,together with this Court’s other Fourth Amendment decisions, e.g., Michigan v. Long, 463 U. S. 103 , and United States v. Ross, 456 U. S. 798 , permit an officer to search a vehicle when safety or evidentiary concerns demand. Pp. 11–14.
(d) Stare decisis does not require adherence to a broad reading of Belton. The experience of the 28 years since Belton has shown that the generalization underpinning the broad reading of that decision is unfounded, and blind adherence to its faulty assumption would authorize myriad unconstitutional searches. Pp. 15–18.
216 Ariz. 1, 162 P. 3d 640, affirmed.
Stevens, J., delivered the opinion of the Court, in which Scalia, Souter, Thomas, and Ginsburg, JJ., joined. Scalia, J., filed a concurring opinion. Breyer, J., filed a dissenting opinion. Alito, J., filed a dissenting opinion, in which Roberts, C. J., and Kennedy, J., joined, and in which Breyer, J., joined except as to Part II–E.
SHINSEKI, SECRETARY OF VETERANS AFFAIRS v. SANDERS
SUPREME COURT OF THE UNITED STATES
SHINSEKI, SECRETARY OF VETERANS AFFAIRS v. SANDERS
certiorari to the united states court of appeals for the federal circuit
--------------------------------------------------------------------------------
No. 07–1209. Argued December 8, 2008—Decided April 21, 2009*
--------------------------------------------------------------------------------
As part of the Department of Veterans Affairs’ (VA) statutory duty to help a veteran develop a benefits claim, the Secretary of Veterans Affairs (Secretary) must notify an applicant of any information or evidence that is necessary to substantiate the claim. 38 U. S. C. §5103(a). VA regulations require the notice to specify (1) what further information is necessary, (2) what portions of that information the VA will obtain, and (3) what portions the claimant must obtain. These requirements are referred to as Type One, Type Two, and Type Three, respectively.
The Court of Appeals for Veterans Claims (Veterans Court), which hears initial appeals from VA claims decisions, has a statutory duty to “take due account of the rule of prejudicial error.” §7261(b)(2). It has developed a system for dealing with notice errors, whereby a claimant arguing that the VA failed to give proper notice must explain precisely how the notice was defective. The reviewing judge will then decide what “type” of notice error the VA committed. Under the Veterans Court’s approach, a Type One error has the “natural effect” of harming the claimant, but Types Two and Three errors do not. In the latter instances, the claimant must show harm, e.g., by describing what evidence he would have provided (or asked the Secretary to provide) had the notice not been defective, and explaining just how the lack of that notice and evidence affected the adjudication’s essential fairness.
The Federal Circuit, which reviews Veterans Court decisions, rejected the Veterans Court’s approach and set forth its own framework for determining whether a notice error is harmless. When the VA provides a claimant with a notice that is deficient in any respect, the framework requires the Veterans Court to presume that the error is prejudicial and requires reversal unless the VA can demonstrate (1) that the defect was cured by the claimant’s actual knowledge or (2) that benefits could not have been awarded as a matter of law. The Federal Circuit applied its framework in both of the present cases.
In respondent Sanders’ case, the VA denied disability benefits on the ground that Sanders’ disability, blindness in his right eye, was not related to his military service. Sanders argued to the Veterans Court that the VA had made notice errors Type Two and Type Three when it informed him what further information was necessary, but failed to tell him which portions of that information the Secretary would provide and which portions he would have to provide. The Veterans Court held these notice errors harmless, but the Federal Circuit reversed, ruling that the VA had not made the necessary claimant-knowledge or benefits-ineligibilty showing required by the Federal Circuit’s framework.
The VA also denied benefits in respondent Simmons’ case after finding that her left-ear hearing loss, while service connected, was not severe enough to warrant compensation. Simmons argued to the Veterans Court, inter alia, that the VA had made a Type One notice error by failing to notify her of the information necessary to show worsening of her hearing. The court agreed, finding the error prejudicial. Noting that a Type One notice error has the “natural effect” of producing prejudice, the Veterans Court added that its review of the record convinced it that Simmons did not have actual knowledge of what evidence was necessary to substantiate her claim and, had the VA told her more specifically what additional information was needed, she might have obtained that evidence. The Federal Circuit affirmed.
Held:
1. The Federal Circuit’s harmless-error framework conflicts with §7261(b)(2)’s requirement that the Veterans Court take “due account of the rule of prejudicial error.” Pp. 8–15.
(a) That §7261(b)(2) requires the same sort of “harmless-error” rule as is ordinarily applied in civil cases is shown by the statutory words “take due account” and “prejudicial error.” Congress used the same words in the Administrative Procedure Act (APA), 5 U. S. C. §706, which is an “ ‘administrative law … harmless error rule,’ ” National Assn. of Home Builders v. Defenders of Wildlife, 551 U. S. 644 , ___. Legislative history confirms that Congress intended §7261(b)(2) to incorporate the APA’s approach. Pp. 8–9.
(b) Three related features, taken together, demonstrate that the Federal Circuit’s framework mandates an approach to harmless error that differs significantly from the one normally taken in civil cases. First, the framework is too complex and rigid: In every case involving any type of notice error, the Veterans Court must find the error harmful unless the VA demonstrates the claimant’s actual knowledge curing the defect or his ineligibility for benefits as a matter of law. An error’s harmlessness should not be determined through the use of mandatory presumptions and rigid rules, but through the case-specific application of judgment, based upon examination of the record. See Kotteakos v. United States, 328 U. S. 750 . Second, the framework imposes an unreasonable evidentiary burden on the VA, requiring the Secretary to demonstrate, e.g., a claimant’s state of mind about what he knew or the nonexistence of evidence that might significantly help the claimant. Third, the framework requires the VA, not the claimant, to explain why the error is harmless. The burden of showing harmfulness is normally on the party attacking an agency’s determination. See, e.g., Palmer v. Hoffman, 318 U. S. 109 . This Court has placed the burden on the Government only when the underlying matter was criminal. See, e.g., Kotteakos, supra, at 760. The good reasons for this rule do not apply in the ordinary civil case. Pp. 9–13.
(c) The foregoing analysis is subject to two important qualifications. First, the Court need not, and does not, decide the lawfulness of the Veterans Court’s reliance on the “natural effects” of certain kinds of notice errors. Second, although Congress’ special solicitude for veterans might lead a reviewing court to consider harmful in a veteran’s case error that it might consider harmless in other cases, that is not at issue, and need not be decided here. Pp. 13–15.
2. In Sanders’ case, a review of the record demonstrates that the Veterans Court lawfully found the notice errors harmless. The VA’s Types Two and Three notice errors did not matter, given that Sanders has pursued his claim for many years and should be aware of why he has been unable to show that his disability is service connected. Sanders has not told the reviewing courts what additional evidence proper notice would have led him to obtain or seek and has not explained how the notice errors could have made any difference.
In Simmons’ case, some features of the record suggest that the VA’s Type One error was harmless, e.g., that she has long sought benefits and has a long history of medical examinations. But other features, e.g., that her left-ear hearing loss was concededly service connected and has continuously deteriorated over time, suggest the opposite. Given the uncertainties, the Veterans Court should decide whether reconsideration is necessary. Pp. 15–17.
487 F. 3d 881, reversed and remanded; 487 F. 3d 892, vacated and remanded.
Breyer, J., delivered the opinion of the Court, in which Roberts, C. J., and Scalia, Kennedy, Thomas, and Alito, JJ., joined. Souter, J., filed a dissenting opinion, in which Stevens and Ginsburg, JJ., joined.
SHINSEKI, SECRETARY OF VETERANS AFFAIRS v. SANDERS
certiorari to the united states court of appeals for the federal circuit
--------------------------------------------------------------------------------
No. 07–1209. Argued December 8, 2008—Decided April 21, 2009*
--------------------------------------------------------------------------------
As part of the Department of Veterans Affairs’ (VA) statutory duty to help a veteran develop a benefits claim, the Secretary of Veterans Affairs (Secretary) must notify an applicant of any information or evidence that is necessary to substantiate the claim. 38 U. S. C. §5103(a). VA regulations require the notice to specify (1) what further information is necessary, (2) what portions of that information the VA will obtain, and (3) what portions the claimant must obtain. These requirements are referred to as Type One, Type Two, and Type Three, respectively.
The Court of Appeals for Veterans Claims (Veterans Court), which hears initial appeals from VA claims decisions, has a statutory duty to “take due account of the rule of prejudicial error.” §7261(b)(2). It has developed a system for dealing with notice errors, whereby a claimant arguing that the VA failed to give proper notice must explain precisely how the notice was defective. The reviewing judge will then decide what “type” of notice error the VA committed. Under the Veterans Court’s approach, a Type One error has the “natural effect” of harming the claimant, but Types Two and Three errors do not. In the latter instances, the claimant must show harm, e.g., by describing what evidence he would have provided (or asked the Secretary to provide) had the notice not been defective, and explaining just how the lack of that notice and evidence affected the adjudication’s essential fairness.
The Federal Circuit, which reviews Veterans Court decisions, rejected the Veterans Court’s approach and set forth its own framework for determining whether a notice error is harmless. When the VA provides a claimant with a notice that is deficient in any respect, the framework requires the Veterans Court to presume that the error is prejudicial and requires reversal unless the VA can demonstrate (1) that the defect was cured by the claimant’s actual knowledge or (2) that benefits could not have been awarded as a matter of law. The Federal Circuit applied its framework in both of the present cases.
In respondent Sanders’ case, the VA denied disability benefits on the ground that Sanders’ disability, blindness in his right eye, was not related to his military service. Sanders argued to the Veterans Court that the VA had made notice errors Type Two and Type Three when it informed him what further information was necessary, but failed to tell him which portions of that information the Secretary would provide and which portions he would have to provide. The Veterans Court held these notice errors harmless, but the Federal Circuit reversed, ruling that the VA had not made the necessary claimant-knowledge or benefits-ineligibilty showing required by the Federal Circuit’s framework.
The VA also denied benefits in respondent Simmons’ case after finding that her left-ear hearing loss, while service connected, was not severe enough to warrant compensation. Simmons argued to the Veterans Court, inter alia, that the VA had made a Type One notice error by failing to notify her of the information necessary to show worsening of her hearing. The court agreed, finding the error prejudicial. Noting that a Type One notice error has the “natural effect” of producing prejudice, the Veterans Court added that its review of the record convinced it that Simmons did not have actual knowledge of what evidence was necessary to substantiate her claim and, had the VA told her more specifically what additional information was needed, she might have obtained that evidence. The Federal Circuit affirmed.
Held:
1. The Federal Circuit’s harmless-error framework conflicts with §7261(b)(2)’s requirement that the Veterans Court take “due account of the rule of prejudicial error.” Pp. 8–15.
(a) That §7261(b)(2) requires the same sort of “harmless-error” rule as is ordinarily applied in civil cases is shown by the statutory words “take due account” and “prejudicial error.” Congress used the same words in the Administrative Procedure Act (APA), 5 U. S. C. §706, which is an “ ‘administrative law … harmless error rule,’ ” National Assn. of Home Builders v. Defenders of Wildlife, 551 U. S. 644 , ___. Legislative history confirms that Congress intended §7261(b)(2) to incorporate the APA’s approach. Pp. 8–9.
(b) Three related features, taken together, demonstrate that the Federal Circuit’s framework mandates an approach to harmless error that differs significantly from the one normally taken in civil cases. First, the framework is too complex and rigid: In every case involving any type of notice error, the Veterans Court must find the error harmful unless the VA demonstrates the claimant’s actual knowledge curing the defect or his ineligibility for benefits as a matter of law. An error’s harmlessness should not be determined through the use of mandatory presumptions and rigid rules, but through the case-specific application of judgment, based upon examination of the record. See Kotteakos v. United States, 328 U. S. 750 . Second, the framework imposes an unreasonable evidentiary burden on the VA, requiring the Secretary to demonstrate, e.g., a claimant’s state of mind about what he knew or the nonexistence of evidence that might significantly help the claimant. Third, the framework requires the VA, not the claimant, to explain why the error is harmless. The burden of showing harmfulness is normally on the party attacking an agency’s determination. See, e.g., Palmer v. Hoffman, 318 U. S. 109 . This Court has placed the burden on the Government only when the underlying matter was criminal. See, e.g., Kotteakos, supra, at 760. The good reasons for this rule do not apply in the ordinary civil case. Pp. 9–13.
(c) The foregoing analysis is subject to two important qualifications. First, the Court need not, and does not, decide the lawfulness of the Veterans Court’s reliance on the “natural effects” of certain kinds of notice errors. Second, although Congress’ special solicitude for veterans might lead a reviewing court to consider harmful in a veteran’s case error that it might consider harmless in other cases, that is not at issue, and need not be decided here. Pp. 13–15.
2. In Sanders’ case, a review of the record demonstrates that the Veterans Court lawfully found the notice errors harmless. The VA’s Types Two and Three notice errors did not matter, given that Sanders has pursued his claim for many years and should be aware of why he has been unable to show that his disability is service connected. Sanders has not told the reviewing courts what additional evidence proper notice would have led him to obtain or seek and has not explained how the notice errors could have made any difference.
In Simmons’ case, some features of the record suggest that the VA’s Type One error was harmless, e.g., that she has long sought benefits and has a long history of medical examinations. But other features, e.g., that her left-ear hearing loss was concededly service connected and has continuously deteriorated over time, suggest the opposite. Given the uncertainties, the Veterans Court should decide whether reconsideration is necessary. Pp. 15–17.
487 F. 3d 881, reversed and remanded; 487 F. 3d 892, vacated and remanded.
Breyer, J., delivered the opinion of the Court, in which Roberts, C. J., and Scalia, Kennedy, Thomas, and Alito, JJ., joined. Souter, J., filed a dissenting opinion, in which Stevens and Ginsburg, JJ., joined.
NKEN v. HOLDER, ATTORNEY GENERAL
SUPREME COURT OF THE UNITED STATES
NKEN v. HOLDER, ATTORNEY GENERAL
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
________________________________________
Argued January 21, 2009—Decided April 22, No. 08–681. 2009
________________________________________
Petitioner Nken sought an order from the Fourth Circuit staying his removal to Cameroon while his petition for review of a Board of Immigration Appeals order denying his motion to reopen removal proceedings was pending. Nken acknowledged that Circuit precedent required an alien seeking such a stay to satisfy 8 U. S. C. §1252(f)(2), which sharply restricts the availability of injunctions blocking the removal of an alien from this country, but argued that a court’s authority to stay a removal order should instead be controlled by the traditional criteria governing stays. The Court of Appeals denied the stay motion without comment.
Held: Traditional stay factors, not the demanding §1252(f)(2) standard, govern a court of appeals’ authority to stay an alien’s removal pending judicial review. Pp. 3–17.
(a) This question stems from changes made in the Illegal Im-migration Reform and Immigrant Responsibility Act of 1996(IIRIRA), which “repealed the old judicial-review scheme set forth in[8 U. S. C.] §1105a [(1994 ed.),] and instituted a new (and significantly more restrictive) one in … §1252,” Reno v. American-Arab Anti-Discrimination Comm., 525 U. S. 471 (AAADC). Because courts of appeals lacked jurisdiction before IIRIRA to review the removal order of an alien who had already left the United States, see §1105a(c), most aliens who appealed such a decision were given an automatic stay of the removal order pending judicial review, see §1105a(a)(3). Three changes IIRIRA made are of particular importance here. First, the repeal of §1105a allows courts to adjudicate a petition for review even if the alien is removed while the petition is pending. Second, the presumption of an automatic stay was repealed and replaced with a provision stating that “[s]ervice of the petition … does not stay the removal of an alien pending the court’s decision on the petition, unless the court orders otherwise.” §1252(b)(3)(B). Finally, IIRIRA provided that “no court shall enjoin the removal of any alien … unless [he] shows by clear and convincing evidence that the entry or execution of such order is prohibited as a matter of law.” §1252(f)(2). Pp. 3–5.
(b) The parties dispute what standard a court should apply when determining whether to grant a stay. Petitioner argues that the “traditional” stay standard should apply, meaning a court should consider “(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether [he] will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties … ; and (4) where the public interest lies.” Hilton v. Braunskill, 481 U. S. 770 . The Government argues that §1252(f) should govern, meaning an alien must show “by clear and convincing evidence that the entry or execution of [the removal] order is prohibited as a matter of law.” Pp. 5–6.
(c) An appellate court’s power to hold an order in abeyance while it assesses the order’s legality has been described as inherent, and part of a court’s “traditional equipment for the administration of justice.” Scripps-Howard Radio, Inc. v. FCC, 316 U. S. 4 . That power allows a court to act responsibly, by ensuring that the time the court takes to bring considered judgment to bear on the matter before it does not result in irreparable injury to the party aggrieved by the order under review. But a stay “is not a matter of right, even if irreparable injury might otherwise result to the appellant.” Virginian R. Co. v. United States, 272 U. S. 658 . The parties and the public, while entitled to both careful review and a meaningful decision, are also entitled to the prompt execution of orders that the legislature has made final. Pp. 6–7.
(d) Section 1252(f) does not refer to “stays,” but rather to authority to “enjoin the removal of any alien.” An injunction and a stay serve different purposes. The former is the means by which a court tells someone what to do or not to do. While in a general sense many orders may be considered injunctions, the term is typically used to refer to orders that operate in personam. By contrast, a stay operates upon the judicial proceeding itself, either by halting or postponing some portion of it, or by temporarily divesting an order of enforceability. An alien seeking a stay of removal pending adjudication of a petition for review does not ask for a coercive order against the government, but instead asks to temporarily set aside the removal order. That kind of stay, “relat[ing] only to the conduct or progress of litigation before th[e] court[,] ordinarily is not considered an injunction.” Gulfstream Aerospace Corp. v. Mayacamas Corp., 485 U. S. 271 . That §1252(f)(2) does not comfortably cover stays is evident in Congress’s use of the word “stay” in subsection (b)(3)(B) but not subsection (f)(2), particularly since those subsections were enacted as part of a unified overhaul of judicial review. The statute’s structure also clearly supports petitioner’s reading: Because subsection (b)(3)(B) changed the basic rules covering stays of removal, the natural place to locate an amendment to the standard governing stays would have been subsection (b)(3)(B), not a provision four subsections later that makes no mention of stays. Pp. 8–12.
(e) Subsection (f)(2)’s application would not fulfill the historic office of a stay, which is to hold the matter under review in abeyance to allow the appellate court sufficient time to decide the merits. Under subsection (f)(2), a stay would only be granted after the court in effect decides the merits, in an expedited manner. The court would have to do so under a “clear and convincing evidence” standard that does not so much preserve the availability of subsequent review as render it redundant. Nor would subsection (f)(2) allow courts “to prevent irreparable injury to the parties or to the public” pending review, Scripps-Howard, 316 U. S., at 9; the subsection on its face does not permit any consideration of harm, irreparable or otherwise. In short, applying §1252(f)(2) in the stay context would result in something that does not remotely look like a stay. As in Scripps-Howard, the Court is loath to conclude that Congress would, “without clearly expressing such a purpose, deprive the Court of Appeals of its customary power to stay orders under review.” Id., at 11. The Court is not convinced Congress did so in §1252(f)(2). Pp. 12–13.
(f) The parties dispute what the traditional four-factor standard entails. A stay is not a matter of right, and its issuance depends on the circumstances of a particular case. The first factor, a strong showing of a likelihood of success on the merits, requires more than a mere possibility that relief will be granted. Similarly, simply showing some possibility of irreparable injury fails to satisfy the second factor. See Winter v. Natural Resources Defense Council, Inc., 555 U. S. ___, ___. Although removal is a serious burden for many aliens, that burden alone cannot constitute the requisite irreparable injury. An alien who has been removed may continue to pursue a petition for review, and those aliens who prevail can be afforded effective relief by facilitation of their return, along with restoration of the immigration status they had upon removal. The third and fourth factors, harm to the opposing party and the public interest, merge when the Government is the opposing party. In considering them, courts must be mindful that the Government’s role as the respondent in every removal proceeding does not make its interest in each one negligible. There is always a public interest in prompt execution of removal orders, see AAADC, supra, at 490, and that interest may be heightened by circumstances such as a particularly dangerous alien, or an alien who has substantially prolonged his stay by abusing the processes provided to him. A court asked to stay removal cannot simply assume that the balance of hardships will weigh heavily in the applicant’s favor. Pp. 13–16.
Vacated and remanded.
ROBERTS, C. J., delivered the opinion of the Court, in which STEVENS, SCALIA, KENNEDY, SOUTER, GINSBURG, and BREYER, JJ., joined. KENNEDY, J., filed a concurring opinion, in which SCALIA, J., joined. ALITO, J., filed a dissenting opinion, in which THOMAS, J., joined.
NKEN v. HOLDER, ATTORNEY GENERAL
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
________________________________________
Argued January 21, 2009—Decided April 22, No. 08–681. 2009
________________________________________
Petitioner Nken sought an order from the Fourth Circuit staying his removal to Cameroon while his petition for review of a Board of Immigration Appeals order denying his motion to reopen removal proceedings was pending. Nken acknowledged that Circuit precedent required an alien seeking such a stay to satisfy 8 U. S. C. §1252(f)(2), which sharply restricts the availability of injunctions blocking the removal of an alien from this country, but argued that a court’s authority to stay a removal order should instead be controlled by the traditional criteria governing stays. The Court of Appeals denied the stay motion without comment.
Held: Traditional stay factors, not the demanding §1252(f)(2) standard, govern a court of appeals’ authority to stay an alien’s removal pending judicial review. Pp. 3–17.
(a) This question stems from changes made in the Illegal Im-migration Reform and Immigrant Responsibility Act of 1996(IIRIRA), which “repealed the old judicial-review scheme set forth in[8 U. S. C.] §1105a [(1994 ed.),] and instituted a new (and significantly more restrictive) one in … §1252,” Reno v. American-Arab Anti-Discrimination Comm., 525 U. S. 471 (AAADC). Because courts of appeals lacked jurisdiction before IIRIRA to review the removal order of an alien who had already left the United States, see §1105a(c), most aliens who appealed such a decision were given an automatic stay of the removal order pending judicial review, see §1105a(a)(3). Three changes IIRIRA made are of particular importance here. First, the repeal of §1105a allows courts to adjudicate a petition for review even if the alien is removed while the petition is pending. Second, the presumption of an automatic stay was repealed and replaced with a provision stating that “[s]ervice of the petition … does not stay the removal of an alien pending the court’s decision on the petition, unless the court orders otherwise.” §1252(b)(3)(B). Finally, IIRIRA provided that “no court shall enjoin the removal of any alien … unless [he] shows by clear and convincing evidence that the entry or execution of such order is prohibited as a matter of law.” §1252(f)(2). Pp. 3–5.
(b) The parties dispute what standard a court should apply when determining whether to grant a stay. Petitioner argues that the “traditional” stay standard should apply, meaning a court should consider “(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether [he] will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties … ; and (4) where the public interest lies.” Hilton v. Braunskill, 481 U. S. 770 . The Government argues that §1252(f) should govern, meaning an alien must show “by clear and convincing evidence that the entry or execution of [the removal] order is prohibited as a matter of law.” Pp. 5–6.
(c) An appellate court’s power to hold an order in abeyance while it assesses the order’s legality has been described as inherent, and part of a court’s “traditional equipment for the administration of justice.” Scripps-Howard Radio, Inc. v. FCC, 316 U. S. 4 . That power allows a court to act responsibly, by ensuring that the time the court takes to bring considered judgment to bear on the matter before it does not result in irreparable injury to the party aggrieved by the order under review. But a stay “is not a matter of right, even if irreparable injury might otherwise result to the appellant.” Virginian R. Co. v. United States, 272 U. S. 658 . The parties and the public, while entitled to both careful review and a meaningful decision, are also entitled to the prompt execution of orders that the legislature has made final. Pp. 6–7.
(d) Section 1252(f) does not refer to “stays,” but rather to authority to “enjoin the removal of any alien.” An injunction and a stay serve different purposes. The former is the means by which a court tells someone what to do or not to do. While in a general sense many orders may be considered injunctions, the term is typically used to refer to orders that operate in personam. By contrast, a stay operates upon the judicial proceeding itself, either by halting or postponing some portion of it, or by temporarily divesting an order of enforceability. An alien seeking a stay of removal pending adjudication of a petition for review does not ask for a coercive order against the government, but instead asks to temporarily set aside the removal order. That kind of stay, “relat[ing] only to the conduct or progress of litigation before th[e] court[,] ordinarily is not considered an injunction.” Gulfstream Aerospace Corp. v. Mayacamas Corp., 485 U. S. 271 . That §1252(f)(2) does not comfortably cover stays is evident in Congress’s use of the word “stay” in subsection (b)(3)(B) but not subsection (f)(2), particularly since those subsections were enacted as part of a unified overhaul of judicial review. The statute’s structure also clearly supports petitioner’s reading: Because subsection (b)(3)(B) changed the basic rules covering stays of removal, the natural place to locate an amendment to the standard governing stays would have been subsection (b)(3)(B), not a provision four subsections later that makes no mention of stays. Pp. 8–12.
(e) Subsection (f)(2)’s application would not fulfill the historic office of a stay, which is to hold the matter under review in abeyance to allow the appellate court sufficient time to decide the merits. Under subsection (f)(2), a stay would only be granted after the court in effect decides the merits, in an expedited manner. The court would have to do so under a “clear and convincing evidence” standard that does not so much preserve the availability of subsequent review as render it redundant. Nor would subsection (f)(2) allow courts “to prevent irreparable injury to the parties or to the public” pending review, Scripps-Howard, 316 U. S., at 9; the subsection on its face does not permit any consideration of harm, irreparable or otherwise. In short, applying §1252(f)(2) in the stay context would result in something that does not remotely look like a stay. As in Scripps-Howard, the Court is loath to conclude that Congress would, “without clearly expressing such a purpose, deprive the Court of Appeals of its customary power to stay orders under review.” Id., at 11. The Court is not convinced Congress did so in §1252(f)(2). Pp. 12–13.
(f) The parties dispute what the traditional four-factor standard entails. A stay is not a matter of right, and its issuance depends on the circumstances of a particular case. The first factor, a strong showing of a likelihood of success on the merits, requires more than a mere possibility that relief will be granted. Similarly, simply showing some possibility of irreparable injury fails to satisfy the second factor. See Winter v. Natural Resources Defense Council, Inc., 555 U. S. ___, ___. Although removal is a serious burden for many aliens, that burden alone cannot constitute the requisite irreparable injury. An alien who has been removed may continue to pursue a petition for review, and those aliens who prevail can be afforded effective relief by facilitation of their return, along with restoration of the immigration status they had upon removal. The third and fourth factors, harm to the opposing party and the public interest, merge when the Government is the opposing party. In considering them, courts must be mindful that the Government’s role as the respondent in every removal proceeding does not make its interest in each one negligible. There is always a public interest in prompt execution of removal orders, see AAADC, supra, at 490, and that interest may be heightened by circumstances such as a particularly dangerous alien, or an alien who has substantially prolonged his stay by abusing the processes provided to him. A court asked to stay removal cannot simply assume that the balance of hardships will weigh heavily in the applicant’s favor. Pp. 13–16.
Vacated and remanded.
ROBERTS, C. J., delivered the opinion of the Court, in which STEVENS, SCALIA, KENNEDY, SOUTER, GINSBURG, and BREYER, JJ., joined. KENNEDY, J., filed a concurring opinion, in which SCALIA, J., joined. ALITO, J., filed a dissenting opinion, in which THOMAS, J., joined.
Subscribe to:
Posts (Atom)
