text:
    No. 77-52.
    United States v. Ford.
   C. A. 2d Cir. [Certiorari granted, ante, p. 816.] Motion of Phylis Skloot Bamberger to permit David J. Gottlieb, Esquire, to present oral argument pro hac vice granted.


source: Caselaw Access Project

license: Public Domain

text:
    No. 77-240.
    St. Paul Fire & Marine Insurance Co. et al. v. Barry et al.
   C. A. 1st Cir. [Certiorari granted, ante, p. 919.] Motions of Blue Shield Assn., American Insurance Assn, et al., and National Association of Insurance Commissioners for leave to file briefs as amici curiae granted.


text:
    No. 77-262.
    No. 77-375.
    Duke Power Co. v. Carolina Environmental Study Group, Inc., et al.; and United States Nuclear Regulatory Commission et al. v. Carolina Environmental Study Group, Inc., et al.
   Appeals from D. C. W. D. N. C. [Probable jurisdiction noted, ante, p. 937.] Motions of Southeastern Legal Foundation and Pacific Legal Foundation for leave to file briefs as amici curiae granted. Motion of the Solicitor General for additional, time for oral argument granted and 15 additional minutes allotted for that, purpose. Appellees also allotted 15 additional minutes for oral argument.


text:
    No. 77-475.
    Fry v. United States.
   C. A. 6th Cir. Motion to grant petition for certiorari as sanction for the United States’ failure to file a timely brief denied.


text:
    No. 77-643.
    No. 77-765.
    No. 77-772.
    United Steelworkers of America, AFL-CIO-CLC v. Sadlowski et al. Wadsworth, Administrator, New Hampshire Employers’ Benefit Trust, et al. v. Whaland, Commissioner, Department of Insurance of New Hampshire. Dawson, Administrator, Northern New England Carpenters Health & Welfare Fund, et al. v. Whaland, Commissioner, Department of Insurance of New Hampshire.
   C. A. 3d Cir. ;

C. A. 1st Cir.; and

C. A. 1st Cir. The Solicitor General is invited to file briefs in these cases expressing the views of the United States.


text:
    No. 77-5176.
    Franks v. Delaware.
   Sup. Ct. Del. Motion of the Solicitor General for leave to participate in oral argument as amicus curiae denied.


text:
    No. 77-5807.
    Alley v. United States Court of Appeals for the District of Columbia Circuit et al.
   Motion for leave to file petition for writ of mandamus denied.


text:
    No. 77-747.
    Allied Structural Steel Co. v. Spannaus, Attorney General of Minnesota, et al.
   Appeal from D. C. Minn. Probable jurisdiction noted.


text:
    No. 77-453.
    Eastex, Inc. v. National Labor Relations Board.
   C. A. 5th Cir. Certiorari granted.


text:
    No. 77-314.
    Swonger et al. v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 77-405.
    No. 77-417.
    Lustig v. United States; and Lustig v. United States.
   C. A. 9th Cir. Certiorari denied. Reported below: No. 77-405, 555 F. 2d 737; No. 77-417, 555 F. 2d 751.


text:
    No. 77-424.
    Tucker et ux. v. United States.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 77-448.
    National Airlines, Inc. v. Civil Aeronautics Board et al.
   C. A. D. C. Cir. Certiorari denied.


text:
    No. 77-495.
    Swarovski v. United States.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 77-589.
    Cahalane et al. v. United States.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 77-595.
    No. 77-838.
    U. S. Industries, Inc. v. Page et al.; and Page et al. v. U. S. Industries, Inc.
   C. A. 5th Cir. Certiorari denied. Reported below: 556 F. 2d 346.


text:
    No. 77-651.
    United Broadcasting Co., Inc. v. Federal Communications Commission et al.
   C. A. D. C. Cir. Certiorari denied.


text:
    No. 77-710.
    Call v. California.
   Ct. App. Cal., 1st App. Dist. Certiorari denied.


text:
    No. 77-715.
    Edwards v. Superior Court of California, El Dorado County (Carter et al., Real Parties in Interest).
   Sup. Ct. Cal. Certiorari denied.


text:
    No. 77-721.
    Emery v. Superior Court of California, Riverside County (California, Real Party in Interest).
   Ct. App. Cal., 4th App. Dist. Certiorari denied.


text:
    No. 77-730.
    Reeves v. Oklahoma.
   Ct. Crim. App. Okla. Certiorari denied.


text:
    No. 77-751.
    Hagendorfer v. Alabama.
   Ct. Crim. App. Ala. Certiorari denied.


text:
    No. 77-758.
    Richter, dba Body Shop v. Department of Alcoholic Beverage Control of California et al.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 77-760.
    Levine et ux. v. Stein et al.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 77-774.
    Sweeny, Executor and Trustee v. Knowlton et al.
   Sup. Ct. Va. Certiorari denied.


text:
    No. 77-776.
    Forte Towers, Inc., et al. v. City of Miami Beach.
   Cir. Ct. Fla., Dade County. Certiorari denied.


text:
    No. 77-778.
    Hashemi v. Inter-Regional Financial Group, Inc.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 77-781.
    Pentagon City Coordinating Committee, Inc., et al. v. Arlington County Board et al.
   Sup. Ct. Va. Certiorari denied.


text:
    No. 77-789.
    Zaby et al. v. California; and DeMarco et al. v. California.
   Ct. App. Cal., 2d App. Dist. Certiorari denied.


text:
    No. 77-796.
    International Union, United Mine Workers of America, et al. v. Cedar Coal Co. et al.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 77-799.
    Aquilino et al. v. McGraw-Edison Co. et al.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 77-811.
    Phelps Dodge Corp. et al. v. State Tax Commission of Arizona et al.
   Sup. Ct. Ariz. Certiorari denied.


text:
    No. 77-816.
    Drielick v. Michigan.
   Sup. Ct. Mich. Certiorari denied.


text:
    No. 77-5422.
    Brinklow v. United States.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 77-5423.
    McManus v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 77-5449.
    Rodriguez v. Ritchey et al.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 77-5476.
    Jackson v. Texas.
   Ct. Crina. App. Tex. Certiorari denied.


text:
    No. 77-5478.
    Jaquez v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 77-5529.
    DeRose v. United States.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 77-5545.
    Jones v. Missouri.
   Ct. App. Mo., St. Louis Dist. Certiorari denied.


text:
    No. 77-5548.
    Bradley v. United States.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 77-5570.
    Rosa et al. v. United States.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 77-5692.
    Woe v. Califano, Secretary of Health, Education, and Welfare, et al.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 77-5709.
    Sottile v. Secretary of Health, Education, and Welfare.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 77-5746.
    Donald, aka Davis v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 77-5762.
    Johnson v. Johnson.
   Sup. Ct. Alaska. Certiorari denied.


text:
    No. 77-5768.
    Taylor v. Mississippi Employment Security Commission et al.
   Sup. Ct. Miss. Certiorari denied.


text:
    No. 77-5771.
    Fair, aka Farrior v. Rockefeller et al.
   C. A. D. C. Cir. Certiorari denied.


text:
    No. 77-5778.
    Schwartz v. Pitts, Sheriff.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 77-5782.
    Souza v. Hawaii.
   Sup. Ct. Hawaii. Certiorari denied.


text:
    No. 77-5798.
    Johnson v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 77-5803.
    Bryant v. Byrd et al.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 77-5805.
    Windows v. Pennsylvania.
   Super. Ct. Pa. Certiorari denied.


text:
    No. 77-5808.
    Hardwick v. Doolittle et al.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 77-5809.
    Turner v. Landry.
   C. A. 5th Cir. Cer-tiorari denied.


text:
    No. 77-5811.
    Gilbert v. Yalanzon.
   Ct. App. Ga. Cer-tiorari denied.


text:
    No. 77-5819.
    Teplitsky v. Bureau of Compensation, U. S. Department of Labor, et al.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 77-5825.
    Myers v. Ampex, Inc., et al.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 77-5828.
    Washington v. Missouri.
   Ct. App. Mo., Kansas City Dist. Certiorari denied.


text:
    No. 77-5840.
    Savage v. City of Worthington, Ohio.
   Ct. App. Ohio, Franklin County. Certiorari denied.


text:
    No. 77-5841.
    Hollis v. New York.
   C. A. 2d Cir. Cer-tiorari denied.


text:
    No. 77-5842.
    Hockings v. Oregon.
   Ct. App. Ore. Cer-tiorari denied.


text:
    No. 77-5843.
    Hill v. Estelle, Corrections Director.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 77-5849.
    Pearson v. New York.
   App. Div., Sup. Ct. N. Y., 4th Jud. Dept. Certiorari denied.


text:
    No. 77-5850.
    Smiley v. California et al.
   Sup. Ct. Cal. Certiorari denied.


text:
    No. 77-5856.
    Cedrone v. United States.
   C. A. 1st Cir. Certiorari denied.


text:
    No. 77-5866.
    Morgan et al. v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 77-5868.
    Brooks v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 77-5880.
    Garcia-Rodriguez et al. v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 77-5881.
    Robideau v. United States.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 77-5883.
    Ray v. United States.
   C. A. D. C. Cir. Certiorari denied.


text:
    No. 77-5885.
    Impson v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 77-5886.
    Robinson v. United States.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 77-5888.
    Schlaebitz v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 77-5894.
    Steele v. United States.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 77-5897.
    Nisnewitz v. United States.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 77-5904.
    Blachowiak v. United States.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 77-5906.
    Sizemore v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 77-5912.
    LaFontaine v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 77-5914.
    Cloud v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 77-5917.
    Dillard v. New York et al.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 77-5924.
    Lemons v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 77-5925.
    Jones v. United States.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 77-5929.
    McBride v. United States.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 77-97.
    Allied Chemical Corp. v. White et al.
   C. A. 5th Cir. Certiorari denied.

Mr. Justice Blackmun would grant certiorari.


text:
    No. 77-665.
    United States v. Pitcairn.
   Ct. Cl. Motions of Bell Helicopter Textron and Eltra Corp. for leave to file briefs as amici curiae granted. Certiorari denied.

Mr. Justice White and Mr. Justice Blackmun would grant cer-tiorari.


text:
    No. 77-823.
    Weyerhaeuser Co. v. Shepler et al.
   Sup. Ct. Ore. Certiorari denied.

Mr. Justice White would grant certiorari.


text:
    No. 77-443.
    No. 77-554.
    No. 77-5553.
    No. 77-5620.
    Joseph Skilken & Co. et al. v. City of Toledo et al., Globe Linings, Inc., et al. v. City of Corvallis et al., Brock v. Texas, Young v. Georgia,
   ante, p. 985;

ante, p. 985;

ante, p. 1002; and

ante, p. 1002. Petitions for rehearing denied.


text:
    No. 76-1333.
    Beer et ux. v. Commissioner of Internal Revenue,
   431 U. S. 938. Motion for leave to file petition for rehearing denied.

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


text:
    January 24, 1978
    No. 77-737.
    Goodyear Tire & Rubber Co. v. Big O Tire Dealers, Inc.
   C. A. 10th Cir. Certiorari dismissed under this Court’s Rule 60.


text:
    No. 77-867.
    Dansker et al. v. United States.
   C. A. 3d Cir. Certiorari dismissed under this Court’s Rule 60.


text:
    February 21, 1978
    No. 77-504.
    Enomoto, Corrections Director, et al. v. Wright et al.
   Affirmed on appeal from D. C. N. D. Cal.

Mr. Justice Rehnquist, with whom The Chief Justice joins,

dissenting.

Appellants seek to appeal to this Court a decision of a three-judge District Court pursuant to 28 U. S. C. § 1253. That section provides for a direct appeal from any “suit or proceeding required by any Act of Congress to be heard and determined by a district court of three judges.” If no Act of Congress required a three-judge District Court to hear this suit, the decision cannot be appealed directly to this Court pursuant to § 1253 even though a three-judge court may have been in fact convened. Appeal lies instead to the United States Court of Appeals. Under such circumstances, we do not have jurisdiction to consider the appeal. Board of Regents v. New Left Education Project, 404 U. S. 541 (1972); Moody v. Flowers, 387 U. S. 97 (1967); Phillips v. United States, 312 U. S. 246 (1941). Because I believe that no Act of Congress required a three-judge District Court in this case, I believe that the Court therefore errs in considering the merits of the appeal.

Appellee prisoners sued appellants, officials of the California prison system, in the District Court for the Northern District of California contending that constitutionally insufficient procedural safeguards are provided a prisoner who is placed into administrative segregation. A three-judge court was convened under 28 U. S. C. § 2281 (now repealed) which at the time this action was filed provided for such a court whenever the constitutionality of a “State statute ... or of an order made by an administrative board or commission acting under State statutes” is challenged.

It is the second clause of § 2281 that is relevant here since appellees challenge no state statute. The District Court based its jurisdiction on a presumed challenge to various regulations promulgated and issued by the Director of the Department of Corrections of the State of California. According to the District Court, these regulations are “formal orders of statewide application” and thus a challenge to their constitutionality provides jurisdiction under § 2281. Both because the regulations would not appear to be “order [s] made by an administrative board or commission” and because ap-pellees would not appear to challenge the regulations, I do not believe that a three-judge District Court was required by § 2281.

“[T]he three-judge court statute is to be strictly construed.” Board of Regents v. New Left Education Project, supra, at 545. Loose construction of § 2281 to require a three-judge court not only “entails a serious drain upon the federal judicial system” but also, inasmuch as direct review is in this Court, “defeat [s] the purposes of Congress, as expressed by the Jurisdictional Act of February 13, 1925, to keep within narrow confines our appellate docket.” Phillips v. United States, supra, at 250. Section 2281 does not speak broadly in terms of “formal orders,” as the District Court would assume. Instead, it requires a three-judge court to be convened only where a plaintiff challenges an “order made by an administrative board or commission.” (Emphasis added.) Here, the orders allegedly under attack were issued by only one man, the Director of the Department of Corrections. While Congress could have given three-judge courts jurisdiction over orders issued by any state official, it did not. When Congress uses exact terms such as “administrative board” and “commission,” it clearly does not intend to include state officials.

Even assuming that an order of a single state official can provide jurisdiction for a three-judge District Court here appellees' complaint does not bring into question the constitutionality of the regulations. As the District Court observed, the regulations provide for prior notice and a hearing “when possible”; these same regulations provide that an inmate should have the assistance of a caseworker or investigating officer when he is unable to prepare his own defense and should be allowed to testify and present documentary evidence; finally, a written statement of the outcome of the hearing is required. Appellees presumably do not object to these procedural safeguards. Instead, they argue that these regulations are not strictly followed, and that wardens are constitutionally obligated to go even further than the regulations require and provide for additional procedural protections such as cross-examination.

There is no allegation that the regulations prohibit additional procedural safeguards. The rules, which are entitled “General Procedures,” simply provide an outline for the procedures to be followed when a prisoner is placed in administrative segregation. Presumably, each warden is free to supplement these minimum procedures as he sees fit. While wardens may be providing the minimum procedures with the acquiescence and even approval of the Director, the choice of procedures (beyond the minimum required by the regulations) remains that of the warden and does not bind any other prison in California. Under such circumstances, the regulations of the Director, even if an order of an “administrative board or commission,” is not an order of “general application” and thus will not provide jurisdiction for a three-judge District Court. See Griffin v. County School Board, 377 U. S. 218 (1964).

Because a three-judge court was not required in this case, we do not have appellate jurisdiction and are not free to reach the merits. Board of Regents v. New Left Education Project, supra, and cases cited therein. Under such circumstances in the past, we have vacated the judgment and remanded with instructions to enter a fresh decree so that appellants may, if they desire, perfect a timely appeal to the Court of Appeals. I would follow that course here.


text:
    No. 77-493.
    Block C-11, Lot 11, et al. v. Atlantic City.
   Appeal from Sup. Ct. N. J. dismissed for want of substantial federal question.


text:
    No. 77-636.
    Roberts v. Johnson, Fire Marshal of South Carolina.
   Appeal from Sup. Ct. S. C. dismissed for want of substantial federal question.


text:
    No. 77-822.
    Lane v. Gallman et al., Tax Commission of New York.
   Appeal from App. Div., Sup. Ct. N. Y., 3d. Jud. Dept., dismissed for want of substantial federal question.


text:
    No. 77-842.
    Davis et ux. v. Franchise Tax Board of California.
   Appeal from Ct. App. Cal., 3d App. Dist., dismissed for want of substantial federal question.


text:
    No. 77-875.
    Rankin v. Ohio.
   Appeal from Sup. Ct. Ohio dismissed for want of substantial federal question.


text:
    No. 77-877.
    Horton et al. v. Oklahoma City, Oklahoma, et al.
   Appeal from Sup. Ct. Okla. dismissed for want of substantial federal question.


text:
    No. 77-883.
    Dappolonia v. Board of Chiropractic Examiners of Florida.
   Appeal from Dist. Ct. App. Fla., 4th Dist., dismissed for want of substantial federal question.


text:
    No. 77-862.
    Cal-Cut Pipe & Supply, Inc., dba Western Pipe & Tube Co. v. Southern Idaho Pipe & Steel Co.
   Appeal from Sup. Ct. Idaho dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for writ of certiorari, certiorari denied.


text:
    No. 77-934.
    Lawrence et al. v. Board of Education of the City of Chicago et al.
   Appeal from App. Ct. Ill., 1st Dist., dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for writ of cer-tiorari, certiorari denied.


text:
    No. 77-5908.
    Hampton v. Alaska.
   Appeal from Sup. Ct. Alaska dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for writ of certiorari, certiorari denied.


text:
    No. 77-5938.
    Layton et al. v. Ohio.
   Appeal from Ct. App. Ohio, Hancock County, dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for writ of certiorari, certiorari denied.


text:
    No. 77-5964.
    Wayland v. Furnari.
   Appeal from C. A. 1st 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. 77-899.
    Miller et al. v. Heffernan, Tax Commissioner of Connecticut.
   Appeal from Sup. Ct. Conn. Motions of Connecticut Legal Fund and Salisbury Taxpayers Assn, for leave to file briefs as amici curiae granted. Appeal dismissed for want of substantial federal question.


text:
    No. 77-5747.
    Haddad v. United States.
   C. A. 6th Cir. Motion of petitioner for leave to proceed in forma pauperis and certiorari granted. Judgment vacated and case remanded for further consideration in light of the views expressed by the Solicitor General in his memorandum filed January 31, 1978.

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


text:
    No. 74,
    Orig.
    Georgia v. South Carolina.
   It is ordered that the Honorable Walter E. Hoffman, Senior Judge of the United States District Court for the Eastern District of Virginia, 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. 917.]


text:
    No. 76,
    Orig.
    California v. Texas.
   Motion for leave to file bill of complaint set for oral argument in due course. [For earlier order herein, see ante, p. 993.]


text:
    No. 76-1610.
    Ayala et al. v. United States et al.
   C. A. 9th Cir. [Certiorari granted, ante, p. 814.] Motion of petitioner to reopen and supplement record granted.


text:
    No. 77-69.
    Panora, Registrar of Motor Vehicles of Massachusetts v. Montrym.
   Appeal from D. C. Mass. Motion of appellees to vacate judgment granted. The Court’s order of October 31, 1977 (ante, p. 916), vacating judgment of the District Court and remanding case for further consideration is hereby vacated, and appeal is restored to Court’s docket for appropriate action. Should the parties desire to file supplemental briefs in light of the District Court’s October 6, 1977, opinion, they may do so on or before March 24, 1978.


text:
    No. 77-408.
    Ingalls Shipbuilding Corp., Division of Litton Systems, Inc. v. Morgan et al.,
   ante, p. 966. Motion of respondents for attorney’s fees denied without prejudice to presenting a motion to the United States Court of Appeals for the Fifth Circuit.


text:
    No. 77-599.
    Parkhill-Goodloe Co., Inc., et al. v. McIntosh et al.,
   ante, p. 1033. Motion of respondent Rudolph McIntosh for award of attorney’s fee denied without prejudice to presenting a motion to the United States Court of Appeals for the Fifth Circuit.


text:
    No. 77-10.
    No. 77-11.
    No. 77-12.
    No. 77-47.
    No. 77-64.
    Exxon Corp. et al. v. Governor of Maryland et al.; Shell Oil Co. v. Governor of Maryland et al.; Continental Oil Co. et al. v. Governor of Maryland et al.; Gulf Oil Corp. v. Governor of Maryland et al.; and Ashland Oil, Inc., et al. v. Governor of Maryland et al.
   Appeals from Ct. App. Md. [Probable jurisdiction noted, ante, p. 814.] Motion of the State of California for leave to file a brief as amicus curiae granted. Motion of National Congress of Petroleum Retailers for leave to participate in oral argument as amicus curiae denied. Motion of appellees for divided argument granted.

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


text:
    No. 77-627.
    Austin National Bank, Guardian v. Norton et al.,
   ante, p. 1014. Motion of respondent to assess damages pursuant to this Court's Rule 56 (4) denied.


text:
    No. 77-910.
    Government of the Virgin Islands et al. v. Vitco, Inc.
   C. A. 3d Cir. The Solicitor General is invited to file a brief in this case expressing the views of the United States.


text:
    No. 77-5960.
    Roots v. Wainwright, Secretary, Department of Offender Rehabilitation of Florida.
   Motion for leave to file petition for writ of habeas corpus denied.


text:
    No. 77-5824.
    No. 77-5878.
    No. 77-5882.
    No. 77-5974.
    Evers v. United States; Grant v. Connecticut; Kaplan v. Whipple et al., Judges; and Newsome v. Collinson et al., U. S. District Judges.
   Motions for leave to file petitions for writs of mandamus denied.


text:
    No. 77-5792.
    Kordja v. New Jersey.
   Motion for leave to file petition for writ of certiorari denied.


text:
    No. 77-5873.
    Sellars v. Busch et al.
   Motion for leave to file petition for writ of mandamus and/or prohibition denied.


text:
    No. 77-742.
    Miller, Director, Department of Children and Family Services of Illinois, et al. v. Youakim et al.
   Appeal from C. A. 7th Cir. Probable jurisdiction noted.

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


text:
    No. 77-837.
    No. 77-849.
    New Motor Vehicle Board of California et al. v. Orrin W. Fox Co. et al.; and Northern California Motor Car Dealers Assn. et al. v. Orrin W. Fox Co. et al.
   Appeals from D. C. C. D. Cal. Probable jurisdiction noted, cases consolidated, and a total of one hour allotted for oral argument. Reported below: 440 F. Supp. 436.


text:
    No. 77-888.
    Vitek, Director, Department of Correctional Services, et al. v. Jones et al.
   Appeal from D. C. Neb. Probable jurisdiction noted.


text:
    No. 77-5903.
    Corbitt v. New Jersey.
   Appeal from Sup. Ct. N. J. Motion of appellant for leave to proceed in forma pauperis granted. Probable jurisdiction noted.


text:
    No. 77-539.
    Zenith Radio Corp. v. United States.
   C. C. P. A. Certiorari granted.


text:
    No. 77-752.
    National Labor Relations Board v. Catholic Bishop of Chicago et al.
   C. A. 7th Cir. Certiorari granted.


text:
    No. 77-832.
    Board of Governors of the Federal Reserve System v. First Lincolnwood Corp.
   C. A. 7th Cir. Certiorari granted.


text:
    No. 77-911.
    National Labor Relations Board v. Robbins Tire & Rubber Co.
   C. A. 5th Cir. Certiorari granted.


text:
    No. 77-719.
    Chapman, Commissioner, Department of Human Resources of Texas, et al. v. Houston Welfare Rights Organization et al.
   C. A. 5th Cir. Certiorari granted and case set for oral argument with No. 77-5324, immediately infra.


text:
    No. 77-5324.
    Gonzalez, Guardian v. Young, Director, Hudson County Welfare Board, et al.
   C. A. 3d Cir. Motion for leave to proceed in forma pauperis granted. Certiorari granted and case set for oral argument with No. 77-719, immediately supra.


text:
    No. 77-753.
    No. 77-754.
    International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America v. Daniel; and Local 705, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, et al. v. Daniel.
   C. A. 7th Cir. Motion of American Bankers Assn, for leave to file a brief as amicus curiae in No. 77-753 granted. Motions of National Association of Manufacturers, ERISA Industry Committee, National Coordinating Committee for Multiemployer Plans, American Federation of Labor & Congress of Industrial Organizations, and Gray Panthers for leave to file briefs as amici curiae granted. Certiorari granted, cases consolidated, and a total of one hour allotted for oral argument. Reported below: 561 F. 2d 1223.


text:
    No. 76-1327.
    Goodroe v. United States.
   C. A. 3d Gir. Certiorari denied.


text:
    No. 77-466.
    Pomponio v. United States.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 77-475.
    Fry v. United States.
   C. A. 6th Cir. Cer-tiorari denied.


text:
    No. 77-498.
    No. 77-538.
    Rodriguez v. United States; and Geraldo v. United States.
   C. A. 2d Cir. Certiorari denied. Reported below: 556 F. 2d 638.


text:
    No. 77-522.
    Dozier v. United States.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 77-526.
    Chitty v. United States; and Postal v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 77-527.
    Ramsey v. United States.
   C. A. D. C. Cir. Certiorari denied.


text:
    No. 77-583.
    Forsack v. United States.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 77-584.
    Neustein v. United States.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 77-588.
    Piascik v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 77-596.
    Gulf Oil Corp. v. Federal Energy Regulatory Commission et al.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 77-610.
    Harding v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 77-614.
    U-Anchor Advertising, Inc. v. Burt, dba Granot Lodge.
   Sup. Ct. Tex. Certiorari denied.


text:
    No. 77-621.
    Dade Christian Schools, Inc. v. Brown et al.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 77-628.
    Magill et al. v. Lynch et al.
   C, A. 1st Cir. Certiorari denied.


text:
    No. 77-630.
    National Beryllia Corp. v. National Labor Relations Board.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 77-633.
    Irvin et ux. v. Sims et al.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 77-638.
    Granaderos v. Immigration and Naturalization Service.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 77-641.
    Cantu v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 77-645.
    Der-Rong Chour v. Ferro, District Director, Immigration and Naturalization Service, et al.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 77-646.
    Brand v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 77-652.
    Dixon v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 77-656.
    International Association of Machinists & Aerospace Workers, AFL-CIO v. Equal Employment Opportunity Commission et al.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 77-659.
    Western Union Telegraph Co. v. Marshall, Secretary of Labor.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 77-663.
    Centeno Super Markets, Inc. v. National Labor Relations Board.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 77-667.
    Barker, Executrix v. Parker, Acting Commissioner of Patents and Trademarks.
   C. C. P. A. Cer-tiorari denied.


text:
    No. 77-671.
    Delta Air Lines, Inc. v. United States.
   C. A. 1st Cir. Certiorari denied.


text:
    No. 77-673.
    Quade et al., dba Northwest Truck Rentals v. United States.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 77-685.
    County of Suffolk et al. v. Secretary of the Interior et al.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 77-687.
    Meredith v. Workers’ Compensation Appeals Board of California et al.
   Sup. Ct. Cal. Certiorari denied.


text:
    No. 77-690.
    No. 77-724.
    No. 77-5730.
    Stone et al. v. United States; Goldstein v. United States; and Daidone v. United States.
   C. A. 5th Cir. Certiorari denied. Reported below: 558 F. 2d 775.


text:
    No. 77-708.
    McGrath v. United States.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 77-723.
    Cassity v. United States.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 77-726.
    J. P. Stevens & Co., Inc., et al. v. National Labor Relations Board.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 77-728.
    School District of Omaha et al. v. United States et al.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 77-729.
    Stouffer Corp., dba Stouffer’s Cincinnati Inn v. National Labor Relations Board et al.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 77-744.
    Carvel Co. v. National Labor Relations Board.
   C. A. 1st Cir. Certiorari denied.


text:
    No. 77-746.
    Johnson v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 77-768.
    Cook County et al. v. United States et al.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 77-777.
    Miller v. Harris, Secretary, Department of Housing and Urban Development, et al.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 77-779.
    In re Gillis.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 77-788.
    Cole et al. v. Tennessee.
   Ct. Crim. App. Tenn. Certiorari denied.


text:
    No. 77-791.
    Crossroads Books, Inc. v. TOA Enterprises, Inc.
   Sup. Ct. Va. Certiorari denied.


text:
    No. 77-793.
    King et al. v. Public Service Employees Local Union 572, Laborers International Union of North America, AFL-CIO, et al.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 77-798.
    Gulf Oil Corp. v. Maddox.
   Sup. Ct. Kan. Certiorari denied.


text:
    No. 77-800.
    Ouachita National Bank in Monroe v. Rowan et al.
   Ct. App. La., 4th Cir. Certiorari denied.


text:
    No. 77-804.
    Joachim v. Joachim.
   App. Div., Sup. Ct. N. Y., 2d Jud. Dept. Certiorari denied..


text:
    No. 77-808.
    Kansas City Area Transportation Authority of the Kansas City Area Transportation District v. Ashley et al.
   Sup. Ct. Mo. Certiorari denied.


text:
    No. 77-810.
    Ford v. Commissioner of Internal Revenue.
   C. A. 1st Cir. Certiorari denied.


text:
    No. 77-812.
    Dean v. American Security Insurance Co.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 77-813.
    Urias v. United States.
   C. A. 9th Cir. Cer-tiorari denied.


text:
    No. 77-814.
    Heizer Corp. v. Wright et al.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 77-815.
    White Plains Nursing Home v. Commissioner, Department of Health of New York, et al.
   Ct. App. N. Y. Certiorari denied.


text:
    No. 77-819.
    Hudson et al. v. Virginia.
   Sup. Ct. Va. Certiorari denied.


text:
    No. 77-827.
    Wilson v. United States.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 77-828.
    Gunther et al. v. Maryland-National Capital Park and Planning Commission.
   Ct. Sp. App. Md. Certiorari denied.


text:
    No. 77-829.
    Patterson et al. v. Arkansas.
   Sup. Ct. Ark. Certiorari denied.


text:
    No. 77-830.
    O’Connor v. Washington.
   Ct. App. Wash. Certiorari denied.


text:
    No. 77-831.
    Lo-Vaca Gathering Co. v. Railroad Commission of Texas.
   Temp. Emerg. Ct. App. Certiorari denied.


text:
    No. 77-833.
    Goldman v. United States.
   C. A. 1st Cir. Certiorari denied.


text:
    No. 77-834.
    Funger et al. v. Montgomery County, Maryland, et al.
   Ct. App. Md. Certiorari denied.


text:
    No. 77-844.
    No. 77-845.
    Monongahela Power Co. v. Public Service Commission of West Virginia; and Potomac Edison Co. v. Public Service Commission of West Virginia.
   Sup. Ct. App. W. Va. Certio-rari denied.


text:
    No. 77-847.
    Superior Oil Co. v. Sterling et al.
   Sup. Ct. Kan. Certiorari denied.


text:
    No. 77-848.
    Northern Natural Gas Producing Co. et al. v. Nix et al.
   Sup. Ct. Kan. Certiorari denied.


text:
    No. 77-850.
    Keyes et al. v. District of Columbia et al.
   Ct. App. D. C. Certiorari denied.


text:
    No. 77-853.
    Walton et ux. v. Papagianopoulos et al.
   Ct. App. Cal., 3d App. Dist. Certiorari denied.


text:
    No. 77-854.
    Providence Hospital v. Manhattan Construction Company of Texas et al.
   C. A. 5th Cir. Cer-tiorari denied.


text:
    No. 77-856.
    Phillips Petroleum Co. v. Shutts, Executor.
   Sup. Ct. Kan. Certiorari denied.


text:
    No. 77-858.
    No. 77-864.
    Public Broadcasting Service v. Network Project et al.; and Corporation for Public Broadcasting v. Network Project et al.
   C. A. D. C. Cir. Certiorari denied. Reported below: 183 U. S. App. D. C. 70, 561 F. 2d 963.


text:
    No. 77-860.
    Clubb v. Mississippi.
   Sup. Ct. Miss. Cer-tiorari denied.


text:
    No. 77-861.
    Hildebrand v. Unemployment Insurance Appeals Board of California et al.
   Sup. Ct. Cal. Certio-rari denied.


text:
    No. 77-871.
    Terry et ux. v. Klamath Production Credit Assn. et al.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 77-873.
    Moody et al. v. Texas et al.
   Ct. Civ. App. Tex. 10th Sup. Jud. Dist. Certiorari denied.


text:
    No. 77-878.
    Keefer v. California.
   Ct. App. Cal., 2d App. Dist. Certiorari denied.


text:
    No. 77-882.
    Wodoslawsky v. Maryland.
   Ct. Sp. App. Md. Certiorari denied.


text:
    No. 77-893.
    Gertler et vir v. City of New Orleans et al.
   Ct. App. La., 4th Cir. Certiorari denied.


text:
    No. 77-895.
    Ryan et al. v. Illinois.
   App. Ct. Ill., 1st Dist. Certiorari denied.


text:
    No. 77-896.
    Village of Northbrook et al. v. Northbrook Trust & Savings Bank et al.
   App. Ct. Ill., 1st Dist. Certiorari denied.


text:
    No. 77-897.
    No. 77-940.
    Meridor et al. v. Goldberg et al.; and Singer v. Goldberg et al.
   C. A. 2d Cir. Certiorari denied. Reported below: 567 F. 2d 209.


text:
    No. 77-905.
    Cox, Administratrix v. Administrator, Veterans' Administration, et al.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 77-907.
    Jordan v. U. S. Natural Resources, Inc., Irvington Moore Division.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 77-912.
    Alaska Roughnecks & Drillers Assn. v. National Labor Relations Board et al.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 77-913.
    Papadopoulos v. Oregon State University et al.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 77-916.
    Williams et al. v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 77-918.
    First National Bank of Glen Head v. Katz, Trustee in Bankruptcy.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 77-921.
    Pagliara, aka Sells v. Illinois.
   App. Ct. Ill., 1st Dist. Certiorari denied.


text:
    No. 77-923.
    Olinkraft, Inc. v. Clark.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 77-924.
    Kent v. Ohio.
   Ct. App. Ohio, Hamilton County. Certiorari denied.


text:
    No. 77-927.
    Harris, Administratrix v. Fireman's Fund American Life Insurance Co.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 77-930.
    No. 77-937.
    Watts v. Illinois; and Nelson v. Illinois.
   App. Ct. Ill., 1st Dist. Certiorari denied. Reported below: 47 Ill. App. 3d 798, 365 N. E. 2d 415.


text:
    No. 77-931.
    Kunkle, dba R. J. Restoration Co. v. Eggleston.
   Ct. App. Ohio, Franklin County. Certiorari denied.


text:
    No. 77-933.
    Westervelt v. Central Illinois Public Service Co.
   Sup. Ct. Ill. Certiorari denied.


text:
    No. 77-935.
    Helene Curtis Industries, Inc. v. Church & Dwight Co., Inc., et al.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 77-941.
    Ender v. Chrysler Corp. et al.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 77-942.
    Reynolds v. Wetli.
   C. A. 6th Cir. Cer-tiorari denied.


text:
    No. 77-954.
    Gresen v. Feikes et al.
   Sup. Ct. Nev. Certiorari denied.


text:
    No. 77-975.
    Summers v. Alabama.
   Ct. Crim. App. Ala. Certiorari denied.


text:
    No. 77-1006.
    Jacek v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 77-1007.
    Lefferdink v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 77-1009.
    Hedgeman v. United States.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 77-1014.
    Survey Engineers, Inc. v. Zoline Foundation et al.
   Sup. Ct. Colo. Certiorari denied.


text:
    No. 77-1021.
    Urdiales v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 77-1023.
    Pacee v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 77-5419.
    Twyman v. Oklahoma et al.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 77-5477.
    Moore v. Hogan, Warden.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 77-5494.
    Atkins v. United States.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 77-5503.
    Harris v. United States.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 77-5515.
    Hampton v. United States.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 77-5519.
    Dodson v. Missouri.
   Ct. App. Mo., St. Louis Dist. Certiorari denied.


text:
    No. 77-5524.
    Provo v. Oklahoma.
   Ct. Crim. App. Okla. Certiorari denied.


text:
    No. 77-5554.
    Smith v. United States.
   Ct. App. D. C. Certiorari denied.


text:
    No. 77-5557.
    Edwards v. Lang et al.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 77-5580.
    Keating v. Missouri.
   Sup. Ct. Mo. Cer-tiorari denied.


text:
    No. 77-5587.
    Del Valle-Rojas v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 77-5613.
    Preston v. Georgia.
   C. A. 5th Cir. Cer-tiorari denied.


text:
    No. 77-5617.
    Millhouse v. United States.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 77-5621.
    Ward v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 77-5631.
    Smith v. United States.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 77-5633.
    Martinez v. California.
   Ct. App. Cal., 2d App. Dist. Certiorari denied.


text:
    No. 77-5639.
    Banks v. Maryland.
   Ct. Sp. App. Md. Certiorari denied.


text:
    No. 77-5640.
    Brown v. Blankenship, Correctional Superintendent.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 77-5641.
    Richardson v. United States.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 77-5645.
    Petticolas v. United States.
   Ct. App. D. C. Certiorari denied.


text:
    No. 77-5647.
    Henne v. Fike, Warden, et al.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 77-5660.
    Hocker v. United States.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 77-5666.
    Harris v. United States.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 77-5667.
    Sills v. United States.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 77-5668.
    Martinez v. California.
   Ct. App. Cal., 2d App. Dist. Certiorari denied.


text:
    No. 77-5669.
    Franklin v. United States.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 77-5684.
    Lay v. Oklahoma.
   Ct. Crim. App. Okla. Certiorari denied.


text:
    No. 77-5688.
    Granata v. United States.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 77-5693.
    Johnson v. Williams, Warden.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 77-5701.
    Rogers v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 77-5702.
    Smith v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 77-5711.
    Klein v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 77-5720.
    Burroughs v. California.
   App. Dept., Super. Ct. Cal., Los Angeles County. Certiorari denied.


text:
    No. 77-5721.
    Thornton v. Georgia.
   Sup. Ct. Ga. Cer-tiorari denied.


text:
    No. 77-5724.
    Birmingham v. Eisele, U. S. District Judge.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 77-5725.
    Bumpers v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 77-5727.
    Chappell v. Hopper, Warden.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 77-5731.
    Curry v. Michigan.
   Sup. Ct. Mich. Cer-tiorari denied.


text:
    No. 77-5732.
    No. 77-5791.
    Orquiz v. United States; and Sanchez v. United States.
   C. A. 5th Cir. Certiorari denied. Reported below: 560 F. 2d 1022.


text:
    No. 77-5734.
    Barbosa v. Texas.
   Ct. Crim. App. Tex. Certiorari denied.


text:
    No. 77-5736.
    Riccardi v. United States.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 77-5744.
    Bustamante v. United States.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 77-5751.
    McMillian v. United States.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 77-5754.
    Cozad v. Johnson, Director, U. S. Indian Health Service, et al.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 77-5763.
    Lipinski v. New York.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 77-5772.
    Hodges v. Louisiana.
   Sup. Ct. La. Cer-tiorari denied.


text:
    No. 77-5774.
    Vella v. United States.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 77-5789.
    Lambros v. United States.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 77-5790.
    Green v. United States.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 77-5797.
    Leja v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 77-5801.
    Frivaldo v. Cleland, Administrator, Veterans' Affairs, et al.
   C. A. D. C. Cir. Certiorari denied.


text:
    No. 77-5804.
    Simmons et al. v. United States.
   Ct. Cl. Certiorari denied.


text:
    No. 77-5806.
    Weaver v. United States.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 77-5827.
    Johnson v. United States.
   C. A. D. C. Cir. Certiorari denied.


text:
    No. 77-5834.
    Rogers v. United States.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 77-5846.
    Johnson v. United States.
   C. A. 1st Cir. Certiorari denied.


text:
    No. 77-5859.
    Caldwell v. North Carolina.
   Sup. Ct. N. C. Certiorari denied.


text:
    No. 77-5861.
    Heads v. Texas.
   Ct. Crim. App. Tex, Cer-tiorari denied.


text:
    No. 77-5862.
    Loden v. Thompson et al.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 77-5867.
    Brown v. United States.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 77-5870.
    Barnett et ux. v. Cisneros et al.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 77-5871.
    Kossa v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 77-5872.
    Allen v. California.
   Ct. App. Cal., 2d App. Dist. Certiorari denied.


text:
    No. 77-5876.
    Harper v. Riddle, Penitentiary Superintendent.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 77-5877.
    Carroll v. Manson, Corrections Commissioner, et al.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 77-5879.
    Walker et al. v. Pierce et al.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 77-5900.
    Hall v. Wainwright, Secretary, Department of Offender Rehabilitation of Florida.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 77-5905.
    Latimore et al. v. Sielaff et al.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 77-5907.
    Butler v. Florida.
   Sup. Ct. Fla. Certio-rari denied.


text:
    No. 77-5909.
    Phillips v. Wainwright, Secretary, Department of Offender Rehabilitation of Florida.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 77-5910.
    Mason v. Mulligan, U. S. Attorney.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 77-5911.
    Smith v. North Carolina.
   Ct. App. N. C. Certiorari denied.


text:
    No. 77-5913.
    Roche v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 77-5918.
    Beverly v. Maryland.
   Ct. Sp. App. Md. Certiorari denied.


text:
    No. 77-5920.
    Sand v. Estelle, Corrections Director.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 77-5922.
    Kines v. Massachusetts.
   Ct. App. Mass. Certiorari denied.


text:
    No. 77-5926.
    Johnson v. Barge.
   Ct. Civ. App. Tex., 5th Sup. Jud. Dist. Certiorari denied.


text:
    No. 77-5928.
    Hendrix v. Iowa.
   Ct. App. Iowa. Cer-tiorari denied.


text:
    No. 77-5932.
    Farrell et al. v. Czarnetzky et al.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 77-5934.
    Behm v. Illinois.
   App. Ct. Ill., 1st Dist. Certiorari denied.


text:
    No. 77-5937.
    Slotnick v. Staviskey et al.
   C. A. 1st Cir. Certiorari denied.


text:
    No. 77-5943.
    Garza v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 77-5944.
    Flowers v. Massachusetts.
   Ct. App. Mass. Certiorari denied.


text:
    No. 77-5945.
    Taylor v. United States.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 77-5946.
    Wiggins v. United States.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 77-5947.
    Jefferson v. Sanders, Chief Justice, Supreme Court of Louisiana, et al.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 77-5950.
    Orejuela v. United States.
   C. A.. 3d Cir. Certiorari denied.


text:
    No. 77-5952.
    Thomas-Bey v. United States.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 77-5959.
    Pierce v. Illinois.
   App. Ct. Ill., 1st Dist. Certiorari denied.


text:
    No. 77-5961.
    Burnsed v. United States.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 77-5963.
    Raitport v. Bank & Trust Company of Old York Road et al.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 77-5966.
    Jolly v. Crisp, Warden.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 77-5968.
    Cross v. United States.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 77-5969.
    Pierce et al. v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 77-5970.
    Chinnici v. United States.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 77-5973.
    Simmons v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 77-5977.
    Brown v. Florida.
   Dist. Ct. App. Fla., 4th Dist. Certiorari denied.


text:
    No. 77-5979.
    Bernotas et ux. v. Chester County Water Resources Authority.
   Sup. Ct. Pa. Certiorari denied.


text:
    No. 77-5980.
    Reinert v. California.
   App. Dept., Super. Ct. Cal., County of Los Angeles. Certiorari, denied.


text:
    No. 77-5981.
    Redmond v. Illinois.
   Sup. Ct. Ill. Certiorari denied.


text:
    No. 77-5982.
    Smith v. Arkansas.
   Sup. Ct. Ark. Certiorari denied.


text:
    No. 77-5983.
    Bowen v. Abshire, Correctional Superintendent.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 77-5986.
    Thrower v. United States.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 77-5989.
    Brockus v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 77-5990.
    Savage v. United States.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 77-5993.
    Smith v. United States.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 77-5998.
    Anderson v. Indiana.
   Sup. Ct. Ind. Certiorari denied.


text:
    No. 77-6001.
    Smith v. United States.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 77-6004.
    Young v. United States.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 77-6007.
    Miller v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 77-6010.
    Anthony et al. v. United States.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 77-6011.
    Delgadillo-Ayala v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No 77-6012.
    Shepard v. United States.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 77-6021.
    Hegwood v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 77-6034.
    Savage-El v. Arnold, Warden, et al.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 77-6040.
    Garcia v. United States.
   Ct. App. D. C. Certiorari denied.


text:
    No. 77-6041.
    Ehnes v. Flynn et al.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 77-6042.
    Bey v. United States.
   C. A. 6th Cir. Cer-tiorari denied.


text:
    No. 77-6043.
    Pearson v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 77-6045.
    Scott v. Ohio.
   Ct. App. Ohio, Cuyahoga County. Certiorari denied.


text:
    No. 77-6060.
    Byer v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 77-6075.
    Morgan v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 77-6076.
    Oropeza v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 77-6086.
    Waldron v. United States.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 77-6098.
    Lipscomb v. United States Attorney et al.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 77-6105.
    Gorin v. United States.
   C. A. 4th Cir. Certiorari denied.


author: Mr. Justice Rehnquist,

text:
    No. 77-447.
    Ratchford, President, University of Missouri, et al. v. Gay Lib et al.
   C. A. 8th Cir. Certiorari denied.

The Chief Justice would grant petition and give plenary consideration to this case.

Mr. Justice Rehnquist,

with whom Mr. Justice Black-mun joins,

dissenting.

There is a natural tendency on the part of any conscientious court to avoid embroiling itself in a controversial area of social policy unless absolutely required to do so. I therefore completely understand, if I do not agree with, the Court’s decision to deny certiorari in this case.. In quick summary, the University of Missouri, exercising the traditional authority granted to it by the State to regulate what student organizations will have access to campus facilities, denied recognition to respondent Gay Lib. The denial stemmed from a finding by a University-appointed hearing officer that formal University recognition would “tend to expand homosexual behavior which will cause increased violations of [the State’s sodomy statute] Respondents, choosing to remove the dispute from its traditional University setting to the federal courts, sued in the United States District Court for the Western District of Missouri, claiming that the denial infringed their constitutional rights to free speech and freedom of association. The District Court held that the University had not violated respondents’ constitutional rights. Gay Lib v. University of Missouri, 416 F. Supp. 1350 (1976). Respondents, continuing to pursue a judicial solution to their problem, persuaded two judges of a three-judge panel of the Court of Appeals for the Eighth Circuit to reverse the District Court. 558 F. 2d 848 (1977). A petition for rehearing en banc was denied by an equally divided court. The University now seeks certiorari here to review that decision.

Courts by nature are passive institutions and may decide only those issues raised by litigants in lawsuits before them. The obverse side of that passivity is the requirement that they do dispose of those lawsuits that are before them and entitled to attention. The District Court and the Court of Appeals were doubtless as chary as we are of being thrust into the middle of this controversy but were nonetheless obligated to decide the case. Unlike the District Court and the Court of Appeals, Congress has accorded to us through the Judiciary Act of 1925, 28 U. S. C. § 1254, the discretion to decline to hear a case such as this on the merits without explaining our reasons for doing so. But the existence of such discretion does not imply that it should be used as a sort of judicial storm cellar to which we may flee to escape from controversial or sensitive cases. Our Rules provide that one of the considerations governing review on certiorari is whether a Court of Appeals “has decided an important question of federal law which has not been, but should be, settled by this court; or has decided a federal question in a way in conflict with applicable decisions of this court.” Rule 19 (1) (b). In my opinion the panel decision of the Court of Appeals meets both of these tests, and I would therefore grant certiorari and hear the case on the merits.

The sharp split amongst the judges who considered this case below demonstrates that our past precedents do not conclusively address the issues central to this dispute. In the same manner that we expect considered and deliberate treatment of cases by these courts, we have a concomitant responsibility to aid them where confusion or uncertainty in the law prevails. By refusing to grant certiorari in this case, we ignore our function and responsibility in the framework of the federal court system and place added burdens on other courts in that system.

Writ large, the issue posed in this case is the extent to which a self-governing democracy, having made certain acts criminal, may prevent or discourage individuals from engaging in speech or conduct which encourages others to violate those laws. The Court of Appeals holds that a state university violates the First and Fourteenth Amendments when it refuses to recognize an organization whose activities both a University factfinder and the District Court found were likely to incite violations of an admittedly valid criminal statute. Neither the Court of Appeals nor respondents contend that the testimony of the expert psychologists at these hearings was insufficient to support such a finding. They appear to take instead the position that such a finding is not governed by the normal “clearly erroneous” test established in Fed. Rule Civ. Proc. 52 (a). This unusual conclusion, in itself, would seem to me to be sufficient to warrant a grant of certiorari.

But lurking behind this procedural question is one which surely goes to the heart of the inevitable clash between the authority of a State to prevent the subversion of the lawful rules of conduct which it has enacted pursuant to its police power and the right of individuals under the First and Fourteenth Amendments who disagree with various of those rules to urge that they be changed through democratic processes. The University in this case did not ban the discussion in the classroom, or out of it, of the wisdom of repealing sodomy statutes. The State did not proscribe membership in organizations devoted to advancing “gay liberation.” The University merely refused to recognize an organization whose activities were found to be likely to incite a violation of a valid state criminal statute. While respondents disavow any intent to advocate present violations of state law, the organization intends to engage in far more than political discussion. Among respondent Gay Lib’s asserted purposes are the following:

“3. Gay Lib wants to provide information to the vast majority of those who really don’t know what homosexuality or bi-sexual behavior really is. Too much of the same prejudice is now directed at gay people just as it is directed at ethnic minorities.
“4. Gay lib does not seek to proselytize, convert, or recruit. On the other hand, people who have already established a pattern of homosexuality when they enter college must adjust to this fact.
“5. Gay Lib hopes to help the gay community to rid itself of its subconscious burden of guilt. Society imprints this self-image on homosexuals and makes adjustment with the straight world more difficult.”

Expert psychological testimony below established the fact that the meeting together of individuals who consider themselves homosexual in an officially recognized university organization can have a distinctly different effect from the mere advocacy of repeal of the State’s sodomy statute. As the University has recognized, this danger may be particularly acute in the university setting where many students are still coping with the sexual problems which accompany late adolescence and early adulthood.

The University’s view of respondents’ activities and respondents’ own view of them are diametrically opposed. From the point of view of the latter, the question is little different from whether university recognition of a college Democratic club in fairness also requires recognition of a college Republican club: From the point of view of the University, however, the question is more akin to whether those suffering from measles have a constitutional right, in violation of quarantine regulations, to associate together and with others who do not presently have measles, in order to urge repeal of a state law providing that measle sufferers be quarantined. The very act of assemblage under these circumstances undercuts a significant interest of the State which a plea for the repeal of the law would nowise do. Where between these two polar characterizations of the issue the truth lies is not as important as whether a federal appellate court is free to reject the University’s characterization, particularly when it is supported by the findings of the District Court.

As the split among the lower court judges shows, Healy v. James, 408 U. S. 169 (1972), did not directly address these questions. There we remanded the decision of the Court of Appeals of the Second Circuit to decide whether the University’s refusal to recognize a local branch of the Students for a Democratic Society was motivated by a factual conclusion that the organization would not abide by reasonable campus regulations of the sort held valid in Esteban v. Central Missouri State College, 415 F. 2d 1077, 1089 (CA8 1969) (Black-mun, J.). Here the question is not whether Gay Lib as an organization will abide by university regulations. Nor is it really whether Gay Lib will persuasively advocate violations of the sodomy statute. Instead, the question is whether a university can deny recognition to an organization the activities of which expert psychologists testify will in and of themselves lead directly to violations of a concededly valid state criminal law.

As our cases establish from Schenck v. United States, 249 U. S. 47 (1919), in which Mr. Justice Holmes, speaking for a unanimous Court, held that the Government has a right to criminally punish words which are “used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent,” to Brandenburg v. Ohio, 395 U. S. 444 (1969), some speech that has a propensity to induce action prohibited by the criminal laws may itself be prohibited. A fortiori, speech and conduct combined which have that effect may surely be placed off limits of a university campus without doing violence to the First or Fourteenth Amendments.

Healy was decided by the lower courts in what may fairly be described as a factual vacuum. There this Court stated that a student organization need not be recognized if such recognition is likely to incite criminal violations, but did not have to consider how that standard would be applied to a particular factual situation. No attempt had been made by the University to demonstrate that imminent lawless action was likely as a result of the speech in question, nor was there any hint that any such effort was likely to have been successful. Here, such a demonstration was undertaken, and the District Court sitting as a finder of fact concluded that petitioners had made out their case. The Court of Appeals’ panel opinion, for me at least, sheds no light on why this conclusion of the District Court could be rejected. By denying certiorari, we must leave university officials in complete confusion as to how, if ever, they may meet the standard that we laid out in Healy.

The mathematically even division of the Court of Appeals on the petition for rehearing en banc gives some indication of the divergence of judicial views which may be expected from conscientious judges on difficult constitutional questions such as this. Our views may be no less divergent, and no less persuasive to one another, than were the views of the eight judges of the Court of Appeals. But believing as I do that we cannot under our Rules properly leave this important question of law in its present state, I would grant the petition for certiorari.


text:
    No. 77-481.
    Greene County Planning Board et al. v. Federal Energy Regulatory Commission et al.
   C. A. 2d Cir. Motion of Pacific Legal Foundation for leave to file a brief as amicus curiae granted. Certiorari denied.

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


text:
    No. 77-681.
    Tax Analysts & Advocates et al. v. Blumenthal, Secretary of the Treasury, et al.
   C. A. D. C. Cir. Certiorari denied.

Mr. Justice White would grant certiorari.

F. 2d 130.


text:
    No. 77-908.
    Madry v. Sorel et al.
   C. A. 5th Cir. Certiorari denied.

Mr. Justice White would grant certiorari.


text:
    No. 77-740.
    Gulf Oil Corp. et al. v. Bogosian et al.
   C. A. 3d Cir. Certiorari denied.

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


text:
    No. 77-802.
    Northwest Airlines, Inc. v. Laffey et al.
   C. A. D. C. Cir. Certiorari denied.

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


text:
    No. 77-904.
    Shull v. Dain, Kalman & Quail, Inc., et al.
   C. A. 8th Cir. Certiorari denied.

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


text:
    No. 77-843.
    Hensler v. Nichols.
   C. A. 7th Cir. Cer-tiorari denied.

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


text:
    No. 77-852.
    Alabama v. Cannon.
   C. A. 5th Cir. Motion of respondent for leave to proceed in forma pauperis granted. Certiorari denied.


text:
    No. 77-857.
    Patterson et al. v. McKinnon et al.
   C. A. 2d Cir. Motion of respondents for leave to proceed in forma pauperis granted. Certiorari denied.


text:
    No. 77-892.
    Stensaker Schiffahrtsges v. Wiley et al.
   C. A. 5th Cir. Motion of respondent Henry Wiley for leave to proceed in forma pauperis granted.. Certiorari denied.


text:
    No. 77-902.
    Volkswagenwerk, A. G., et al. v. Heatransfer Corp.
   C. A. 5th Cir. Certiorari denied.

Mr. Justice Powell would grant certiorari.


text:
    No. 77-909.
    Byrd et al. v. Gain et al.
   C. A. 9th Cir. Certiorari denied.

Mr. Justice Stewart would grant cer-tiorari.


text:
    No. 77-945.
    Ivy et al., Co-Administrators v. Michigan Department of the Treasury.
   Sup. Ct. Mich. Certiorari denied.

Mr. Justice Stewart would grant certiorari.


text:
    No. 77-932.
    Board of Appeals of Scituate v. Housing Appeals Committee et al.
   Ct. App. Mass. Certiorari denied.

Mr. Justice Brennan would grant certiorari.


text:
    No. 77-951.
    Savage et al. v. Lerma.
   C. A. 5th Cir. Motion of respondent for leave to proceed in forma pauperis granted. Certiorari denied.


text:
    No. 77-969.
    McGarrity v. United States.
   C. A. 5th Cir. Motion to defer and certiorari denied.


text:
    No. 77-5576.
    Phillips v. Wyrick, Warden.
   C. A. 8th Cir. Certiorari denied.

Mr. Justice Brennan, Mr. Justice Stewart, and Mr. Justice Powell would grant certiorari.


text:
    No. 77-5671.
    Ditmars v. Idaho.
   Sup. Ct. Idaho. Cer-tiorari denied.

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


text:
    No. 77-5687.
    No. 77-5715.
    No. 77-5921.
    King v. Texas. Freeman v. Texas. Gaddis v. Georgia..
   Ct. Crim. App. Tex.;

Ct. Crim. App. Tex.; and

Sup. Ct. Ga. Certio-rari denied. Reported below: No. 77-5687, 553 S. W. 2d 105; No. 77-5715, 556 S. W. 2d 287; No. 77-5921, 239 Ga. 238, 236 S. E. 2d 594.

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 sentences in these cases.


text:
    No. 77-5695.
    Moore v. Brierton, Warden.
   C. A. 7th Cir. Certiorari denied.

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


text:
    No. 77-5901.
    Woodard et al. v. Wainwright, Secretary, Department of Offender Rehabilitation of Florida.
   C. A. 5th Cir. Certiorari denied.

Mr. Justice Marshall would grant certiorari.


text:
    No. 76-5325.
    No. 77-26.
    No. 77-296.
    No. 77-5428.
    No. 77-5431.
    No. 77-5591.
    No. 77-5601.
    No. 77-5626.
    No. 77-5652.
    No. 77-5761.
    Browder v. Director, Department of Corrections of Illinois, Chin v. United States, Hestnes v. United States, Bruce v. Estelle, Corrections Director, Tyler v. Dyer, Clerk, Circuit Court of Platte County, McCracken v. United States, Greene v. Hogan, Warden, et al., Dudek, aka Landers v. United States, Reiter v. City of Keene et al., Holsey v. Greif et al.,
   ante, p., 257;

ante, p. 1022;

ante, p. 1010;

ante, p. 1017;

ante, p. 1036;

ante, p. 1037;

ante, p. 1018;

ante, p. 1037;

ante, p. 1019; and

ante, p. 1038. Petitions for rehearing denied.


text:
    No. 76-6623.
    Johnston et al. v. United States,
   431 U. S. 942, and ante, p. 882. Motion for leave to file second petition for rehearing denied.


text:
    No. 77-428.
    No. 77-430.
    No. 77-5533.
    No. 77-5605.
    No. 77-5622.
    Moody v. Payne, Commissioner of Insurance, Ogletree et al. v. United States, Kurz et ux. v. Michigan et al., Braudrick v. Estelle, Corrections Director, Stocking v. Marsh et al.,
   ante, p. 996 ;

ante, p. 985;

ante, p. 972;

ante, p. 987; and

ante, p. 999. Petitions for rehearing denied.

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


text:
    No. 72-397.
    No. 77-231.
    Bonelli Cattle Co. et al. v. Arizona et al., Nachbaur v. National Labor Relations Board et al.,
   414 U. S. 313; and

ante, p. 955. Motions for leave to file petitions for rehearing denied.


text:
    No. 77-5574.
    Stoddard v. United States District Court for the Eastern District of Michigan,
   ante, p. 987. Motion for leave to file petition for rehearing denied.

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


text:
    February 22, 1978
    No. A-695.
    In re Northern.
   This application for stay of the mandate of the Tennessee Court of Appeals, Middle Section, was presented to Mr. Justice Stewart as Circuit Justice on February 16, 1978, and referred by him to the Conference. Whereupon the Court requested the State to file an expedited response to the application by noon, February 21, 1978. The response was received in due course and a special conference was called to consider the matter. It is hereby ordered that the application be denied.

The Chief Justice and Mr. Justice Blackmun dissent and would grant the stay.


author: Mr. Justice Marshall, Circuit Justice.

text:
    CALIFANO, SECRETARY OF HEALTH, EDUCATION, AND WELFARE v. McRAE et al.
    No. A-46.
    Decided July 20, 1977
   Mr. Justice Marshall, Circuit Justice.

Section 209 of Pub. L. 94-439, 90 Stat. 1434, generally prohibits the Secretary of Health, Education, and Welfare from expending federal Medicaid funds for abortions. In the instant case, the United States District Court for the Eastern District of New York enjoined operation of the law. On June 29, 1977, this Court entered the following order:

“The judgment is vacated and the case is remanded to the United States District Court for the Eastern District of New York for further consideration in light of Maher v. Roe, 432 U. S. 464 (1977), and Beal v. Doe, 432 U. S. 438 (1977).” See 433 U. S. 916.

This is an application for

“a stay of execution of this Court’s vacatur of the district court’s injunction of Section 209 of Public Law 94L439 (the ‘Hyde Amendment’) and/or, in the alternative for a stay as follows:
“1. A stay, pending conclusion of the district court’s reconsideration of this case in light of Maher v. Roe, 432 U. S. 464 (1977), and Beal v. Doe, 432 U. S. 438 (1977), as ordered by this Court on [June] 29, 1977 in this case. A stay is necessary to prevent irreparable harm during the remand proceedings in the district court and to assure full and effective presentation to and consideration by the district court of the issues left open by this Court’s remand order; and/or in the alternative,
“2. A stay, pending the timely filing and disposition in this Court of a petition for rehearing pursuant to Rule 59 (2) of this Court.”

It is obvious that in essence applicants seek to have this Court reconsider its order vacating the District Court’s judgment, and seek an injunction to protect them during the consideration of a petition for rehearing. It is also clear that the controlling legal precedents bearing on whether to grant rehearing are Maher v. Roe, 432 U. S. 464 (1977), and Beal v. Doe, 432 U. S. 438 (1977). I dissented in both of those cases. This Court’s Rule 58 governing rehearings provides: “A petition for rehearing . . . will not be granted, except at the instance of a justice who concurred in the judgment or decision and with the concurrence of a majority of the court.” (Emphasis added.) For that reason I have decided to abstain on this application and suggest that the application be made to one of the Justices “who concurred in the judgment or decision” in Maher and Beal.


author: Mr. Justice Rehnquist, Circuit Justice.

text:
    DIVANS v. CALIFORNIA
    No. A-91.
    Decided July 28, 1977
   Mr. Justice Rehnquist, Circuit Justice.

Applicant has requested that I stay the commencement of his second trial in the Superior Court of Santa Clara County, Cal., pending the filing and disposition of a petition for cer-tiorari here. His first trial aborted as a result of the trial judge’s declaration of a mistrial upon applicant’s motion. I have determined the application should be denied.

Any order granting a mistrial at the behest of a defendant in a criminal case is typically based upon error or misconduct on the part of other counsel or the court. In order to elevate such a typical order into one which could form the basis of a claim of double jeopardy, it must be shown not only that there was error, which is the common predicate to all such orders, but that such error was committed by the prosecution or by the court for the purpose of forcing the defendant to move for a mistrial.

“The Double Jeopardy Clause does protect a defendant against governmental actions intended to provoke mistrial requests and thereby to subject defendants to the substantial burdens imposed by multiple prosecutions. It bars retrials where ‘bad-faith conduct by judge or prosecutor,’ United States v. Jorn, [400 U. S.,] at 485 threatens the ‘[hjarassment of an accused by successive prosecutions or declaration of a mistrial so as to afford the prosecution a more favorable opportunity to convict’ the defendant. Downum v. United States, 372 U. S., at 736.” United States v. Dinitz, 424 U. S. 600, 611 (1976).

The finding of the Superior Court that the prosecutorial error which resulted in the original mistrial in this case was of the former and not the latter'kind convinces me that this Court would not grant certiorari to review the applicant’s double jeopardy claim.


text:
    PACIFIC UNION CONFERENCE OF SEVENTH-DAY ADVENTISTS et al. v. MARSHALL et al.
    No. A-81.
    Decided August 2, 1977
   Mr. Justice Rehnquist, Circuit Justice.

Applicants are conferences and other institutional bodies of the Seventh Day Adventist Church which operates some 150 religious schools and colleges in California. They request that I stay enforcement of three discovery orders entered by the District Court for the Central District of California pending their filing of a petition for certiorari in this Court. The Court of Appeals for the Ninth Circuit refused to grant relief by way of mandamus against the District Court’s discovery orders and the District Court’s order denying applicants’ motion for summary judgment. The action in which these orders were entered was brought by respondent Secretary of Labor against applicants to enforce the equal pay provisions of the Fair Labor Standards Act, 29 U. S. C. § 206 (d). The District Court, in denying applicants’ motion for summary judgment, noted that the Secretary was seeking to apply these provisions only to the lay employees of the applicants and not to their clergy.

Applicants contend that the principle of separation between church and state embodied in the First Amendment to the United States Constitution forbids Congress from applying to them this statute which requires in substance that men and women be paid equally for the same work, because such application would be contrary to their religious principles. They claim that even the presence on church school premises of representatives of the Secretary, pursuant to the District Court’s authorization of discovery, for the purpose of examining payroll records in aid of the prosecution of this lawsuit is an “intrusion” forbidden by that Amendment.

While I am not prepared to say that four Members of this Court would not vote to grant certiorari to consider such a claim if it were squarely presented by a final order or decision of the District Court affirmed by the Court of Appeals, see Wisconsin v. Yoder, 406 U. S. 205 (1972); Sherbert v. Verner, 374 U. S. 398 (1963), I do not think certiorari would be granted to review the order of the Court of Appeals denying mandamus at this stage of the case. I have therefore decided to deny the application for a stay without attempting to inquire further as to what irreparable injury would be suffered by applicants in the event of such denial.

The order denying summary judgment which the applicants seek to have reviewed here, although they do not request that it be “stayed,” is not even appealable to the Court of Appeals under 28 U. S. C. § 1291, to say nothing of being directly appealable to this Court. Because it is not a “final order or decision” within the meaning of that section, it is reviewable only pursuant to the provisions for interlocutory appeal set forth in 28 U. S. C. § 1292 (b). These provisions require as a first step in that procedure that the District Court certify the question as appropriate for interlocutory appeal. The District Court, however, in this case declined to' make such a certification.

In their petition to the Court of Appeals, applicants requested that court “to require respondent Court to dismiss said action or to enter summary judgment for defendants therein.” So far as I am aware, such relief is not available, pursuant to statute or otherwise, in the Court of Appeals. Since the Court of Appeals issued no opinion in this matter, it could have construed the petition as a request to order the District Court to certify the question for interlocutory review. It would necessarily be this order of the Court of Appeals denying the requested relief which would be presented for review in applicants’ petition for certiorari to that court.

Before any First Amendment claim would be reached upon such review, it would be necessary for this Court to decide that the Court of Appeals had authority by a writ of mandamus to require the District Court to certify a question for interlocutory appeal, and that it abused its discretion in refusing to do so in this case. While there have been differing views expressed by the Court of Appeals as to the availability of mandamus to require certification under § 1292 (b), the order of the Court of Appeals for the Ninth Circuit in this case does not seem to me to present the question in a way which would warrant review by this Court. The Court of Appeals did not indicate whether the writ was refused because of lack of authority, or by reason of that court’s exercise of its discretion even though the authority was thought to exist. Shrouded as it is in these vagaries of certification procedure pursuant to 28 U. S. C. § 1292 (b), the First Amendment claim would not be squarely presented in any petition for certiorari at this time.

Applicants’ request for a stay of the discovery orders pending review here of the Court of Appeals’ refusal to interfere with them by mandamus stands on a somewhat different footing than the request to review the District Court’s denial of summary judgment. While discovery orders are not themselves appealable, in extraordinary circumstances interlocutory review of them may be had by way of mandamus. Schlagen- hauf v. Holder, 379 U. S. 104 (1964); Kerr v. United States District Court, 426 U. S. 394 (1976). In Schlagenhauf, however, where this Court reversed a denial of mandamus by the Court of Appeals, it was careful to point out that the case was the first opportunity it had been afforded to construe the provisions of Fed. Rule Civ. Proc. 35 (a).

In the present case applicants sought mandamus in the Court of Appeals for the Ninth Circuit to review at least the first of the discovery orders which they request that I stay. The Court of Appeals declined to issue the writ. Unlike the situation in Schlagenhauf, supra, the Court of Appeals for the Ninth Circuit was not presented with any novel interpretation or first-impression question concerning the discovery rules themselves; there seems to be no question that if respondent is correct as to the underlying merits of the dispute over the applicability of the equal pay provisions, the discovery ordered by the District Court was entirely orthodox. Applicants’ objection to the discovery orders is therefore impossible to separate from their underlying claim that they should not have been required to defend against the Secretary’s action beyond the summary judgment stage. The discovery orders do require a degree of physical intrusion into applicants’ records, but so long as that intrusion is within the normal bounds of discovery, I do not think this Court would grant certiorari to review the Court of Appeals’ refusal of relief from that discovery by way of mandamus.

While Schlagenhauf, supra, opened the door a crack to■ permit review of a discovery order under the special circumstances of that case, to grant such review here would permit an application for review of a discovery order to serve in effect as a vehicle for interlocutory review of the underlying merits of the lawsuit. The policy against piecemeal interlocutory review other than as provided for by statutorily authorized appeals is a strong one, see Liberty Mutual Ins. Co. v. Wetzel, 424 U. S. 737 (1976). I think that this Court would be disposed to review applicants’ constitutional claims, if at all, only after a full record is compiled in the course of the present litigation in the District Court followed by statutory appeal to the Court of Appeals.

The application to stay the orders of the District Court entered on June 6, July 18, and July 20, respectively, are accordingly

Denied.

      After the writ had been denied by the Court of Appeals, the District Court on July 18 issued a discovery order amounting to a reinstatement of its original order of June 6. The Solicitor General contends that the last order, issued July 20, involves a substantially different phase of the litigation and is not properly before this Court, not having been considered by the Court of Appeals. In view of my conclusion that a stay is inappropriate under the circumstances disclosed by this application, if the Solicitor General’s argument is factually correct it amounts to an additional reason for denying the stay.


text:
    BEAME, MAYOR OF NEW YORK CITY, et al. v. FRIENDS OF THE EARTH et al.
    No. A-99 (76-1718).
    Decided August 5, 1977
    See: 552 F. 2d 25.
   Mr. Justice Marshall, Circuit Justice.

Applicants, the city of New York (City) and several of its officials, seek a stay of enforcement of a judgment of the United States Court of Appeals for the Second Circuit pending determination by this Court of their petition for certiorari. In its judgment, entered January 18, 1977, the Court of Appeals directed the District Court to take steps to ensure that the Transportation Control Plan for the Metropolitan New York Area (Plan) “will be promptly implemented.” Friends of the Earth v. Carey, 552 F. 2d 25, 39. Pursuant to this judgment, the District Court in February ordered applicants to begin implementation of four pollution control strategies, involving reductions in business district parking, taxicab cruising, and daytime freight movements, and the imposition of tolls on certain bridges into Manhattan. Applicants moved for a stay of this directive in the District Court and the Court of Appeals; both motions were denied. Applicants then sought a stay from me, and oral argument was heard in chambers. For the reasons that follow, I must deny the application for a stay.

I

This case is the most recent skirmish in a long legal battle. In April 1973, the State of New York (State) submitted to the Administrator of the United States Environmental Protection Agency (EPA) the Plan here at issue, pursuant to § 110 (a)(1) of the Clean Air Act (Act), added by the Clean Air Amendments of 1970, 84 Stat. 1680, 42 U. S. C. § 1857c-5 (a) (1). The Administrator approved the Plan, and his approval was then challenged in court. The Second Circuit upheld the validity of the Plan in all material respects in Friends of the Earth v. EPA, 499 F. 2d 1118 (1974) (Friends I).

Soon after the Friends I decision, respondents filed the instant action, a citizen suit brought pursuant to § 304 of the Act, 84 Stat. 1706, 42 U. S. C. § 1857h-2. They sought to compel applicants to implement the four pollution control strategies referred to above. The District Court denied this request for enforcement of the Plan, and the Court of Appeals reversed, Friends of the Earth v. Carey, 535 F. 2d 165 (1976) (Friends II). The District Court then entered partial summary judgment for respondents in April 1976, but in July it significantly modified its judgment, ruling that the City did not have to enforce the Plan against any polluter other than itself. This holding was purportedly based on the Tenth Amendment as interpreted by this Court in National League of Cities v. Usery, 426 U. S. 833 (1976), and by lower courts in the cases consolidated in EPA v. Brown, 431 U. S. 99 (1977) (per curiam).

In January 1977, the Court of Appeals again reversed, Friends of the Earth v. Carey, 552 F. 2d 25 (Friends III), giving two alternative rationales for its holding that the April 1976 partial summary judgment should be reinstated. First, the court reasoned that applicants were precluded by § 307 (b) (2) of the Act, 84 Stat. 1708, 42 U. S. C. § 1857h-5 (b)(2), from making their constitutional attack on the Plan as a defense to a civil enforcement proceeding. Such an attack could only have been made, the court stated, in a petition for review of the EPA Administrator’s approval of the Plan in 1973 — a time when the City was supporting the Plan. Second, even assuming no statutory preclusion, the court held that the District Court’s Tenth Amendment analysis was in error, because the State here promulgated its own Plan, which thus represented its own policy choices. In the cases involved in EPA v. Brown, supra, by contrast, the EPA had promulgated plans for the States, pursuant to its mandate to do so whenever a State fails to submit a plan or submits an inadequate plan, see § 110 (c)(1) of the Act, 42 U. S. C. § 1857c-5 (c)(1). The Court of Appeals concluded that the federal intrusion into state affairs is much more limited in a case in which the Federal Government sets only goals and the State decides for itself how to reach them. Applicants’ certiorari petition seeks review in this Court of both grounds for the Court of Appeals’ holding.

II

In deciding whether to grant a stay pending disposition of a petition for certiorari, the Members of this Court use two principal criteria. First, “a Circuit Justice should ‘balance the equities’. . . and determine on which side the risk of irreparable injury weighs most heavily.” Holtzman v. Schlesinger, 414 U. S. 1304, 1308-1309 (1973) (Marshall, J., in chambers). Second, assuming a balance of equities in favor of the applicant, the Circuit Justice must also determine whether “it is likely that four Members of this Court would vote to grant a writ of certiorari.” Id., at 1310. The burden of persuasion as to both of these issues rests on the applicant, and his burden is particularly heavy when, as here, a stay has been denied by the District Court and by a unanimous panel of the Court of Appeals. See Magnum Import Co. v. Coty, 262 U. S. 159, 163-164 (1923); Board of Education v. Taylor, 82 S. Ct. 10, 10-11 (1961) (Brennan, J., in chambers); cf. Holtzman v. Schlesinger, supra, at 1314-1315 (“great weight” given to decision by Court of Appeals to grant stay).

Applicants have not met their burden of showing a balance of hardships in their favor. Were the injury to the City from implementation of the Plan as severe as applicants now claim, one would think that they would have filed their petition for certiorari with dispatch, so that this matter could have been resolved by the entire Court prior to the June 29, 1977, conclusion of the 1976 Term. Instead, applicants waited the maximum time, 90 days, after the Court of Appeals denied rehearing and rehearing en banc before filing their petition on June 2, 1977. In the interim, they did not seek any stay of the Court of Appeals’ judgment and the ensuing District Court order; they first sought such a stay in the District Court a full 20 days after filing their certiorari petition. The applicants’ delay in filing their' petition and seeking a stay vitiates much of the force of their allegations of irreparable harm.

The allegations themselves are not compelling. The affidavits of City and Chamber of Commerce officials are offered to indicate some adverse economic impact on the City from implementation of the entire Plan. The Plan, however, is to be phased in over several months, and the affidavits and accompanying submissions contain little, if any, specific information as to the harm to be expected over the two months remaining until the entire Court can act on applicants’ petition.

Respondents contend, moreover, that there will be some economic benefits from implementation of the Plan (e. g., faster delivery times for trucks that currently have to maneuver around illegally parked cars, enhanced attractiveness of the City to businesses and 'tourists who currently avoid it because of its traffic, air pollution, and noise). Thus the economic-impact factor does not weigh entirely in applicants’ favor. In addition, any adverse economic effect of the Plan’s partial implementation over the next two months is balanced to some considerable extent by the irreparable injury that air pollution may cause during that period, particularly for those with respiratory ailments. See Friends II, 535 F. 2d, at 179-180 (noting that Congress made the decision to put “the lungs and health of the community’s citizens” ahead of some “inconvenience and expense to . . . governmental and private parties” and that the City’s carbon monoxide levels are “over five times the federal health standards”). Finally, if specific aspects of the Plan prove to be onerous or unworkable, applicants are free at any time to seek an accommodation with EPA and a modification of the District Courtis order.

Ill

I have therefore concluded that the “balance of equities” does not weigh in applicants’ favor. Even if it did, however, I am not persuaded that four Justices of this Court would vote to grant a writ of certiorari in this matter. The Court of Appeals gave alternative rationales for its result, and its opinion as to each appears facially correct. Applicants are thus not “likely to prevail on the merits,” Holtzman v. Schlesinger, supra, at 1311; see Times-Picayune Publishing Corp. v. Schulingkamp, 419 U. S. 1301, 1305 (1974) (Powell, J., in chambers) (requiring “significant possibility of reversal” in order to grant stay).

Judicial consideration of applicants’ constitutional claim appears precluded at this point by the language of § 307 (b) (2) of the Act, 42 U. S. C. § 1857h-5 (b) (2)". While this Court has granted certiorari in Adamo Wrecking Co. v. United States, 430 IT. S. 953 (1977), in part to consider the validity of § 307 (b) (2)’s preclusion of defenses in a criminal context, applicants do not argue that any analogous considerations would make § 307 (b) (2) invalid as applied in this civil case. Applicants’ Tenth Amendment contentions are based on alleged similarities between this case and EPA v. Brown, supra, but the fact that New York promulgated its own Plan makes this case significantly different from Brown and, in my view, renders insubstantial the Tenth Amendment issue here.

Finding neither a balance of irreparable harm in favor of applicants nor a likelihood that four Justices will vote to grant a writ of certiorari, I am compelled to deny the application for a stay.