author: Mr. Justice Powell

text:
    FARMER, SPECIAL ADMININISTRATOR v. UNITED BROTHERHOOD OF CARPENTERS & JOINERS OF AMERICA, LOCAL 25, ET AL.
    No. 75-804.
    Argued November 8, 1976
    Decided March 7, 1977

      Powell, J., delivered the opinion for a unanimous Court.

      G. Dana Hobart argued the cause and filed briefs for petitioner.

      Leo Geffner argued the cause for respondents. With him on the brief was George Kaufmann.

      Norton J. Come argued the cause for the National Labor Relations Board as amicus curiae urging affirmance. With him on the brief were Solicitor General Bork, John S. Irving, Carl L. Taylor, and Linda Sher.

        J. Albert Woll and Laurence Gold filed a brief for the American Federation of Labor and Congress of Industrial Organizations as amicus curiae urging affirmance.

   Mr. Justice Powell

delivered the opinion of the Court.

The issue in this case is whether the National Labor Relations Act, as amended, pre-empts a tort action brought in state court by a Union member against the Union and its officials to recover damages for the intentional infliction of emotional distress.

I

Petitioner Richard T. Hill was a carpenter and a member of Local 25 of the United Brotherhood of Carpenters and Joiners of America. Local 25 (Union) operates an exclusive hiring hall for employment referral of carpenters in the Los Angeles area. In 1965, Hill was elected to a three-year term as vice president of the Union. Shortly thereafter sharp disagreement developed between Hill and the Union Business Agent, Earl Daley, and other Union officials over various internal Union policies. According to Hill, the Union then began to discriminate against him in referrals to employers, prompting him to complain about the hiring hall operation within the Union and to the District Council and the International Union. Hill claims that as a result of these complaints he was subjected to a campaign of personal abuse and harassment in addition to continued discrimination in referrals from the hiring hall.

In April 1969 petitioner filed in Superior Court for the County of Los Angeles an action for damages against the Union, the District Council and the International with which the Union was affiliated, and certain officials of the Union, including Business Agent Daley. In count two of his amended complaint, Hill alleged that the defendants had intentionally engaged in outrageous conduct, threats, and intimidation, and had thereby caused him to suffer grievous emotional distress resulting in bodily injury. In three other counts, he alleged that the Union had discriminated against him in referrals for employment because of his dissident intra-Union political activities, that the Union had breached the hiring hall provisions of the collective-bargaining agreement between it and a contractors association by failing to refer him on a nondiscriminatory basis, and that the failure to comply with the collective-bargaining agreement also constituted a breach of his membership contract with the Union. He sought $500,000 in actual, and $500,000 in punitive, damages.

The Superior Court sustained a demurrer to the allegations of discrimination and breach of contract on the ground that federal law pre-empted state jurisdiction over them, but allowed the case to go to trial on the allegations in count two. Hill attempted to prove that the Union’s campaign against him included “frequent public ridicule,” “incessant verbal abuse,” and refusals to refer him to jobs in accordance with the rules of the hiring hall. The defendants countered with evidence that the hiring hall was operated in a nondiscriminatory manner. The trial court instructed the jury that in order to recover damages Hill had to prove by a preponderance of the evidence that the defendants intentionally and by outrageous conduct had caused him to suffer severe emotional distress. The court defined severe emotional distress as “any highly unpleasant mental reaction such as fright, grief, shame, humiliation, embarrassment, anger, chagrin, disappointment, or worr[y].” The injury had to be “severe,” which in this context meant

“substantial or enduring, as distinguished from trivial or transitory. It must be of such substantial quantity or enduring quality that no reasonable man in a civilized society should be expected to endure it. Liability does not extend to mere insults, indignities, annoyances, petty or other trivialities.”

The court also instructed that the National Labor Relations Board would not have jurisdiction to compensate petitioner for injuries such as emotional distress, pain and suffering, and medical expenses, nor would it have authority to award punitive damages. The court refused to give a requested instruction to the effect that the jury could not consider any evidence regarding discrimination with respect to employment opportunities or hiring procedures.

The jury returned a verdict of $7,500 actual damages and $175,000 punitive damages against the Union, the District Council, and Business Agent Daley, and the trial court entered a judgment on the verdict.

The California Court of Appeal reversed. 49 Cal. App. 3d 614, 122 Cal. Rptr. 722. Relying on this Court’s decisions in Motor Coach Employees v. Lockridge, 403 U. S. 274 (1971); Plumbers v. Borden, 373 U. S. 690 (1963); Iron Workers v. Perko, 373 U. S. 701 (1963); and San Diego Bldg. Trades Council v. Garmon, 359 U. S. 236 (1959), the Court of Appeal held that the state courts had no jurisdiction over the complaint since the “crux” of the action concerned employment relations and involved conduct arguably subject to the jurisdiction of the National Labor Relations Board. The court remanded “with instructions to render judgment for the defendants and dismiss the action.” 49 Cal. App. 3d, at 631, 122 Cal. Rptr., at 732. The California Supreme Court denied review.

We granted certiorari to consider the applicability of the pre-emption doctrine to cases of this nature, 423 U. S. 1086 (1976). For the reasons set forth below we vacate the judgment of the Court of Appeal and remand for further proceedings.

II

The doctrine of pre-emption in labor law has been shaped primarily by two competing interests. On the one hand, this Court has recognized that “the broad powers conferred by Congress upon the National Labor Relations Board to interpret and to enforce the complex Labor Management Relations Act . . . necessarily imply that potentially conflicting ‘rules of law, of remedy, and of administration’ cannot be permitted to operate.” Vaca v. Sipes, 386 U. S. 171, 178-179 (1967), quoting San Diego Bldg. Trades Council v. Garmon, supra, at 242. On the other hand, because Congress has refrained from providing specific directions with respect to the scope of pre-empted state regulation, the Court has been unwilling to “declare pre-empted all local regulation that touches or concerns in any way the complex interrelationships between employees, employers, and unions . . . ." Motor Coach Employees v. Lockridge, supra, at 289. Judicial experience with numerous approaches to the pre-emption problem in the labor law area eventually led to the general rule set forth in Garmon, supra, at 244, and recently reaffirmed in both Lockridge, supra, at 291, and Machinists v. Wisconsin Emp. Rel. Comm’n, 427 U. S. 132, 138-139 (1976):

“When it is clear or may fairly be assumed that the activities which a State purports to regulate are protected by § 7 of the National Labor Relations Act, or constitute an unfair labor practice under § 8, due regard for the federal enactment requires that state jurisdiction must yield. To leave the States free to regulate conduct so plainly within the central aim of federal regulation involves too great a danger of conflict between power asserted by Congress, and requirements imposed by state law.” 359 U. S., at 244.

But the same considerations that underlie the Garmon rule have led the Court to recognize exceptions in appropriate classes of cases. We have refused to apply the pre-emption doctrine to activity that otherwise would fall within the scope of Garmon if that activity “was a merely peripheral concern of the Labor Management Relations Act . . . [or] touched interests so deeply rooted in local feeling and responsibility that, in the absence of compelling congressional direction, we could not infer that Congress had deprived the States of the power to act.” Id., at 243-244. See, e. g., Linn v. Plant Guard Workers, 383 U. S. 53 (1966) (malicious libel); Automobile Workers v. Russell, 356 U. S. 634 (1958) (mass picketing and threats of violence); Machinists v. Gonzales, 356 U. S. 617 (1958) (wrongful expulsion from union membership). We also have refused to apply the pre-emption doctrine “where the particular rule of law sought to be invoked before another tribunal is so structured and administered that, in virtually all instances, it is safe to presume that judicial supervision will not disserve the interests promoted by the federal labor statutes.” Motor Coach Employees v. Lockridge, supra, at 297-298. See Vaca v. Sipes, supra (duty of fair representation cases).

These exceptions “in no way undermine the vitality of the pre-emption rule.” 386 U. S., at 180. To the contrary, they highlight our responsibility in a case of this kind to determine the scope of the general rule by examining the state interests in regulating the conduct in question and the potential for interference with the federal regulatory scheme.

The nature of the inquiry is perhaps best illustrated by Linn v. Plant Guard Workers, supra. Linn, an assistant manager of Pinkerton’s National Detective Agency, filed a diversity action in federal court against a union, two of its officers, and a Pinkerton employee, alleging that the defendants had circulated a defamatory statement about him in violation of state law. If unfair labor practice charges had been filed, the Board might have found that the union violated § 8 by intentionally circulating false statements during an organizational campaign, or that the issuance of the malicious statements during the campaign had such a significant effect as to require that the election be set aside. Under a formalistic application of Garmon, the libel suit could have been pre-empted.

But a number of factors influenced the Court to depart from the Garmon rule. First, the Court noted that the underlying conduct—the intentional circulation of defamatory material known to be false—was not protected under the Act, 383 U. S., at 61, and there was thus no risk that permitting the state cause of action to proceed would result in state regulation of conduct that Congress intended to protect. Second, the Court recognized that there was 'an overriding state interest’ ” in protecting residents from malicious libels, and that this state interest was “ 'deeply rooted in local feeling and responsibility.’” Id., at 61, 62. Third, the Court reasoned that there was little risk that the state cause of action would interfere with the effective administration of national labor policy. The Board’s § 8 unfair labor practice proceeding would focus only on whether the statements were misleading or coercive; whether the statements also were defamatory would be of no relevance to the Board’s performance of its functions. Id., at 63. Moreover, the Board would lack authority to provide the defamed individual with damages or other relief. Ibid. Conversely, the state-law action would be unconcerned with whether the statements were coercive or misleading in the labor context, and in any event the court would have power to award Linn relief only if the statements were defamatory. Taken together, these factors justified an exception to the pre-emption rule.

The Court was careful, however, to limit the scope of that exception. To minimize the possibility that state libel suits would either dampen the free discussion characteristic of labor disputes or become a weapon of economic coercion, the Court adopted by analogy the standards enunciated in New York Times Co. v. Sullivan, 376 U. S. 254 (1964), and held that state damages actions in this context would escape pre-emption only if limited to defamatory statements published with knowledge or reckless disregard of their falsity. The Court also held that a complainant could recover damages only upon proof that the statements had caused him injury, including general injury to reputation, consequent mental suffering, alienation of associates, specific items of pecuniary loss, or any other form of harm recognized by state tort law. The Court stressed the responsibility of the trial judge to assure that damages were not excessive.

Similar reasoning underlies the exception to the pre-emption rule in cases involving violent tortious activity. Nothing in the federal labor statutes protects or immunizes from state action violence or the threat of violence in a labor dispute, Automobile Workers v. Russell, 356 U. S., at 640; id., at 649 (Warren, C. J., dissenting); Construction Workers v. Laburnum Constr. Corp., 347 U. S. 656, 666 (1954), and thus there is no risk that state damages actions will fetter the exercise of rights protected by the NLRA. On the other hand, our cases consistently have recognized the historic state interest in “such traditionally local matters as public safety and order and the use of streets and highways.” Allen-Bradley Local v. Wisconsin Emp. Rel. Bd., 315 U. S. 740, 749 (1942). And, as with the defamation actions preserved by Linn, state-court actions to redress injuries caused by violence or threats of violence are consistent with effective administration of the federal scheme: Such actions can be adjudicated without regard to the merits of the underlying labor controversy. Automobile Workers v. Russell, supra, at 649 (Warren, C. J., dissenting).

Although cases like Linn and Russell involve state-law principles with only incidental application to conduct occurring in the course of a labor dispute, it is well settled that the general applicability of a state cause of action is not sufficient to exempt it from pre-emption. “[I]t [has not] mattered whether the States have acted through laws of broad general application rather than laws specifically directed towards the governance of industrial relations.” Garmon, 359 U. S., at 244. Instead, the cases reflect a balanced inquiry into such factors as the nature of the federal and state interests in regulation and the potential for interference with federal regulation. As was said in Vaca v. Sipes, 386 U. S., at 180, our cases “demonstrate that the decision to pre-empt federal and state court jurisdiction over a given class of cases must depend upon the nature of the particular interests being asserted and the effect upon the administration of national labor policies of concurrent judicial and administrative remedies.”

III

In count two of his amended complaint, see supra, at 293, Hill alleged that the defendants had intentionally engaged in “outrageous conduct, threats, intimidation, and words” which caused Hill to suffer “grievous mental and emotional distress as well as great physical damage.” In the context of Hill’s other allegations of discrimination in hiring hall referrals, these allegations of tortious conduct might form the basis for unfair labor practice charges before the Board. On this basis a rigid application of the Garmon doctrine might support the conclusion of the California courts that Hill's entire action was pre-empted by federal law. Our cases indicate, however, that inflexible application of the doctrine is to be avoided, especially where the State has a substantial interest in regulation of the conduct at issue and the State’s interest is one that does not threaten undue interference with the federal regulatory scheme., With respect to Hill’s claims of intentional infliction of emotional distress, we cannot conclude that Congress intended exclusive jurisdiction to lie in the Board.

No provision of the National Labor Relations Act protects the “outrageous conduct” complained of by petitioner Hill in the second count of the complaint. Regardless of whether the operation of the hiring hall was lawful or unlawful under federal statutes, there is no federal protection for conduct on the part of union officers which is so outrageous that “no reasonable man in a civilized society should be expected to endure it.” See supra, at 294. Thus, as in Linn v. Plant Guard Workers, 383 U. S. 53 (1966), and Automobile Workers v. Russell, supra, permitting the exercise of state jurisdiction over such complaints does not result in state regulation of federally protected conduct.

The State, on the other hand, has a substantial interest in protecting its citizens from the kind of abuse of which Hill complained. That interest is no less worthy of recognition because it concerns protection from emotional distress caused by outrageous conduct, rather than protection from physical injury, as in Russell, or damage to reputation, as in Linn. Although recognition of the tort of intentional infliction of emotional distress is a comparatively recent development in state law, see W. Prosser, Law of Torts, § 12, pp. 49-50, 56 (4th ed. 1971), our decisions permitting the exercise of state jurisdiction, in tort actions based on violence or defamation have not rested on the history of the tort at issue, but rather on the nature of the State’s interest in protecting the health and well-being of its citizens.

There is, to be sure, some risk that the state cause of action for infliction of emotional distress will touch on an area of primary federal concern. Hill’s complaint itself highlights this risk. In those counts of the complaint that the trial court dismissed, Hill alleged discrimination against him in hiring hall referrals, which were also alleged to be violations of both the collective-bargaining agreement and the membership contract. These allegations, if sufficiently supported before the National Labor Relations Board, would make out an unfair labor practice and the Superior Court considered them pre-empted by the federal Act. Even in count two of the complaint Hill made allegations of discrimination in “job-dispatching procedures” and “work assignments” which, standing alone, might well be pre-empted as the exclusive concern of the Board. The occurrence of the abusive conduct, with which the state tort action is concerned, in such a context of federally prohibited discrimination suggests a potential for interference with the federal scheme of regulation.

Viewed, however, in light of the discrete concerns of the federal scheme and the state tort law, that potential for interference is insufficient to counterbalance the legitimate and substantial interest of the State in protecting its citizens. If the charges in Hill’s complaint were filed with the Board, the focus of any unfair labor practice proceeding would be on whether the statements or conduct on the part of Union officials discriminated or threatened discrimination against him in employment referrals for reasons other than failure to pay Union dues. See n. 11, supra. Whether the statements or conduct of the respondents also caused Hill severe emotional distress and physical injury would play no role in the Board’s disposition of the case, and the Board could not award Hill damages for pain, suffering, or medical expenses. Conversely, the state-court tort action can be adjudicated without resolution of the “merits” of the underlying labor dispute. Recovery for the tort of emotional distress under California law requires proof that the defendant intentionally engaged in outrageous conduct causing the plaintiff to sustain mental distress. State Rubbish Collectors Assn. v. Siliznoff, 38 Cal. 2d 330, 240 P. 2d 282 (1952); Alcorn v. Anbro Engineering, Inc., 2 Cal. 3d 493, 468 P. 2d 216 (1970). The state court need not consider, much less resolve, whether a union discriminated or threatened to discriminate against an employee in terms of employment opportunities. To the contrary, the tort action can be resolved without reference to any accommodation of the special interests of unions and members in the hiring hall context.

On balance, we cannot conclude that Congress intended to oust state-court jurisdiction over actions for tortious activity such as that alleged in this case. At the same time, we reiterate that concurrent state-court jurisdiction cannot be permitted where there is a realistic threat of interference with the federal regulatory scheme. Union discrimination in employment opportunities cannot itself form the underlying “outrageous” conduct on which the state-court tort action is based; to hold otherwise would undermine the pre-emption principle. Nor can threats of such discrimination suffice to sustain state-court jurisdiction. It may well be that the threat, or actuality, of employment discrimination will cause a union member considerable emotional distress and anxiety. But something more is required before concurrent state-court jurisdiction can be permitted. Simply stated, it is essential that the state tort be either unrelated to employment discrimination or a function of the particularly abusive manner in which the discrimination is accomplished or threatened rather than a function of the actual or threatened discrimination itself.

Two further limitations deserve emphasis. Our decision rests in part on our understanding that California law permits recovery only for emotional distress sustained as a result of “outrageous” conduct. The potential for undue interference with federal regulation would be intolerable if state tort recoveries could be based on the type of robust language and clash of strong personalities that may be commonplace in various labor contexts. We also repeat that state trial courts have the responsibility in cases of this kind to assure that the damages awarded are not excessive. See Linn v. Plant Guard Workers, 383 U. S., at 65-66.

IV

Although the second count of petitioner’s complaint alleged the intentional infliction of emotional distress, it is clear from the record that the trial of that claim was not in accord with the standards discussed above. The evidence supporting the verdict in Hill’s favor focuses less on the alleged campaign of harassment, public ridicule, and verbal abuse, than on the discriminatory refusal to dispatch him to any but the briefest and least desirable jobs; and no appropriate instruction distinguishing the two categories of evidence was given to the jury. See n. 13, supra. The consequent risk that the jury verdict represented damages for employment discrimination rather than for instances of intentional infliction of emotional distress precludes reinstatement of the judgment of the Superior Court.

The judgment of the Court of Appeal is vacated, and the case is remanded to that court for further proceedings not inconsistent with this opinion.

It is so ordered.

       Hill died after the petition for a writ of certiorari was granted. On June 1, 1976, Joy A. Farmer, special administrator of Hill’s estate, was substituted as petitioner. We will refer to Hill as the petitioner.

       According to Hill, the Union accomplished this discrimination by removing his name from the top of the out-of-work list and placing it at the bottom, by referring him to jobs of short duration when more desirable work was available, and by referring him to jobs for which he was not qualified.

       Hill did not appeal the Superior Court’s ruling sustaining the demurrer with respect to the claims of discrimination and breach of contract, and we thus have no occasion to consider the applicability of the pre-emption doctrine to those counts.

       Hill voluntarily dismissed the complaint against the International and one Union official, the trial court dismissed the complaint with respect to another Union official, and the jury entered a verdict in favor of two other Union officials.

       “[I]n referring to decisions bolding state laws pre-empted by the NLRA, care must be taken to distinguish pre-emption based on federal protection of the conduct in question . . . from that based predominantly on the primary jurisdiction of the National Labor Relations Board . . . , although the two are often not easily separable.” Railroad Trainmen v. Jacksonville Terminal Co., 394 U. S. 369, 383 n. 19 (1969). The branch of the pre-emption doctrine most applicable to the instant case concerns the primary jurisdiction of the National Labor Relations Board.

       The history of the Garmon doctrine was recently summarized in Motor Coach Employees v. Lockridge, 403 U. S., at 290-291, and in Machinists v. Wisconsin Emp. Rel. Comm’n, 427 U. S., at 138-139.

       “[W]e [cannot] proceed on a case-by-case basis to determine whether each particular final judicial pronouncement does, or might reasonably be thought to, conflict in some relevant manner with federal labor policy. This Court is ill-equipped to play such a role and the federal system dictates that this problem be solved with a rule capable of relatively easy application, so that lower courts may largely police themselves in this regard.” Motor Coach Employees v. Lockridge, supra, at 289-290.

       In addition to the judicially developed exceptions referred to in the text, Congress itself has created exceptions to the Board's exclusive jurisdiction in other classes of cases. Section 303 of the Labor Management Relations Act, 1947, 61 Stat. 158, as amended, 29 U. S. C. § 187, authorizes anyone injured in his business or property by activity violative of § 8 (b)(4) of the NLRA, 61 Stat. 140, as amended, 29 U. S. C. § 158 (b)(4), to recover damages in federal district court even though the underlying unfair labor practices are remediable by the Board. See Teamsters v. Morton, 377 U. S. 252 (1964). Section 301 of the LMRA, 29 U. S. C. § 185, authorizes suits for breach of a collective-bargaining agreement even if the breach is an unfair labor practice within the Board's jurisdiction. See Smith v. Evening News Assn., 371 U. S. 195 (1962), Section 14 (c)(2) of the NLRA, as added by Title VII, § 701 (a) of the Labor-Management Reporting and Disclosure Act of 1959, 73 Stat. 541, 29 U. S. C. § 164 (c)(2), permits state agencies and state courts to assert jurisdiction over “labor disputes over which the Board declines, pursuant to paragraph (1) of this subsection, to assert jurisdiction."

       In Plumbers v. Borden, 373 U. S. 690 (1963), for example, an employee sued Ms union, which operated a hiring hall, claiming that the union had arbitrarily refused to refer him for employment on one particular occasion. He alleged that the union’s conduct constituted both tortious interference with his right to contract for employment and breach of a promise, implicit in his membership arrangement with the union, not to discriminate unfairly against any member or deny him the right to work. Under these circumstances, concurrent state-court jurisdiction would have impaired significantly the functioning of the federal system. If unfair labor practice charges had been filed, the Board might have concluded that the refusal to refer Borden was due to a lawful hiring hall practice, see Teamsters v. NLRB, 365 U. S. 667 (1961). Board approval of various hiring hall practices would be meaningless if state courts could declare those procedures violative of the contractual rights implicit between a member and his union. Accordingly, the state cause of action was pre-empted under Garmon. Similar reasoning prompted the Court to apply the Garmon rule in the companion case of Iron Workers v. Perko, 373 U. S. 701 (1963).

        Machinists v. Gonzales, 356 U. S. 617 (1958), established another exception to the general rule of pre-emption for state-law actions alleging expulsion from union membership in violation of the applicable union constitution and bylaws and seeking restoration to membership and damages due to the illegal expulsion. Gonzales was decided prior to this Court's adoption in Garmon of the current pre-emption test, and our decision in Lockridge makes it clear that “the full-blown rationale of Gonzales could not survive the rule of Garmon.” Lockridge, 403 U. S., at 295. At the same time, we stated that “Garmon did not cast doubt upon the result reached in Gonzales,” id., at 295, since Garmon cited Gonzales as an example of the nonapplicability of the normal pre-emption rule “where the activity regulated was a merely peripheral concern of the . . . Act.” 359 U. S., at 243.
      Although the Lockridge decision has been the subject of extensive criticism, see, e. g., Bryson, A Matter of Wooden Logic: Labor Law Pre-emption and Individual Rights, 51 Texas L. Rev. 1037, 1050-1058 (1973) ; Cox, Labor Law Preemption Revisited, 85 Harv. L. Rev. 1337, 1368-1377 (1972), the instant ease presents no occasion for us to reconsider the relationship between Lockridge and Gonzales. Whatever the scope of Gonzales after Garmon and Lockridge, the analysis used by the Court in those cases is consistent with the framework discussed in the text above. Lockridge held that the state-court action at issue involved a “real and immediate” potential for conflict with the federal scheme, 403 U. S., at 296, whereas the possibility that the state court in Gonzales “would directly and consciously implicate principles of federal law” was considered “at best tangential and remote.” Ibid.

       Discrimination in hiring hall referrals constitutes an unfair labor practice under §§ 8 (b) (1) (A) and 8 (b) (2) of the NLRA. See, e. g., Radio Officers v. NLRB, 347 U. S. 17 (1954); Operating Engineers Local 18, 205 N. L. R. B. 901 (1973), enf’d, 500 F. 2d 48 (CA6 1974).
      Prior to the filing of this suit, Hill filed an unfair labor practice charge with the Board with respect to one specific instance of alleged discrimination. He alleged that the Union violated §§ 8 (b) (1) (A) and 8 (b) (2) by refusing to honor an employer’s request that he be referred for employment on a particular construction job. The Board awarded Hill $2,517 in backpay.

       Whether a hiring hall practice is discriminatory and therefore violative of federal law is a determination Congress has entrusted to the Board. See Teamsters v. NLRB, 365 U. S. 667 (1961). Whether there is federal pre-emption with respect to allegations of breach of a contractual obligation depends upon the nature of the obligation and the alleged breach. See Motor Coach Employees v. Lockridge, 403 U. S., at 292-297, 298-301. Casting a complaint in terms of breach of a membership agreement does not necessarily insulate a state-court action from application of the pre-emption doctrine. See n. 9, supra. Allegations of breach of the contract between the union and the employer stand on different ground, since, as noted earlier, § 301 of the Labor Management Relations Act, 29 U. S. C. § 185, authorizes suits for breach of a collective-bargaining

        agreement even if the breach is an unfair labor practice within the Board’s jurisdiction. See n. 8, supra.

       In view of the potential for interference with the federal scheme of regulation, the trial court should be sensitive to the need to minimize the jury’s exposure to evidence of employment discrimination in cases of this sort. Where evidence of discrimination is necessary to establish the context in which the state claim arose, the trial court should instruct the jury that the fact of employment discrimination (as distinguished from attendant tortious conduct under state law) should not enter into the determination of liability or damages.

       Almost the entire section of petitioner’s brief summarizing the trial transcript, see Brief for Petitioner 4-10, is directed at instances of Union discrimination against Hill with respect to employment opportunities. Moreover, counsel for petitioner, who was also petitioner’s trial counsel, indicated at oral argument that the focus of the trial was on employment discrimination rather than the intentional infliction of emotional distress: “We had to show simply two easy issues to the jury: one, what the [hiring hall] rules were; and two, were they fairly applied.” Tr. of Oral Arg. 69. It is plain that those two elements are more relevant to the issue of discriminatory referrals than to the issue of infliction of emotional distress.
      Respondents concede that “[t]he allegations made in the plaintiff’s second cause of action . . . sound in the state tort law of intentional infliction of emotional distress,” but contend that the dominant focus of the evidence adduced at trial was on discriminatory hiring hall referrals. Brief for Respondents 28.

       We, of course, express no view on the question whether those aspects of the case that are not pre-empted are sufficient under state law to amount to conduct “that no reasonable man in a civilized society should be expected to endure.”


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    OKLAHOMA PUBLISHING CO. v. DISTRICT COURT IN AND FOR OKLAHOMA COUNTY, OKLAHOMA, ET AL.
    No. 76-867.
    Decided March 7, 1977
   Per Curiam.

A pretrial order entered by the District Court of Oklahoma County enjoined members of the news media from “publishing, broadcasting, or disseminating, in any manner, the name or picture of [a] minor child” in connection with a juvenile proceeding involving that child then pending in that court. On application for prohibition and mandamus challenging the. order as a prior restraint on the press violative of the First and Fourteenth Amendments, the Supreme Court of the State of Oklahoma sustained the order. This Court entered a stay pending the timely filing and disposition of a petition for certiorari. 429 U. S. 967 (1976). We now grant the petition for certiorari and reverse the decision below.

A railroad switchman was fatally shot on July 26, 1976. On July 29, 1976, an 11-year-old boy, Larry Donnell Brewer, appeared at a detention hearing in Oklahoma County Juvenile Court on charges filed by state juvenile authorities alleging delinquency by second-degree murder in the shooting of this switchman. Reporters, including one from petitioner’s newspapers, were present in the courtroom during the hearing and learned the juvenile’s name. As the boy was escorted from the courthouse to a vehicle, one of petitioner’s photographers took his picture. Thereafter, a number of stories using the boy’s name and photograph were printed in newspapers within the county, including petitioner’s three newspapers in Oklahoma City; radio stations broadcast his name and television stations showed film footage of him and identified him by name.

On August 3, 1976, the juvenile was arraigned at a closed hearing, at which the judge entered the pretrial order involved in this case. Additional news reports identifying the juvenile appeared on August 4 and 5. On August 16, the District Court denied petitioner’s motion to quash the order. The Oklahoma Supreme Court then denied petitioner’s writ of prohibition and mandamus, relying on Oklahoma statutes providing that juvenile proceedings are to be held in private "unless specifically ordered by the judge to be conducted in public,” and that juvenile records are open to public inspection “only by order of the court to persons having a legitimate interest therein.” Okla. Stat. Ann., Tit. 10, §§ 1111, 1125 (Supp. 1976).

As we noted in entering our stay of the pretrial order, petitioner does not challenge the constitutionality of the Oklahoma statutes relied on by the court below. Petitioner asks us only to hold that the First and Fourteenth Amendments will not permit a state court to prohibit the publication of widely disseminated information obtained at court proceedings which were in fact open to the public. We think this result is compelled by our recent decisions in Nebraska Press Assn. v. Stuart, 427 U. S. 539 (1976), and Cox Broadcasting Corp. v. Cohn, 420 U. S. 469 (1975).

In Cox Broadcasting the Court held that a State could not impose sanctions on the accurate publication of the name of a rape victim “which was publicly revealed in connection with the prosecution of the crime.” Id., at 471. There, a reporter learned the identity of the victim from an examination of indictments made available by a clerk for his inspection in the courtroom during a recess of court proceedings against the alleged rapists. The Court expressly refrained from intimating a view on any constitutional questions arising from a state policy of denying the public or the press access to official records of juvenile proceedings, id., at 496 n. 26, but made clear that the press may not be prohibited from “truthfully publishing information released to the public in official court records.” Id., at 496.

This principle was reaffirmed last Term in Nebraska Press Assn. v. Stuart, supra, which held unconstitutional an order prohibiting the press from publishing certain information tending to show the guilt of a defendant in an impending criminal trial. In Part VI-D of its opinion, the Court focused on the information covered by the order that had been adduced as evidence in a preliminary hearing open to the public and the press; we concluded that, to the extent the order prohibited the publication of such evidence, “it plainly violated settled principles,” 427 U. S., at 568, citing Cox Broad casting Corp. v. Cohn, supra; Sheppard v. Maxwell, 384 U. S. 333, 362-363 (1966) (“[T]here is nothing that proscribes the press from reporting events that transpire in the courtroom”) ; and Craig v. Harney, 331 U. S. 367, 374 (1947) (“Those who see and hear what transpired [in the courtroom] can report it with impunity”). The Court noted that under state law the trial court was permitted in certain circumstances to close pretrial proceedings to the public, but indicated that such an option did not allow the trial judge to suppress publication of information from the hearing if the public was allowed to attend: “[O]nce a public hearing had been held, what transpired there could not be subject to prior restraint.” 427 U. S., at 568.

The court below found the rationale of these decisions to be inapplicable here because a state statute provided for closed juvenile hearings unless specifically opened to the public by court order and because “there is no indication that the judge distinctly and expressly ordered the hearing to be public.” We think Cox and Nebraska Press are controlling nonetheless. Whether or not the trial judge expressly made such an order, members of the press were in fact present at the hearing with the full knowledge of the presiding judge, the prosecutor, and the defense counsel. No objection was made to the presence of the press in the courtroom or to the photographing of the juvenile as he left the courthouse. There is no evidence that petitioner acquired the information unlawfully or even without the State's implicit approval. The name and picture of the juvenile here were “publicly revealed in connection with the prosecution of the crime,” 420 U. S., at 471, much as the name of the rape victim in Cox Broadcasting was placed in the public domain. Under these circumstances, the District Court’s order abridges the freedom of the press in violation of the First and Fourteenth Amendments.

The petition for certiorari is granted, and the judgment is

Reversed.

       In addition to enjoining publication of the name and picture of the juvenile, the order also enjoined law enforcement officials, juvenile authorities, and prosecution and defense counsel “from disclosing any information or making any comments concerning” the delinquency proceeding pending against the juvenile. Petitioner does not now challenge the restraints on counsel (which were rescinded in a modification of the order on August 5) or on public officials.

       In Cox Broadcasting the Court quoted the following description by the reporter of the manner in which the name of the rape victim was revealed to him:
      “ ‘[D]uring a recess of the said trial, I approached the clerk of the court, who was sitting directly in front of the bench, and requested to see a copy of the indictments. In open court, I was handed the indictments, both the murder and the rape indictments, and was allowed to examine fully this document. . . . Moreover, no attempt was made by the clerk or anyone else to withhold the name and identity of the victim from me or from anyone else and the said indictments apparently were available for public inspection upon request.’ ” 420 U. S., at 473 n. 3.


author: Per Curiam. Mr. Chief Justice Burger,

text:
    CALIFANO, SECRETARY OF HEALTH, EDUCATION, AND WELFARE v. WEBSTER
    No. 76-457.
    Decided March 21, 1977
   Per Curiam.

Under § 215 of the Social Security Act, as added, 64 Stat. 506, and amended, 42 U. S. C. § 415 (1970 ed. and Supp. V), old-age insurance benefits are computed on the basis of the wage earner’s “average monthly wage” earned during his “benefit computation years” which are the “elapsed years” (reduced by five) during which the wage earner’s covered wages were highest. Until a 1972 amendment, “elapsed years” depended upon the sex of the wage earner. Section 215 (b) (3) prescribed that the number of “elapsed years” for a male wage earner would be three higher than for an otherwise similarly situated female wage earner; for a male, the number of “elapsed years” equaled the number of years that elapsed after 1950 and before the year in which he attained age 65; for a female the number of “elapsed years” equaled the number of years that elapsed after 1950 and before the year in which she attained age 62. Thus, a male born in 1900 would have 14 “elapsed years” on retirement at age 65 but a female born in the same year would have only 11. Accordingly, a female wage earner could exclude from the computation of her “average monthly wage” three more lower earning years than a similarly situated male wage earner could exclude. This would result in a slightly higher “average monthly wage” and a correspondingly higher level of monthly old-age benefits for the retired female wage earner. A single-judge District Court for the Eastern District of New York, on review under § 205 (g) of the Social Security Act, 42 U. S. C. § 405 (g), of a denial, after hearing, of appellee’s request that the more favorable formula be used to compute his benefits, held that, on two grounds, the statutory scheme violated the equal protection component of the Due Process Clause of the Fifth Amendment: (1) that to give women who reached age 62 before 1975 greater benefits than men of the same age and earnings record was irrational, and (2) that in any event the 1972 amendment was to be construed to apply retroactively, because construing the amendment to give men who reach age 62 in 1975 or later the benefit of the 1972 amendments but to deny older men the same benefit would render the amendment irrational, and therefore unconstitutional. 413 F. Supp. 127 (1976). We reverse.

To withstand scrutiny under the equal protection component of the Fifth Amendment’s Due Process Clause, “classifications by gender must serve important governmental objectives and must be substantially related to achievement of those objectives.” Craig v. Boren, 429 U. S. 190, 197 (1976). Reduction of the disparity in economic condition between men and women caused by the long history of discrimination against women has been recognized as such an important governmental objective. Schlesinger v. Ballard, 419 U. S. 498 (1975); Kahn v. Shevin, 416 U. S. 351 (1974). But “the mere recitation of a benign, compensatory purpose is not an automatic shield which protects against any inquiry into the actual purposes underlying a statutory scheme.” Weinberger v. Wiesenfeld, 420 U. S. 636, 648 (1975). Accordingly, we have rejected attempts to justify gender classifications as compensation for past discrimination against women when the classifications in fact penalized women wage earners, Califano v. Goldfarb, ante, at 209 n. 8; Weinberger v. Wiesenfeld, supra, at 645, or when the statutory structure and its legislative history revealed that the classification was not enacted as compensation for past discrimination. Califano v. Goldfarb, ante, at 212-216 (plurality opinion), 221-222 (Stevens, J., concurring in judgment); Weinberger v. Wiesenfeld, supra, at 648.

The statutory scheme involved here is more analogous to those upheld in Kahn and Ballard than to those struck down in Wiesenfeld and Goldfarb. The more favorable treatment of the female wage earner enacted here was not a result of “archaic and overbroad generalizations” about women, Schlesinger v. Ballard, supra, at 508, or of “the role-typing society has long imposed” upon women, Stanton v. Stanton, 421 U. S. 7, 15 (1975), such as casual assumptions that women are “the weaker sex” or are more likely to be child-rearers or dependents. Cf. Califano v. Goldfarb, supra; Weinberger v. Wiesenfeld, supra. Rather, “the only discernible purpose of [§ 215’s more favorable treatment is] the permissible one of redressing our society’s longstanding disparate treatment of women.” Califano v. Goldfarb, ante, at 209 n. 8.

The challenged statute operated directly to compensate women for past economic discrimination. Retirement benefits under the Act are based on past earnings. But as we have recognized: “Whether from overt discrimination or from the socialization process of a male-dominated culture, the job market is inhospitable to the woman seeking any but the lowest paid jobs.” Kahn v. Shevin, 416 U. S., at 353. See generally id., at 353-354, and nn. 4-6. Thus, allowing women, who as such have been unfairly hindered from earning as much as men, to eliminate additional low-earning years from the calculation of their retirement benefits works directly to remedy some part of the effect of past discrimination. Cf. Schlesinger v. Ballard, supra, at 508.

The legislative history of § 215 (b) (3) also reveals that Congress directly addressed the justification for differing treatment of men and women in the former version of that section and purposely enacted the more favorable treatment for female wage earners to compensate for past employment discrimination against women. Before 1956, the sexes were treated equally by § 215 (b) (3); the computation it required turned on the attainment of “retirement age,” which was then defined in 42 U. S. C. § 416 (a) (1952 ed.) as 65 for both sexes. In 1956, however, retirement age was redefined as 62 for women and 65 for men, Social Security Amendments of 1956, § 102 (a), 70 Stat. 809, thereby changing the calculation under § 215 (b) (3). A House Report emphasizes that this reduction in the retirement age for women was purposely made to remedy discrimination against women in the job market:

“Your committee believes that the age of eligibility should be reduced to 62 for women workers. . . . A recent study by the United States Employment Service in the Department of Labor showed that age limits are applied more frequently to job openings for women than for men and that the age limits applied are lower.” H. R. Rep. No. 1189, 84th Cong., 1st Sess., 7 (1955).

The effect of this change on § 215 (b) (3) was also discussed in connection with the amendment of that section in 1961. Social Security Amendments of 1961, § 102 (d) (2), 75 Stat. 135. During the hearings on that amendment Representative Watts asked why a woman would draw more benefits than a similarly situated man. After it was noted that this did not change the law as it had existed since 1956, Representative Boggs confirmed that the difference in treatment was not inadvertent:

“If I may interrupt, I think we went into this at great length some years ago when we adopted the 62-year provision for women and the theory was that a woman at that age was less apt to have employment opportunities than a man and despite the fact of some statistics to the effect that women live longer than men, I think the other fact is equally commanding, so there is some justification for a distinction between men and women.” Executive Hearings on Social Security Amendments of 1961, before the House Committee on Ways and Means, 87th Cong., 1st Sess., 146-147 (1961).

Thus, the legislative history is clear that the differing treatment of men and women in former § 215 (b) (3) was not “the accidental byproduct of a traditional way of thinking about females,” Califano v. Goldfarb, ante, at 223 (Stevens, J., concurring in judgment), but rather was deliberately enacted to compensate for particular economic disabilities suffered by women.

That Congress changed its mind in 1972 and equalized the treatment of men and women does not, as the District Court concluded, constitute an admission by Congress that its previous policy was invidiously discriminatory. 413 F. Supp., at 129. Congress has in recent years legislated directly upon the subject of unequal treatment of women in the job market. Congress may well have decided that “[t]hese congressional reforms . . . have lessened the economic justification for the more favorable benefit computation formula in § 215 (b) (3).” Kohr v. Weinberger, 378 F. Supp. 1299, 1305 (ED Pa. 1974), vacated on other grounds, 422 U. S. 1050 (1975). Moreover, elimination of the more favorable benefit computation for women wage earners, even in the remedial context, is wholly consistent with those reforms, which require equal treatment of men and women in preference to the attitudes of “romantic paternalism” that have contributed to the “long and unfortunate history of sex discrimination.” Frontiero v. Richardson, 411 U. S. 677, 684 (1973).

Finally, there is no merit in appellee’s argument that the failure to make the 1972 amendment retroactive constitutes discrimination on the basis of date of birth. Old-age benefit payments are not constitutionally immunized against alterations of this kind. Flemming v. Nestor, 363 U. S. 603 (1960). Congress expressly reserved “[t]he right to alter, amend, or repeal any provision” of the Act, 42 U. S. C. § 1304, and the Fifth Amendment “does not forbid . . . statutory changes to have a beginning and thus to discriminate between the rights of an earlier and later time.” Sperry & Hutchinson Co. v. Rhodes, 220 U. S. 502, 505 (1911). It follows that Congress may replace one constitutional computation formula with another and make the new formula prospective only.

Reversed.

Mr. Chief Justice Burger,

with whom Mr. Justice Stewart, Mr. Justice Blackmun, and Mr. Justice Rehnquist

join, concurring in the judgment.

While I am happy to concur in the Court’s judgment, I find it somewhat difficult to distinguish the Social Security provision upheld here from that struck down so recently in Califano v. Goldfarb, ante, p. 199. Although the distinction drawn by the Court between this case and Goldfarb is not totally lacking in substance, I question whether certainty in the law is promoted by hinging the validity of important statutory schemes on whether five Justices view them to be more akin to the “offensive” provisions struck down in Weinberger v. Wiesenfeld, 420 U. S. 636 (1975), and Frontiero v. Richardson, 411 U. S. 677 (1973), or more like the “benign” provisions upheld in Schlesinger v. Ballard, 419 U. S. 498 (1975), and Kahn v. Shevin, 416 U. S. 351 (1974). I therefore concur in the judgment of the Court for reasons stated by Mr. Justice Rehnquist in his dissenting opinion in Goldfarb, in which Mr. Justice Stewart, Mr. Justice Blackmun, and I joined.

       Under § 202 (a) of the Act, 42 U. S. C. § 402 (a) (1970 ed. and Supp. V), a fully insured individual who- has reached retirement age is entitled upon application to a monthly old-age insurance benefit equal to his “primary insurance amount.”
      Section 215 (a) of the Act, 42 U. S. C. § 415 (a) (1970 ed. and Supp. V), sets out a table for determining the primary insurance amount. This amount is based on an individual’s “average monthly wage” as defined in § 215 (b) of the Act, 42 U. S. C. § 415 (b) (1970 ed. and Supp. V).
      Before it was amended in 1972, § 215 (b) of the Act, 42 U. S. C. § 415 (b), provided in part:
      “(1) . . . [A]n individual’s‘average monthly wage’shall be the quotient obtained by dividing—
      “(A) the total of his wages paid in and self-employment income credited to his ‘benefit computation years’ (determined under paragraph (2)), by
      “ (B) the number of months in such years.
      “ (2) (A) The number of an individual’s ‘benefit computation years’ shall be equal to the number of elapsed years (determined under paragraph (3) of this subsection), reduced by five; except that the number of an individual’s benefit computation years shall in no case be less than two.
      “ (B) An individual’s ‘benefit computation years’ shall be those computation base years, equal in number to the number determined under subpara-graph (A), for which the total of his wages and self-employment income is the largest.
      “(C) For purposes of subparagraph (B), ‘computation base years’ include only calendar years in the period after 1950 and prior to the earlier of the following years—
      “(i) the year in which occurred . . . the first month for which the individual was entitled to old-age insurance benefits, or
      “ (ii) the year succeeding the year in which he died.

      “(3) For purposes of paragraph (2), the number of an individual’s elapsed years is the number of calendar years after 1950 . . . and before—
      “(A) in the case of a woman, the year in which she died or, if it occurred earlier but after 1960, the year in which she attained age 62.

      “(C) in the case of a man who has not died, the year occurring after 1960 in which he attained (or would attain) age 65.”

       Gongress eliminated the distinction in 1972. As amended by § 104 (b), 86 Stat. 1340, 42 U. S. C. § 415 (b) (3) (1970 ed., Supp. V), now provides:
      “[T]he number of an individual’s elapsed years is the number of calendar years after 1950 . . . and before the year in which he died, or if it occurred earlier but after 1960, the year in which he attained age 62.”
      The amendment, however, does not apply to men who reached age 62 before its effective date in 1972, and so the former statute continues to govern the determination of this and some other claims of male wage earners.

       For example, in this case, the District Court found that appellee was awarded a monthly benefit of $185.70, but that a similarly situated female wage earner would have been awarded $204 per month. 413 F. Supp. 127, 128.

       Four other federal courts have reached a contrary conclusion. Gruenwald v. Gardner, 390 F. 2d 591 (CA2), cert. denied sub nom. Gruenwald v. Cohen, 393 U. S. 982 (1968); Kohr v. Weinberger, 378 F. Supp. 1299 (ED Pa. 1974), vacated on other grounds, 422 U. S. 1050 (1975); Polelle v. Secretary of HEW, 386 F. Supp. 443 (ND Ill. 1974); McEvoy v. Weinberger, CCH Unempl. Ins. Rep. ¶ 17,414 (SD Fla., Aug. 28, 1973).

       Even with the advantage provided by former § 215 (b) (3), women on the average received lower retirement benefits than men. “As of December 1972, the average monthly retirement insurance benefit for males was $179.60 and for females, $140.50.” Polelle v. Secretary of HEW, supra, at 444 (emphasis omitted).

       At that time, the calculation of the “average monthly wage” under § 215 (b) was somewhat different from the scheme set out in n. 1, supra, which was not adopted until Social Security Amendments of 1960, § 303 (a), 74 Stat. 960. The role of § 215 (b) (3) in the computation was similar under the old scheme, however, and the differences between the old and new methods of computation are essentially irrelevant to the effect of the 1956 change in the definition of retirement age on § 215 (b) (3).

       Congress deliberately adopted the change notwithstanding the argument urged upon it that reducing the retirement age would not benefit women. S. Rep. No. 2133, 84th Cong., 2d Sess., 14-15 (1956).

       In 1961, in connection with the extension of reduced retirement benefits to men at age 62, the definition of retirement age in 42 U. S. C. § 416 (a) was repealed, and the differing ages for the computation of “elapsed years” under § 215 (b) (3) were written explicitly into that section for the first time. §§ 102 (c) (1), 102 (d) (2), 75 Stat. 134, 135. It was at that time that § 215 (b) (3) took on the form it was to retain until 1972. See nn. 1-2, supra.

       See, e. g., Equal Pay Act of 1963, 29 U. S. C. § 206 (d); Civil Rights Act of 1964, § 703 (a), 42 U. S. C. § 2000e-2 (a).


text:
    MORALES v. TURMAN et al.
    No. 76-5881.
    Decided March 21, 1977
   Per Curiam.

The motion of American Orthopsychiatric Association et al. for leave to file a brief as amici curiae is granted.

This case from the United States Court of Appeals for the Fifth Circuit involves the proper scope of three-judge-court jurisdiction under 28 U. S. C. § 2281. Petitioners brought suit challenging allegedly unconstitutional punitive and inhumane conditions in Texas institutions housing juvenile delinquents, and the failure to provide juveniles with the rehabilitation or treatment that justified their confinement. A single District Judge determined that the juveniles’ constitutional rights had been violated, and ordered the parties to submit a curative plan. The Court of Appeals vacated the District Court’s decision on the ground that a three-judge court should have been convened in accordance with § 2281. 535 F. 2d 864 (1976).

The appellate court reasoned that the challenged, unwritten practices of the juvenile institutions administered by the Texas Youth Council were revealed during trial to be statewide in impact and that therefore they were equivalent to a statute with statewide applicability within the meaning of § 2281. Under the Court of Appeals’ analysis, the necessity of convening a three-judge court was thus not properly apparent until considerable factual development of the breadth and content of the Texas Youth Council’s administrative practices had taken place.

In construing § 2281, this Court has concluded that the three-judge court procedure is brought into play in any “suit which seeks to interpose the Constitution against enforcement of a state policy, whether such policy is defined in a state constitution or in an ordinary statute or through the delegated legislation of an ‘administrative board or commission.’ ” Phillips v. United States, 312 U. S. 246, 251 (1941). We have never, however, considered the generalized, unwritten practices of administration to be equivalent to the “delegated legislation” of an administrative board. In fact that approach was specifically rejected in Baxter v. Palmigiano, 425 U. S. 308 (1976), involving a challenge brought in a single-judge court to the Rhode Island prison system’s unwritten rule forbidding counsel at disciplinary hearings. In rejecting the argument that a three-judge court was necessary to resolve that challenge, we noted that the complaint did not meet the threshold requirements of § 2281 jurisdiction; it “did not mention or challenge any rule or regulation of the Authority; nor did it seek an injunction against the enforcement of any identified rule.” 425 U. S., at 313 n. 2. That description applies equally to the complaint in this case.

The ruling in Baxter merely reflected the consistent recognition that the three-judge court procedure is not “a measure of broad social policy to be construed with great liberality, but . . . an enactment technical in the strict sense of the term and to be applied as such.” Phillips v. United States, supra, at 251; see also Gonzalez v. Automatic Employees Credit Union, 419 U. S. 90, 98 (1974). The Court of Appeals' ruling improperly deviated from that understanding, and in addition it effectively transformed the jurisdictional inquiry from a threshold question to one depending upon the shifting proof during litigation, injecting intolerable uncertainty and potential delay into important litigation.

Accordingly we hold that the single District Judge properly exercised jurisdiction to decide this case, and that his judgment is reviewable on the merits in the Court of Appeals. See 28 U. S. C. § 1291. The petition for a writ of certiorari and the motion for leave to proceed in forma pauperis are granted, the judgment is reversed, and the case is remanded for further proceedings consistent with this opinion.

It is so ordered.

      Public Law 94-381, Aug. 12, 1976, 90 Stat. 1119, prospectively repealed 28 U. S. C. § 2281. For cases pending at the time of repeal, § 2281 still governs jurisdiction, and provides:
      “An interlocutory or permanent injunction restraining the enforcement, operation or execution of any State statute by restraining the action of any officer of such State in the enforcement or execution of such statute or of an order made by an administrative board or commission acting under State statutes, shall not be granted by any district court or judge thereof upon the ground of the unconstitutionality of such statute unless the application therefor is heard and determined by a district court of three judges under section 2284 of this title.”


text:
    COSTELLO et al. v. WAINWRIGHT, SECRETARY, FLORIDA DEPARTMENT OF OFFENDER REHABILITATION, et al.
    No. 76-5920.
    Decided March 21, 1977
   Per Curiam.

The motion to strike the brief of the United States as amicus curiae is denied.

Petitioners in this case attacked the overcrowding in Florida’s prisons as violative of the Cruel and Unusual Punishments Clause of the Eighth Amendment, made applicable to the States by the Fourteenth. A single District Judge found substantial constitutional violations and issued a preliminary injunction ordering the Division of Corrections either to reduce the inmate population or to increase prison capacity. In an en banc decision, the United States Court of Appeals for the Fifth Circuit vacated the District Court’s decision on the ground that only a three-judge court convened in accordance with 28 U. S. C. § 2281 could order such relief. 539 F. 2d 547 (1976).

On its face, the complaint that initiated this case involved no challenge to state statutes or regulations. There was thus no reason at the beginning of this litigation to suspect that a three-judge court should hear the case. See Moody v. Flowers, 387 U. S. 97, 104 (1967); Baxter v. Palmigiano, 425 U. S. 308 (1976); Morales v. Turman, ante, p. 322. In granting equitable relief, however, the District Court contemplated as one means of relieving the prison system’s unconstitutional overcrowding the possibility that state prison officials would have to violate their statutory duty to continue to accept custody of prisoners properly committed to them. The Court of Appeals concluded that such equitable relief could be granted only by a three-judge court, apparently because it viewed the possible temporary suspension of an otherwise valid state statute to effectuate federally mandated relief as equivalent to finding that statute unconstitutional.

We cannot agree. The applicability of § 2281 as written turns on whether a state statute is alleged to be unconstitutional, not on whether an equitable remedy for unconstitutional state administrative behavior ultimately impinges on duties imposed under concededly constitutional state statutes. To hold otherwise would require postponing the threshold question of jurisdiction until the merits of the controversy had been fully resolved and the broad outlines of equitable relief discerned. Section 2281 embodies no such wasteful and uncertain mandate.

Since we conclude that the single District Judge properly exercised full jurisdiction in this case, and that his judgment is, therefore, reviewable on the merits in the Court of Appeals (28 U. S. C. § 1291), the petition for a writ of certiorari and the motion for leave to proceed in forma pauperis are granted, the judgment is reversed, and the case is remanded for further proceedings consistent with this opinion.

It is so ordered.