author: Mr. Justice White, Mr. Chief Justice Burger. Me. Justice Brennan.

text:
    No. 77-1581.
    Brown Transport Corp. v. Atcon, Inc.
   Ct. App. Ga. Certiorari denied.

Mr. Justice White,

with whom Mr. Justice Blackmun joins,

dissenting.

Respectfully, I dissent from the denial of certiorari.

I

Section 223 of the Motor Carrier Act, 49 Stat. 565, 49 U. S. C. § 323, prohibits a common carrier by motor vehicle from delivering freight transported in interstate commerce until all tariff rates and charges have been paid, except as permitted by rules and regulations of the Interstate Commerce Commission. The Interstate Commerce Commission, pursuant to 49 U. S. C. § 323, has adopted regulations that allow delivery without prior collection of freight charges but limit the credit that may be extended: Freight bills must be presented to the shipper and collected within seven days. 49 CFR § 1322 (1977). A “shipper” is defined as the person who undertakes to pay the tariff charges. Ibid. The regulations are silent about what happens if the carrier fails to comply with the time limits established by them. The question raised by this case is whether failure by the carrier to comply with the time limits prescribed by 49 CFR § 1322 (1977) estops the carrier from collecting the freight charges from the shipper.

The Georgia Court of Appeals in this case held that it did, thereby joining the Seventh Circuit, which had reached a similar result in Consolidated Freightways Corp. of Delaware v. Admiral Corp., 442 F. 2d 56 (1971).

Judge Swygert dissented in the Consolidated Freightways Corp. case, reasoning that “[n] othing in the Motor Carrier Act provides that a carrier’s failure to comply with section 323 or the Interstate Commerce Commission’s credit regulation should result in the carrier’s forfeiting its right to collect freight charges.” Id., at 65. At least two jurisdictions share this view. AAA Trucking Corp. v. Spherex, Inc., 110 N. H. 472, 272 A. 2d 594 (1970); East Texas Motor Freight Lines v. Franklin County Distilling Co., 184 S. W. 2d 505 (Tex. Civ. App. 1944).

This conflict among jurisdictions over an issue which “imperatively demand[s] a single uniform rule,” Cooley v. Board of Wardens, 12 How. 299, 319 (1852), commands the Court’s immediate attention. There is further justification for review in Pittsburgh, C., C. & St. L. R. Co. v. Fink, 250 U. S. 577 (1919). There the Court held that a shipper remains liable for the full legal tariff even though the carrier mistakenly billed him for less, rejecting an argument that estoppel prevented collection on the ground that “[e'Jstoppel could not become the means of successfully avoiding the requirement of the act as to equal rates, in violation of the provisions of the statute.” Id., at 583. The Fink case, although concerning Interstate Commerce Act provisions regulating railroads and not motor carriers, is directly analogous to this case, suggesting that the decision below may be at variance with our prior case law.

Because of the substantiality of the federal issue raised, I would grant certiorari and set this case for argument.

II

Although I dissent from denial of certiorari, it must be acknowledged that this case is no more deserving of plenary consideration than many other cases in which certiorari has been denied so far this Term.

A

During the week of September 25, the Court met in Conference to deal with the petitions for certiorari, jurisdictional statements in appeals, petitions for rehearing, and miscellaneous motions that had accumulated and had been studied during the summer. There was a total of 992 items on the Conference List, of which 865 were petitions for writs of cer-tiorari and 59 were appeals. As the Order Lists for this Term prior to today indicate, of these the Court has so far granted 24 petitions for certiorari, 23 paid and 1 unpaid, and has set for plenary consideration 6 appeals. In addition, summary action on the merits was taken on 15 petitions for certiorari, 8 paid and 7 unpaid, and on 30 statements of jurisdiction. Seven hundred and ninety-four petitions for certiorari were denied, 365 paid and 429 unpaid. Twenty-one appeals were dismissed and denied. There were thus 396 paid petitions for certiorari acted on and 437 unpaid, for a total of 833. Fifty-seven of the 59 appeals were also disposed of. For one reason or other, the remaining 32 petitions and 2 appeals have been held over for later action.

The 23 paid petitions granted amount to 5.81% of the 396 paid petitions acted upon. Summary action was taken on an additional 2.02%, making a total of 7.83% of the paid petitions that were either granted or disposed of on the merits. The single unpaid petition granted amounted to 0.23% of the unpaid petitions acted on. Summary action was taken on an additional 1.60% of unpaid petitions, making a total of 1.83% of the unpaid petitions which were granted or on which summary action was taken.

B

Our Rule 19 provides that one of the principal factors in determining whether certiorari should be granted is whether the decision below conflicts with another decision: Is the federal law, statutory or constitutional, being interpreted and enforced differently in different sections of the country? This has been an important criterion for the exercise of the Court’s powers since most of the Court’s jurisdiction was made discretionary in 1925.

When one examines the petitions for certiorari on the September 25 Conference List that have so far been denied, it is not difficult to find a good many cases in which the Court refused to review lower court decisions that conflicted with decisions of other federal or state appellate courts. The following are examples of such cases.

Mansfield v. Estelle, No. 77-6709, order reported below (opinion unpublished), 568 F. 2d 1366 (CA5 1978): “farce or mockery” standard for judging the effectiveness of retained counsel; a more stringent standard for appointed counsel. Cf. United States v. DeCoster, 159 U. S. App. D. C. 326, 487 F. 2d 1197 (1973) (diligent, conscientious, and reasonably competent assistance); Moore v. United States, 432 F. 2d 730, 736 (CA3 1970) (“the exercise of the customary skill and knowledge which normally prevails at the time and place”); United States ex rel. Williams v. Twomey, 510 F. 2d 634, 641 (CA7 1975) (“assistance which meets a minimum standard of professional representation”); United States v. Easter, 539 F. 2d 663, 666 (CA8 1976) (“reasonably competent” assistance). Also cf. United States v. McCord, 166 U. S. App. D. C. 1, 509 F. 2d 334 (1974), cert. denied, 421 U. S. 930 (1975); Goodwin v. Cardwell, 432 F. 2d 521 (CA6 1970); United States ex rel. Williams v. Twomey, supra, at 640; Blanchard v. Brewer, 429 F. 2d 89 (CA8 1970), cert. denied, 401 U. S. 1002 (1971); Ellis v. Oklahoma, 430 F. 2d 1352 (CA10 1970), cert. denied, 401 U. S. 1010 (1971), all rejecting the distinction between paid and appointed counsel.

United States v. Kelley, No. 77-1729, opinion below, 568 F. 2d 259 (CA2 1978): timely administrative claim is not a jurisdictional prerequisite to recovery in suits in which the United States is substituted as defendant pursuant to the Federal Drivers’ Act, 28 U. S. C. §§2679 (b)-(e). Contra, Meeker v. United States, 435 F. 2d 1219 (CA8 1970).

Pennsylvania v. United States Tobacco Co., No. 77-1780, opinion below, 478 Pa. 125, 386 A. 2d 471 (1978): broad interpretation of “solicitation” in 15 U. S. C. § 381 (a), which prohibits a State from taxing the income of persons whose only contact with the State is solicitation of orders. Contra, Clairol, Inc. v. Kingsley, 109 N. J. Super. 22, 262 A. 2d 213. aff’d, 57 N. J. 199, 270 A. 2d 702 (1970), dismissed for want of a substantial federal question, 402 U. S. 902 (1971).

Lacey v. United States, No. 77-1751, order reported below (opinion unpublished), 578 F. 2d 1371 (CA2 1978): not im-permissibly coercive per se to give a second Allen (Allen v. United States, 164 U. S. 492 (1896)) charge to a jury that has twice reported inability to reach a verdict and has not requested repetition of the charge. Accord, United States v. Robinson, 560 F. 2d 507 (CA2 1977) (en banc). Contra, United States v. Seawell, 550 F. 2d 1159 (CA9 1977).

Guiffre v. United States, No. 77-1778, opinion below 576 F. 2d 126 (CA7 1978): coverage of federal bank robbery statute, 18 U. S. C. § 2113 (b), is not limited to conduct that would fall within the common-law definition of larceny. Accord, United States v. Fistell, 460 F. 2d 157 (CA2 1972); Thaggard v. United States, 354 F. 2d 735 (CA5 1965), cert. denied, 383 U. S. 958 (1966). Contra, LeMasters v. United States, 378 F. 2d 262 (CA9 1967); United States v. Rogers, 289 F. 2d 433 (CA4 1961) (dictum).

Holcomb v. United States, No. 77-6857, order reported below, 578 F. 2d 1381 (CA6 1978): a person accused of violating 18 U. S. C. § 922 (a) (6) by falsely denying that he has ever been convicted of a crime is not entitled to litigate the constitutionality of that conviction. Accord, United States v. Edwards, 568 F. 2d 68 (CA8 1977); United States v. Allen, 556 F. 2d 720 (CA4 1977); United States v. Graves, 554 F. 2d 65 (CA3 1977) (en banc); United States v. Ransom, 545 F. 2d 481 (CA5), cert. denied, 434 U. S. 908 (1977). Contra, United States v. Pricepaul, 540 F. 2d 417 (CA9 1976).

Burke v. New Jersey Education Assn., No. 78-177, opinion below, 579 F. 2d 764 (CA3 1978): litigation of federal constitutional issues in a 42 U. S. C. § 1983 action is not precluded by a prior state adjudication of the same cause of action in which the federal issues could have been but were not raised. Other Circuits have taken different approaches to this issue. Cf. Kurek v. Pleasure Driveway and Park District of Peoria, 557 F. 2d 580 (CA7 1977); Graves v. Olgiati, 550 F. 2d 1327 (CA2 1977); Scoggin v. Schrunk, 522 F. 436 (CA9 1975); Spence v. Lotting, 512 F. 2d 93 (CA10), cert. denied, 423 U. S. 896 (1975); Lovely v. Laliberte, 498 F. 2d 1261 (CA1 1974).

Johnson v. Georgia, No. 77-6607, opinion below, 240 Ga. 526, 242 S. E. 2d 53 (1978): Double Jeopardy Clause does not bar a State from revoking an individual’s probation for an offense of which he was previously acquitted. Contra, People v. Grayson, 58 Ill. 2d 260, 319 N. E. 2d 43 (1974).

McKethan v. United States, No. 77-1545, and Garner v. United States, No. 77-1557, opinion below, 574 F. 2d 1141 (CA4 1978): admission into evidence of grand jury testimony of unavailable witness proper under Confrontation Clause and Federal Rules of Evidence. But see United States v. Gonzalez, 559 F. 2d 1271 (CA5 1977); United States v. Fiore, 443 F. 2d 112 (CA21971).

c

Also among the petitions for certiorari that were denied were those appearing to conflict with a decision of this Court. Under our Rules, this is a substantial reason for granting cer-tiorari. Examples of such cases follow.

Sears, Roebuck & Co. v. Roberts, No. 78-26, opinion below, 573 F. 2d 976 (CA7 1978): assignor of exclusive license may recover in action for fraud against assignee despite invalidity of the patent. Arguably inconsistent with Lear, Inc. v. Adkins, 395 U. S. 653 (1969).

First Nat. Bank of Memphis v. Smith, No. 78-92, opinion below sub nom. Torian Estate v. Smith, 564 S. W. 2d 521 (Ark. 1978): State need not give full faith and credit to judgment of court of sister State with in personam jurisdiction over property claimants but affecting personal property with no connection to that State. Arguably inconsistent with Baker v. Baker, Eceles & Co., 242 U. S. 394 (1917).

Arnold v. Hogan, No. 77-6621, order below unpublished, D. C. Ct. App., No. 12347 (1978): neither the Due Process Clause nor the Ex Post Facto Clause infringed by the abolition of the corroboration requirement in a criminal trial for rape, where the requirement was judge made but longstanding, and is abolished in the course of the instant trial. Arguably inconsistent with Weiler v. United States, 323 U. S. 606 (1945), and Colder v. Bull, 3 Dali. 386, 390 (1798).

Mellon Bank v. Southland Mobile Homes of S. C., Inc., No. 78-188, opinion below sub nom. Southland Mobile Homes v. Associates Financial Services Co., 270 S. C. 527, 244 S. E. 2d 212 (1978): venue in suits against national banks under the National Bank Act, 12 U. S. C. § 94. Arguably inconsistent with Michigan Nat. Bank v. Robertson, 372 U. S. 591 (1963).

Smith v. Collin, No. 77-1736, opinion below, 578 F. 2d 1197 (CA7 1978): local ordinance prohibiting the dissemination of materials that would promote hatred toward persons on the basis of their heritage held unconstitutional. Arguably inconsistent with Beauharnais v. Illinois, 343 U. S. 250 (1952).

D

Rule 19 also indicates that likely candidates for certiorari are those cases in which a state or federal court has decided an important question of federal law not heretofore determined by this Court. Some of the cases from our initial Conference List which involved issues of this kind and which the Court declined to review axe the following.

Lowe v. United States, No. 78-5044, and Dixon v. United States, No. 78-5052, opinion below, 575 F. 2d 1193 (CA6 1978): whether 19 U. S. C. § 482 subjects mail entering the United States to customs inspection at a place other than the point of entry into this country, an issue reserved in United States v. Ramsey, 431 U. S. 606 (1977).

Beatty v. Lycoming County Children’s Services, No. 77-1703, opinion below sub nom. In re William L., 477 Pa. 322, 383 A. 2d 1228 (1978); rejecting equal protection and due process challenges to a Pennsylvania statute permitting termination of parental rights (so that the child may be adopted) on a showing of incapacity, without any evidence of abuse or misconduct.

Warden of West Virginia Penitentiary v. Jones, No. 77-1734, opinion below, - W. Va. -, 241 S. E. 2d 914 (1978): Mullaney v. Wilbur, 421 U. S. 684 (1975) is to be applied retroactively to collateral proceedings, an issue not expressly decided in Hankerson v. North Carolina, 432 U. S. 233 (1977).

Eastern Scientific Co. v. Wild Heerbrugg Instruments, Inc., No. 77-1769, opinion below, 572 F. 2d 883 (CA1 1978): under Continental T. V., Inc. v. GTE Sylvania Inc., 433 U. S. 36 (1977), territorial restrictions enforced by resale price maintenance are not per se illegal.

Indiana v. Martin, No. 77-1822, order reported below, 577 F. 2d 749 (CA7 1978): the prosecution bears the burden of showing reliability of in-court identification subsequent to impermissibly suggestive lineup identification.

Frazier v. Weatherholtz, No. 77-6460, opinion below, 572 F. 2d 994 (CA4 1978): burden of proving self-defense may be placed on the accused in a criminal prosecution.

International Business Machines Corp. v. FCC, No. 77-1540, opinion below sub nom. American Tel. & Tel. Co. v. FCC, 572 F. 2d 17 (CA2 1978): whether the Commission possesses and has consciously exercised discretion to consider whether to refrain from rate regulation of resellers of telephone transmission services.

Marshall v. Daniel Construction Co., No. 77-1697, opinion below, 563 F. 2d 707 (CA5 1977): worker has no.right under Occupational Safety and Health Act to refuse to perform tasks that he reasonably believes present an immediate risk of death or serious injury, and employee who does so may be properly discharged; the Secretary of Labor’s regulation to the contrary held invalid.

Kerr-McGee Chemical Corp. v. Andrus, No. 77-1785, order reported below, 187 U. S. App. D. C. 426, 574 F. 2d 637 (1978): regulations promulgated by the Secretary of the Interior may be applied retroactively to deny mining leases that were assertedly granted under formerly prevailing standards.

University of Texas Medical Branch at Galveston v. United States, No. 77-1520, opinion below, 557 F. 2d 438 (CA5 1977): the impact of Wyandotte Transportation Co. v. United States, 389 U. S. 191 (1967), implying a right of action under § 15 of the Rivers and Harbors Appropriation Act of 1899, 30 Stat. 1152, 33 U. S. C. §409, upon the availability of a defense under the Limitation of Shipowners’ Liability Act.

Early v. Palm Beach Newspapers, Inc., No. 77-1649, opinion below, 334 So. 2d 60 (Fla. App. 1976), appeal and cert, dismissed, 354 So. 2d 351 (Fla. 1977): statements labeled as opinions or editorials and containing no misstatements of fact may not be the subject of a constitutionally valid libel action.

E

I do not suggest that the Court should have granted cer-tiorari in all of these cases or that it should review all cases of this kind in the future. The reason is that we are performing at our full capacity, i. e., we are now extending plenary review to as many cases as we can adequately consider, decide and explain by full opinion.

In 1937, in a letter to Senator Wheeler, Mr. Chief Justice Hughes stated that the Court was fully abreast of its work and was granting plenary consideration to all cases that deserved decision by an institution such as the Supreme Court. The Chief Justice said:

“Granting certiorari is not a matter of favor but of sound judicial discretion. It is not the importance of the parties or the amount of money involved that-is in any sense controlling. The action of the Court is governed by its rules.
“I think that it is safe to say that about 60 percent of the applications for certiorari are wholly without merit and ought never to have been made. There are probably about 20 percent or so in addition which have a fair degree of plausibility but which fail to survive critical examination. The remainder, falling short, I believe, of 20 percent, show substantial grounds and are granted. I think that it is the view of the members of the Court that if any error is made in dealing with these applications it is on the side of liberality.”

In 1937, there were fewer than 1,000 new filings on the Supreme Court docket. In 1962, there were about 2,800 and today about 4,000. No longer is it possible to review 20% or even 10% of the cases in which petitions are filed.

For the 24 years ending with the, 1970 Term, in cases granted plenary consideration, the Court issued an average of 101 full opinions plus 10 to 15 per curiam opinions. Since 1970, we have averaged 132 full opinions plus 15 per curiams— these opinions deciding an average of 170 cases — and we cannot hope substantially to exceed this average or to increase the percentage of all cases docketed to which we give plenary review. Indeed, if the certiorari docket resumes the remarkable growth that it exhibited prior to 1972, which it may well do when the output of the courts of appeals begins to reflect the many new judgeships created by the Omnibus Judgeship Act just passed by Congress, the percentage of petitions filed that can be reviewed here will inevitably decline ever further.

There is no doubt that those concerned with the coherence of the federal law must carefully consider the various alternatives available to assure that the appellate system has the capacity to function in the manner contemplated by the Constitution. As others have already noted, there is grave doubt that this function is being adequately performed.

In 1972, a study group chaired by Paul Freund of the Harvard Law School examined the problem. Its stark conclusion was:

“The statistics of the Court's current workload, both in absolute terms and in the mounting trend, are impressive evidence that the conditions essential for the performance of the Court’s mission do not exist. For an ordinary appellate court the burgeoning volume of cases would be a staggering burden; for the Supreme Court the pressures of the docket are incompatible with the appropriate fulfillment of its historic and essential functions.” Federal Judicial Center, Report of the Study Group on the Caseload of the Supreme Court 5 (1972), reprinted in 57 F. R.D. 573, 581 (1973).

Likewise, the Commission on Revision of the Federal Court Appellate System, which was established by Congress, concluded in 1975 that the present appellate arrangements leave unsettled too many conflicting decisions and important questions of federal law. The point has been reached at which “the percentage of cases accorded review [has] dipped below the minimum necessary for effective monitoring of the nation's courts on issues of federal statutory and constitutional law.” Commission on Revision of the Federal Court Appellate System, Structure and Internal Procedures: Recommendations for Change 29 (1975), reprinted in 67 F. R. D. 195, 217 (1976).

The Commission recommended the creation of a National Court of Appeals, which would not be interposed between the lower courts and this Court but whose mission in the main would be to decide cases that this Court referred to it. Legislation was proposed to implement the Commission’s recommendations. Under the proposal, cases from lower courts would first be filed here, as under the present system. This Court would then not only select and dispose of its own argument docket, but would also refer additional cases to the new court for its decision. The bill did not proceed beyond the hearing stage.

Mr. Chief Justice Burger.

Reasonable men can, and do, have differing views on the specific cases recited by Mr. Justice White, but his analysis of the broad workload problem confronting this Court is sound and constitutes an important service. It is not a healthy situation when cases deserving authoritative resolution must remain unresolved because we are currently accepting more cases for plenary review than we can cope with in the manner they deserve.

It is now six years since a committee of distinguished practitioners and scholars, all of them intimately familiar with the work of the Court, concluded that the growth in the volume and changing complexion of that work called for a remedy. Federal Judicial Center, Report of the Study Group on the Caseload of the Supreme Court (1972), 57 F. R. D. 573 (1973). That committee, chaired by Professor Paul A. Freund, after tracing the rise in the Court's filings and opinions, proposed the creation of a new national, intermediate appellate court to afford review of cases which it was not possible for this Court to review. The Study Group on the Caseload of the Supreme Court saw a twofold function for the proposed court:

“(1) screening all petitions for certiorari and appeals that would at present be filed in the Supreme Court, referring the most review-worthy ... to the Supreme Court . . . , and denying the rest; and
“(2) retaining for decision on the merits cases of genuine conflict between circuits (except those of special moment, which would be certified to the Supreme Court).” Id., at 611.

Responding to urgings from the Judicial Branch and the tremendous increase in the workload of the federal courts, the Congress in 1972 established a commission representing all three branches of Government to study the problems and make recommendations. The commission requested the views of each Member of this Court. My response in part stated:

“[I]f no significant changes are made in federal jurisdiction, including that of the Supreme Court, the creation of an intermediate appellate court in some form will be imperative. The notion that nine Justices of the Supreme Court can deal as effectively and correctly with four times as many docketed cases as were dealt with only four decades ago may seem flattering to the incumbent Justices, but Congress must become aware of the enormous change in the burdens on the Justices in that short period of time. Indeed, it can be documented that as far back as 40 years ago, 10 years after the Judiciary Act of 1925, many of the Justices were even then apprehensive about the capacity of the Supreme Court to perform the functions performed in its first 150 years. The changes brought on in the 20th century and the new social, political and economic developments have surely not diminished the importance of the questions presented to the Supreme Court and have vastly increased the volume of important questions which can have an impact of great significance on the country.” Report of the Commission on Revision of the Federal Court Appellate System, Structure and Internal Procedures: Recommendations for Change, reprinted in 67 F. R. D. 195, 398-399 (1976).

In June 1975, the Commission on Revision of the Federal Court Appellate System issued its report, recommending

“the creation of a new national court of appeals, designed to increase the capacity of the federal judicial system for definitive adjudication of issues of national law, subject always to Supreme Court review.” Id., at 208.

That Commission found four significant consequences resulting from the inability of the federal judicial system to provide adequate capacity for the declaration of national law: (a) unresolved intercircuit conflict; (b) delay; (c) a burden on the Supreme Court to hear cases arising from intercircuit conflict otherwise less worthy than many cases denied review; and (d) resulting uncertainty in the law. Id., at 217-219.

The Commission proposed a National Court of Appeals consisting of seven judges with reference jurisdiction and transfer jurisdiction. Under the proposed reference jurisdiction, the Supreme Court would be empowered to refer any case within its appellate jurisdiction to the National Court of Appeals either for a decision on the merits or, alternatively, for a decision as to whether the National Court of Appeals should review the case. Under the proposed transfer jurisdiction, any court of appeals could, in appropriate and specified circumstances, transfer any case to the National Court of Appeals for a nationally binding decision, subject to this Court’s consideration. Id., at 238-247.

The recommendations of the Study Group on the Caseload of the Supreme Court, commonly called the “Freund Committee,” have been available to the Congress and the Bar since 1972. The recommendations of the Commission on the Federal Court Appellate System have been available since 1975.

The dilemma now confronting this Court — and the country— is not new. Under the Judiciary Act of 1789, Congress created only 13 federal district judgeships and six Justices of the Supreme Court. It did not provide for an intermediate appellate court staffed, as today, with United States circuit judges. Supreme Court Justices were required to “ride circuit” and to sit with district judges to form circuit courts, sometimes reviewing district court appeals, sometimes sitting as trial judges. Later these circuit-riding judges, acting as Supreme Court Justices, sat in review of the very cases in which they had participated on Circuit.

Chief Justice John Jay and the Associate Justices urged relief and circuit courts of appeal were authorized in the Judiciary Act of 1801; however, after the election of Thomas Jefferson, that statute was repealed the following year. Subsequently, Chief Justice Marshall unavailingly urged the creation of an intermediate tier of courts of appeals. Thus, nearly a century passed before such courts were finally created in 1891; they exist today as the United States Courts of Appeals for the 11 Circuits.

In my response of May 29, 1975, to the Commission, 67 F. R. D., at 396, I strongly urged that if an intermediate court was created it should not be a permanent tier of new judges at the outset. Rather, I suggested that Congress seriously consider the creation of a temporary court so that for five years, more or less, an experimental program could be carried out. The experience could then serve as a valuable guide to the Congress, without the burden of the irreversible step of establishing a permanent intermediate court. Mr. Justice White, too, favored an additional appellate court, “at least on a trial basis.” He said in his letter to the Commission:

“I should also emphasize that the proposed new court would not only permit the decision of a good many cases that are not now being decided at all by this Court, but would also (1) permit plenary consideration in selected cases which are within our compulsory appellate jurisdiction but which are presently being summarily disposed of here; (2) permit this Court to decline full consideration of and refer to the new court a substantial number of cases the issues in which are not unusually important or complex but which are now reviewed here because of existing conflicts among the circuits or among the federal and state courts; (3) enable this Court, if it was so minded, to reduce the total number of cases in which it now hears oral arguments and writes full opinions, perhaps to the yearly average of approximately 100 that obtained for 15 years prior to the 1970 Term; and (4) present the opportunity for this Court to review some cases that it would not now otherwise hear because of docket pressures.” Report of the Commission on Revision of the Federal Court Appellate System, 67 F. R. D., at 402.

After nearly nine years’ delay, the 95th Congress recently created 117 additional district and 35 additional circuit judge-ships — all of them long desperately needed to meet rising caseloads at both levels. This rise in caseload is thought by many observers to result from multiple sources: (a) the enactment of more than 50 statutes by Congress since 1969 increasing the jurisdiction of federal courts; (b) the increasing tendency to bypass available state and municipal remedies in favor of assumed swifter remedies in federal courts; (c) the increasing perceived need for courts to become “problem solvers” on great social and economic problems rather than the traditional resolvers of discrete, manageable disputes; (d) the default, perceived or real, of executive and legislative solutions; and (e) the increasing complexity of much of the litigation arising from a modern society.

We cannot assume any lessening in the expansion of federal jurisdiction or in congressional response to new demands. When the 152 newly created federal judgeships are filled and operational, decisions of those judges will likely generate a significant increase in cases subject to review on appeal or on certiorari in this Court.

The additional judgeships may solve short-term problems, but the long-term problems of the Supreme Court analyzed by the Freund Committee and the Commission on Revision of the Federal Court Appellate System remain as they were a decade ago. If the improvement in the expeditious dispensation of justice intended by the Congress and the President when they authorized 152 new federal judges is to be realized, these problems should be faced without waiting for a crisis.

Me. Justice Brennan.

It seems appropriate, in light of footnote 7 of the memorandum of The Chief Justice, to note my statement to the Commission, 67 F. R. D., at 400, that Mr. Justice Brennan “remains completely unpersuaded, as he has repeatedly said, that there is any need for a new national court.” See also my article, The National Court of Appeals: Another Dissent. 40 U. Chi. L. Rev. 473 (1973).

      The analysis following in the text pertains only to this Term’s first Conference List. I have little doubt, however, that study of our dispositions of cases on subsequent Conference Lists would yield similar results. New filings accumulate at the rate of about SO per week. As of the close of business on November 29, 869 paid petitions and statements of jurisdiction had been filed so far this Term, together with 808 unpaid petitions and statements of jurisdiction.

       Tn the first Term of Chief Justice Warren's tenure (O. T., 1953), for example, this Court announced 65 signed opinions; his final (1968) Term, 99; with an average of 96, 1953 to 1968 inclusive. The average, 1969 through 1977, was 125.

         Other members of the committee were: Alexander M. Bickel, Peter D. Ehrenhaft, Russell D. Niles, Bernard G. Segal, Robert L. Stem, and Charles A. Wright.

       The Chairman and Vice Chairman of the commission were Senator Roman L. Hruska and Judge J. Edward Lumbard, respectively; Professor A. Leo Levin was Executive Director. Members appointed from the Senate and House, and by the President and Chief Justice, were Senators Quentin N. Burdick, Hiram L. Fong, and John L. McClellan; Congressmen Jack Brooks, Walter Flowers, Edward Hutchinson, and Charles E. Wiggins; Emanuel Celler, Dean Roger C. Cramton, Francis R. Kirkham, Judge Alfred T. Sulmonetti, Judge Roger Robb, Bernard G. Segal, and Professor Herbert Wechsler.

       Under the recent Omnibus Judgeship Act of 1978, Pub. L. 95-486, 92 Stat. 1629 (Oct. 20, 1978), the total number of circuit judgeships was increased from 97 to 132.

       The mode of selection of members of such an ad hoc court can be worked out either along the lines recommended by the Freund Committee or through some other neutral mechanism.

       There is, of course, precedent for this suggestion, for Congress has created temporary courts in the past. E. g., Special Regional Rail Reorganization Court, created by the Regional Rail Reorganization Act of 1973, § 209 (b), 87 Stat. 999; Temporary Emergency Court of Appeals, created by the Act of Dec. 22, 1971, §211 (b), 85 Stat. 749; Emergency Court of Appeals, created by the Emergency Price Control Act of 1942, § 204, 56 Stat. 31.

       Letters to the Commission from Justices BlackmuN, Powell, and Rehnquist reflect general agreement with these views of Mr. Justice White on the need for some relief if this Court is to achieve and maintain the optimum level of quality in its work. 67 F. R. D., at 404, 406, 407, respectively. Mr. Justice Stewart expressed the view that it is “likely that the day would come when a new court would be needed.” Id., at 400.

       For the year ending June 30, 1970, district court filings were 125,423, and for the year ending June 30, 1978, they were 166,539. Courts of appeals filings rose from 11,662 during the same period in 1970 to 18,918 for the year ending June 30, 1978.

       See S. Rifkind, Are We Asking too Much of our Courts?, address delivered at the National Conference on the Causes of Popular Dissatisfaction with the Administration of Justice, 70 F. R. D. 96, 101-104 (1976).

       Provocative and thoughtful analyses of these subjects are not wanting. See, e. g., Heilman, The Business of the Supreme Court Under the Judiciary Act of 1925: The Plenary Docket in the 1970’s, 91 Harv. L. Rev. 1711 (1978); S. Rifkind, supra, n. 9; Chayes, The Role of the Judge in Public Law Litigation, 89 Harv. L. Rev. 1281 (1976).

       These, obviously, are policy matters for the political branches; but it is equally true that the Judiciary has an obligation to help focus attention on its needs as they are perceived by judges who must give effect to legislation relating to the administration of justice. It is for Congress to develop appropriate measures to accommodate the tension arising from contending demands on judicial resources.


source: Caselaw Access Project

license: Public Domain

text:
    No. 77-1794.
    New Jersey v. O’Herron et ux.
   Super. Ct. N. J. Motion of respondents for leave to proceed m forma pauperis granted. Certiorari denied.


author: Mr. Justice Brennan,

text:
    No. 77-1831.
    Duncantell v. Texas.
   Ct. Crim. App. Tex. Certiorari denied.

Mr. Justice Brennan,

with whom Mr. Justice Marshall joins,

dissenting.

Petitioner is a black political activist who was stopped by Houston police for a traffic offense. Police pulled petitioner from his car, handcuffed him, and searched his automobile. Upon the dashboard police found a matchbox containing marihuana. Petitioner was convicted of possession of marihuana and sentenced to seven years.

Petitioner challenges the search of the matchbox on Fourth Amendment grounds. The Texas Court of Criminal Appeals rejected this claim. 563 S. W. 2d 252 (1978) (eh banc). The court credited police testimony that petitioner had appeared intoxicated at the time of the arrest, reasoned that the intoxication could have resulted from drug use, and concluded that police thus had probable cause to search petitioner’s car for drugs.

This jerry-built justification surely requires review by a federal forum. Police smelled alcohol on petitioner’s breath at the time of the arrest. They had no basis, therefore, for supposing that petitioner’s alleged intoxication was the result of drug rather than alcohol use. Hence, the police claim of probable cause to inspect the contents of petitioner’s matchbox is patently suspect.

Were it not for the Court’s decision in Stone v. Powell, 428 U. S. 465 (1976), I would not dissent. But for that decision petitioner could have sought federal forum review in federal habeas corpus. The limitation that Stone has placed upon federal habeas jurisdiction to redress Fourth Amendment violations denies petitioner that remedy. Thus, this Court may well be the only federal forum with jurisdiction to review •petitioner’s Fourth Amendment claim. Because the Court declines to exercise jurisdiction, the denial of petitioner’s Fourth Amendment rights may well stand forever uncorrected.

I would grant certiorari in this case so that the constitutional error of the Texas Court of Criminal Appeals can be corrected. More generally, I believe that, so long as Stone v. Powell remains the law, this Court is obliged to take a more active role in reviewing the denial of Fourth Amendment claims by state courts. We can no longer content ourselves with the articulation of general principles. Rather, if federal law in this area is to remain uniform and supreme, we must undertake the task of error correction previously performed by the district courts. In other words, I see no escape from plenary review whenever state courts deny criminal defendants rights guaranteed by the Fourth Amendment of the United States Constitution.

The Court’s denial of certiorari in the present case reinforces, for me, “the notorious fact that our certiorari jurisdiction is inadequate for containing state criminal proceedings within constitutional bounds” and underscores Congress’ wisdom, rejected by this Court in Stone v. Powell, “in mandating a broad federal habeas jurisdiction for the district courts.” Id., at 534 (Brennan, J., dissenting).


text:
    No. 78-451.
    Nelson et al. v. Butler et al.
   C. A. 9th Cir. Motion of respondents for leave to proceed in forma pauperis granted. Certiorari denied.


text:
    No. 78-268.
    No. 78-361.
    Gillespie et al. v. Schwartz et al.; and Boston Hospital for Women v. Schwartz et al.
   C. A. 2d Cir. Certiorari denied.

Mr. Justice Blackmun and Mr. Justice Powell would grant certiorari.

Reported below: 579 F. 2d 194.


author: Mr. Justice Powell,

text:
    No. 78-410.
    Lee-Hy Paving Corp. et al. v. O’Connor, Administratrix.
   C. A. 2d Cir. Certiorari denied.

Mr. Justice Powell,

with whom Mr. Justice Blackmun joins,

dissenting.

This case presents the question whether the Due Process Clause permits a tort plaintiff to obtain jurisdiction in New York over a defendant whose sole contact with the State arises from the defendant’s contract for indemnity. with a company that does business in New York. The case presents an issue of considerable importance, with troublesome ramifications in the spacious arena of personal injury litigation. Moreover, it seems to me that the rationale of our recent decision in Shaffer v. Heitner, 433 U. S. 186 (1977), is at odds with the decision of the Court of Appeals here. I therefore would grant certiorari and set the case for argument.

The petitioners are residents of Virginia. While working for petitioner Lee-Hy Paving Corp. (Lee-Hy) in Virginia, the respondent’s decedent (a New York resident) was killed when Lee-Hy’s grader, operated by petitioner Clem, struck him near Richmond, Va. The respondent instituted this suit in the District Court for the Eastern District of New York as executrix for her husband’s estate, claiming damages for the wrongful death of her husband. In order to obtain jurisdiction over the petitioners, who are conceded to have no other connection with New York, the respondent sought and obtained under New York law an order attaching the contractual obligations of two insurance companies doing business in New York to defend and indemnify Lee-Hy. The District Court denied petitioners’ motion to vacate the attachment and dismiss the suit. Acknowledging that there was a “substantial ground for difference of opinion” on the question of law, and that the issue was an important one, the District Court certified an appeal to the Court of Appeals under 28 U. S. C. § 1292 (b).

The Second Circuit affirmed. 579 F. 2d 194 (1978). The court based its ruling on the theory of quad in rem jurisdiction adopted by the New York Court of Appeals in Seider v. Roth, 17 N. Y. 2d 111, 216 N. E. 2d 312 (1966). In Seider, personal jurisdiction was predicated on the fiction that the insurance company’s obligation to indemnify the policyholder was a “debt” that the plaintiff in a negligence suit could attach as a “re8.” In Minichiello v. Rosenberg, 410 F. 2d 106 (1968), the Second Circuit affirmed the constitutionality of Seider jurisdiction, reasoning that the New York Court of Appeals had created judicially a direct-action law similar to the Louisiana statute held constitutional in Watson v. Employers Liability Assurance Corp., 348 U. S. 66 (1954). The Minichiello court recognized that the Seider doctrine differed in one important respect from the Louisiana direct-action statute of Watson: Under Seider, there was no requirement that the tort for which redress was sought occur in the State asserting jurisdiction. Despite the Court’s emphasis in Watson on the location of the tort, the Second Circuit in Minichiello ruled that New York’s interest in protecting its residents and providing them with a ready means of suing foreign tortfeasors was sufficient to justify Beider jurisdiction under the Due Process Clause.

In the case at bar, the petitioners unsuccessfully urged reconsideration of Minichiello on the ground that the Beider doctrine had been undermined by Shaffer v. Heitner, supra. The Court of Appeals viewed the “overriding teaching of Shaffer” as requiring courts to look to the “realities” of the asserted grounds for jurisdiction. As far as the insurance companies were concerned, the court found no unfairness in their being subject to the jurisdiction of New York courts, as they do business in New York. The court thought that this was true even though often it is more expensive (and therefore more costly to insurers) to defend a lawsuit brought several hundred miles from the site of the accident, the residence of the defendants, and the location of the witnesses. The court reached a similar conclusion concerning the fairness of a suit brought in New York against “the nominal defendants” (the petitioners here). The court thought it ironical that they should complain even though they “will not pay the judgment, nor manage the defense.” 579 F. 2d, at 201.

I find the Court of Appeals’ decision disturbing. Although the insurance companies’ contact with New York is important in determining whether it is fair for the New York courts to assert their jurisdiction, our decision in Watson indicated that the difficulties of defending a negligence case far from the place of the injury should be taken into account under the Due Process Clause. See Watson v. Employers Liability Assurance Corp., supra, at 72. Often these difficulties are substantial. It is routine procedure for the judge and jury to view the scene of the accident, often more than once. Jurors drawn from the venue of the accident may be better able to understand testimony pertaining to local conditions and geography. In short, many of the factors traditionally considered under the doctrine of forum non conveniens — itself a doctrine based on fairness — may also pertain to the fairness of a court hundreds of miles from the location of an accident exercising its jurisdiction over the parties to the resulting tort suit.

Moreover, the Court of Appeals’ reference to the petitioners as “nominal defendants” disregards many of the “realities” that bear upon whether an alleged tortfeasor, sued in a jurisdiction remote from his home and the location of the accident, is denied the fairness required by the Due Process Clause. It is novel doctrine, at least for me, to refer to the interest of defendants in negligence actions as “nominal” merely because they have insurance. In this case, for example, petitioners will be summoned to appear in a court in New York, and will be required to participate in the defense of the suit in essentially the same manner as if it had been brought in Virginia. They are required to do this 300 miles from their residences and place of business, confronted with all of the uncertainties caused by delays that often stretch a trial over several days or even weeks.

In addition to the problems posed for both the insurer and the insured by litigation located hundreds of miles from the scene of the tort, there is the ever-present possibility of a second suit in the jurisdiction where the accident occurred. The opinion of the Court of Appeals seems to assume, by its reference to petitioners as nominal defendants, that the only real parties in interest are the insurance companies. To be sure, a judgment against the petitioners in the New York courts cannot exceed the amount of indemnification provided under the insurance policies. But judgments for civil damages, especially in recent years, often have exceeded insured limits. In this case, for example, if respondent wins a judgment that exhausts the obligation of the insurers, the respondent will be free to sue petitioners in Virginia where they would be forced to go through a second trial — possibly without the benefit of lawyers supplied by the insurance companies. Moreover, as every litigation lawyer knows, the hazards of a second trial may exceed those of the first; witnesses seldom tell their story precisely the same way twice, and often new evidence is introduced. To say that the legal rights of insured defendants are not being adjudicated, despite their substantial role in the defense of the suit and despite the potential loss of their right to the insurance company's legal representation, begs the question: To what extent must an individual be involved in the litigation before the fundamental-fairness requirements of International Shoe Co. v. Washington, 326 U. S. 310 (1946), are applicable?

In sum, the judicially created Seider doctrine raises serious questions of due process. To me it does not appear consonant with the standards of fairness enunciated in International Shoe Co. v. Washington, and strongly reiterated in Shaffer v. Heitner. The issues presented are of concern to insurers and insureds in every State, as well as to state legislators responsible for the fairness of long-arm statutes. The case merits plenary consideration by this Court.

       Along with this 'case, the Court of'Appeals decided two other cases with respect to which certiorari is sought: Gillespie v. Schwartz, No. 78-268, and Boston Hospital for Women v. Schwartz, No. 78-361. In each of these cases, residents of other States were sued in New York for torts occurring outside of New York. The sole basis for jurisdiction in each is the insurance policy of the defendant, issued by a company doing business in New York. Although I write only with respect to this case, the reasons stated in my opinion here would support the granting of certiorari in all three cases.

       In. his persuasive dissent in Minichiello, Judge Anderson argued that Watson was based primarily on a State’s strong interest in having jurisdiction with respect to tortious activity within the State’s borders. See Minichiello, 410 F. 2d, at 113-117. Thus, Judge Anderson concluded that “statutes asserting jurisdiction of the state where the accident occurred qualify as due process, whereas the assertion of jurisdiction by the state of the plaintiff’s residence does not.” Id., at 116 (footnote omitted).

       The court did note that no “other state could constitutionally give collateral estoppel effect to a Seider judgment.” Although I agree that no such effect should be allowed, the court’s opinion in this regard is dictum that may or may not be followed in other jurisdictions.

       See E. Cleary, McCormick on Evidence § 216 (2d ed. 1972).

       See Gulf Oil Corp. v. Gilbert, 330 U. S. 501, 507-509 (1947).


text:
    No. 78-411.
    Interstate Commerce Commission v. Chicago & North Western Transportation Co. et al.
   C. A. 7th Cir. Certiorari denied.

Mr. Justice Powell took no part in the consideration or decision of this petition.


text:
    No. 78-560.
    Blyth, Eastman Dillon & Co., Inc., et al. v. Rolf.
   C. A. 2d Cir. Motions of Merrill Lynch, Pierce, Fenner & Smith, Inc., et al., and New York Stock Exchange, Inc., for leave to file briefs as amici curiae granted. Certio-rari denied.

Mr. Justice Powell would grant certiorari.


text:
    No. 78-611.
    Mirabal et al. v. General Motors Acceptance Corp. et al.
   C. A. 7th Cir. Certiorari denied.

Mr. Justice Stevens took no part in the consideration or decision of this petition.


text:
    No. 78-5410.
    Proca v. United States.
   C. A. 9th Cir. Certiorari denied.

Mr. Justice Brennan, Mr. Justice Stewart, and Mr. Justice Marshall would grant certiorari and reverse the conviction.


text:
    No. 78-5460.
    Spivey v. Georgia.
   Sup. Ct. Ga. Certio-rari denied.

Mr. Justice Brennan and Mr. Justice Marshall,

dissenting.

Adhering to our views that the death penalty is in all circumstances cruel and unusual punishment prohibited by the Eighth and Fourteenth Amendments, Gregg v. Georgia, 428 U. S. 153, 227, 231 (1976), we would grant certiorari and vacate the death sentence in this case.


text:
    No. 77-1684.
    Broadus v. Lott, Administratrix,
   ante, p. 828. Petition for rehearing denied.


text:
    No. 78-428.
    No. 78-5051.
    No. 78-5213.
    Gaetano et al. v. United States Court of Appeals for the District of Columbia Circuit (Silbert, U. S. Attorney, Real Party in Interest), Carter v. Texas, Rodriguez v. United States,
   ante, p. 924;

ante, p. 956 ; and

ante, p. 920. Petitions for rehearing denied.


text:
    December 5, 1978
    No. 78-157.
    United States v. Edwards.
   C. A. 8th Cir. Certiorari dismissed under this Court’s Rule 60.


text:
    December 11, 1978
    No. 78-634.
    Clarence LaBelle Post No. 217, Veterans of Foreign Wars of the United States.
   C. A. 8th Cir. Certiorari dismissed under this Court’s Rule 60.


text:
    No. 78-602.
    Tuscan Dairy Farms, Inc. v. Barber, Commissioner of Agriculture and Markets of New York.
   Appeal from Ct. App. N. Y. Motion of The Great Atlantic & Pacific Tea Co., Inc., for leave to file a brief as amicus curiae granted. Appeal dismissed for want of substantial federal question. Mr. Justice Powell and Mr. Justice Stevens would note probable jurisdiction and set case for oral argument.


text:
    No. 78-608.
    Lumpkin v. Department of Social Services of New York et al.
   Appeal from Ct. App. N. Y. dismissed for want of substantial federal question.


text:
    No. 78-657.
    Kimble et al. v. Swackhamer, Secretary of State of Nevada, et al.
   Appeal from Sup. Ct. Nev. dismissed for want of substantial federal question.


text:
    No. 78-646.
    Southern California Edison Co. v. Public Utilities Commission of California et al.
   Appeal from Sup. Ct. Cal. dismissed for want of substantial federal question.

Mr. Justice Blackmun and Mr. Justice Powell would note probable jurisdiction and set case for oral argument.


text:
    No. 78-663.
    Borough of Fox Chapel et al. v. Friday.
   Appeal from Sup. Ct. Pa. dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for writ of certiorari, certiorari denied.


text:
    No. 78-5587.
    Ballentine v. Fogg, Correctional Superintendent.
   Appeal from C. A. 2d Cir. dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for writ of certiorari, certiorari denied.


text:
    No. 77-477.
    Hopper, Warden v. Barnett.
   C. A. 5th Cir. Motion of respondent for leave to proceed in forma pauperis and certiorari granted. Judgment vacated and case remanded with directions to dismiss cause as moot.


text:
    No. D-149.
    In re Disbarment of Genua.
   It is ordered that Albert J. Genua, Jr., of Rocky Hill, Conn., 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-147.
    In re Disbarment of Pence.
   The rule to show cause is discharged and the order entered November 27, 1978 [ante, p. 975], is vacated.


text:
    No. D-150.
    In re Disbarment of Gillard.
   It is ordered that Jack F. C. Gillard, of Albert Lea, Minn., 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-151.
    In re Disbarment of Hopfl.
   It is ordered that Charles E. Hopfl, of New York, N. Y., 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-152.
    In re Disbarment of Waters.
   It is ordered that Michael F. Waters, of Brooklyn, N. Y., 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-153.
    In re Disbarment of Olitt.
   It is ordered that J. Jerome Olitt, of White Plains, N. Y., 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-154.
    In re Disbarment of Brickel.
   It is ordered that Bernard Michael Brickel, of Croton-on-Hudson, N. Y., 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. 77-926.
    Cannon v. University of Chicago et al.
   C. A. 7th Cir. [Certiorari granted, 438 U. S. 914.] Motion of the Solicitor General for additional time for oral argument denied. Alternative request for divided argument granted.


text:
    No. 77-983.
    No. 78-119.
    No. 78-139.
    Washington et al. v. Washington State Commercial Passenger Fishing Vessel Assn. et al.; and Washington et al. v. Puget Sound Gillnetters Assn. et al. Washington et al. v. United States et al. Puget Sound Gillnetters Assn. et al. v. United States District Court for the Western District of Washington (United States et al., Real Parties in Interest).
   Sup. Ct. Wash.;

C. A. 9th Cir.; and

C. A. 9th Cir. [Certiorari granted, ante, p. 909.] Motions of Washington State Commercial Passenger Fishing Vessel Assn, and Puget Sound Gillnetters Assn, et al. for additional time for oral argument denied.


text:
    No. 77-1571.
    Delaware v. Prouse.
   Sup. Ct. Del. [Cer-tiorari granted, ante, p. 816.] Motion of Americans for Effective Law Enforcement et al. for leave to file a brief as amici curiae granted.


text:
    No. 77-1583.
    American Society of Composers, Authors & Publishers et al. v. Columbia Broadcasting System, Inc., et al.
   C. A. 2d Cir. [Certiorari granted, ante, p. 817.] Motion of Authors League of America, Inc., for leave to file a brief as amicus curiae granted.


text:
    No. 78-642.
    Shapp, Governor of Pennsylvania, et al. v. Casey, Treasurer of Pennsylvania, et al.
   Appeal from Sup. Ct. Pa. The Solicitor General is invited to file a brief in this case expressing the views of the United States.


text:
    No. 78-852.
    Librach v. Federal Bureau of Investigation et al.
   C. A. 8th Cir. Motion of petitioner to expedite consideration of petition for writ of certiorari denied.


text:
    No. 77-1652.
    No. 77-1654.
    Federal Energy Regulatory Commission v. Shell Oil Co. et al.; and Consumer Energy Council of America v. Federal Energy Regulatory Commission.
   C. A. 5th Cir. [Certiorari granted, ante, p. 817.] Motions of Action Alliance of Senior Citizens of Greater Philadelphia and United States

Conference of Mayors et al. for leave to file briefs as amici curiae granted.

Mr. Justice Stewart took no part in the consideration or decision of these motions.


text:
    No. 78-5321.
    Adams v. Florida,
   ante, p. 947. Respondent invited to file a response to petition for rehearing within 30 days.


text:
    No. 78-5742.
    Boniface v. United States.
   Motion for leave to file petition for writ of habeas corpus denied.


text:
    No. 78-5550.
    Welch v. United States Court of Appeals for the Sixth Circuit.
   Motion for leave to file petition for writ of mandamus denied.


text:
    No. 78-647.
    Marchioro et al. v. Chaney et al.
   Appeal from Sup. Ct. Wash. Probable jurisdiction noted.


text:
    No. 78-437.
    No. 78-689.
    Califano, Secretary of Health, Education, and Welfare v, Westcott et al.; and Sharp, Commissioner, Department of Public Welfare of Massachusetts v. Westcott et al.
   Appeals from D. C. Mass. Motion of appellees for leave to proceed in forma pauperis granted. Probable jurisdiction noted. Cases consolidated and a total of one hour allotted for oral argument. Reported below: 460 F. Supp. 737.


text:
    No. 78-5420.
    No. 78-5421.
    Payton v. New York; and Riddick v. New York.
   Appeals from Ct. App. N. Y. Motions of appellants for leave to proceed in forma pauperis granted. In No. 78-5420, probable jurisdiction is noted limited to Question 1 presented by the jurisdictional statement. In No. 78-5421, probable jurisdiction noted. Cases consolidated and a total of one hour allotted for oral argument. Reported below: 45 N. Y. 2d 300, 380 N. E. 2d 224.


text:
    No. 78-561.
    United States v. Naftalin.
   C. A. 8th Cir. Certiorari granted.


text:
    No. 77-6949.
    Dunn v. United States.
   C. A. 10th Cir. Motion of petitioner for leave to proceed in forma pauperis and certiorari granted.


text:
    No. 77-1665.
    No. 78-156.
    Bonanno v. United States. United States v. Addonizio et al.
   C. A. 9th Cir. ; and

C. A. 3d Cir. Certiorari granted, cases consolidated, and a total of one hour allotted for oral argument. Reported below: No. 77-1665, 571 F. 2d 588; No. 78-156, 573 F. 2d 147.


text:
    No. 78-349.
    No. 78-546.
    United States v. Helstoski; and Helstoski v. Meanor, U. S. District Judge, et al.
   C. A. 3d Cir. Certiorari granted, cases consolidated, and a total of one hour allotted for oral argument. Reported below: 576 F. 2d 511.


text:
    No. 78-432.
    No. 78-435.
    No. 78-436.
    United Steelworkers of America, AFL-CIO-CLC v. Weber et al.; Kaiser Aluminum & Chemical Corp. v. Weber et al.; and United States et al. v. Weber et al.
   C. A. 5th Cir. Certiorari granted, cases consolidated, and a total of one and one-half hours allotted for oral argument. Mr. Justice Stevens took no part in the consideration or decision of these petitions. Reported below: 563 F. 2d 216.


text:
    No. 78-354.
    North Carolina v. Butler.
   Sup. Ct. N. C. Motion of respondent for leave to proceed in forma pauperis and certiorari granted.


text:
    No. 78-244.
    Fisher v. Board of Education of the City of New York et al.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 78-321.
    Parker et al. v. United States.
   Ct. Cl. Certiorari denied.


text:
    No. 78-391.
    Brown v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 78-401.
    Millar et al. v. Commissioner of Internal Revenue.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 78-403.
    Scott, Attorney General of Illinois v. United States.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 78-406.
    Matthews v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 78-454.
    Pavlecka et al. v. Banner, Commissioner of Patents and Trademarks.
   C. C. P. A. Certiorari denied.


text:
    No. 78-468.
    Public Service Company of New Hampshire v. Nuclear Regulatory Commission et al.
   C. A. 1st Cir. Certiorari denied.


text:
    No. 78-478.
    Mapes et al. v. United States.
   Ct. Cl. Certiorari denied.


text:
    No. 78-490.
    Houston Distribution Services, Inc., et al. v. National Labor Relations Board.
   C. A. 5th Cir. Cer-tiorari denied.


text:
    No. 78-494.
    Textron, Inc., Bell Helicopter Textron, a Division of Textron, Inc. v. United States et al.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 78-507.
    Fairfax County Wide Citizens Assn. et al. v. County of Fairfax, Virginia, et al.
   C. A. 4th Cir. Cer-tiorari denied.


text:
    No. 78-533.
    Louisiana v. Dino.
   Sup. Ct. La. Certiorari denied.


text:
    No. 78-589.
    Poe v. United States.
   C. A. 9th Cir. Cer-tiorari denied.


text:
    No. 78-617.
    Culhane et al. v. New York.
   Ct. App. N. Y. Certiorari denied.


text:
    No. 78-650.
    Corbett v. Thor et al.
   Sup. Ct. Iowa. Cer-tiorari denied.


text:
    No. 78-651.
    Cachur v. Western Electric Co., Inc., et al.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 78-654.
    DeLuca v. Robertson et al.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 78-656.
    Machipongo Club, Inc. v. Nature Conservancy.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 78-661.
    Porro et al. v. New Jersey.
   Super. Ct. N. J. Certiorari denied.


text:
    No. 78-665.
    Molina v. Richardson et al.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 78-674.
    Mayer v. Ohio State Bar Assn.
   Sup. Ct. Ohio. Certiorari denied.


text:
    No. 78-676.
    Hickok Electrical Instrument Co. v. Tektronix, Inc., et al.
   Ct. Cl. Certiorari denied.


text:
    No. 78-679.
    Kugel v. Florida.
   Dist. Ct. App. Fla., 4th Dist. Certiorari denied.


text:
    No. 78-681.
    Nolte v. Budd Co.
   C. A. 6th Cir. Certio-rari denied.


text:
    No. 78-712.
    ARA Services, Inc. v. South Carolina Tax Commission.
   Sup. Ct. S. C. Certiorari denied.


text:
    No. 78-745.
    Favreau v. United States.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 78-747.
    Lee v. United States.
   C. A. 6th Cir. Cer-tiorari denied.


text:
    No. 78-794.
    Washington v. United States.
   Ct. App. D. C. Certiorari denied.


text:
    No. 78-798.
    Gliatta v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 78-801.
    Kirk v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 78-5289.
    Bretz v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 78-5302.
    Johnson v. Oklahoma et al.
   Ct. Crim. App. Olda. Certiorari denied.


text:
    No. 78-5324.
    Howard v. Indiana.
   Sup. Ct. Ind. Cer-tiorari denied.


text:
    No. 78-5358.
    Dull v. United States.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 78-5389.
    Jones v. Louisiana.
   Sup. Ct. La. Certio-rari denied.


text:
    No. 78-5415.
    Guzman v. United States.
   C. A. 1st Cir. Certiorari denied.


text:
    No. 78-5440.
    Kennedy v. United States.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 78-5483.
    McMillian v. United States.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 78-5488.
    Orozco et al. v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 78-5494.
    Willis v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 78-5498.
    Guilford v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 78-5529.
    Stone v. Washington.
   Ct. App. Wash. Certiorari denied.


text:
    No. 78-5542.
    Fernando v. Cleland, Administrator, Veterans’ Affairs, et al.
   C. A. D. C. Cir. Certiorari denied.


text:
    No. 78-5563.
    Smith v. Warden, Illinois State Penitentiary, et al.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 78-5574.
    Yore v. California.
   Ct. App. Cal., 3d App. Dist. Certiorari denied.


text:
    No. 78-5577.
    Hartbarger v. Engle, Correctional Superintendent.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 78-5578.
    Fultz v. Finkbeiner.
   C. A. 7th Cir. Cer-tiorari denied.


text:
    No. 78-5580.
    Shaffer v. Washington.
   Ct. App. Wash. Certiorari denied.


text:
    No. 78-5592.
    Subilosky v. Massachusetts.
   Ct. App. Mass. Certiorari denied.


text:
    No. 78-5594.
    Miron v. California.
   Ct. App. Cal., 1st App. Dist. Certiorari denied.


text:
    No. 78-5609.
    Ross v. Hunt, Governor of North Carolina, et al.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 78-5611.
    Hindman v. Kelly et al.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 78-5618.
    Beason v. Louisiana Casing Crew & Rental Service Corp. et al.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 78-5621.
    Walker v. Internal Revenue Service.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 78-5625.
    Clark v. Indiana.
   Sup. Ct. Ind. Certio-rari denied.


text:
    No. 78-5638.
    Chaplinski v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 78-5671.
    Pellegrini v. United States.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 78-5678.
    Tobin et al. v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 78-5679.
    Waller v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 78-5680.
    Gordon v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 78-5686.
    Wright v. United States.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 78-5694.
    Johnson v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 78-5697.
    Frison v. United States.
   Ct. App. D. C. Certiorari denied.


text:
    No. 78-5698.
    Swiger v. Ohio.
   Ct. App. Ohio, Cuyahoga County. Certiorari denied.


text:
    No. 78-5708.
    Ruiz v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 77-1694.
    Benjamin Franklin Federal Savings & Loan Assn. v. Derenco, Inc.
   Sup. Ct. Ore. Certiorari denied.

Mr. Justice Powell took no part in the consideration or decision of this petition.


text:
    No. 78-140.
    Apelby v. California.
   Ct. App. Cal., 2d App. Dist. Certiorari denied.

Mr. Justice Brennan, Mr. Justice Stewart, and Mr. Justice Marshall would grant certiorari and reverse the conviction.


text:
    No. 78-5326.
    Trotti et al. v. Georgia.
   Ct. App. Ga. Certiorari denied.

Mr. Justice Brennan, Mr. Justice Stewart, and Mr. Justice Marshall would grant certiorari and reverse the conviction.


text:
    No. 78-512.
    Koniag, Inc., et al. v. Andrus, Secretary of the Interior.
   C. A. D. C. Cir. Motion of petitioners to defer consideration of petition for writ of certiorari and cer-tiorari denied.


text:
    No. 78-606.
    No. 78-607.
    Pacific Telephone & Telegraph Co. v. Public Utilities Commission of California et al.; and General Telephone Company of California v. Public Utilities Commission of California et al.
   Sup. Ct. Cal. Motions for leave to file briefs as amici curiae, in both cases, filed by Southern Co., Communications Workers of America, Sierra Pacific Power Co. et al., and California Independent Telephone Assn., granted. Motions for leave to file briefs as amici curiae in No. 78-606, filed by Edison Electric Institute and Dallas Power & Light Co. et al., granted. Certiorari denied.

Mr. Justice Marshall and Mr. Justice Blackmun would grant certiorari.


author: Mr. Justice Marshall,

text:
    No. 78-5519.
    Hollenbaugh et al. v. Carnegie Free Library et al.
   C. A. 3d Cir. Certiorari denied.

Mr. Justice Brennan would grant certiorari.

Mr. Justice Marshall,

dissenting.

The Court today lets stand a decision that upholds, after the most minimal scrutiny, an unwarranted governmental intrusion into the privacy of public employees. The ruling below permits a public employer to dictate the sexual conduct and family living arrangements of its employees, without a meaningful showing that these private choices have any relation to job performance. Because I believe this decision departs from our precedents and conflicts with the rulings of other courts, I would grant certiorari and set the case for argument.

I

Petitioner Rebecca Hollenbaugh served as a librarian and petitioner Fred Philburn as a custodian at the state-maintained Carnegie Free Library in Connellsville, Pa. The two began seeing each other socially, although Mr. Philburn was married at the time. In 1972, Ms. Hollenbaugh learned that she was pregnant with Mr. Philburn’s child, and within a month, Mr. Philburn left his wife and moved in with Ms. Hollenbaugh. Due to her pregnancy, Ms. Hollenbaugh sought and was granted a leave of absence by the respondent Board of Trustees from March to September 1973. While petitioners did not conceal their arrangement, neither did they advertise it.

Responding to some complaints from members of the community, the Board of Trustees attempted to dissuade petitioners from continuing to live together. When petitioners refused to alter their arrangement, they were discharged. They subsequently brought this action under 42 U. S. C. § 1983 seeking declaratory and injunctive relief and monetary damages.

After a nonjury trial, the District Court found that under the minimum rationality test, petitioners’ discharge did not violate the Equal Protection Clause. The court further concluded that petitioners’ behavior was not encompassed within the constitutional right to privacy. 436 F. Supp. 1328 (WD Pa. 1977). The Court of Appeals for the Third Circuit affirmed on the basis of the District Court’s opinion. 578 F. 2d 1374 (1978).

II

I have frequently reiterated my objections to the perpetuation of “the rigid two-tier model [that] still holds sway as the Court’s articulated description of the equal protection test.” Massachusetts Board of Retirement v. Murgia, 427 U. S. 307, 318 (1976) (Marshall, J., dissenting); see, e. g., Marshall v. United States, 414 U. S. 417, 432-433 (1974) (Marshall, J., dissenting); San Antonio Independent School Dist. v. Rodri guez, 411 U. S. 1, 98-110 (1973) (Marshall, J., dissenting). The test that this Court has in fact applied has often, I believe, been much more sophisticated. The substantiality of the interests we have required a State to demonstrate in support of a challenged classification has varied with the- character of the classification and the importance of the individual interests at stake. See, e. g., Trimble v. Gordon, 430 U. S. 762, 767 (1977); Craig v. Boren, 429 U. S. 190 (1976); Bullock v. Carter, 405 U. S. 134, 144 (1972); Reed v. Reed, 404 U. S. 71 (1971); see also Gunther, Foreword: In Search of Evolving Doctrine on a Changing Court: A Model for a Newer Equal Protection, 86 Harv. L. Rev. 1 (1972). Had the courts below undertaken this inquiry, rather than unreflectively applying the minimum rationality test, the outcome here might well have been different.

Respondents do not claim to have relied on a legislative proscription of particular sexual conduct. The Commonwealth of Pennsylvania repealed its law prohibiting adultery and fornication in 1972. 1972 Pa. Laws, Act No. 334, § 5. Rather, in the exercise of ad hoc and, it seems, unreviewable discretion, respondents determined to deprive petitioners of their jobs unless “they 'normalized’ their relationship through marriage or [unless] Philburn moved out.” 436 F. Supp., at 1331. The District Court found that “the motivating factor behind the discharges of [petitioners] was that they were living together in a state of 'open adultery.’ ” Id., at 1332. Respondents were unwilling to appear as if they “condoned [petitioners’] extramarital 'affair’ and . . . the child’s birth out of wedlock.” Ibid. Thus, respondents apparently did not object to furtive adultery, but only to petitioners’ refusal to hide their relationship. In essence, respondents sought to force a standard of hyprocrisy on their employees and fired those who declined to abide by it. In my view, this form of discrimination is particularly invidious.

Such administrative intermeddling with important personal rights merits more than minimal scrutiny. One such right, clearly implicated by petitioners’ discharge, is that “ 'of the individual ... to engage in any of the common occupations of life,’ ” Board of Regents v. Roth, 408 U. S. 564, 572 (1972), quoting Meyer v. Nebraska, 262 U. S. 390, 399 (1923); see Perry v. Sindermann, 408 U. S. 593, 597 (1972); Pickering v. Board of Education, 391 U. S. 563, 568 (1968). Perhaps even more vital is “the right to be free, except in very limited circumstances, from unwanted governmental intrusions into one’s privacy.” Stanley v. Georgia, 394 U. S. 557, 564 (1969). Although we have never demarcated the precise boundaries of this right, we have held that it broadly encompasses “freedom of personal choice in matters of marriage and family life.” Cleveland Board of Education v. LeFleur, 414 U. S. 632, 639-640 (1974) (pregnancy). See, e. g., Loving v. Virginia, 388 U. S. 1, 12 (1967), and Zablocki v. Redhail, 434 U. S. 374, 383-385 (1978) (marriage); Skinner v. Oklahoma ex rel. Williamson, 316 U. S. 535, 541-542 (1942) (procreation); Eisenstadt v. Baird, 405 U. S. 438, 453-454 (1972); id., at 460, 463-465 (White, J., concurring in result), and Carey v. Population Services International, 431 U. S. 678, 684-685 (1977) (contraception); Prince v. Massachusetts, 321 U. S. 158, 166 (1944) (family relationships); Pierce v. Society of Sisters, 268 U. S. 510, 535 (1925), and Meyer v. Nebraska, supra, at 399 (child rearing and education); Roe v. Wade, 410 U. S. 113, 152-153 (1973) (abortion); Moore v. East Cleveland, 431 U. S. 494, 499 (1977) (plurality opinion) (right to determine family living arrangements).

Petitioners’ rights to pursue an open rather than a clandestine personal relationship and to rear their child together in this environment closely resemble the other aspects of personal privacy to which we have extended constitutional protection. That petitioners’ arrangement was unconventional or socially disapproved does not negate the resemblance, cf. Carey v. Population Services International, supra, at 698, 699 (plurality opinion); Eisenstadt v. Baird, supra, at 452-453; Wisconsin v. Yoder, 406 U. S. 205, 223-224 (1972), particularly in the absence of a judgment that the arrangement so offends social norms as to evoke criminal sanctions. And certainly, no distinction can be drawn between this case and those cited above in terms of the importance to petitioners of this personal decision. In addition, to impose separate living arrangements as a condition of employment impinges not only on petitioners’ associational interests, but also on the interests of their child in having a two-parent home. See Trimble v. Gordon, supra, at 769-770; Weber v. Aetna Casualty & Surety Co., 406 U. S. 164, 175 (1972).

Petitioners’ choice of living arrangements for themselves and their child is thus sufficiently close to the interests we have previously recognized as fundamental and sufficiently related to the constitutional guarantee of freedom of association that it should not be relegated to the minimum rationality tier of equal protection analysis, a disposition that seems invariably fatal to the assertion of a constitutional right. See Massachusetts Board of Retirement v. Murgia, 427 U. S., at 319-320 (Marshall, J., dissenting). Rather, respondents should at least be required to show that petitioners’ discharge serves a substantial state interest. See San Antonio Independent School Dist. v. Rodriguez, 411 U. S., at 124-126 (Marshall, J., dissenting); Massachusetts Board of Retirement v. Murgia, supra, at 325 (Marshall, J., dissenting); Reed v. Reed, supra, at 76-77. As the plurality held in Moore v. East Cleveland, supra, at 499, “when the government intrudes on choices concerning family living arrangements, this Court must examine carefully the importance of the governmental interests advanced and the extent to which they are served by the challenged regulation.”

Moreover, respondents’ actions here may not withstand even the minimal scrutiny of the rational-basis test. In the District Court’s view, the test was satisfied because respondents could have legitimately concluded that petitioners’ relationship impaired their effectiveness on the job and that failure to discharge them would constitute tacit approval of an illicit relationship.

The court acknowledged, however, that petitioners were “competent employees who had had no significant problems with their employers until the circumstances that gave rise to their discharges.” 436 F. Supp., at 1330-1331. In suggesting that respondents could rationally find petitioner Hollenbaugh unfit to perform her duties, the court observed merely that her job “involved direct and frequent contacts with the community” and that the “community was well aware of [petitioners’] living arrangement.” Id., at 1332, 1333. This reasoning reduces to the conclusion that Hollenbaugh was incompetent as a librarian because some members of the community disapproved of her lifestyle. But the District Court never intimated that this disapproval affected the community members’ use of the library or that Hollenbaugh’s marital status in any way diminished her ability to discharge her duties as a librarian. And the court gave no indication that Philburn’s custodial job called for similar contacts with the community or that his performance was affected in any way by his extramarital relationship.

Nor does the District Court’s opinion make clear how respondents’ interest in avoiding the appearance of “tacit approval” of petitioners’ relationship provided a rational basis for petitioners’ discharge. The court adverted to no evidence suggesting that petitioners’ status impaired the library’s performance of its public function. Moreover, the State has given some indication of the prevailing moral sensibilities of the community by the repeal in 1972 of the criminal sanctions against fornication and adultery.

Ill

On a record so devoid of evidence in support of petitioners’ discharge, the Court of Appeals’ holding appears to conflict with decisions of other courts striking down similar attempts by governmental bodies to regulate the private lives of their employees. In Andrews v. Drew Municipal Separate School Dist., 507 F. 2d 611 (CA5 1975), cert. dismissed as improvidently granted, 425 U. S. 559 (1976), the Court of Appeals found that a school district rule barring employment of unwed parents was insufficiently related to any legitimate objective to satisfy the requirements of the Equal Protection Clause. Similarly, in Drake v. Covington County Board of Education, 371 F. Supp. 974, 979 (MD Ala. 1974), a three-judge District Court declared unconstitutional the dismissal of an unmarried, pregnant teacher, finding no compelling interest “which would justify the invasion of [the teacher’s] constitutional right of privacy.” See also Mindel v. United States Civil Service Commission, 312 F. Supp. 485 (ND Cal. 1970) (discharge of postal clerk for living with a woman not his wife held unconstitutional). These decisions reflect a considerably greater degree of solicitude for the privacy interests of public employees than was evident in the rulings of the courts below.

I believe that individuals’ choices concerning their private lives deserve more than token protection from this Court, regardless of whether we approve of those choices. Accordingly, I dissent from the denial of certiorari.


text:
    No. 78-5582.
    Rogers v. Douglas et ux.
   Ct. App. D. C. Certiorari denied.

Mr. Justice Brennan and Mr. Justice Marshall would grant certiorari


text:
    No. 78-5110.
    No. 78-5322.
    Crisafi v. United States, Lingham v. Commissioner of Internal Revenue,
   ante, p. 931; and

ante, p. 933. Petitions for rehearing denied.


text:
    December 26, 1978
    No. 78-688.
    Sammons, dba Sammons Trucking, et al. v. Schindele et al.
   Appeal from Sup. Ct. Minn, dismissed under this Court’s Rule 60.


text:
    January 8, 1979
    No. 78-580.
    No. 78-731.
    Garcia et al. v. Uvalde County et al.; and United States v. Uvalde County et al.
   Affirmed on appeal from D. C. W. D. Tex.

Mr. Justice Brennan and Mr. Justice Marshall would note probable jurisdiction and set cases for oral argument.

Reported below: 455 F. Supp. 101.


text:
    No. 77-1567.
    Buck v. Hunter et al.
   Appeal from Ct. App. N. Y. dismissed for want of substantial federal question.

Mr. Justice Brennan would note probable jurisdiction and set case for oral argument.


text:
    No. 78-343.
    Grady et al. v. McLean.
   Appeal from Ct. App. N. Y. dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for writ of certiorari, certiorari denied


text:
    No. 78-5508.
    Drew v. Louisiana.
   Appeal from Sup. Ct. La. dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for writ of certi-orari, certiorari denied.


text:
    No. 78-5660.
    Bell v. Church et al.
   Appeal from C. A. 5th Cir. dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for writ of certiorari, certiorari denied.


text:
    No. 78-621.
    Village of Carpentersville v. Limperis, Trustee in Bankruptcy.
   Appeal from C. A. 7th Cir. dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for writ of certiorari, certio-rari denied.


text:
    No. 78-741.
    Futch v. O’Leary; and Futch v. Sieben-Morgen.
   Appeal from Ct. App. Cal., 1st App. Disk, dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for writ of certiorari, cer-tiorari denied.


text:
    No. 78-5662.
    Cross v. Alzofon et al.
   Appeal from Ct. App. Cal., 1st App. Disk, dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for writ of certiorari, certiorari denied.


text:
    No. 78-360.
    Randolph et al. v. Municipal Court, Southern Judicial District, County of San Mateo, et al. (California, Real Party in Interest).
   Appeal from Ct. App. Cal., 1st App. Disk, dismissed for want of substantial federal question.

Mr. Justice Brennan, Mr. Justice Stewart, and Mr. Justice Marshall would reverse the convictions.


text:
    No. 78-649.
    City of Boston et al. v. Anderson et al.
   Appeal from Sup. Jud. Ct. Mass, dismissed for want of substantial federal question.

Mr. Justice Brennan, Mr. Justice Blackmun, and Mr. Justice Powell would note probable jurisdiction and set case for oral argument.


text:
    No. 78-816.
    Bell v. New York State Liquor Authority.
   Appeal from App. Div., Sup. Ct. N. Y., 3d Jud. Dept., dismissed for want of jurisdiction.


text:
    No. 78-5290.
    Ezzell v. Los Angeles County Department of Adoptions.
   Appeal from Sup. Ct. Cal. dismissed for want of substantial federal question.


text:
    No. 78-5357.
    Caldwell v. Kaquatosh et al.
   Appeal from Sup. Gt. Wis. dismissed for want of substantial federal question.

Mr. Justice Brennan and Mr. Justice Stevens would note probable jurisdiction and set case for oral argument.


text:
    No. 78-571.
    Blucher v. United States.
   C. A. 10th Cir. Certiorari granted, judgment vacated, and case remanded to the United States District Court for the District of Wyoming with directions to vacate its judgment and dismiss the indictment.

Mr. Justice White, Mr. Justice Powell, and Mr. Justice Rehnquist dissent.


text:
    No. 77,
    Orig.
    Tennessee v. Arkansas.
   It is ordered that the Honorable Earl R. Larson, Senior Judge of the United States District Court for the District of Minnesota, be appointed Special Master in this case with authority to fix the time and conditions for the filing of additional pleadings and to direct subsequent proceedings, and with authority to summon witnesses, issue subpoenas, and take such evidence as may be introduced and such as he may deem necessary to call for. The Master is directed to submit such reports as he may deem appropriate.

The Master shall be allowed his actual expenses. The allowances to him, the compensation paid to his technical, stenographic, and clerical assistants, the cost of printing his report, and all other proper expenses shall be charged against and be borne by the parties in such proportion as the Court may hereafter direct.

It is further ordered that if the position of Special Master in this case becomes vacant during a recess of the Court, The Chief Justice shall have authority to make a new designation which shall have the same effect as if originally made by the Court. [For earlier order herein, see ante, p. 812.]


text:
    No. A-452 (78-951).
    Morton v. Morton.
   Ct. App. Cal., 2d App. Dist. Application for stay, addressed to Mr. Justice Brennan and referred to the Court, denied.


text:
    No. A-580 (78-437).
    No. A-374 (78-689).
    Califano, Secretary of Health, Education, and Welfare v. Westcott et al.; and Sharp, Commissioner, Department of Public Welfare of Massachusetts v. Westcott et al.
   D. C. Mass. [Probable jurisdiction noted, ante, p. 1044.] Application of the Solicitor General for stay of judgment of the United States District Court for the District of Massachusetts, presented to Mr. Justice Brennan, and by him referred to the Court, granted pending this Court’s final disposition of the cases.

Mr. Justice Brennan would deny the application. Application of the Attorney General of Massachusetts for partial stay of judgment of the United States District Court for the District of Massachusetts, addressed to Mr. Justice Rehnquist and referred to the Court, denied.


text:
    No. A-601.
    Lynch et al. v. United States.
   Application for stay of mandate of the United States Court of Appeals for the District of Columbia Circuit, addressed to Mr. Justice Marshall and referred to the Court, denied.


text:
    No. D-70.
    In re Disbarment of Weber.
    [For earlier order herein, see 429 U. S. 936.]
   Disbarment entered.


text:
    No. D-124.
    In re Disbarment of Lindsay.
    [For earlier order herein, see 434 U. S. 979.]
   Disbarment entered.


text:
    No. 77-1497.
    Arkansas v. Sanders.
   Sup. Ct. Ark. [Cer-tiorari granted, ante, p. 891.] Motion of respondent for leave to proceed further herein in forma pav/peris granted. Motion for appointment of counsel granted, and it is ordered that Jack T. Lassiter, Esquire, of Little Rock, Ark., be appointed to serve as counsel for respondent in this case.


text:
    No. 77-922.
    Chrysler Corp. v. Brown, Secretary of Defense, et al.
   C. A. 3d Cir. [Certiorari granted, 435 U. S. 914.] Motion of petitioner for leave to file supplemental brief after argument granted.


text:
    No. 77-1575.
    No. 77-1648.
    No. 77-1662.
    Federal Communications Commission v. Midwest Video Corp. et al.; American Civil Liberties Union v. Federal Communications Commission; and National Black Media Coalition et al. v. Midwest Video Corp. et al.
   C. A. 8th Cir. [Certiorari granted, ante, p. 816.] Motion of the Solicitor General to dispense with printing appendix granted.


text:
    No. 77-1578.
    No. 77-1583.
    Broadcast Music, Inc., et al. v. Columbia Broadcasting System, Inc., et al.; and American Society of Composers, Authors, & Publishers et al. v. Columbia Broadcasting System, Inc., et al.
   C. A. 2d Cir. [Certiorari granted, ante, p. 817.] Motions of National Broadcasting Co., Inc., American Broadcasting Companies, Inc., and National Religious Broadcasters, Inc., for leave to file briefs as amici curiae granted. Motion of All-Industry Television Music License Committee for leave to participate in oral argument as amicus curiae denied.


text:
    No. 77-1652.
    No. 77-1654.
    Federal Energy Regulatory Commission v. Shell Oil Co. et al.; and Consumer Energy Council of America v. Federal Energy Regulatory Commission.
   C. A. 5th Cir. [Certiorari granted, ante, p. 817.] Motion of the Solicitor General for additional time for oral argument denied.

Mr. Justice Stewart took no part in the consideration or decision of this motion.


text:
    No. 78-5914.
    Schreibman v. Walter E. Heller & Company of Puerto Rico et al.
   C. A. 1st Cir. Motion of Las Colinas Development Corp. for leave to proceed in forma pau-peris denied.

Mr. Justice Stewart would grant the motion.


text:
    No. 77-1806.
    Ford Motor Co. (Chicago Stamping Plant) v. National Labor Relations Board et al.
   C. A. 7th Cir. [Certiorari granted, ante, p. 891.] Motion of respondent UAW Local 588 for additional time for oral argument denied. Alternative request for divided argument granted.


text:
    No. 77-6949.
    Dunn v. United States.
   C. A. 10th Cir. [Certiorari granted, ante, p. 1045..] Motion for appointment of counsel granted, and it is ordered that Daniel J. Sears, Esquire, of Denver, Colo., be appointed to serve as counsel for petitioner in this case.


text:
    No. 78-99.
    Parker v. Randolph et al.
   C. A. 6th Cir. [Certiorari granted, ante, p. 978.] Motion for appointment of counsel granted, and it is ordered that Walter Lee Evans, Esquire, of Memphis, Tenn., be appointed to serve as counsel for respondent in this case.


text:
    No. 78-201.
    Greenholtz, Chairman, Board of Parole of Nebraska, et al. v. Inmates of the Nebraska Penal and Correctional Complex et al.
   C. A. 8th Cir. [Certiorari granted, ante, p. 817.] Motion of Jerome N. Frank Legal Services Organizations of Yale Law School et al. for leave to participate in oral argument as amici curia# denied.


text:
    No. 78-225.
    Babbitt, Governor of Arizona, et al. v. United Farm Workers National Union et al.
   D. C. Ariz. [Probable jurisdiction postponed, ante, p. 891.] Motion of appellee United Farm Workers National Union for additional time for oral argument granted and 10 additional minutes allotted for that purpose. Appellants also allotted an additional 10 minutes for oral argument.


text:
    No. 78-5283.
    Jackson v. Virginia et al.
   C. A. 4th Cir. [Certiorari granted, ante, p. 1001.] Motion for appointment of counsel granted, and it is ordered that Carolyn J. Colville of Richmond, Va., be appointed to serve as counsel for petitioner in this case.


text:
    No. 78-329.
    No. 78-330.
    Bellotti, Attorney General of Massachusetts, et al. v. Baird et al.; and Hunerwadel v. Baird et al.
   D. C. Mass. [Probable jurisdiction noted, ante, p. 925.] Motion for appointment of Alan Ernest as counsel or guardian ad litem for unborn children denied.


text:
    No. 78-5633.
    No. 78-5747.
    No. 78-5799.
    Carter v. Bue, U. S. District Judge; Carbino et al. v. United States Court of Appeals for the Third Circuit; and Green v. Ralston, Judge.
   Motions for leave to file petitions for writs of mandamus denied.


text:
    No. 78-5717.
    Green v. Clerk, U. S. District Court, Western District of Missouri.
   Motion for leave to file petition for writ of mandamus and/or prohibition denied.


text:
    No. 78-759.
    Leroy, Attorney General of Idaho, et al. v. Great Western United Corp.
   Appeal from C. A. 5th Cir. Probable jurisdiction noted.


text:
    No. 78-223.
    National Labor Relations Board v. Baptist Hospital, Inc.
   C. A. 6th Cir. Certiorari granted.


text:
    No. 78-625.
    Andrus, Secretary of the Interior, et al. v. Sierra Club et al.
   C. A. D. C. Cir. Certiorari granted.


text:
    No. 78-690.
    Reiter v. Sonotone Corp. et al.
   C. A. 8th Cir. Certiorari granted.


text:
    No. 78-711.
    Southeastern Community College v. Davis.
   C. A. 4th Cir. Certiorari granted.


text:
    No. 78-744.
    United States v. Timmreck.
   C. A. 6th Cir. Certiorari granted.


text:
    No. 78-753.
    Great American Federal Savings & Loan Assn. et al. v. Novotny.
   C. A. 3d Cir. Certiorari granted.


text:
    No. 78-776.
    United States v. Batchelder.
   C. A. 7th Cir. Certiorari granted.


text:
    No. 78-575.
    No. 78-597.
    No. 78-604.
    Southern Railway Co. v. Seaboard Allied Milling Corp. et al.; Interstate Commerce Commission v. Seaboard Allied Milling Corp. et al.; and Seaboard Coast Line Railroad Co. et al. v. Seaboard Allied Milling Corp. et al.
   C. A. 8th Cir. Cer-tiorari granted, cases consolidated, and a total of one hour allotted for oral argument.

Mr. Justice Powell took no part in the consideration or decision of these petitions.

Reported below: 570 F. 2d 1349.


text:
    No. 78-610.
    Columbus Board of Education et al. v. Penick et al.
   C. A. 6th Cir. Certiorari granted and case set for oral argument with No. 78-627, immediately infra.


text:
    No. 78-627.
    Dayton Board of Education et al. v. Brinkman et al.
   C. A. 6th Cir. Certiorari granted and case set for oral argument with No. 78-610, immediately supra.


text:
    No. 78-680.
    Hutchinson v. Proxmire, U. S. Senator, et al.
   C. A. 7th Cir.. Certiorari granted and case set for oral argument with No. 78-5414, immediately infra.


text:
    No. 78-5414.
    Wolston v. Reader's Digest Assn., Inc., et al.
   C. A. D. C. Cir. Motion of petitioner for leave to proceed in forma pauperis granted. Certiorari granted and case set for oral argument with No. 78-680, immediately supra.


text:
    No. 78-749.
    Kentucky v. Whorton.
   Sup. Ct. Ky. Motion of respondent for leave to proceed in forma pauperis and certiorari granted.


text:
    No. 78-5384.
    Sandstrom v. Montana.
   Sup. Ct. Mont. Motion of petitioner for leave to proceed in forma pauperis and certiorari granted.


text:
    No. 77-6300.
    Bhillips, aka Gergel v. Pennsylvania.
   Sup. Ct. Pa. Certiorari denied.


text:
    No. 78-342.
    Jara v. Municipal Court for the San Antonio Judicial District of Los Angeles County (County of Los Angeles et al., Real Parties in Interest).
   Sup. Ct. Cal. Certiorari denied.


text:
    No. 78-373.
    Toomer v. Arkansas.
   Sup. Ct. Ark. Cer-tiorari denied.


text:
    No. 78-388.
    Tex-La Electric Cooperative, Inc., et al. v. Andrus, Secretary of the Interior, et al.
   C. A. D. C. Cir. Certiorari denied.


text:
    No. 78-393.
    Pierceall v. Virginia.
   Sup. Ct. Va. Cer-tiorari denied.


text:
    No. 78-394.
    Costanzo v. United States.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 78-399.
    Nabors v. Arkansas.
   Sup. Ct. Ark. Certi-orari denied.


text:
    No. 78-417.
    No. 78-447.
    California et al. v. Civil Aeronautics Board; and National Association of Regulatory Utility Commissioners v. Civil Aeronautics Board.
   C. A. D. C. Cir. Certiorari denied. Reported below: 189 U. S. App. D. C. 176, 581 F. 2d 954.


text:
    No. 78-423.
    Cheiman et al. v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 78-430.
    Todd et ux. v. Associated Credit Bureau Services, Inc., et al.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 78-462.
    Osborne v. United States.
   Ct. Cl. Cer-tiorari denied.


text:
    No. 78-484.
    O’Callaghan v. United States.
   Ct. Cl. Certiorari denied.


text:
    No. 78-489.
    Mitchell et ux. v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 78-495.
    Cole Hospital, Inc., et al. v. Califano, Secretary of Health, Education, and Welfare.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 78-496.
    Richardson et al. v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 78-497.
    Ramsey v. United States.
   Ct. Cl. Certi-orari denied.


text:
    No. 78-505.
    Braesch et al. v. DePasquale et al.
   Sup. Ct. Neb. Certiorari denied.


text:
    No. 78-514.
    Abney v. Abney.
   Ct. App. Ind. Certiorari denied.


text:
    No. 78-518.
    Nacirema Operating Co. et al. v. Lynn et al.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 78-532.
    No. 78-537.
    No. 78-697.
    Consolidation Coal Co. v. United States; Zitko v. United States; and Marks v. United States.
   C. A. 6th Cir. Certiorari denied. Reported below: 579 F. 2d 1011.


text:
    No. 78-538.
    Crippen v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 78-542.
    Tama Meat Packing Corp. v. National Labor Relations Board.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 78-547.
    Burton v. United States.
   C. A. D. C. Cir. Certiorari denied.


text:
    No. 78-548.
    Arroyo et al. v. United States.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 78-562.
    Madonna v. United States.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 78-569.
    Patton v. United States.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 78-577.
    Valand v. Immigration and Naturalization Service.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 78-581.
    Cahn v. Joint Bar Association Grievance Committee.
   Ct. App. N. Y. Certiorari denied.


text:
    No. 78-585.
    Jackson Sawmill Co., Inc., et al. v. United States et al.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 78-592.
    St. Vincent’s Medical Center of Richmond v. State Human Rights Appeal Board et al.
   App. Div., Sup. Ct. N. Y., 2d Jud. Dept. Certiorari denied.


text:
    No. 78-594.
    O’Brien v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 78-614.
    Construction & General Laborers’ Union Local 1140, Affiliated with International Laborers’ Union of North America, AFL-CIO v. National Labor Relations Board.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 78-615.
    International Association of Machinists & Aerospace Workers, AFL-CIO v. National Labor Relations Board et al.
   C. A. D. C. Cir. Certiorari denied.


text:
    No. 78-619.
    Getty Oil Co. v. Department of Energy et al.
   Temp. Emerg. Ct. App. Certiorari denied.


text:
    No. 78-633.
    Local 102, International Ladies’ Garment Workers’ Union v. United States.
   C. A. 2d Cir. Certio-rari denied.


text:
    No. 78-639.
    International Brotherhood of Electrical Workers, Local 367 v. National Labor Relations Board.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 78-652.
    Peat v. National Transportation Safety Board.
   C. A. D. C. Cir. Certiorari denied.


text:
    No. 78-658.
    No. 78-678.
    Utah Power & Light Co. v. Environmental Defense Fund, Inc., et al.; and Colorado River Water Conservation District et al. v. Environmental Defense Fund, Inc., et al.
   C. A. D. C. Cir. Certiorari denied.


text:
    No. 78-659.
    Forstner v. Immigration and Naturalization Service.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 78-660.
    Pleasanton Gravel Co. v. Commissioner of Internal Revenue.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 78-664.
    New York Shipping Assn., Inc., et al. v. Waterfront Commission of New York Harbor.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 78-668.
    Dipp v. United States.
   C. A. 9th Cir. Cer-tiorari denied.


text:
    No. 78-677.
    Arthur Young & Co. v. Securities and Exchange Commission.
   C. A. D. C. Cir. Certiorari denied.


text:
    No. 78-682.
    T. G. Motors, Inc., of Houston, dba Tom Gray Datsun v. Jackson et al.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 78-684.
    American Service Corp. et al. v. United States.
   C. A. 5th Cir. Certiorari denied.