text:
    No. 93-7637.
    Brown v. Collins, Director, Texas Department of Criminal Justice, Institutional Division.
   C. A. 5th Cir. Certiorari denied.


source: Caselaw Access Project

license: Public Domain

text:
    No. 93-7656.
    Bell v. Norris, Director, Arkansas Department of Correction.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 93-7661.
    Orr v. United States.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 93-7664.
    Whitlock v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 93-7666.
    Tucker v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 93-7667.
    Stewart v. United States.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 93-7668.
    Williams v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 93-7676.
    Queen v. United States.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 93-7677.
    Miranda v. United States.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 93-7683.
    Phillips v. Maryland Department of Economic and Employment Development Board of Appeals.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 93-7684.
    Lynn v. United States.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 93-7687.
    Ternes v. United States.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 93-7690.
    Clemons v. Rightsell et al.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 93-7695.
    Fields v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 93-7696.
    Gant v. United States.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 93-7703.
    Miller v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 93-7705.
    Okegbenro v. United States.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 93-7707.
    Mitchem v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 93-7708.
    Zirretta v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 93-7712.
    Dawn v. United States.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 93-7713.
    Bostic v. Hurst et al.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 93-7714.
    Silva v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 93-7717.
    Jackson, aka Ingram v. United States.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 93-7725.
    Colmenero-Perez v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 93-7729.
    Villanueva v. United States.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 93-7732.
    Gilbert v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 93-7733.
    Jessee v. United States.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 93-7734.
    Gonzalez v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 93-7737.
    Bray v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 93-7738.
    Coleman v. United States.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 93-7742.
    Hamblin et al. v. United States.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 93-7743.
    Moreno Gomez v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 93-7747.
    Mooney v. United States.
   Ct. App. D. C. Certiorari denied.


text:
    No. 93-7748.
    Nwankwo v. United States.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 93-7758.
    Uduko v. United States.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 93-7760.
    Vaughn v. United States.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 93-7761.
    Shephard v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 93-7762.
    Scruggs v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 93-7781.
    Davis v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 93-7782.
    Hudson, aka Hudsmith v. United States.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 93-7784.
    Joe v. United States.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 93-7799.
    Gordon v. United States.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 93-799.
    Standard Insurance Co. v. Saklad.
   Ct. App. Ore. Motions of Health Insurance Association of America and American Council of Life Insurance et al. for leave to file briefs as amici curiae granted. Certiorari denied.


text:
    No. 93-839.
    Vose, Director, Rhode Island Department of Corrections v. Bowling.
   C. A. 1st Cir. Motion of respondent for leave to proceed in forma pauperis granted. Certiorari denied.


author: Justice Blackmun,

text:
    No. 93-7039.
    No. 93-7230.
    No. 93-7322.
    No. 93-7386.
    No. 93-7682.
    Russell v. Collins, Director, Texas Department of Criminal Justice, Institutional Division. Trevino v. Texas. Lewis v. Ohio. Smith v. Arizona. Lambright v. Arizona.
   C. A. 5th Cir.;

Ct. Grim. App. Tex.;

Sup. Ct. Ohio;

Super. Ct. Ariz., Pima County; and

Super. Ct. Ariz., Pima County. Certiorari denied.

Justice Blackmun,

dissenting.

Adhering to my view that the death penalty cannot be imposed fairly within the constraints of our Constitution, see my dissent in Callins v. Collins, ante, p. 1143, I would grant certiorari and vacate the death sentences in these cases.


text:
    No. 93-798.
    No. 93-6255.
    No. 93-6652.
    Buchbinder et al. v. Commissioner of Internal Revenue, Steines et ux. v. Internal Revenue Service, Laffey v. Independent School District #625,
   ante, p. 1047;

ante, p. 1049; and

ante, p. 1054. Petitions for rehearing denied.


author: Justice Scalia,

text:
    March 14, 1994
    No. A-758.
    Collins, Warden v. Byrd.
   Application to vacate the stay of execution of sentence of death, presented to Justice Stevens, and by him referred to the Court, denied. .

Justice Scalia,

dissenting.

On April 17, 1983, respondent and an accomplice entered a convenience store, emptied the cash register, and took the clerk’s wedding band and watch. He then stabbed the clerk, ripped the store telephone out of the wall, and left his victim bleeding on the floor. The clerk died in a hospital a few hours later. The police arrested respondent early on the morning of April 18, after he had committed an armed robbery at another convenience store. Respondent was convicted of capital murder and sentenced to death on August 19, 1983. The sentence and conviction were affirmed on direct appeal by the Ohio Court of Appeals and the Ohio Supreme Court, see 512 N. E. 2d 611 (1987). We denied certiorari. 484 U. S. 1037 (1988). Respondent then filed a motion for state postconviction relief which was rejected by the trial and appellate courts. The Ohio Supreme Court denied review. 573 N. E. 2d 665 (1991). Respondent next filed a jurisdictional motion with the Ohio Supreme Court which alleged deficiencies in the performance of his appellate counsel on his direct appeal to the Ohio Supreme Court. That motion was rejected, see 596 N. E. 2d 472 (1992), and we recently denied an application to stay respondent’s execution to consider a petition for certiorari stemming from the denial of that motion.

On March 7,1994, only eight days before respondent’s scheduled execution and six years after we denied certiorari on his direct appeal (almost 11 years after the murder for which he was tried and convicted, if anyone remembers that) respondent filed his first federal habeas petition. That formidable filing included 29 claims for relief and filled almost 300 pages. The District Court cited the substantial time gaps between respondent’s conviction, rejection of his direct appeal, and denial of state postconviction relief, and rejected the habeas petition on the ground of delay. Respondent then sought a stay of execution from the Court of Appeals for the Sixth Circuit. The Sixth Circuit granted the stay, and petitioner filed this application to vacate the stay.

I have considerable sympathy for the District Court’s view that respondent’s habeas petition should be rejected on the ground of inexcusable delay. The decision whether to assert jurisdiction over a habeas petition calls for an exercise of the court’s equitable discretion, see Withrow v. Williams, 507 U. S. 680, 715-718 (1993) (Scalia, J., dissenting), and the petitioner’s delay in filing is a factor the court may consider. Cf. McCleskey v. Zant, 499 U. S. 467, 489 (1991) (“[A] petitioner may abuse the writ by failing to raise a claim through inexcusable neglect”). We have for many purposes, however, abandoned (or forgotten) the equitable nature of habeas corpus, and under the current state of our law I cannot say that it would have been unlawful or an abuse of discretion for the Sixth Circuit to require District Court consideration of the habeas petition on its merits, and to stay the execution pending that consideration. The Sixth Circuit’s order, however, did much more than that.

First, the order stayed respondent’s execution for “120 days to allow for further investigation and discovery of possible habeas claims.” The Court of Appeals evidently ordered this suo motu, with no request for such relief-from respondent himself — and understandably not. Respondent has had six years to “investigare] and discover possible habeas -claims,” and there is no justification for another four months’ delay on that score. The Court of Appeals’ action tells counsel for death-row inmates that they should not only wait until the 11th hour to file their habeas petitions, thereby assuring a postponement of execution to enable consideration of the petition, but should be sure that, even then, their petitions are not fully researched and investigated, so that further postponement can be obtained for that purpose as well. Only one bent on frustrating the death penalty could think this right. The Court of Appeals can order the District Court to consider respondent’s petition in due course, but its decree of a 120-day extension for further investigation and discovery (during which the already leisurely course of Ohio justice must be further delayed) seems to me a plain abuse of discretion, if not entirely ultra vires.

The Sixth Circuit also ordered that “[tjhese habeas proceedings shall be held in abeyance until the Supreme Court either grants or denies petitioner’s request for certiorari, as the Court’s decision will be directly relevant to the resolution of one of petitioner’s habeas claims.” It seems to me that whether this Court’s decision will be relevant to the District Court’s task, and whether the possibility of relevance on one claim is worth “h[olding] in abeyance” the entire proceeding, are questions initially to be decided by the District Court. If that court goes ahead and decides the habeas petition, the Court of Appeals has authority to delay its own review of that decision to await our disposition of the certiorari petition; but it has no authority to order the District Judge to delay his decision when that does not seem to him the better course. The same usurpation of the District Court’s function is displayed in the Court of Appeals’ granting (again, apparently, on its own motion) of “leave ... to amend the petition within sixty (60) days of this order to include any newly discovered claims.” Whether a motion to amend should be granted or denied is for the District Court to decide, subject to reversal only for abuse of discretion. See Foman v. Davis, 371 U. S. 178, 182 (1962); Duchon v. Cajon Co., 791 F. 2d 43, 48 (CA6 1986); 28 U. S. C. § 2242 (application for habeas corpus “may be amended or supplemented as provided in the rules of procedure applicable to civil actions”). The Court of Appeals’ function is to review decisions of the District Court, not to establish district judges’ timetables or to make discretionary determinations prematurely and in their stead.

I would grant petitioner’s application to vacate the Sixth Circuit’s stay. Since, as I have said, the Sixth Circuit could have entered a more limited stay for a more limited purpose, I would stay the execution for so long as is needed to permit the Sixth Circuit’s reconsideration.


text:
    March 21, 1994
    No. 93-6741.
    Reed v. United States.
   C. A. 5th Cir. Motion of petitioner for leave to proceed in forma pauperis granted. Certiorari granted, judgment vacated, and case remanded for further consideration in light of the position presently asserted by the Solicitor General in his brief for the United States filed January 14, 1994.


text:
    No.---.
    Sam v. Pennsylvania.
   Motion for leave to proceed informa pauperis without an affidavit of indigency executed by petitioner granted.


text:
    No. D-711.
    In re Disbarment of Harper.
   Disbarment entered. [For earlier order herein, see 486 U. S. 1030.]


text:
    No. D-1372.
    In re Disbarment of Smith.
   It is ordered that Michael I. Smith, of Washington, D. C., be suspended from the practice of law in this Court and that a rule issue, returnable within 40 days, requiring him to show cause why he should not be disbarred from the practice of law in this Court.


text:
    No. D-1373.
    In re Disbarment of Swerdlow.
   It is ordered that Paul Swerdlow, of Media, Pa., be suspended from the practice of law in this Court and that a rule issue, returnable within 40 days, requiring him to show cause why he should not be disbarred from the practice of law in this Court.


text:
    No. 108, Orig.
    Nebraska v. Wyoming et al.
   Joint motion to refer motions for leave to file amended pleadings to the Special Master granted. Motion of Nebraska for leave to file an amended petition referred to the Special Master for his recommendation. Motion of Wyoming for leave to file amended counterclaims and cross-claims referred to the Special Master for his recommendation. The Special Master is requested to file his report and recommendation on the motions to amend within 120 days. [For earlier order herein, see, e. g., ante, p. 941.]


text:
    No. 92-2058.
    Hawaiian Airlines, Inc. v. Norris; and Finazzo et al. v. Norris.
   Sup. Ct. Haw. [Certiorari granted, ante, p. 1083.] Motion of the Solicitor General for leave to participate in oral argument as amicus curiae and for divided argument granted.


text:
    No. 92-8556.
    Nichols v. United States.
   C. A. 6th Cir. [Certiorari granted, 509 U. S. 953.] Motion of petitioner for compensation in excess of the statutory limitation denied.


text:
    No. 93-609.
    Morgan Stanley & Co. Inc. et al. v. Pacific Mutual Life Insurance Co. et al.
   C. A. 5th Cir. [Certiorari granted, ante, p. 1039.] Motion of respondents for divided argument granted. Justice O’Connor took no part in the consideration or decision of this motion.


text:
    No. 93-744.
    Director, Office of Workers’ Compensation Programs, Department of Labor v. Greenwich Collieries et al.; and Director, Office of Workers’ Compensation Programs, Department of Labor v. Maher Terminals, Inc., et al.
   C. A. 3d Cir. [Certiorari granted, ante, p. 1068.] Motions of respondents Maher Terminals, Inc., and Pasqualina Santoro for divided argument denied.


text:
    No. 93-880.
    Madsen et al. v. Women’s Health Center, Inc., et al.
   Sup. Ct. Fla. [Certiorari granted, ante, p. 1084.] Motion of American Federation of Labor and Congress of Industrial Organizations for leave to file a brief as amicus curiae granted.


text:
    No. 93-1151.
    Federal Election Commission v. NRA Political Victory Fund et al.
   C. A. D. C. Cir. The Solicitor General is invited to file a brief in this case expressing the views of the United States with respect to the following question: “Whether the Federal Election Commission has statutory authority to represent itself in this case in this Court?” Justice Ginsburg took no part in the consideration or decision of this order.


text:
    No. 93-1222.
    Garcia et al. v. Spun Steak Co.
   C. A. 9th Cir. The Solicitor General is invited to file a brief in this case expressing the views of the United States.


text:
    No. 93-8024.
    No. 93-8058.
    In re Cofield; and In re Sammons.
   Petitions for writs of habeas corpus denied.


text:
    No. 93-7511.
    No. 93-7573.
    In re Gates; and In re Galu.
   Petitions for writs of mandamus denied.


text:
    No. 93-1144.
    In re Reinert & Duree et al.
   Petition for writ of mandamus and/or prohibition denied.


text:
    No. 93-1001.
    Allied-Bruce Terminix Cos., Inc., et al. v. Dobson et al.
   Sup. Ct. Ala. Motion of Alabama Water and Sewer Institute et al. for leave to file a brief as amici curiae granted. Certiorari granted.


text:
    No. 93-1197.
    Hess et al. v. Port Authority Trans-Hudson Corporation.
   C. A. 3d Cir. Certiorari granted limited to the following question: ‘Whether Port Authority Trans-Hudson Corporation, a wholly owned subsidiary of a bistate agency created by interstate compact, is entitled to sovereign immunity from suit in federal court under the Eleventh Amendment?”


text:
    No. 93-708.
    Applewhite v. United States Air Force et al.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 93-856.
    Ticor Title Insurance Co. et al. v. Federal Trade Commission.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 93-868.
    Idaho v. Curl et al.
   Sup. Ct. Idaho. Certiorari denied.


text:
    No. 93-915.
    Ladwig v. Kentucky.
   Cir. Ct. Ky., Kenton County. Certiorari denied.


text:
    No. 93-939.
    McGinnis et al. v. Shalala, Secretary of Health and Human Services.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 93-945.
    Petrochem Insulation, Inc. v. United Association of Journeymen & Apprentices of the Plumbing & Pipefitting Industry of the United States and Canada et al.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 93-946.
    Wuliger v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 93-950.
    Rutledge v. Reich, Secretary of Labor.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 93-955.
    Beeson et al. v. Phillips, King & Smith et al.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 93-971.
    Blodgett, Superintendent, Washington State Penitentiary v. Jeffries.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 93-984.
    Thompson v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 93-1002.
    No. 93-1018.
    No. 93-1019.
    No. 93-1020.
    No. 93-1061.
    Creaciones Viviana Ltda. et al. v. United States; Abuchaibe Hnos. Ltda. v. United States et al.; and Abuchaibe Hnos. Ltda. v. Banco Atlantico S. A. et al.; Comercial Samora Ltda. v. United States et al.; and Comercial Samora Ltda. v. Banco Atlantico S. A. et al.; Organizacion JD Ltda. et al. v. United States et al. (two cases); Industrias Marathon Ltda. v. United States et al.; and Industrias Marathon Ltda. v. Manufacturers Hanover Trust Co. et al.; and Manufacturera del Atlantico Ltda. et al. v. United States et al.; and Manufacturera del Atlantico Ltda. et al. v. Manufacturers Hanover Trust Co. et al.
    No. 93-1073.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 93-1006.
    Higareda et al. v. United States Postal Service.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 93-1022.
    Rexroat v. United States.
   Ct. Mil. App. Certiorari denied.


text:
    No. 93-1025.
    Nickerson v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 93-1029.
    Wilson et al. v. Department of Agriculture.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 93-1043.
    Veldhuizen v. United States.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 93-1052.
    Fleming v. United States.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 93-1056.
    DiGian v. Clinton.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 93-1086.
    No. 93-7548.
    Walsh v. Ward; and Ward v. Walsh.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 93-1119.
    In re Geschke et al.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 93-1150.
    Carroll v. California.
   Ct. App. Cal., 6th App. Dist. Certiorari denied.


text:
    No. 93-1153.
    Mixon v. Franklin County, Idaho, et al.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 93-1154.
    Beer, Manager of Revenue, City and County of Denver, Colorado v. Continental Airlines Inc. et al.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 93-1157.
    Sereno v. Pacumio et al.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 93-1158.
    Mutual Life Insurance Company of New York v. Davis et al.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 93-1162.
    Railway Labor Executives’ Assn. et al. v. Southern Pacific Transportation Co. et al.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 93-1165.
    Persico et al. v. Villa, Personally and as Mayor of the City of Amsterdam.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 93-1166.
    Midwest Pride V, Inc., et al. v. Ward, Ross County Prosecuting Attorney.
   Ct. App. Ohio, Ross County. Certiorari denied.


text:
    No. 93-1167.
    Hickle v. American Service Corporation of South Carolina.
   Sup. Ct. S. C. Certiorari denied.


text:
    No. 93-1168.
    Owen v. Chevron, U. S. A., Inc.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 93-1172.
    Elkins et al. v. Richardson-Merrell, Inc.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 93-1174.
    Martinez et al. v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 93-1175.
    Benson v. City of Helena et al.
   Sup. Ct. Mont. Certiorari denied.


text:
    No. 93-1176.
    Fontenot v. Texas et al.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 93-1177.
    Fisher et al. v. Trainor et al.
   C. A. 1st Cir. Certiorari denied.


text:
    No. 93-1178.
    Gerads et ux. v. United States.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 93-1179.
    Hafiz v. Electronic Data Systems Corp.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 93-1180.
    Auto Club Insurance Assn. v. Pentwater Wire Products, Inc., et al.
   Sup. Ct. Mich. Certiorari denied.


text:
    No. 93-1181.
    Lorain County Court of Common Pleas v. Malinovsky.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 93-1183.
    Billheimer v. Pennsylvania.
   Super. Ct. Pa. Certiorari denied.


text:
    No. 93-1184.
    Ohio v. Lessin.
   Sup. Ct. Ohio. Certiorari denied.


text:
    No. 93-1185.
    Williams v. Saltzstein et al.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 93-1189.
    Hanjin Container Lines, Inc. v. Tokio Fire & Marine Ins. Co., Ltd., et al.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 93-1190.
    Noble v. Wilkinson, Director, Department of Rehabilitation and Corrections of Ohio.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 93-1191.
    Ezzell v. New Hampshire Insurance Co.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 93-1192.
    Walters, Individually and as Parent and Natural Guardian of Walters, a Minor v. City of Allentown et al.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 93-1194.
    Binkley v. City of Long Beach et al.
   Ct. App. Cal., 2d App. Dist. Certiorari denied.


text:
    No. 93-1200.
    Allstate Insurance Co. v. Karl, Judge, Circuit Court for Marshall County, West Virginia.
   Sup. Ct. App. W. Va. Certiorari denied.


text:
    No. 93-1202.
    Brunwasser v. Steiner.
   Sup. Ct. Pa. Certiorari denied.


text:
    No. 93-1203.
    Tioga Pines Living Center, Inc., et al. v. Indiana State Board of Public Welfare et al.
   Sup. Ct. Ind. Certiorari denied.


text:
    No. 93-1205.
    Tillimon v. Ohio.
   Ct. App. Ohio, Lucas County. Certiorari denied.


text:
    No. 93-1207.
    Gonzales et al. v. Carter et al.
   Ct. App. Tex., 2d Dist. Certiorari denied.


text:
    No. 93-1208.
    McKinney et ux. v. Dick et ux.
   Ct. App. Kan. Certiorari denied.


text:
    No. 93-1209.
    Penrod Drilling Corp. v. Coats.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 93-1211.
    Janosik v. Brown, Secretary of Veterans Affairs.
   C. A. Fed. Cir. Certiorari denied.


text:
    No. 93-1214.
    Bourexis v. Carroll County Narcotics Task Force et al.
   Ct. Sp. App. Md. Certiorari denied.


text:
    No. 93-1216.
    Darby Borough et al. v. Cain, Executor of the Estate of Cain, Deceased.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 93-1217.
    D’Avanzo v. Citicorp Mortgage, Inc.
   App. Ct. Conn. Certiorari denied.


text:
    No. 93-1219.
    Wilson v. Southern Railway Co. et al.
   Ct. App. Ga. Certiorari denied.


text:
    No. 93-1220.
    Grace et al. v. Morgan et al.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 93-1221.
    Ailor et al. v. Pension Benefit Guaranty Corporation et al.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 93-1223.
    Sokaogon Chippewa Community v. Exxon Corp.
   et al. C. A. 7th Cir. Certiorari denied.


text:
    No. 93-1225.
    Vickroy v. Rockwell International Corp. et al.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 93-1227.
    Compression Polymers, Inc., et al. v. Santana Products, Inc.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 93-1228.
    Burghart v. Landau et al.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 93-1232.
    Kalejs v. Immigration and Naturalization Service.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 93-1234.
    Monin v. Monin et al.
   Ct. App. Ky. Certiorari denied.


text:
    No. 93-1235.
    Austin et al. v. United Parcel Service.
   Sup. Ct. Vt. Certiorari denied.


text:
    No. 93-1236.
    Cordero v. Texas.
   Ct. App. Tex., 2d Dist. Certiorari denied.


text:
    No. 93-1237.
    Quisenberry v. Stelly-Hoven, Inc., et al.
   Dist. Ct. App. Fla., 4th Dist. Certiorari denied.


text:
    No. 93-1239.
    Tucker v. Pace Investments et al.
   App. Ct. Conn. Certiorari denied.


text:
    No. 93-1243.
    Grace et al. v. Tabron.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 93-1244.
    Fitzpatrick et al. v. Mackey et al.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 93-1247.
    Collier et al. v. Marshall, Dennehey, Warner, Coleman & Goggin et al.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 93-1249.
    Pyle v. Arkansas.
   Sup. Ct. Ark. Certiorari denied.


text:
    No. 93-1253.
    Santos v. Runyon, Postmaster General.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 93-1261.
    Magnuson, dba Yoshiko’s Sauna v. City of Minneapolis.
   Ct. App. Minn. Certiorari denied.


text:
    No. 93-1267.
    King v. Board of Regents of the University System of Georgia et al.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 93-1277.
    Moham v. Steego Corp.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 93-1282.
    American Home Products Corp. et al. v. Mylan Laboratories, Inc., et al.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 93-1290.
    Los Angeles Land Co. v. Brunswick Corp.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 93-1324.
    Stockstill v. Shell Oil Co.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 93-1355.
    Crisler v. Frank et al.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 93-6570.
    VanDyke v. Douglas VanDyke Coal Co., Inc., et al.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 93-6619.
    Eisenstein v. Haber et al.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 93-6665.
    Gaudreault v. United States.
   C. A. 1st Cir. Certiorari denied.


text:
    No. 93-6727.
    No. 93-6731.
    Casel v. United States; and Jackson v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 93-6772.
    Kennedy v. Steel Warehouse Co., Inc.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 93-6830.
    Grant v. Kaiser Permanente Medical Center et al.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 93-6848.
    Franco v. Myers, Warden, et al.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 93-6986.
    Young v. United States.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 93-7027.
    Marshall v. Shalala, Secretary of Health and Human Services.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 93-7056.
    Rodriguez Diaz v. United States.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 93-7108.
    Semien v. Shalala, Secretary of Health and Human Services.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 93-7136.
    Smith v. Shalala, Secretary of Health and Human Services.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 93-7139.
    Adams v. United States.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 93-7155.
    Lara-Acosta v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 93-7246.
    Mergerson v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 93-7321.
    May v. North Carolina.
   Sup. Ct. N. C. Certiorari denied.


text:
    No. 93-7353.
    Bolinder v. Bateman et al.
   Ct. App. Utah. Certiorari denied.


text:
    No. 93-7443.
    Izard, aka Lewis v. United States.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 93-7484.
    Newsome v. Peters, Director, Illinois Department of Corrections, et al.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 93-7485.
    McCullough v. Williams et al.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 93-7493.
    Sharkey v. Department of Transportation.
   C. A. Fed. Cir. Certiorari denied.


text:
    No. 93-7515.
    No. 93-7525.
    Harris v. United States; and Thurmond v. United States.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 93-7518.
    Green v. Oklahoma.
   Ct. Crim. App. Okla. Certiorari denied.


text:
    No. 93-7522.
    LeBeau v. Louisiana.
   Ct. App. La., 4th Cir. Certiorari denied.


text:
    No. 93-7523.
    Smith v. United States.
   Ct. App. D. C. Certiorari denied.


text:
    No. 93-7530.
    Omoike v. Louisiana State University.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 93-7531.
    Bartel v. Garrett.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 93-7533.
    Aziz v. Groose, Superintendent, Jefferson City Correctional Center.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 93-7539.
    Cooper v. Gilpin et al.
   C. A. 8th Cir. Certiorari denied".


text:
    No. 93-7540.
    Black v. Mann.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 93-7542.
    Yeggy v. City of Iowa City, Iowa, et al.
   Sup. Ct. Iowa. Certiorari denied.


text:
    No. 93-7544.
    Townes v. Murray, Director, Virginia Department of Corrections.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 93-7551.
    Cotton v. Kansas.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 93-7552.
    Monroe v. City of Kent.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 93-7557.
    Pearce v. Ohio.
   Ct. App. Ohio, Franklin County. Certiorari denied.


text:
    No. 93-7559.
    Purifoy v. New York.
   App. Div., Sup. Ct. N. Y., 4th Jud. Dept. Certiorari denied.


text:
    No. 93-7561.
    Moore v. Thomas, Warden, et al.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 93-7562.
    McConnell v. Armontrout, Warden, et al.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 93-7566.
    Chorney v. Weingarten et al.
   C. A. 1st Cir. Certiorari denied.


text:
    No. 93-7570.
    Sipos v. Williamson.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 93-7571.
    Kines v. Godinez, Warden.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 93-7572.
    Genninger v. Boston Magazine, Inc., et al.
   App. Ct. Mass. Certiorari denied.


text:
    No. 93-7574.
    Istvan v. Willoughby of Chevy Chase Condominium Council of Unit Owners, Inc., et al.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 93-7575.
    Franklin v. Michigan.
   Ct. App. Mich. Certiorari denied.


text:
    No. 93-7578.
    Bribiesca v. California.
   Ct. App. Cal, 2d App. Dist. Certiorari denied.


text:
    No. 93-7587.
    Burton v. Michigan.
   Ct. App. Mich. Certiorari denied.


text:
    No. 93-7588.
    DiCesare v. Stout et al.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 93-7592.
    Cloutier v. Illinois.
   Sup. Ct. Ill. Certiorari denied.


text:
    No. 93-7602.
    Sawicki v. Kaiser Foundation Hospitals.
   Ct. App. Cal., 2d App. Dist. Certiorari denied.


text:
    No. 93-7605.
    Wolstone v. Unemployment Appeals Commission et al.
   Dist. Ct. App. Fla., 5th Dist. Certiorari denied.


text:
    No. 93-7606.
    Swiney v. Correctional Health Care, Inc., et al.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 93-7611.
    Fox v. Arkansas.
   Sup. Ct. Ark. Certiorari denied.


text:
    No. 93-7616.
    Gonzalez v. Ocean County Board of Social Services.
   Super. Ct. N. J., App. Div. Certiorari denied.


text:
    No. 93-7618.
    Christie v. Minnesota.
   Sup. Ct. Minn. Certiorari denied.


text:
    No. 93-7619.
    Tripati v. Arpaio, Sheriff, Maricopa County.
   Sup. Ct. Ariz. Certiorari denied.


text:
    No. 93-7622.
    Carter v. Collins, Director, Texas Department of Criminal Justice, Institutional Division.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 93-7626.
    Newsome v. Floyd West & Co.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 93-7630.
    O’Dell v. Washington.
   Ct. App. Wash. Certiorari denied.


text:
    No. 93-7633.
    Serra v. Toombs, Warden.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 93-7639.
    Lott v. North Carolina.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 93-7642.
    Schaff v. Illinois.
   App. Ct. Ill., 1st Dist. Certiorari denied.


text:
    No. 93-7644.
    Rollins et ux. v. Department of Justice et al.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 93-7645.
    Jae v. Rowley, President Judge, Superior Court of Pennsylvania, Western District, et al.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 93-7646.
    Kowalski v. Baldwin, Superintendent, Eastern Oregon Correctional Institution.
   Sup. Ct, Ore. Certiorari denied.


text:
    No. 93-7650.
    Lindsey v. Michigan.
   Ct. App. Mich. Certiorari denied.


text:
    No. 93-7655.
    Davis v. Singletary, Secretary, Florida Department of Corrections.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 93-7658.
    Kleinschmidt v. Gator Office Supply & Furniture, Inc., et al.
   Dist. Ct. App. Fla., 3d Dist. Certiorari denied.


text:
    No. 93-7660.
    Green v. Lindsey.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 93-7673.
    Blackston v. Skarbnik et al.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 93-7674.
    Williams v. Atlanta Journal & Constitution, Inc., et al.
   Sup. Ct. Ga. Certiorari denied.


text:
    No. 93-7675.
    Ysarras Ramirez v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 93-7719.
    Parker v. United States.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 93-7749.
    O’Murchu v. United States.
   C. A. 1st Cir. Certiorari denied.


text:
    No. 93-7763.
    Lee v. Connecticut.
   App. Ct. Conn. Certiorari denied.


text:
    No. 93-7769.
    Reed v. Collins, Director, Texas Department of Criminal Justice, Institutional Division.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 93-7779.
    Anthony v. United States.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 93-7786.
    Wooten v. Ellingsworth et al.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 93-7787.
    Stewart v. Hargett, Superintendent, Mississippi State Penitentiary.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 93-7788.
    Hoffman v. United States.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 93-7793.
    Scott v. Luster, Warden.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 93-7796.
    Campbell v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 93-7797.
    Davis v. United States.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 93-7798.
    Sammons v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 93-7801.
    Richardson v. United States.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 93-7802.
    Ruvalcaba v. United States.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 93-7803.
    Loya-Gutierrez v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 93-7804.
    Omenwu v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 93-7807.
    Pano v. Department of Veterans Affairs.
   C. A. Fed. Cir. Certiorari denied.


text:
    No. 93-7810.
    Snell v. City and County of Denver et al.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 93-7811.
    Sinclair v. United States.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 93-7812.
    Shephard v. United States.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 93-7817.
    Roberson v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 93-7818.
    Sammons v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 93-7825.
    Gillespie v. United States.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 93-7833.
    Mylar v. White, Warden, et al.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 93-7840.
    Hardin v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 93-7842.
    Randel v. United States.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 93-7847.
    Bordenave v. United States.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 93-7848.
    Bennet v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 93-7850.
    Holmes v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 93-7852.
    Hooker v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 93-7853.
    Goodwin v. United States.
   C. A. D. C. Cir. Certiorari denied.


text:
    No. 93-7854.
    Chavez-Vernaza v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 93-7855.
    Benson v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 93-7857.
    Afila v. United States.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 93-7858.
    Young v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 93-7863.
    Butler v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 93-7865.
    Valdes v. United States.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 93-7867.
    Simpson v. Murray, Director, Virginia Department of Corrections.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 93-7870.
    Soliz Cano v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 93-7873.
    Preston v. United States.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 93-7874.
    Lucious v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 93-7876.
    Rollins et ux. v. Commissioner of Internal Revenue.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 93-7878.
    Kinslow v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 93-7880.
    Keffalas v. United States.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 93-7888.
    Olness v. United States.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 93-7889.
    Outlaw v. United States.
   Ct. App. D. C. Certiorari denied.


text:
    No. 93-7890.
    Resko v. United States.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 93-7894.
    Fayne v. United States.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 93-7895.
    Ibarra v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 93-7896.
    St. Fleur v. United States.
   C. A. D. C. Cir. Certiorari denied.


text:
    No. 93-7897.
    Hearns v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 93-7898.
    Hughes v. United States.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 93-7908.
    Shyllon v. United States.
   C. A. D. C. Cir. Certiorari denied.


text:
    No. 93-7910.
    Arnold v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 93-7911.
    Behlke v. Sullivan, Secretary, Wisconsin Department of Corrections.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 93-7913.
    Mandel v. United States.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 93-7915.
    Nururdin v. United States.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 93-7921.
    Malik v. United States.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 93-7926.
    Campbell v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 93-7930.
    Cole v. United States.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 93-7931.
    Cato v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 93-7937.
    Hoskins v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 93-7939.
    Pelts v. United States.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 93-7943.
    Peguero v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 93-7944.
    Gomez-Rendon v. United States.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 93-7945.
    Jack v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 93-7947.
    Cohron v. United States.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 93-7953.
    Ramos v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 93-7954.
    Miller v. United States.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 93-7956.
    Snelling v. Chrysler Motors Corp. et al.
   Ct. App. Mo., Eastern Dist. Certiorari denied.


text:
    No. 93-7960.
    Ware v. Grayson, Warden.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 93-7968.
    Buchner v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 93-7969.
    Curtsinger v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 93-7975.
    Nwizzu v. United States.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 93-7976.
    Nason v. United States.
   C. A. 1st Cir. Certiorari denied.


text:
    No. 93-7977.
    Rector v. United States.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 93-7980.
    Mays v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 93-7987.
    Faccio-Laboy v. United States.
   C. A. 1st Cir. Certiorari denied.


text:
    No. 93-496.
    Stevens et al. v. City of Cannon Beach et al.
   Sup. Ct. Ore. Certiorari denied.

Justice Scalia,

with whom Justice O’Connor joins, dissenting.

This is a suit by owners of a parcel of beachfront property against the city of Cannon Beach and the State of Oregon. Petitioners purchased the property in 1957. In 1989, they sought a building permit for construction of a seawall on the dry-sand portion of the property. When the permit was denied, they brought this inverse condemnation action against the city in the Circuit Court of Clatsop County, alleging a taking in violation of the Fifth and Fourteenth Amendments. That court dismissed the complaint for failure to state a claim pursuant to Oregon Rule of Civil Procedure 21A(8), on the ground that under State ex rel. Thornton v. Hay, 254 Ore. 584, 462 P. 2d 671 (1969), petitioners never possessed the right to obstruct public access to the dry-sand portion of the. property. App. to Pet. for Cert. C-22 to C-25. The Court of Appeals, 114 Ore. App. 457, 835 P. 2d 940 (1992), and then the Supreme Court of Oregon, 317 Ore. 131, 854 P. 2d 449 (1993), both relying on Thornton, affirmed. The landowners have petitioned this Court for writ of certiorari to the Supreme Court of Oregon. They allege an unconstitutional taking of property without just compensation, and a denial of due process of law.

In order to clarify the nature of the constitutional questions that the case presents, a brief sketch of Oregon ease law involving beachfront property is necessary.

I

In 1969, the State of Oregon brought suit to enjoin owners of certain beachfront tourist facilities from constructing improvements on the “dry-sand” portion of their properties. The trial court granted an injunction. State ex rel. Thornton v. Hay, supra. In defending that judgment on appeal to the Supreme Court of Oregon, the State briefed and argued its case on the theory that by implied dedication or prescriptive easement the public had acquired the right to use the dry-sand area for recreational purposes, precluding development. The Supreme Court of Oregon found “a better legal basis” for affirming the decision and decided the case on an entirely different theory:

“The most cogent basis for the decision, in this case is the English doctrine of custom. Strictly construed, prescription applies only to the specific tract of land before the court, and doubtful prescription cases could fill the courts for years with tract-by-tract litigation. An established custom, on the other hand, can be proven with reference to a larger region. Ocean-front lands from the northern to the southern border of the state ought to be treated uniformly.” Id., at 595, 462 P 2d, at 676.

The court set forth what it said were the seven elements of the doctrine of custom and concluded that “[t]he custom of the people of Oregon to use the dry-sand area of the beaches for public recreational purposes meets every one of Blackstone’s requisites.” Id., at 597, 462 P. 2d, at 677. The court affirmed the injunction, saying that “it takes from no man anything which he has had a legitimate reason to regard as exclusively his.” Id., at 599, 462 P. 2d, at 678. Thus, Thornton declared as the customary law of Oregon the proposition that the public enjoys a right of recreational use of all dry-sand beach, which denies property owners development rights.

Or so it seemed until 1989. That year, the Supreme Court of Oregon revisited the issue of dry-sand beach in the case of McDonald v. Halvorson, 308 Ore. 340, 780 P. 2d 714 (1989). There, the beachfront property owners who were plaintiffs sought a judicial declaration that their property included a portion of dry-sand area adjacent to a cove of the Pacific Ocean. With such a declaration in place, they hoped to gain access (under Thornton, as members of the public) to the remaining dry-sand area of the cove lying on property to which the defendants held record title. The State intervened to assert the public’s right (under the doctrine of custom) to use the dry-sand area of the cove, and to enjoin defendants from interfering with that right. The Supreme Court of Oregon held that the public had no right to recreational use of the dry-sand portions of the cove beach. 308 Ore., at 360, 780 P. 2d, at 724. McDonald noted what it called inconsistencies in Thornton, 308 Ore., at 358-359, 780 P. 2d, at 723, and resolved them by stating that “nothing in [Thornton] fairly can be read to have established beyond dispute a public claim by virtue of ‘custom’ to the right to recreational use of the entire Oregon coast.” Id., at 359, 780 P. 2d, at 724. “[Tjhere may also be [dry-sand] areas,” the court said, “to which the doctrine of custom is not applicable.” Ibid. The court noted that “[t]here [was] no testimony in this record showing customary use of the narrow beach on the bank of the cove. . . . The doctrine of custom announced in [Thornton] simply does not apply to this controversy. The public has no right to recreational use of the [dry-sand beach area of the cove] because there is no factual predicate for application of the doctrine.” Id., at 360, 780 P. 2d, at 724.

With McDonald now the leading case interpreting the law of custom, petitioners here brought their takings challenge in the Oregon state trial court. As recited above, that court dismissed for failure to state a claim upon which relief could be granted, saying that “[Thornton] teaches us that ocean front owners cannot enclose or develop the dry sand beach area so as to exclude the public therefrom. . . . [B]ecause of the public’s ancient and continued use of the dry sand area on the Oregon coast ... its future use thereof cannot be curtailed or limited.” App. to Pet. for Cert. C-24. The trial court did not cite McDonald, and its peremptory dismissal prevented petitioners from doing what McDonald clearly contemplated their doing: providing the factual predicate for their challenge through testimony of customary use showing that their property is one of those areas “to which the doctrine of custom [was] not applicable.” McDonald, supra, at 359, 780 P. 2d, at 724. Moreover, when petitioners attempted to introduce such factual material on appeal they were rebuffed on the ground that appeal was confined to the purely legal question whether the complaint stated a claim under Oregon law. App. to Pet. for Cert. 1-197 to 1-198 (Tr., Mar. 3, 1993); see also id., at 1-185 to 1-190.

In its decision here, the Supreme Court of Oregon quoted portions of Thornton's sweeping language appearing to declare the law of custom for all the Oregon shore. But it then read Thornton (which also originated in a dispute over property in Cannon Beach) to have said that the “historic public use of the dry sand area of Cannon Beach met [Blackstone’s] requirements.” 317 Ore., at 140, 854 P. 2d, at 454 (emphasis added). The court then framed the issue as the continuing validity of Thornton in light of Lucas v. South Carolina Coastal Council, 505 U. S. 1003 (1992). The court quoted our opinion in Lucas: “ ‘Any limitation so severe [as to prohibit all economically beneficial use of land] cannot be newly legislated or decreed (without compensation), but must inhere in the title itself, in the restrictions that background principles of the State’s law of property and nuisance already place upon land ownership.’ ” 317 Ore., at 142, 854 P. 2d, at 456 (quoting Lucas, supra, at 1029, (emphasis added by the Oregon court). The court held that the doctrine of custom was just such a background principle of Oregon property law, and that petitioners never had the property interests that they claim were taken by respondents’ decisions and regulations. 317 Ore., at 143, 854 P. 2d, at 456. It then affirmed the dismissal.

II

As a general matter, the Constitution leaves the law of real property to the States. But just as a State may not deny rights protected under the Federal Constitution through pretextual procedural rulings, see NAACP v. Alabama ex rel. Patterson, 357 U. S. 449, 455-458 (1958), neither may it do so by invoking nonexistent rules of state substantive law. Our opinion in Lucas, for example, would be a nullity if anything that a state court chooses to denominate “background law” — regardless of whether it is really such — could eliminate property rights. “[A] State cannot be permitted to defeat the constitutional prohibition against taking property without due process of law by the simple device of asserting retroactively that the property it has taken never existed at all.” Hughes v. Washington, 389 U. S. 290, 296-297 (1967) (Stewart, J., concurring). No more by judicial decree than by legislative fiat may a State transform private property into public property without compensation. Webb’s Fabulous Pharmacies, Inc. v. Beckwith, 449 U. S. 155, 164 (1980). See also Lucas, supra, at 1031. Since opening private property to public use constitutes a taking, see Nollan v. California Coastal Comm’n, 483 U. S. 825, 831 (1987); Kaiser Aetna v. United States, 444 U. S. 164, 178 (1979), if it cannot fairly be said that an Oregon doctrine of custom deprived Cannon Beach property owners of their rights to exclude others from the dry sand, then the decision now before us has effected an uncompensated taking.

To say that this case raises a serious Fifth Amendment takings issue is an understatement. The issue is serious in the sense that it involves a holding of questionable constitutionality; and it is serious in the sense that the landgrab (if there is one) may run the entire length of the Oregon coast. It is by no means clear that the facts — either as to the entire Oregon coast, or as to the small segment at issue here — meet the requirements for the English doctrine of custom. The requirements set forth by Blackstone included, inter alia, that the public right of access be exercised without interruption, and that the custom be obligatory, i. e., in the present context that it not be left to the option of each landowner whether he will recognize the public’s right to go on the dry-sand area for recreational purposes. In Thornton, however, the Supreme Court of Oregon determined the historical existence of these fact-intensive criteria (as well as five others) in a discussion that took less than one full page of the Pacific Reporter. That is all the more remarkable a feat since the Supreme Court of Oregon was investigating these criteria in the first instance; the trial court had not rested its decision on the basis of custom and the State did not argue that theory to the Supreme Court.

As I have described, petitioners’ takings claim rests upon the assertion both that the new-found “doctrine of custom” is a fiction, and that if it exists the facts do not support its application to their property. The validity of both those assertions turns upon the facts regarding public entry — but that is no obstacle to our review. “In cases in which there is a claim of denial of rights under the Federal Constitution, this Court is not bound by the conclusions of lower courts, but will reexamine the evidentiary basis on which those conclusions are founded.” Niemotko v. Maryland, 340 U. S. 268, 271 (1951); see also Broad River Power Co. v. South Carolina ex rel. Daniel, 281 U. S. 537, 540 (1930); Demorest v. City Bank Farmers Trust Co., 321 U. S. 36, 41-43 (1944). What is an obstacle to our review, however, is the fact that neither in the present case (because it was decided on motion to dismiss) nor even in Thornton itself (because the doctrine of custom was first injected into the case at the Supreme Court level) was any record concerning the facts compiled. It is beyond our power — unless we take the extraordinary step of appointing a master to conduct factual inquiries — to evaluate petitioners’ takings claim.

Petitioners’ due process claim, however, is another matter. Respondents’ brief in opposition does not respond to that claim on its merits, but asserts that petitioners’ claim has been “raise[d] for the first time in their petition for certiorari.” Brief in Opposition 25. I think not. Petitioners argued before the Court of Appeals of Oregon that since they were not parties to Thornton, their rights to dry-sand beach could not have been determined by that decision because they “have not had their day in court.” App. to Pet. for Cert. G-90 to G-92, and n. 3. In their brief to the Supreme Court of Oregon, they contended that application of Thornton to other property owners presented a “serious proble[m] of violation of the . . . due process clause of the Fifth Amendment.” App. to Pet. for Cert. H-155. I believe that petitioners have sufficiently preserved their due process claim, and believe further that the claim is a serious one. Petitioners, who owned this property at the time Thornton was decided, were not parties to that litigation. Particularly in light of the utter absence of record support for the crucial factual determinations in that case, whether the Oregon Supreme Court chooses to treat it as having established a “custom” applicable to Cannon Beach alone, or one applicable to all “dry-sand” beach in the State, petitioners must be afforded an opportunity to make out their constitutional claim by demonstrating that the asserted custom is pretextual. If we were to find for petitioners on this point, we would not only set right a procedural injustice, but would hasten the clarification of Oregon substantive law that casts a shifting shadow upon federal constitutional rights the length of the State.

I would grant the petition for certiorari with regard to the due process claim.

      The Supreme Court of Oregon described the English doctrine of custom as applying to land used in a certain manner (1) so long that the mind runneth not to the contrary; (2) without interruption; (3) peaceably; (4) where the public use has been appropriate to the land and the usages of the community; (5) where the boundary is certain; (6) where the custom is obligatory (not left up to individual landowners as to whether they will recognize the public’s right to access); and (7) where the custom is not repugnant to or inconsistent with other customs or laws.

       While narrowing Thornton in this respect, McDonald seemingly expanded it in another: ‘“Dry-sand area’ as used in [Thornton] can apply equally to gravel beaches, beaches strewn with or even made up of boulders, and other areas adjacent to the foreshore which, like the beach in [Thornton], have long been used for recreational purposes by the general public.” 308 Ore., at 359, 780 R 2d, at 724.

       This reading of Thornton is in my view unsupportable. Thornton did not limit itself to “the dry sand area of Cannon Beach.” On the contrary, Thornton includes the following statements: “Ocean-front lands from the northern to the southern border of the state ought to be treated uniformly.” 254 Ore., at 595, 462 R 2d, at 676. “This case deals solely with the dry-sand area along the Pacific shore . . . .” Ibid. “The custom of the people of Oregon to use the dry-sand area of the beaches for public recreational purposes meets every one of Blackstone’s requisites.” Id.., at 597, 462 P. 2d, at 677. “[T]he custom of the inhabitants of Oregon and of visitors in the state to use the dry sand as a public recreation area is so notorious that notice of the custom . . . must be presumed.” Id., at 598, 462 P. 2d, at 678. The passage in which Thornton actually applies Blackstone’s seven-factor test contains not a single mention of the city of Cannon Beach. Id., at 595-597, 462 P. 2d, at 677.

       From Thornton to McDonald to the decision below, the Supreme Court of Oregon’s vacillations on the scope of the doctrine of custom make it difficult to say how much of the coast is covered. They also reinforce a sense that the court is creating the doctrine rather than describing it.

       In Thornton, the Supreme Court of Oregon appears to have misread Blackstone in applying the law of custom to the entire Oregon coast. “[C]us-toms . . . affect only the inhabitants of particular districts.” 1 W. Blackstone, Commentaries *74. McDonald seems to suggest that a custom may extend to all property “similarly situated” in terms of its physical characteristics, i. e., all dry-sand beach abutting the ocean. 308 Ore., at 359, 780 P. 2d, at 724. That does not appear to comport with Blackstone’s requirement that the custom affect “inhabitants of particular districts.” See Post v. Pearsall, 22 Wend. 425, 440 (N. Y. Ct. Err. 1839); see also Fitch v. Rawling, 2 Bl. H. 394, 398-399, 126 Eng. Rep. 614, 616-617 (C. P. 1795) (“Customs must in their nature be confined to individuals of a particular description [and not to all inhabitants of England], and what is common to all mankind, can never be claimed as a custom”); Sherborn v. Bostock, Fitzg. 51, 94 Eng. Rep. 648, 649 (K B. 1729) (“the custom . . . being general, and such a one as may extend to every subject, whether a citizen or a stranger, is void”).


text:
    No. 93-754.
    Chrissy F., by Her Next Friend and Guardian ad Litem, Medley v. Dale, Individually and as Chancellor for the Tenth Chancery Court District of Mississippi, et al.
   C. A. 5th Cir. Motions of Legal Services for Children and National Center for Protective Parents for leave to file briefs as amici curiae granted. Certiorari denied.


text:
    No. 93-1109.
    Alabama v. Yelder.
   Sup. Ct. Ala. Motion of respondent for leave to proceed in forma pauperis granted. Certiorari denied.


text:
    No. 93-1182.
    Cutright v. E. R. Carpenter Co., Inc.
   C. A. 4th Cir. Motion of petitioner for leave to proceed as a veteran granted. Certiorari denied.


text:
    No. 93-1213.
    Manufacturers Hanover Leasing Corp. v. Lowrey, Trustee of Robinson Brothers Drilling, Inc., et al.
   C. A. 10th Cir. Motions of Equipment Leasing Association of America, Inc., American Bankers Association, Commercial Finance Association, Inc., New York Clearing House Association, and American Council of Life Insurance for leave to file briefs as amici curiae granted. Certiorari denied.


text:
    No. 93-1238.
    Nagle et al. v. Alspach, Trustee in Bankruptcy for Rimar Manufacturing, Inc., et al.
   C. A. 3d Cir. Motion of respondents for interest and damages denied. Certiorari denied.


text:
    No. 93-7488.
    Pawlak v. Pennsylvania Board of Law Examiners.
   Sup. Ct. Pa. Motion of petitioner for leave, to substitute questions presented denied. Certiorari denied.


text:
    No. 93-7002.
    No. 93-7152.
    No. 93-7235.
    No. 93-7379.
    No. 93-7446.
    No. 93-7447.
    No. 93-7476.
    No. 93-7568.
    No. 93-7627.
    No. 93-7950.
    Campbell v. Wood, Superintendent, Washington State Penitentiary, et al. San Miguel v. Texas. Adanandus v. Texas. Nelson v. Texas. Medina v. Singletary, Secretary, Florida Department of Corrections. Napier v. Texas. Ruiz Camacho v. Texas. Aldridge v. Texas. Howell v. Tennessee. Callins v. Texas.
   C. A. 9th Cir.;

Ct. Crim. App. Tex.;

Ct. Crim. App. Tex.;

Ct. Crim. App. Tex.;

C. A. 11th Cir.;

Ct. Crim. App. Tex.;

Ct. Crim. App. Tex.;

Ct. Crim. App. Tex.;

Sup. Ct. Tenn.; and

Ct. Crim. App. Tex. Certiorari denied.

Justice Blackmun,

dissenting.

Adhering to my view that the death penalty cannot be imposed fairly within the constraints of our Constitution, see my dissent in Callins v. Collins, ante, p. 1143, I would grant certiorari and vacate the death sentences in these cases.


text:
    No. 92-780.
    No. 92-833.
    No. 92-7549.
    No. 93-766.
    National Organization for Women, Inc., et al. v. Scheidler et al., Albright v. Oliver et al., Schiro v. Farley, Superintendent, Indiana State Prison, et al., Rytman et al. v. Kofkoff Egg Farm Limited Partnership et al., Scott v. Avon Products, Inc., et al., Gracey v. Day, Thomas v. Department of State et al., Esparza v. Munoz, Fite v. Cantrell et al., Allen v. Gallagher, Gladney v. Gilless et al., Heimermann v. Wisconsin State Public Defender, Parker v. Oregon State Bar, Corethers v. Lakeside University Hospital et al., Branch v. Hennepin County Sheriff’s Department et al., Rubin v. Gomilla et al., Norton v. University of Michigan et al., Smith v. Murray, Director, Virginia Department of Corrections, Moore v. Mississippi, Cardine v. McAnulty et al., Busch v. Jeffes et al., In re Zils,
   ante, p. 249;

ante, p. 266;

ante, p. 222;

ante, p. 1046;

No. 93-840.

No. 93-877.

No. 93-6521.

No. 93-6653.

No. 93-6673.

No. 93-6691.

No. 93-6761.

No. 93-6803.

No. 93-6824.

No. 93-6842.

No. 93-6844.

No. 93-6858.

No. 93-6904.

No. 93-6907.

No. 93-6929.

No. 93-6971.

No. 93-7040.

No. 93-7286.

ante, p. 1073;

ante, p. 1093;

ante, p. 1075;

ante, p. 1054;

ante, p. 1055;

ante, p. 1055;

ante, p. 1058;

ante, p. 1060;

ante, p. 1095;

ante, p. 1077;

ante, p. 1061;

ante, p. 1096;

ante, p. 1077;

ante, p. 1077;

ante, p. 1063;

ante, p. 1097;

ante, p. 1098; and

ante, p. 1085. Petitions for rehearing denied.


text:
    No. 92-6609.
    No. 93-6748.
    Boyer v. DeClue et al., Scaife v. Hannigan, Warden, et al.,
   508 U. S. 974; and

ante, p. 1057. Motions for leave to file petitions for rehearing denied.


author: Justice O’Connor, Circuit Justice.

text:
    IMMIGRATION AND NATURALIZATION SERVICE et al. v. LEGALIZATION ASSISTANCE PROJECT OF THE LOS ANGELES COUNTY FEDERATION OF LABOR et al.
    No. A-426.
    Decided November 26, 1993
   Justice O’Connor, Circuit Justice.

The Solicitor General, on behalf of the Immigration and Naturalization Service (INS), requests that I stay an order of the District Court for the Western District of Washington pending appeal to the Court of Appeals for the Ninth Circuit. The Court of Appeals has rejected the INS’ application for such a stay. Though “stay application^] to a Circuit Justice on a matter before a court of appeals [are] rarely granted,” Heckler v. Lopez, 463 U. S. 1328, 1330 (1983) (Rehnquist, J., in chambers) (internal quotation marks omitted), I believe this is an exceptional case in which such a stay is proper.

I

In 1986, Congress enacted the Immigration Reform and Control Act of 1986 (IRCA), 100 Stat. 3359, which provided a limited amnesty for immigrants who had come to or stayed in the country illegally. See 8 U. S. C. § 1255a. Not all such immigrants were, however, eligible. Among other restrictions, the amnesty was available only to those who had “resided continuously in the United States in an unlawful status since [January 1, 1982],” § 1255a(a)(2)(A); also, those who came to the country legally but stayed illegally could only get amnesty if their “period of authorized stay . . . expired before [January 1, 1982,]” or their “unlawful status was known to the Government as of [January 1, 1982],” § 1255a(a)(2)(B). Respondents, organizations that provide legal help to immigrants, believe the INS interpreted these provisions too narrowly, in violation of the statute and the United States Constitution, and in 1988 brought their challenge to court.

In March 1989, the District Court ruled in respondents’ favor, and in September 1992, the Ninth Circuit affirmed in part, reversed in part, and remanded to the District Court for further proceedings. On June 1,1993, the District Court issued an order requiring the INS to, among other things, identify and adjudicate legalization applications filed by certain categories of applicants, not arrest or deport certain classes of immigrants, and temporarily grant certain classes of immigrants stays of deportation and employment authorizations.

On June 18,1993, this Court decided Reno v. Catholic Social Services, Inc., 509 U. S. 43 (1993) (CSS), a case involving a very similar challenge to another portion of IRCA. In CSS, we held that the claims of most of the plaintiff aliens were barred by the ripeness doctrine. A federal court, we held, generally ought not entertain a request for an injunction or declaratory judgment regarding the validity of an administrative regulation unless it is brought by someone who has actually been concretely affected by the regulation. Id., at 57-58. The mere existence of the regulation, we held, was not enough; rather, the regulation must actually have been applied to the plaintiff. Ibid. We concluded that the only people who could ask for injunctive or declaratory relief under IRCA were those who were told by the INS that they should not even bother to file their applications — a policy called “front-desking” — and perhaps also those who could show that the front-desking policy was a substantial cause of their failure to apply in the first place. Id., at 61-67, and n. 28. Under the statute, aliens who did apply and whose applications were considered but rejected could only get judicial review of this rejection if the INS tried to deport them. 8 U. S. C. § 1255a(f)(l).

In light of our decision in CSS, the Government asked the District Court to vacate its order, on the theory that respondents’ claims here, like the claims of the CSS plaintiffs, were not ripe. The District Court, however, disagreed. The CSS plaintiffs, the District Court pointed out, were individual aliens, whereas the plaintiffs in this case are organizations. The District Court concluded that the organizations had “suffered a concrete and demonstrable injury” because “the challenged regulations drained organizational resources and impaired their ability to assist and counsel nonimmigrants”; therefore, the court held, the organizations’ claims were ripe. App. B to Application 6, citing Legalization Assistance Project of Los Angeles County Federation of Labor v. INS, 976 F. 2d 1198, 1204 (CA9 1992), cert. pending, No. 93-73. Therefore, “because this case has assumed the posture of a broad-based challenge to the regulations in question by organizations which the Ninth Circuit explicitly found have standing to bring these claims,” App. B to Application 6, the court declined to vacate its June 1 order.

II

As a Circuit Justice dealing with an application like this, I must try to predict whether four Justices would vote to grant certiorari should the Court of Appeals affirm the District Court order without modification; try to predict whether the Court would then set the order aside; and balance the so-called “stay equities.” Heckler v. Lopez, supra, at 1330-1331. This is always a difficult and speculative inquiry, but in this case it leads me to conclude that a stay is warranted.

Respondents assert that the INS is violating the law of the land, and they ask the federal courts to order the INS to stop this. But the broad power to “take Care that the Laws be faithfully executed” is conspicuously not granted to us by the Constitution. Rather, it is given to the President of the United States, see U. S. Const., Art. II, § 3, along with the power to supervise the conduct of the Executive Branch, Art. II, §§ 1, 2, which includes the INS. The federal courts are granted a different sort of power — the power to adjudge “Cases” or “Controversies,” Art. Ill, §2, cl. 1, within the jurisdiction defined by Congress, Art. Ill, §2, cl. 2.

Congress has in fact considered the proper scope of federal court jurisdiction to review administrative agency actions. It has explicitly limited such review to claims brought by “person[s] suffering legal wrong[s] because of agency action” (not applicable to the respondent organizations involved here) or by persons “adversely affected or aggrieved by agency action within the meaning of a relevant statute .” 5 U. S. C. § 702 (emphasis added). We have consistently interpreted this latter clause to permit review only in cases brought by a person whose putative injuries are “within the ‘zone of interests’ sought to be protected by the statutory provision whose violation forms the legal basis for his complaint.” Lujan v. National Wildlife Federation, 497 U. S. 871, 883 (1990) (NWF); see also Clarke v. Securities Industry Assn., 479 U. S. 388, 396-397 (1987).

I believe that, were it presented with this question, this Court would grant certiorari and conclude that the respondents are outside the zone of interests IRCA seeks to protect, and that therefore they had no standing to seek the order entered by the District Court. The District Court’s decision and the Court of Appeals decision on which it relies, 976 F. 2d, at 1208, conflict with Ayuda, Inc. v. Reno, 7 F. 3d 246 (CADC 1993), and relate to an important question of federal law. See this Court’s Rule 10. Moreover, on the merits, IRCA was clearly meant to protect the interests of undocumented aliens, not the interests of organizations such as respondents. Though such organizations did play a role in the IRCA scheme — during the amnesty period, they were so-called “qualified designated entities,” which were to “assis[t] in the program of legalization provided under this section,” § 1255a(c)(2) — there is no indication that IRCA was in any way addressed to their interests. The fact that the INS regulation may affect the way an organization allocates its resources — or, for that matter, the way an employer who currently employs illegal aliens or a landlord who currently rents to illegal aliens allocates its resources — does not give standing to an entity which is not within the zone of interests the statute meant to protect. NWF, supra, at 883.

The balance of equities also tips in the INS’ favor. The order would impose a considerable administrative burden on the INS, and would delay the deportation of — and require the granting of interim work authorizations to — at least those aliens who are deportable and who could not seek relief on their own behalf under CSS. Moreover, if the above analysis is correct, the order is not merely an erroneous adjudication of a lawsuit between private litigants, but an improper intrusion by a federal court into the workings of a coordinate branch of the Government. See Heckler v. Lopez, 463 U. S., at 1336-1337; FCC v. Pottsville Broadcasting Co., 309 U. S. 134, 141 (1940). On the other hand, neither CSS nor this stay prevents those aliens who were ordered deported or were front-desked, and are therefore possibly eligible for relief under CSS, from suing in their own right. Likewise, neither CSS nor this stay prevents any membership organizations which have members whose claims are ripe under CSS from suing on behalf of those members, assuming the organizations meet the criteria required for organizational standing.

I therefore grant the application to stay the District Court’s order pending final disposition of the appeal by the Court of Appeals.


author: Justice Stevens, Circuit Justice.

text:
    CAPITOL SQUARE REVIEW AND ADVISORY BOARD et al. v. PINETTE et al.
    No. A-517.
    Decided December 23, 1993
   Justice Stevens, Circuit Justice.

Today is Thursday, December 23, 1993. Yesterday evening applicants filed with me, in my capacity as Circuit Justice for the Sixth Circuit, an application for a stay of an injunction entered by the District Court and upheld by the Court of Appeals. The injunction required applicants to allow respondents, the Knights of the Ku Klux Klan and its leading officers, to erect a large Latin cross in front of the Ohio Statehouse in Columbus, Ohio. As I understand the situation, the cross is in place now and is scheduled to be removed tomorrow. If I were to grant the application forthwith, it would be removed today — unless, of course, respondents could persuade the full Court to reinstate the injunction.

The case is unique because the District Court found that the local government has effectively disassociated itself from the display:

“Indeed, the ‘reasonable’ observer — being an individual who is knowledgeable about local events — might well know by virtue of all of the recent media coverage that the state of Ohio as represented by its leading elected officials opposes the display of the cross and any messages which might reasonably be associated with this display by the Klan. Moreover, the reasonable observer would likely know that a menorah was displayed during the celebration of Hanukkah, and a Christmas tree has been displayed throughout the month of December. From all of this, the reasonable observer should conclude that the government is expressing its toleration of religious and secular pluralism.” No. C2-931162 (SD Ohio, Dec. 21, 1993), p. 13.

In their application, applicants do not dispute the accuracy of that finding.

Whether or not applicants’ legal position is sound (and my opinion in Allegheny County v. American Civil Liberties Union, Greater Pittsburgh Chapter, 492 U. S. 573, 646-655 (1989), explains why I am not unresponsive to their arguments), they must shoulder the burden of persuading me that irreparable harm will ensue if I do not grant their application. Frankly, it is my opinion that whatever harm may flow from allowing the privately owned cross to remain in place until tomorrow has probably already occurred. Moreover, because the legal issues are presumably capable of repetition, I do not believe the case will become moot when the cross is removed tomorrow. Rather than asking my colleagues to resolve those issues summarily, applicants may be well advised to marshal their arguments in a certiorari petition that can be considered with appropriate deliberation.

For these reasons, I shall defer to the judgment of the Court of Appeals and deny the application.

It is so ordered.


author: Justice Souter, Circuit Justice.

text:
    PLANNED PARENTHOOD OF SOUTHEASTERN PENNSYLVANIA et al. v. CASEY et al.
    No. A-655.
    Decided February 7, 1994
   Justice Souter, Circuit Justice.

Addressing me in my capacity as Circuit Justice for the Third Circuit, the applicants seek a stay of the Court of Appeals’s mandate in this case, pending their filing a petition for certiorari. See 28 U. S. C. § 2106. In the décision from which applicants intend to seek review, 14 F. 3d 848 (CA3 1994), the Court of Appeals held that the District Court’s order allowing applicants to reopen the record in their facial constitutional challenge to Pennsylvania’s Abortion Control Act, 18 Pa. Cons. Stat. §§3203-3220 (1990 and Supp. 1993), and continuing its order enjoining the Commonwealth from enforcing various provisions of that statute, see 822 F. Supp. 227 (ED Pa. 1993), was inconsistent with both the mandate of this Court in Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U. S. 833, and that of the Third Circuit on remand, see 978 F. 2d 74 (1992). For the reasons set out below, I decline to stay the mandate of the Court of Appeals.

The conditions that must be shown to be satisfied before a Circuit Justice may grant such an application are familiar: a likelihood of irreparable injury that, assuming the correctness of the applicants’ position, would result were a stay not issued; a reasonable probability that the Court will grant certiorari; and a fair prospect that the applicant will ultimately prevail on the merits, see generally Rostker v. Goldberg, 448 U. S. 1306, 1308 (1980) (Brennan, J., in chambers). The burden is on the applicant to “rebut the presumption that the decisions below — both on the merits and on the proper interim disposition of the case — are correct.” Ibid.

With respect to the first consideration, the applicants assert that enforcement of the pertinent provisions of the Abortion Control Act will, for a “large fraction,” Casey, 505 U. S., at 895, of the affected population, interpose a “substantial obstacle,” id., at 877, to the exercise of the right to reproductive freedom guaranteed by the Due Process Clause and affirmed in this Court’s Casey opinion. I have no difficulty concluding that such an imposition, if proven, would qualify as “irreparable injury,” and support the issuance of a stay if the other factors favored the applicants’ position. Those other factors, however, point the other way.

The core of the applicants’ submission is that the Court of Appeals fundamentally misread our opinion and mandate in Casey in determining that the District Court erred in reopening the record and continuing its injunction against enforcement of the Pennsylvania statute. Although applicants are right as a general matter in arguing that this Court has a special interest in ensuring that courts on remand follow the letter and spirit of our mandates, see, e. g., In re Sanford Fork & Tool Co., 160 U. S. 247, 255-256 (1895), I am not convinced (nor, I believe, would my colleagues be) that the Court of Appeals’s opinion represents such an arguable departure from our mandate as to warrant discretionary review or, in the end, an award of the relief the applicants seek.

I note that I am not as certain as the Court of Appeals was that the District Court here has defied the terms of our remand in a manner that justifies comparison to Aaron v. Cooper, 163 F. Supp. 13 (ED Ark.), rev’d, 257 F. 2d 33 (CA8), aff’d, Cooper v. Aaron, 358 U. S. 1 (1958). The letter of our Casey opinion is not entirely hard edged. We remanded for “proceedings consistent with this opinion, including consideration of the question of severability,” 505 U. S., at 901, thereby allowing for the possibility (as applicants strenuously argue) that there might be something for the courts below to determine beyond the severability from the body of the statute of the provisions held constitutionally invalid. More than once, we phrased our conclusion that particular provisions withstood facial challenge under the Due Process Clause in terms of “the record” before us in the case, see id., at 884, 887, 901; see also id., at 926 (Blackmun, J., concurring in part, concurring in judgment in part, and dissenting in part) (suggesting that evidence could be adduced “in the future” that would establish the invalidity of the provisions and arguing that the joint opinion did not “rul[e] out [that] possibility”).

The Court of Appeals’s construction of the opinion and mandate, however, is the correct one. Although we acknowledged in Casey that the precise formulation of the standard for assessing constitutionality of abortion regulation was, in some respects, novel, see 505 U. S., at 876-877; see also 14 F. 3d, at 853-854 (acknowledging that Court had modified the Third Circuit’s “undue burden” test), we did not remand the case to the lower courts for application of the proper standard, as is sometimes appropriate when a new legal standard is announced, see, e. g., Lucas v. South Carolina Coastal Council, 505 U. S. 1003 (1992). Instead, we undertook to apply the standard to the Pennsylvania statute, upholding the constitutionality of its core provisions governing informed consent, recordkeeping, and parental consent, while ruling that the husband-notification requirement, on its face, imposed a constitutionally intolerable burden on the freedom of women to choose abortion. 505 U. S., at 887-898. Significantly, none of the five opinions took the position that the record was inadequate in a way that would counsel leaving those judgments to the District Court in the first instance. Cf., e. g., McCleskey v. Zant, 499 U. S. 467, 506, 523-528 (1991) (Marshall, J., dissenting). Thus, the references to “this record,” combined with our readiness to decide the validity of the challenged provisions under the “undue burden” standard, are plausibly understood as reflecting two conclusions: (1) that litigants are free to challenge similar restrictions in other jurisdictions, as well as these very provisions as applied, see Fargo Women’s Health Organization v. Schafer, 507 U. S. 1013 (1993) (O’Connor, J., concurring in denial of stay); and (2) that applicants had been given a fair opportunity to develop the record in the District Court.

Indeed, the District Court’s error in rejecting the latter conclusion deserves a word of comment. The District Court reasoned that because our opinion in Casey altered the “rules of the game,” it would be unjust to dispose of an “undue burden” challenge on the basis of a record developed for purposes of a challenge based on “strict scrutiny.” See 822 F. Supp., at 235-236. But even if this reasoning were not in tension with the approach ultimately taken in the Casey opinion, the applicants do not seriously suggest that the vitality of the “strict scrutiny” test was free from uncertainty at the time this case was brought in the District Court or that they lacked incentive to compile a record to support the invalidation of the challenged provisions under a less strict standard of review. The original District Court opinion, 686 F. Supp. 1089 (ED Pa. 1988), contains 287 detailed findings of fact and carries every indication that the applicants were given broad latitude to introduce evidence, call witnesses, and elicit testimony about the potential effects of the challenged provisions on the reproductive freedom of women.

In addition to these reasons for thinking there is no reasonable probability of review and no fair prospect of reversing the Court of Appeals, one other point bears mention. In continuing its order enjoining enforcement of various statutory provisions, the District Court concluded that the evidence applicants were seeking to introduce raised only a “plausible likelihood” of prevailing in their renewed facial challenge to the statute. 822 F. Supp., at 238. It was at least unusual for a District Court to enjoin enforcement of a statute, the last word on which was the recent judgment of this Court upholding its constitutionality, on a showing of “plausible likelihood” of success. This element of the case would certainly, and properly, influence my colleagues’ decision whether to review the judgment of the Court of Appeals, as well as their view of its merits if review were granted.

The application for stay of mandate is denied.

       The Third Circuit panel also denied a motion, substantially identical to the one presented here, to stay its mandate.

       For the purposes of this opinion, I join the applicants and the courts below in treating the joint opinion in Planned Parenthood of Southeastern Pa. v. Casey, see 505 U. S., at 843 (opinion of O’Connor, Kennedy, and Souter, JJ.) as controlling, as the statement of the Members of the Court who concurred in the judgment on the narrowest grounds. See Marks v. United States, 430 U. S. 188 (1977).

       1 note in this regard that the availability of further opportunities to test the constitutionality of the statute mitigates somewhat the quantum of harm that might ensue. The Court of Appeals acknowledged, correctly, that the applicants or other potential litigants remain free to test the constitutionality of the Act “as applied.” See 14 F. 3d 848, 862, nn. 18, 21 (CA3 1994). Since I am convinced that a majority of this Court would likely hold a further facial challenge by the parties in this case to be precluded by the opinion and mandate in Casey, there is no occasion to consider here the Court of Appeals’s broader assertion that, even in cases where a statute’s facial validity depends on an empirical record, see Fargo Women’s Health Organization v. Schafer, 507 U. S. 1013 (1993) (O’Con-nor, J., concurring in denial of stay), a decision rejecting one such challenge must be dispositive as against all other possible litigants. Also potentially relevant to the irreparable injury calculus is the District Court’s “considerable doubt” whether the Commonwealth is, in fact, prepared to begin immediate enforcement of several of the disputed provisions. See 822 F. Supp. 227, 237 (ED Pa. 1993).

       The applicants’ contention that the Court of Appeals’s ruling “conflicts” with decisions recognizing district court discretion to decide matters left open by a mandate, see, e. g., Quern v. Jordan, 440 U. S. 332, 347, n. 18 (1979), cf. this Court’s Rule 10.1(c), amounts to no more than a restatement of their basic claim, i. e., that the District Court’s reading of Casey, and not the Third Circuit’s, was the correct one.

       After the Court of Appeals had held that the invalid provisions could be severed from the rest of the statute, see 978 F. 2d 74 (CA3 1992), that court itself remanded to the District Court for “such further proceedings as may be appropriate,” id., at 78.


author: Justice Blackmun, Circuit Justice.

text:
    CBS INC. et al. v. DAVIS, CIRCUIT JUDGE, SEVENTH JUDICIAL CIRCUIT, PENNINGTON COUNTY, SOUTH DAKOTA, et al.
    No. A-669.
    Decided February 9, 1994
   Justice Blackmun, Circuit Justice.

CBS Inc., CBS News Division, a division of CBS Inc., and the television show 48 Hours (collectively CBS) apply for an emergency stay of a preliminary injunction entered by the Circuit Court for the Seventh Judicial District of South Dakota prohibiting CBS from airing videotape footage taken at the factory of Federal Beef Processors, Inc. (Federal), a South Dakota meat-packing company. CBS seeks to televise the videotape this evening on a 48 Hours investigative news program and contends that the injunction constitutes an intolerable prior restraint on the media. Due to the time pressure involved in resolving this emergency application, my discussion is necessarily brief.

As part of an ongoing investigation into unsanitary practices in the meat industry, CBS obtained footage of Federal’s meat-packing operations through the cooperation of a Federal employee, who voluntarily agreed to wear undercover camera equipment during his shift one day in Federal’s plant. The employee received no compensation for his cooperation. CBS represents that the investigation was not targeted at Federal but at the meat-processing industry generally and that CBS did not intend to reveal the company that was the source of the material.

Federal sued to prevent the telecast of the videotape, alleging, inter alia, claims of trespass, breach of the duty of loyalty and its aiding and abetting, and violation of the Uniform Trade Secrets Act, S. D. Comp. Laws Ann. § 37-29-1 et seq. (Supp. 1993). On January 25, 1994, the South Dakota Circuit Court entered a temporary restraining order, and on February 7 the court preliminarily enjoined CBS from “disseminating, disclosing, broadcasting, or otherwise revealing” any footage of the Federal plant interior. Findings of Fact, Conclusions of Law, and Order for Preliminary Injunction, Civ. No. 94-590, p. 8. The court found that disclosure of the videotape “could result in a significant portion of the national chains refusing to purchase beef processed at Federal and thereafter in the Federal plant’s closure,” and that “[pjublic dissemination of Federal’s confidential and proprietary practices and processes would likely cause irreparable injury to Federal.” Id., at 3. The court concluded that because the videotape “was obtained by CBS, at the very least, through calculated misdeeds,” id., at 4, conventional First Amendment prior restraint doctrine was inapplicable, and that any injury to CBS resulting from delay was outweighed by the potential economic harm to Federal.

On February 8, 1994, the South Dakota Supreme Court denied CBS’ application for a stay of the injunction and scheduled oral argument on CBS’ original petition for a writ of mandamus for March 21,1994. The State Supreme Court later amended its order to require that the Circuit Judge rescind the injunction or show cause on March 21 why a peremptory writ of mandamus should not be issued.

Although a single Justice may stay a lower court order only under extraordinary circumstances, such circumstances are presented here. For many years it has been clearly established that a “prior restraint on expression comes to this Court with a ‘heavy presumption’ against its constitutional validity.” Organization for a Better Austin v. Keefe, 402 U. S. 415, 419 (1971), quoting Carroll v. President and Comm’rs of Princess Anne, 393 U. S. 175, 181 (1968). “Where ... a direct prior restraint is imposed upon the reporting of news by the media, each passing day may constitute a separate and cognizable infringement of the First Amendment.” Nebraska Press Assn. v. Stuart, 423 U. S. 1319, 1329 (1975) (Blackmun, J., in chambers). As the Court recognized in Nebraska Press Assn. v. Stuart, 427 U. S. 539, 559 (1976) (footnote omitted), prior restraints are particularly disfavored:

“A criminal penalty or a judgment in a defamation case is subject to the whole panoply of protections afforded by deferring the impact of the judgment until all avenues of appellate review have been exhausted ....
“A prior restraint, by contrast..., has an immediate and irreversible sanction. If it can be said that a threat of criminal or civil sanctions after publication ‘chills’ speech, prior restraint ‘freezes’ it at least for the time.”

Although the prohibition against prior restraints is by no means absolute, the gagging of publication has been considered acceptable only in “exceptional cases.” Near v. Minnesota ex rel. Olson, 283 U. S. 697, 716 (1931). Even where questions of allegedly urgent national security, see New York Times Co. v. United States, 403 U. S. 713 (1971), or competing constitutional interests, Nebraska Press Assn., 427 U. S., at 559, are concerned, we have imposed this “most extraordinary remed[y]” only where the evil that would result from the reportage is both great and certain and cannot be mitigated by less intrusive measures. Id., at 562.

Federal has not met this burden here. The Circuit Court no doubt is correct that broadcast of the videotape “could” result in significant economic harm to Federal. Even if economic harm were sufficient in itself to justify a prior restraint, however, we previously have refused to rely on such speculative predictions as based on “factors unknown and unknowable.” Id., at 563; see also New York Times Co. v. United States, supra.

Nor is the prior restraint doctrine inapplicable because the videotape was obtained through the “calculated misdeeds” of CBS. In New York Times Co., the Court refused to suppress publication of papers stolen from the Pentagon by a third party. Subsequent civil or criminal proceedings, rather than prior restraints, ordinarily are the appropriate sanction for calculated defamation or other misdeeds in the First Amendment context. Even if criminal activity by the broadcaster could justify an exception to the prior restraint doctrine under some circumstances, the record as developed thus far contains no clear evidence of criminal activity on the part of CBS, and the court below found none.

I conclude that the decision below conflicts with the prior decisions of this Court, that there is a reasonable probability that the case would warrant certiorari, and that indefinite delay of the broadcast will cause irreparable harm to the news media that is intolerable under the First Amendment. Entry of a stay therefore is appropriate under the All Writs Act, 28 U. S. C. § 1651. See INS v. Legalization Assistance Project of Los Angeles County Federation of Labor, ante, at 1301 (O’Connor, J., in chambers). If CBS has breached its state-law obligations, the First Amendment requires that Federal remedy its harms through a damages proceeding rather than through suppression of protected speech.

The Circuit Court’s injunction is therefore stayed.


text:
    PACKWOOD v. SENATE SELECT COMMITTEE ON ETHICS
    No. A-704.
    Decided March 2, 1994
   Chief Justice Rehnquist, Circuit Justice.

Applicant Senator Bob Packwood requests that I grant a stay pending appeal to the Court of Appeals for the District of Columbia Circuit of a decision by the District Court enforcing the subpoena duces tecum issued by respondent Senate Select Committee on Ethics. The Court of Appeals recently, and unanimously, denied his emergency motion for a stay pending appeal.

The criteria for deciding whether to grant a stay are well established. An applicant must demonstrate: (1) a reasonable probability that four Justices would vote to grant certiorari; (2) a significant possibility that the Court would reverse the judgment below; and (3) a likelihood of irreparable harm, assuming the correctness of the applicant’s position, if the judgment is not stayed. Barnes v. E-Systems, Inc. Group Hospital Medical & Surgical Ins. Plan, 501 U. S. 1301, 1302 (1991) (Scalia, J., in chambers). Because this matter is pending before the Court of Appeals, and because the Court of Appeals denied his motion for a stay, applicant has an especially heavy burden. “When a matter is pending before a court of appeals, it long has been the practice of Members of this Court to grant stay applications only ‘upon the weightiest considerations.’” Fargo Women’s Health Organization v. Schafer, 507 U. S. 1013, 1014 (1993) (O’Connor, J., concurring in denial of stay application) (quoting O’Rourke v. Levine, 80 S. Ct. 623, 624, 4 L. Ed. 2d, 615, 616 (1960) (Harlan, J., in chambers); see also Beame v. Friends of the Earth, 434 U. S. 1310, 1312 (1977) (Marshall, J., in chambers) (a stay applicant’s “burden is particularly heavy when ... a stay has been denied by the District Court and by a unanimous panel of the Court of Appeals”).

Applicant raises three challenges to the enforcement of the subpoena. First, he contends that the subpoena is impermissibly broad and seeks information beyond the defined subject matter of the pending Committee investigation. In applicant’s view, the subpoena should have been limited to those documents pertaining to the Committee’s initial inquiry into allegations regarding sexual misconduct; as it stands now, the subpoena, according to applicant, is tantamount to a general warrant. See Stanford v. Texas, 379 U. S. 476, 480 (1965) (holding that general warrants are clearly forbidden by the Fourth Amendment).

As we stated in Oklahoma Press Publishing Co. v. Walling, 327 U. S. 186, 209 (1946), determining whether a subpoena is overly broad “cannot be reduced to formula; for relevancy and adequacy or excess in the breadth of the subpoena are matters variable in relation to the nature, purposes and scope of the inquiry.” Because resolution of applicant’s claim would entail a factbound determination of the nature and scope of respondent’s investigation, I do not think his claim raises an issue on which four Members of the Court would grant certiorari. Cf. United States v. Nixon, 418 U. S. 683, 702 (1974) (“Enforcement of a pretrial subpoena duces tecum must necessarily be committed to the sound discretion of the trial court since the necessity for the subpoena most often turns upon a determination of factual issues”). Moreover, whatever merit applicant’s argument may have had initially, it has been seriously undermined by the evidence, presented to the District Court, that his diary transcripts and tapes have been altered. Regardless of the scope of respondent’s initial inquiry, surely respondent has the authority to investigate attempts to obstruct that inquiry, and the evidence of tampering very likely renders all of the requested diary entries relevant to that investigation.

Applicant next asserts that the subpoena violates his Fourth Amendment right to privacy. The District Court, relying on our decisions in O’Connor v. Ortega, 480 U. S. 709 (1987), and Nixon v. Administrator of General Services, 433 U. S. 425 (1977), balanced applicant’s privacy interests against the importance of the governmental interests. The court concluded that the latter outweighed the former. Applicant does not quarrel with the legal standard applied by the District Court, only with its conclusion. Because this claim thus also involves only a factbound determination, I do not think certiorari would be granted to review it.

Finally, applicant argues that the subpoena violates his Fifth Amendment protection against self-incrimination. He relies primarily on Boyd v. United States, 116 U. S. 616 (1886), and argues that the Courts of Appeals are in conflict as to whether Boyd remains controlling with regard to the production of private papers. We recently denied a petition for certiorari raising this precise issue. See Doe v. United States, ante, p. 1091. Our recent denial demonstrates quite clearly the unlikelihood that four Justices would vote to grant review on this issue. See South Park Independent School Dist. v. United States, 453 U. S. 1301, 1304 (1981) (Powell, J., in chambers) (denying stay application because it raised issues “almost identical to those presented three years ago, when the Court voted to deny certiorari”).

Accordingly, the request for a stay is denied.