source: Caselaw Access Project

author: Mr. Justice Marshall Mr. Justice Powell, Mr. Chief Justice Burger, Mr. Justice Stewart, Mr. Justice Rehnquist,

license: Public Domain

text:
    BOUNDS, CORRECTION COMMISSIONER, et al. v. SMITH et al.
    No. 75-915.
    Argued November 1, 1976
    Decided April 27, 1977
    Marshall, J., delivered the opinion of the Court, in which Brennan, White, Blackmun, Powell, and Stevens, JJ., joined. Powell, J., filed a concurring opinion, post, p. 833. Burger, C. J., filed a dissenting opinion, post, p. 833. Stewart, J., post, p. 836, and Rehnquist, J., post, p. 837, filed dissenting opinions, in which Burger, C. J., joined.

      Jacob L. Safron, Special Deputy Attorney General of North Carolina, argued the cause for petitioners. With him on the brief was Rufus L. Edmisten, Attorney General.

      Barry Nakell, by appointment of the Court, 425 U. S. 968, argued the cause and filed a brief for respondents.

        Andrew P. Miller, Attorney General, and Alan Katz, Assistant Attorney General, filed a brief for the Commonwealth of Virginia as amicus curiae urging reversal.

   Mr. Justice Marshall

delivered the opinion of the Court.

The issue in this case is whether States must protect the right of prisoners to access to the courts by providing them with law libraries or alternative sources of legal knowledge. In Younger v. Gilmore, 404 U. S. 15 (1971), we held per curiam that such services are constitutionally mandated. Petitioners, officials of the State of North Carolina, ask us to overrule that recent case, but for reasons explained below, we decline the invitation and reaffirm our previous decision.

I

Respondents are inmates incarcerated in correctional facilities of the Division of Prisons of the North Carolina Department of Correction. They filed three separate actions under 42 U. S. C. § 1983, all eventually consolidated in the District Court for the Eastern District of North Carolina. Respondents alleged, in pertinent part, that they were denied access to the courts in violation of their Fourteenth Amendment rights by the State’s failure to provide legal research facilities.

The District Court granted respondents’ motion for summary judgment on this claim, finding that the sole prison library in the State was “severely inadequate” and that there was no other legal assistance available to inmates. It held on the basis of Younger v. Gilmore that respondents’ rights to access to the courts and equal protection of the laws had been violated because there was “no indication of any assistance at the initial stage of preparation of writs and petitions.” The court recognized, however, that determining the “appropriate relief to be ordered . . . presents a difficult problem,” in view of North Carolina’s decentralized prison system. Rather than attempting “to dictate precisely what course the State should follow,” the court “charge [d] the Department of Correction with the task of devising a Constitutionally sound program” to assure inmate access to the courts. It left to the State the choice of what alternative would “most easily and economically” fulfill this duty, suggesting that a program to make available lawyers, law students, or public defenders might serve the purpose at least as well as the provision of law libraries. Supp. App. 12-13.

The State responded by proposing the establishment of seven libraries in institutions located across the State chosen so as to serve best all prison units. In addition, the State planned to set up smaller libraries in the Central Prison segregation unit and the Women’s Prison. Under the plan, inmates desiring to use a library would request appointments. They would be given transportation and housing, if necessary, for a full day’s library work. In addition to its collection of lawbooks, each library would stock legal forms and writing paper and have typewriters and use of copying machines. The State proposed to train inmates as research assistants and typists to aid fellow prisoners. It was estimated that ultimately some 350 inmates per week could use the libraries, although inmates not facing court deadlines might have to wait three or four weeks for their turn at a library. Respondents protested that the plan was totally inadequate and sought establishment of a library at every prison.

The District Court rejected respondents’ objections, finding the State’s plan “both economically feasible and practicable,” and one that, fairly and efficiently run, would “insure each inmate the time to prepare his petitions.” Id., at 19. Further briefing was ordered on whether the State was required to provide independent legal advisors for inmates in addition to the library facilities.

In its final decision, the District Court held that petitioners were not constitutionally required to provide legal assistance as well as libraries. It found that the library plan was sufficient to give inmates reasonable access to the courts and that our decision in Ross v. Moffitt, 417 U. S. 600 (1974), while not directly in point, supported the State’s claim that it need not furnish attorneys to bring habeas corpus and civil rights actions for prisoners.

After the District Court approved the library plan, the State submitted an application to the Federal Law Enforcement Assistance Administration (LEAA) for a grant to cover 90% of the cost of setting up the libraries and training a librarian and inmate clerks. The State represented to LEAA that the library project would benefit all inmates in the State by giving them “meaningful and effective access to the court[s]. . . . [T]he ultimate result . . . should be a diminution in the number of groundless petitions and complaints filed . . . . The inmate himself will be able to determine to a greater extent whether or not his rights have been violated” and judicial evaluation of the petitions will be facilitated. Brief for Respondents 3a.

Both sides appealed from those portions of the District Court orders adverse to them. The Court of Appeals for the Fourth Circuit affirmed in all respects save one. It found that the library plan denied women prisoners the same access rights as men to research facilities. Since there was no justification for this discrimination, the Court of Appeals ordered it eliminated. The State petitioned for review and we granted certiorari. 425 U. S. 910 (1976). We affirm.

II

A. It is now established beyond doubt that prisoners have a constitutional right of access to the courts. This Court recognized that right more than 35 years ago when it struck down a regulation prohibiting state prisoners from filing petitions for habeas corpus unless they were found “ 'properly drawn’ ” by the “ 'legal investigator’ ” for the parole board. Ex parte Hull, 312 U. S. 546 (1941). We held this violated the principle that “the state and its officers may not abridge or impair petitioner’s right to apply to a federal court for a writ of habeas corpus.” Id., at 549. See also Cochran v. Kansas, 316 U. S. 255 (1942).

More recent decisions have struck down restrictions and required remedial measures to insure that inmate access to the courts is adequate, effective, and meaningful. Thus, in order to prevent “effectively foreclosed access,” indigent prisoners must be allowed to file appeals and habeas corpus petitions without payment of docket fees. Burns v. Ohio, 360 U. S. 252, 257 (1959); Smith v. Bennett, 365 U. S. 708 (1961). Because we recognized that “adequate and effective appellate review” is impossible without a trial transcript or adequate substitute, we held that States must provide trial records to inmates unable to buy them. Griffin v. Illinois, 351 U. S. 12, 20 (1956). Similarly, counsel must be appointed to give indigent inmates “a meaningful appeal” from their convictions. Douglas v. California, 372 U. S. 353, 358 (1963).

Essentially the same standards of access were applied in Johnson v. Avery, 393 U. S. 483 (1969), which struck down a regulation prohibiting prisoners from assisting each other with habeas corpus applications and other legal matters. Since inmates had no alternative form of legal assistance available to them, we reasoned that this ban on jailhouse lawyers effectively prevented prisoners who were “unable themselves, with reasonable adequacy, to prepare their petitions,” from challenging the legality of their confinements. Id., at 489. Johnson was unanimously extended to cover assistance in civil rights actions in Wolff v. McDonnell, 418 U. S. 539, 577-580 (1974). And even as it rejected a claim that indigent defendants have a constitutional right to appointed counsel for discretionary appeals, the Court reaffirmed that States must “assure the indigent defendant an adequate opportunity to present his claims fairly.” Ross v. Moffitt, 417 U. S., at 616. “ [M] eaningful access” to the courts is the touchstone. See id., at 611, 612, 615.

Petitioners contend, however, that this constitutional duty merely obliges States to allow inmate “writ writers” to function. They argue that under Johnson v. Avery, supra, as long as inmate communications on legal problems are not restricted, there is no further obligation to expend state funds to implement affirmatively the right of access. This argument misreads the cases.

In Johnson and Wolff v. McDonnell, supra, the issue was whether the access rights of ignorant and illiterate inmates were violated without adequate justification. Since these inmates were unable to present their own claims in writing to the courts, we held that their “constitutional right to help,” Johnson v. Avery, supra, at 502 (White, J., dissenting), required at least allowing assistance from their literate fellows. But in so holding, we did not attempt to set forth the full breadth of the right of access. In McDonnell, for example, there was already an adequate law library in the prison. The case was thus decided against a backdrop of availability of legal information to those inmates capable of using it. And in Johnson, although the petitioner originally requested law-books, see 393 U. S., at 484, the Court did not reach the question, as it invalidated the regulation because of its effect on illiterate inmates. Neither case considered the question we face today and neither is inconsistent with requiring additional measures to assure meaningful access to inmates able to present their own cases.

Moreover, our decisions have consistently required States to shoulder affirmative obligations to assure all prisoners meaningful access to the courts. It is indisputable that indigent inmates must be provided at state expense with paper and pen to draft legal documents, with notarial services to authenticate them, and with stamps to mail them. States must forgo collection of docket fees otherwise payable to the treasury and expend funds for transcripts. State expenditures are necessary to pay lawyers for indigent defendants at trial, Gideon v. Wainwright, 372 U. S. 335 (1963); Argersinger v. Hamlin, 407 U. S. 25 (1972), and in appeals as of right, Douglas v. California, supra. This is not to say that economic factors may not be considered, for example, in choosing the methods used to provide meaningful access. But the cost of protecting a constitutional right cannot justify its total denial. Thus, neither the availability of jailhouse lawyers nor the necessity for affirmative state action is dispositive of respondents’ claims. The inquiry is rather whether law libraries or other forms of legal assistance are needed to give prisoners a reasonably adequate opportunity to present claimed violations of fundamental constitutional rights to the courts.

B. Although it is essentially true, as petitioners argue, that a habeas corpus petition or civil rights complaint need only set forth facts giving rise to the cause of action, but see, Fed. Rules Civ. Proc. 8 (a) (1), (3), it hardly follows that a law library or other legal assistance is not essential to frame such documents. It would verge on incompetence for a lawyer to file an initial pleading without researching such issues as jurisdiction, venue, standing, exhaustion of remedies, proper parties plaintiff and defendant, and types of relief available. Most importantly, of course, a lawyer must know what the law is in order to determine whether a colorable claim exists, and if so, what facts are necessary to state a cause of action.

If a lawyer must perform such preliminary research, it is no less vital for a pro se prisoner. Indeed, despite the “less stringent standards” by which a pro se pleading is judged, Haines v. Kerner, 404 U. S. 519, 520 (1972), it is often more important that a prisoner complaint set forth a nonfrivolous claim meeting all procedural prerequisites, since the court may pass on the complaint's sufficiency before allowing filing in forma pauperis and may dismiss the case if it is deemed frivolous. See 28 U. S. C. § 1915. Moreover, if the State files a response to a pro se pleading, it will undoubtedly contain seemingly authoritative citations. Without a library, an inmate will be unable to rebut the State’s argument. It is not enough to answer that the court will evaluate the facts pleaded in light of the relevant law. Even the most dedicated trial judges are bound to overlook meritorious cases without the benefit of an adversary presentation. Cf. Gardner v. California, 393 U. S. 367, 369-370 (1969). In fact, one of the consolidated cases here was initially dismissed by the same judge who later ruled for respondents, possibly because Younger v. Gilmore was not cited.

We reject the State’s claim that inmates are “ill-equipped to use” “the tools of the trade of the legal profession,” making libraries useless in assuring meaningful access. Brief for Petitioners 17. In the first place, the claim is inconsistent with the State’s representations on its LEAA grant application, supra, at 821, and with its argument that access is adequately protected by allowing inmates to help each other with legal problems. More importantly, this Court’s experience indicates that pro se petitioners are capable of using lawbooks to file cases raising claims that are serious and legitimate even if ultimately unsuccessful. Finally, we note that if petitioners had any doubts about the efficacy of libraries, the District Court’s initial decision left them free to choose another means of assuring access.

It is also argued that libraries or other forms of legal assistance are unnecessary to assure meaningful access in light of the Court’s decision in Ross v. Moffitt. That case held that the right of prisoners to “an adequate opportunity to present [their] claims fairly,” 417 U. S., at 616, did not require appointment of counsel to file petitions for discretionary review in state courts or in this Court. Moffitt’s rationale, however, supports the result we reach here. The decision in Moffitt noted that a court addressing a discretionary review petition is not primarily concerned with the correctness of the judgment below. Rather, review is generally granted only if a case raises an issue of significant public interest or jurisprudential importance or conflicts with controlling precedent. Id., at 615-617. Moffitt held that pro se applicants can present their claims adequately for appellate courts to decide whether these criteria are met because they have already had counsel for their initial appeals as of right. They are thus likely to have appellate briefs previously written on their behalf, trial transcripts, and often intermediate appellate court opinions to use in preparing petitions for further review. Id., at 615.

By contrast in this case, we are concerned in large part with original actions seeking new trials, release from confinement, or vindication of fundamental civil rights. Rather than presenting claims that have been passed on by two courts, they frequently raise heretofore unlitigated issues. As this Court has “constantly emphasized,” habeas corpus and civil rights actions are of “fundamental importance . . . in our constitutional scheme” because they directly protect our most valued rights. Johnson v. Avery, 393 U. S., at 485; Wolff v. McDonnell, 418 U. S., at 579. While applications for discretionary review need only apprise an appellate court of a case’s possible relevance to the development of the law, the prisoner petitions here are the first line of defense against constitutional violations. The need for new legal research or advice to make a meaningful initial presentation to a trial court in such a case is far greater than is required to file an adequate petition for discretionary review.

We hold, therefore, that the fundamental constitutional right of access to the courts requires prison authorities to assist inmates in the preparation and filing of meaningful legal papers by providing prisoners with adequate law libraries or adequate assistance from persons trained in the law.

C. Our holding today is, of course, a reaffirmation of the result reached in Younger v. Gilmore. While Gilmore is not a necessary element in the preceding analysis, its precedential weight strongly reinforces our decision. The substantive question presented in Gilmore was: “Does a state have an affirmative federal constitutional duty to furnish prison inmates with extensive law libraries or, alternatively, to provide inmates with professional or quasi-professional legal assistance?” Jurisdictional Statement 5, Brief for Appellants 4, in No. 70-9, O. T. 1971. This Court explicitly decided that question when it affirmed the judgment of the District Court in reliance on Johnson v. Avery. Cf. this Court’s Rule 15 (c). The affirmative answer was given unanimously after full briefing and oral argument. Gilmore has been relied upon without question in our subsequent decisions. Cruz v. Hauck, 404 U. S. 59 (1971) (vacating and remanding for reconsideration in light of Gilmore a decision that legal materials need not be furnished to county jail inmates); Cruz v. Beto, 405 U. S. 319, 321 (1972) (Gilmore cited approvingly in support of inmates’ right of access to the courts); Chaffin v. Stynchcombe, 412 U. S. 17, 34 n. 22 (1973) (Gilmore cited approvingly as a decision “removing roadblocks and disincentives to appeal”). Most recently, in Wolff v. McDonnell, despite differences over other issues in the case, the Court unanimously reaffirmed that Gilmore requires prison officials “to provide indigent inmates with access to a reasonably adequate law library for preparation of legal actions.” 418 U. S., at 578-579.

Experience under the Gilmore decision suggests no reason to depart from it. Most States and the Federal Government have made impressive efforts to fulfill Gilmore’s mandate by establishing law libraries, prison legal-assistance programs, or combinations of both. See Brief for Respondents, Ex. B. Correctional administrators have supported the programs and acknowledged their value. Resources and support including substantial funding from LEAA have come from many national organizations.

It should be noted that while adequate law libraries are one constitutionally acceptable method to assure meaningful access to the courts, our decision here, as in Gilmore, does not foreclose alternative means to achieve that goal. Nearly half the States and the District of Columbia provide some degree of professional or quasi-professional legal assistance to prisoners. Brief for Respondents, Ex. B. Such programs take many imaginative forms and may have a number of advantages over libraries alone. Among the alternatives are the training of inmates as paralegal assistants to work under lawyers’ supervision, the use of paraprofessionals and law students, either as volunteers or in formal clinical programs, the organization of volunteer attorneys through bar associations or other groups, the hiring of lawyers on a part-time consultant basis, and the use of full-time staff attorneys, working either in new prison legal assistance organizations or as part of public defender or legal services offices. Legal services plans not only result in more efficient and skillful handling of prisoner cases, but also avoid the disciplinary problems associated with writ writers, see Johnson v. Avery, 393 U. S., at 488; Procunier v. Martinez, 416 U. S. 396, 421-422 (1974). Independent legal advisors can mediate or resolve administratively many prisoner complaints that would otherwise burden the courts, and can convince inmates that other grievances against the prison or the legal system are ill-founded, thereby facilitating rehabilitation by assuring the inmate that he has not been treated unfairly. It has been estimated that as few as 500 full-time lawyers would be needed to serve the legal needs of the entire national prison population. Nevertheless, a legal access program need not include any particular element we have discussed, and we encourage local experimentation. Any plan, however, must be evaluated as a whole to ascertain its compliance with constitutional standards.

III

Finally, petitioners urge us to reverse the decision below because federal courts should not “sit as co-administrators of state prisons,” Brief for Petitioners 13, and because the District Court “exceeded its powers when it puts [sic] itself in the place of the [prison] administrators,” id., at 14. While we have recognized that judicial restraint is often appropriate in prisoners’ rights cases, we have also repeatedly held that this policy “cannot encompass any failure to take cognizance of valid constitutional claims.” Procunier v. Martinez, supra, at 405.

Petitioners’ hyperbolic claim is particularly inappropriate in this case, for the courts below scrupulously respected the limits on their role. The District Court initially held only that petitioners had violated the “fundamental constitutional guarantee,” ibid., of access to the courts. It did not thereupon thrust itself into prison administration. Rather, it ordered petitioners themselves to devise a remedy for the violation, strongly suggesting that it would prefer a plan providing trained legal advisors. Petitioners chose to establish law libraries, however, and their plan was approved with only minimal changes over the strong objections of respondents. Prison administrators thus exercised wide discretion within the bounds of constitutional requirements in this case.

The judgment is

Affirmed.

Mr. Justice Powell,

concurring.

The decision today recognizes that a prison inmate has a constitutional right of access to the courts to assert such procedural and substantive rights as may be available to him under state and federal law. It does not purport to pass on the kinds of claims that the Constitution requires state or federal courts to hear. In Wolff v. McDonnell, 418 U. S. 539, 577-580 (1974), where we extended the right of access recognized in Johnson v. Avery, 393 U. S. 483 (1969), to civil rights actions arising under the Civil Rights Act of 1871, we did not suggest that the Constitution required such actions to be heard in federal court. And in Griffin v. Illinois, 351 U. S. 12 (1956), where the Court required the States to provide trial records for indigents on appeal, the plurality and concurring opinions explicitly recognized that the Constitution does not require any appellate review of state convictions. Similarly, the holding here implies nothing as to the constitutionally required scope of review of prisoners’ claims in state or federal court.

With this understanding, I join the opinion of the Court.

Mr. Chief Justice Burger,

dissenting.

I am in general agreement with Mr. Justice Stewart and Mr. Justice Rehnquist, and join in their opinions. I write only to emphasize the theoretical and practical difficulties raised by the Court’s holding. The Court leaves us unenlightened as to the source of the “right of access to the courts” which it perceives or of the requirement that States "foot the bill” for assuring such access for prisoners who want to act as legal researchers and brief writers. The holding, in my view, has far-reaching implications which I doubt have been fully analyzed or their consequences adequately assessed.

It should be noted, first, that the access to the courts which these respondents are seeking is not for the purpose of direct appellate review of their criminal convictions. Abundant access for such purposes has been guaranteed by our prior decisions, e. g., Douglas v. California, 372 U. S. 353 (1963), and Griffin v. Illinois, 351 U. S. 12 (1956), and by the States independently. Rather, the underlying substantive right here is that of prisoners to mount collateral attacks on their state convictions. The Court is ordering the State to expend resources in support of the federally created right of collateral review.

This would be understandable if the federal right in question were constitutional in nature. For example, the State may be required by the Eighth Amendment to provide its inmates with food, shelter, and medical care, see Estelle v. Gamble, 429 U. S. 97, 103-104 (1976); similarly, an indigent defendant’s right under the Sixth Amendment places upon the State the affirmative duty to provide him with counsel for trials which may result in deprivation of his liberty, Argersinger v. Hamlin, 407 U. S. 25 (1972); finally, constitutional principles of due process and equal protection form the basis for the requirement that States expend resources in support of a convicted defendant’s right to appeal. See Douglas v. California, supra; Griffin v. Illinois, supra.

However, where the federal right in question is of a statutory rather than a constitutional nature, the duty of the State is merely negative; it may not act in such a manner as to interfere with the individual exercise of such federal rights. E. g., Ex parte Hull, 312 U. S. 546 (1941) (State may not interfere with prisoner’s access to the federal court by screening petitions directed to the court); Johnson v. Avery, 393 U. S. 483 (1969) (State may not prohibit prisoners from providing to each other assistance in preparing petitions directed to the federal courts). Prohibiting the State from interfering with federal statutory rights is, however, materially different from requiring it to provide affirmative assistance for their exercise.

It is a novel and doubtful proposition, in my view, that the Federal Government can, by statute, give individuals certain rights and then require the State, as a constitutional matter, to fund the means for exercise of those rights. Cf. National League of Cities v. Usery, 426 U. S. 833 (1976).

As to the substantive right of state prisoners to collaterally attack in federal court their convictions entered by a state court of competent jurisdiction, it is now clear that there is no broad federal constitutional right to such collateral attack, see Stone v. Powell, 428 U. S. 465 (1976); whatever right exists is solely a creation of federal statute, see Swain v. Pressley, ante, p. 384 (opinion of Burger, C. J.); Schneckloth v. Bustamonte, 412 U. S. 218, 250, 252-256 (1973) (Powell, J., concurring). But absent a federal constitutional right to attack convictions collaterally—and I discern no such right—I can find no basis on which a federal court may require States to fund costly law libraries for prison inmates. Proper federal-state relations preclude such intervention in the “complex and intractable” problems of prison administration. Procunier v. Martinez, 416 U. S. 396 (1974).

I can draw only one of two conclusions from the Court's holding: it may be read as implying that the right of prisoners to collaterally attack their convictions is constitutional, rather than statutory, in nature; alternatively, it may be read as holding that States can be compelled by federal courts to subsidize the exercise of federally created statutory rights. Neither of these novel propositions is sustainable and for the reasons stated I cannot adhere to either view and therefore dissent.

Mr. Justice Stewart,

with whom The Chief Justice joins, dissenting.

In view of the importance of the writ of habeas corpus in our constitutional scheme, “ 'it is fundamental that access of prisoners to the courts for the purpose of presenting their complaints may not be denied or obstructed.’ ” Wolff v. McDonnell, 418 U. S. 539, 578, quoting Johnson v. Avery, 393 U. S. 483, 485. From this basic principle the Court over five years ago made a quantum jump to the conclusion that a State has a constitutional obligation to provide law libraries for prisoners in its custody. Younger v. Gilmore, 404 U. S. 15.

Today the Court seeks to bridge the gap in analysis that made Gilmore’s authority questionable. Despite the Court’s valiant efforts, I find its reasoning unpersuasive.

If, as the Court says, there is a constitutional duty upon a State to provide its prisoners with “meaningful access” to the federal courts, that duty is not effectuated by adhering to the unexplained judgment in the Gilmore case. More than 20 years of experience with pro se habeas corpus petitions as a Member of this Court and as a Circuit Judge have convinced me that “meaningful access” to the federal courts can seldom be realistically advanced by the device of making law libraries available to prison inmates untutored in their use. In the vast majority of cases, access to a law library will, I am convinced, simply result in the filing of pleadings heavily larded with irrelevant legalisms—possessing the veneer but lacking the substance of professional competence.

If, on the other hand, Mr. Justice Rehnquist is correct in his belief that a convict in a state prison pursuant to a final judgment of a court of competent jurisdiction has no constitutional right of “meaningful access’' to the federal courts in order to attack his sentence, then a State can be under no constitutional duty to make that access “meaningful.” If the extent of the constitutional duty of a State is simply not to deny or obstruct a prisoner’s access to the courts, Johnson v. Avery, supra, then it cannot have, even arguably, any affirmative constitutional obligation to provide law libraries for its prison inmates.

I respectfully dissent.

Mr. Justice Rehnquist,

with whom The Chief Justice joins, dissenting.

The Court’s opinion in this case serves the unusual purpose of supplying as good a line of reasoning as is available to support a two-paragraph per curiam opinion almost six years ago in Younger v. Gilmore, 404 U. S. 15 (1971), which made no pretense of containing any reasoning at all. The Court’s reasoning today appears to be that we have long held that prisoners have a “right of access” to the courts in order to file petitions for habeas corpus, and that subsequent decisions have expanded this concept into what the Court today describes as a “meaningful right of access.” So, we are told, the right of a convicted prisoner to “meaningful access” extends to requiring the State to furnish such prisoners law libraries to aid them in piecing together complaints to be filed in the courts. This analysis places questions of prisoner access on a “slippery slope,” and I would reject it because I believe that the early cases upon which the Court relies have a totally different rationale from that which underlies the present holding.

There is nothing in the United States Constitution which requires that a convict serving a term of imprisonment in a state penal institution pursuant to a final judgment of a court of competent jurisdiction have a “right of access” to the federal courts in order to attack his sentence. In the first case upon which the Court’s opinion relies, Ex parte Hull, 312 U. S. 546 (1941), the Court held invalid a regulation of the Michigan State prison which provided that “ ‘[a]ll legal documents, briefs, petitions, motions, habeas corpus proceedings and appeals’ ” which prisoners wish to file in court had to be first submitted to the legal investigator of the state parole board. If the documents were, in the opinion of this official, “ 'properly drawn,’ ” they would be directed to the court designated. Hull was advised that his petition addressed to this Court had been "intercepted” and referred to the legal investigator for the reason that it was “deemed to be inadequate.” This Court held that such a regulation was invalid, and said very clearly why:

“Whether a petition for writ of habeas corpus addressed to a federal court is properly drawn and what allegations it must contain are questions for that court alone to determine.” Id., at 549.

A number of succeeding cases have expanded on this barebones holding that an incarcerated prisoner has a right of physical access to a federal court in order to petition that court for relief which Congress has authorized it to grant. These cases, most of which are mentioned in the Court’s opinion, begin with Griffin v. Illinois, 351 U. S. 12 (1956), and culminate in United States v. MacCollom, 426 U. S. 317 (1976), decided last Term. Some, such as Griffin, supra, and Douglas v. California, 372 U. S. 353 (1963), appear to depend upon the principle that indigent convicts must be given a meaningful opportunity to pursue a state-created right to appeal, even though the pursuit of such a remedy requires that the State must provide a transcript or furnish counsel. Others, such as Johnson v. Avery, 393 U. S. 483 (1969), Procunier v. Martinez, 416 U. S. 396 (1974), and Wolff v. McDonnell, 418 U. S. 539 (1974), depend on the principle that the State, having already incarcerated the convict and thereby virtually eliminated his contact with people outside the prison walls, may not further limit contacts which would otherwise be permitted simply because such contacts would aid the incarcerated prisoner in preparation of a petition seeking judicial relief from the conditions or terms of his confinement. Clearly neither of these principles supports the Court’s present holding: The prisoners here in question have all pursued all avenues of direct appeal available to them from their judgments of conviction, and North Carolina imposes no invidious regulations which allow visits from all persons except those knowledgeable in the law. All North Carolina has done in this case is to decline to expend public funds to make available law libraries to those who are incarcerated within its penitentiaries.

If respondents’ constitutional arguments were grounded on the Equal Protection Clause, and were in effect that rich prisoners could employ attorneys who could in turn consult law libraries and prepare petitions for habeas corpus, whereas indigent prisoners could not, they would have superficial appeal. See Griffin, supra; Douglas, supra. I believe that they would nonetheless fail under Ross v. Moffitt, 417 U. S. 600 (1974). There we held that although our earlier cases had required the State to provide meaningful access to state-created judicial remedies for indigents, the only right on direct appeal was that “indigents have an adequate opportunity to present their claims fairly within the adversary system.” Id., at 612.

In any event, the Court’s opinion today does not appear to proceed upon the guarantee of equal protection of the laws, a guarantee which at least has the merit of being found in the Fourteenth Amendment to the Constitution. It proceeds instead to enunciate a “fundamental constitutional right of access to the courts,” ante, at 828, which is found nowhere in the Constitution. But if a prisoner incarcerated pursuant to a final judgment of conviction is not prevented from physical access to the federal courts in order that he may file therein petitions for relief which Congress has authorized those courts to grant, he has been accorded the only constitutional right of access to the courts that our cases have articulated in a reasoned way. Ex parte Hull, supra. Respondents here make no additional claims that prison regulations invidiously deny them access to those with knowledge of the law so that such regulations would be inconsistent with Johnson, supra, Procunier, supra, and Wolff, supra. Since none of these reasons is present here, the “fundamental constitutional right of access to the courts” which the Court announces today is created virtually out of whole cloth with little or no reference to the Constitution from which it is supposed to be derived.

Our decisions have recognized on more than one occasion that lawful imprisonment properly results in a “retraction [of rights] justified by the considerations underlying our penal system.” Price v. Johnston, 334 U. S. 266, 285 (1948); Pell v. Procunier, 417 U. S. 817, 822 (1974). A convicted prisoner who has exhausted his avenues of direct appeal is no longer to be accorded every presumption of innocence, and his former constitutional liberties may be substantially restricted by the exigencies of the incarceration in which he has been placed. See Meachum v. Fano, 427 U. S. 215 (1976). Where we come to the point where the prisoner is seeking to collaterally attack a final judgment of conviction, the right of physical access to the federal courts is essential because of the congressional provisions for federal habeas review of state convictions. Ex parte Hull, supra. And the furnishing of a transcript to an indigent who makes a showing of probable cause, in order that he may have any realistic chance of asserting his right to such review, was upheld in United States v. MacCollom, supra. We held in Ross v. Moffitt, supra, that the Douglas holding of a right to counsel on a first direct appeal as of right would not be extended to a discretionary second appeal from an intermediate state appellate court to the state court of last resort, or from the state court of last resort to this Court. It would seem, a fortiori, to follow from that case that an incarcerated prisoner who has pursued all his avenues of direct review would have no constitutional right whatever to state appointed counsel to represent him in a collateral attack on his conviction, and none of our cases has ever suggested that a prisoner would have such a right. See Johnson v. Avery, 393 U. S., at 488. Yet this is the logical destination of the Court’s reasoning today. If “meaningful access” to the courts is to include law libraries, there is no convincing reason why it should not also include lawyers appointed at the expense of the State. Just as a library may assist some inmates in filing papers which contain more than the bare factual allegations of injustice, appointment of counsel would assure that the legal arguments advanced are made with some degree of sophistication.

I do not believe anything in the Constitution requires this result, although state and federal penal institutions might as a matter of policy think it wise to implement such a program. I conclude by indicating the same respect for Younger v. Gilmore, 404 U. S. 15 (1971), as has the Court, in relegating it to a final section set apart from the body of the Court’s reasoning. Younger supports the result reached by the Court of Appeals in this case, but it is a two-paragraph opinion which is most notable for the unbridged distance between its premise and its conclusion. The Court’s opinion today at least makes a reasoned defense of the result which it reaches, but I am not persuaded by those reasons. Because of that fact I would not have the slightest reluctance to overrule Younger and reverse the judgment of the Court of Appeals in this case.

       The complaints also alleged a number of other constitutional violations not relevant to the issue now before us.

       The District Court had originally granted summary judgment for the state officials in one of the three consolidated actions. On appeal, the Court of Appeals for the Fourth Circuit appointed counsel and remanded that case with the suggestion that it be consolidated with the other two cases, then still pending in the District Court.

       North Carolina’s 13,000 inmates are housed in 77 prison units located in 67 counties. Sixty-five of these units hold fewer than 200 inmates. Brief for Petitioners 7 n. 3.

       The State proposed inclusion of the following lawbooks:
      North Carolina General Statutes
      North Carolina Reports (1960-present)
      North Carolina Court of Appeals Reports
      Strong’s North Carolina Index
      North Carolina Rules of Court
      United States Code Annotated:
      Title 18
      Title 28 §§ 2241-2254
      Title 28 Rules of Appellate Procedure
      Title 28 Rules of Civil Procedure
      Title 42 §§ 1891-2010
      Supreme Court Reporter (1960-present)
      Federal 2d Reporter (1960-present)

        Federal Supplement (1960-present)
      Black’s Law Dictionary
      Sokol: Federal Habeas Corpus
      LaFave and Scott: Criminal Law Hornbook (2 copies)
      Cohen: Legal Research
      Criminal Law Reporter
      Palmer: Constitutional Rights of Prisoners
      This proposal adheres to a list approved as the minimum collection for prison law libraries by the American Correctional Association (ACA), American Bar Association (ABA), and the American Association of Law Libraries, except for the questionable omission of several treatises, Shepard’s Citations, and local rules of court. See ACA, Guidelines for Legal Reference Service in Correctional Institutions: A Tool for Correctional Administrators 5-9 (2d ed. 1975) (hereafter ACA Guidelines); ABA Commission on Correctional Facilities and Services, Bar Association Support to Improve Correctional Services (BASICS), Offender Legal Services 29-30, 70-78 (rev. ed. 1976).

       Respondents also contended that the libraries should contain additional legal materials, and they urged creation of a large central circulating library.

       The District Court did order two changes in the plan: that extra copies of the U. S. C. A. Habeas Corpus and Civil Rights Act volumes be provided, and that no reporter advance sheets be discarded, so that the libraries would slowly build up duplicate sets. But the court found that most of the prison units were too small to require their own libraries, and that the cost of the additional books proposed by respondents would surpass their usefulness.

       Respondents filed no cross-appeal and do not now question the library plan, nor do petitioners challenge the sex discrimination ruling.

       See also Eskridge v. Washington Prison Bd., 357 U. S. 214 (1958) (provision of trial transcript may not be conditioned on approval of judge); Draper v. Washington, 372 U. S. 487 (1963) (same); Lane v. Brown, 372 U. S. 477 (1963) (public defender’s approval may not be required to obtain coram nobis transcript); Rinaldi v. Yeager, 384 U. S. 305 (1966) (unconstitutional to require reimbursement for cost of trial transcript only from unsuccessful imprisoned defendants); Long v. District Court of Iowa, 385 U. S. 192 (1966) (State must provide transcript of post-conviction proceeding); Roberts v. LaVallee, 389 U. S. 40 (1967) (State must provide preliminary hearing transcript); Gardner v. California, 393 U. S. 367 (1969) (State must provide habeas corpus transcript); Williams v. Oklahoma City, 395 U. S. 458 (1969) (State must provide transcript of petty-offense trial); Mayer v. Chicago, 404 U. S. 189 (1971) (State must provide transcript of nonfelony trial).
      The only cases that have rejected indigent defendants’ claims to transcripts have done so either because an adequate alternative was available but not used, Britt v. North Carolina, 404 U. S. 226 (1971), or because the request was plainly frivolous and a prior opportunity to obtain a transcript was waived, United States v. MacCollom, 426 U. S. 317 (1976).

         The same standards were applied in United, States v. MacCollom, supra.

       The plaintiffs stipulated in the District Court to the general adequacy of the library, see McDonnell v. Wolff, 342 F. Supp. 616, 618, 629-630 (Neb. 1972), although they contested certain limitations on its use. Those claims were resolved by the lower courts. See id., at 619-622; 483 F. 2d 1059, 1066 (CA8 1973); 418 U. S., at 543 n. 2.

       Indeed, our decision is supported by the holding in Procunier v. Martinez, 416 U. S. 396 (1974), in a related right-of-access context. There the Court invalidated a California regulation barring law students and paraprofessionals employed by lawyers representing prisoners from seeing inmate clients. Id., at 419-422. We did so even though California has prison law libraries and permits inmate legal assistance, Gilmore v. Lynch, 319 F. Supp. 105, 107 n. 1 (ND Cal. 1970), aff’d sub nom. Younger v. Gilmore, 404 U. S. 15 (1971). Even more significantly, the prisoners in question were actually represented by lawyers. Thus, despite the challenged regulation, the inmates were receiving more legal assistance than prisoners aided only by writ writers. Nevertheless, we found that the regulation “impermissibly burdened the right of access.” 416 U. S., at 421.

         Cf. Estelle v. Gamble, 429 U. S. 97 (1976), holding that States must treat prisoners’ serious medical needs, a constitutional duty obviously requiring outlays for personnel and facilities.

       Brief for Petitioners 16-17; Tr. of Oral Arg. 3-9, 11-12.

       A source of current legal information would be particularly important so that prisoners could learn whether they have claims at all, as where new court decisions might apply retroactively to invalidate convictions.

       The propriety of these practices is not before us. Courts may also impose additional burdens before appointing counsel for indigents in civil suits. See Johnson v. Avery, 393 U. S. 483, 487-488 (1969).

       Nor is United States v. MacCollom, 426 U. S. 317 (1976), inconsistent with our decision. That case held that in a post-conviction proceeding under 28 U. S. C. § 2255, an applicant was not unconstitutionally deprived of access to the courts by denial of a transcript of his original trial pursuant to 28 U. S. C. § 753 (f), where he had failed to take a direct appeal and thereby secure the transcript, where his newly asserted claim of error was frivolous, and where he demonstrated no need for the transcript. Without a library or legal assistance, however, inmates will not have “a current opportunity to present [their] claims fairly,” 426 U. S., at 329 (Blackmun, J., concurring in judgment), and valid claims will undoubtedly be lost.

       Since our main concern here is “protecting the ability of an inmate to prepare a petition or complaint,” Wolff v. McDonnell, 418 U. S., at 576, it is irrelevant that North Carolina authorizes the expenditure of funds for appointment of counsel in some state post-conviction proceedings for prisoners whose claims survive initial review by the courts. See N. C. Gen. Stat. § 7A-451 (Supp. 1975); Brief for Petitioners 3 n. 1, 12 n. 8, 14 n. 9, and accompanying text; but cf. Ross v. Moffitt, 417 U. S. 600, 614 (1974). Moreover, this statute does not cover appointment of counsel in federal habeas corpus or state or federal civil rights actions, all of which are encompassed by the right of access.
      Similarly, the State's creation of an advisory Inmate Grievance Commission, see N. C. Gen. Stat. § 148-101 et seq. (Supp. 1975); Brief for Petitioners 14, while certainly a noteworthy innovation, does not answer the constitutional requirement for legal assistance to prisoners.

       Nearly 95% of the state corrections commissioners, prison wardens, and treatment directors responding to a national survey supported creation and expansion of prison legal services. Cardarelli & Finkelstein, Correctional Administrators Assess the Adequacy and Impact of Prison Legal Services Programs in the United States, 65 J. Crim. L., C. & P. S. 91, 99 (1974). Almost 85% believed that the programs would not adversely affect discipline or security or increase hostility toward the institution. Rather, over 80% felt legal services provide a safety valve for inmate grievances, reduce inmate power structures and tensions from unresolved legal problems, and contribute to rehabilitation by providing a positive experience with the legal system. Id., at 95-98. See also ACA Guidelines, supra, n. 4; National Sheriffs’ Assn., Inmates’ Legal Rights, Standard 14, pp. 33-34 (1974); Bluth, Legal Services for Inmates: Coopting the Jailhouse Lawyer, 1 Capital U. L. Rev. 59, 61, 67 (1972); Sigler, A New Partnership in Corrections, 52 Neb. L. Rev. 35, 38 (1972).

       See, e. g., U. S. Dept. of Justice, LEAA, A Compendium of Selected Criminal Justice Projects, III-201, IV-361-366 (1975); U. S. Dept. of Justice, LEAA, Grant 75 DF-99-0013, Consortium of States to Furnish Legal Counsel to Prisoners, Final Report, and Program Narrative (1975). The ABA BASICS program, see n. 4, supra, makes grants to state and local bar associations for prison legal services and libraries and publishes a complete technical assistance manual, Offender Legal Services (rev. ed. 1976). See also ABA Resource Center on Correctional Law and Legal Services, Providing Legal Services to Prisoners, 8 Ga. L. Rev. 363 (1974). The American Correctional Association publishes Guidelines for Legal Reference Service in Correctional Institutions (2d ed. 1975). The American Association of Law Libraries publishes O. Werner, Manual for Prison Law Libraries (1976), and its members offer assistance to prison law library personnel.
      See also ABA Joint Committee on the Legal Status of Prisoners, Standards Relating to the Legal Status of Prisoners, Standards 2.1, 2.2, 2.3 and Commentary, 14 Am. Crim. L. Rev. 377, 420-443 (tent. draft 1977); National Conference of Commissioners on Uniform State Laws, Uniform Corrections Code, § 2-601 (tent. draft 1976); National Advisory Commission on Criminal Justice Standards and Goals, Corrections 26-30, Standards 2.2, 2.3 (1973).

       For example, full-time staff attorneys assisted by law students and a national back-up center were used by the Consortium of States to Furnish Legal Counsel to Prisoners, see n. 19, supra. State and local bar associations have established a number of legal services and library programs with support from the ABA BASICS program, see nn. 4 and 19, supra. Prisoners’ Legal Services of New York plans to use 45 lawyers and legal assistants in seven offices to give comprehensive legal services to all state inmates. Offender Legal Services, supra, n. 19, at iv. Other programs are described in Providing Legal Services to Prisoners, supra, n. 19, at 399-416.

       See Cardarelli & Finkelstein, supra, n. 18, at 96-99; LEAA Consortium Reports, supra, n. 19; Champagne & Haas, The Impact of Johnson v. Avery on Prison Administration, 43 Tenn. L. Rev. 275, 295-299 (1976). Cf. 42 U. S. C. § 2996 (4) (1970 ed., Supp. V), in which Congress, establishing the Legal Services Corp., declared that “for many of our citizens, the availability of legal services has reaffirmed faith in our government of laws.”

       ABA Joint Committee, supra, n. 19, at 428-429.

       See, e. g., Stevenson v. Reed, 530 F. 2d 1207 (CA5 1976), aff’g 391 F. Supp. 1375 (ND Miss. 1975); Bryan v. Werner, 516 F. 2d 233 (CA3 1975); Gaglie v. Ulibarri, 507 F. 2d 721 (CA9 1974); Corpus v. Estelle, 409 F. Supp. 1090 (SD Tex. 1975).

      The record reflects that prison officials in no way interfered with inmates’ use of their own resources in filing collateral attacks. Prison regulations permit access to inmate “writ writers” and each prisoner is entitled to store reasonable numbers of lawbooks in his cell.


text:
    February 25, 1977
    No. A-703.
    Dobbs v. Georgia.
   Sup. Ct. Ga. Application for stay of execution of the sentence of death, presented to Mr. Justice Powell, and by him referred to the Court, granted pending filing of a petition for writ of certiorari on or before the close of business March 9, 1977. In the event a petition for writ of certiorari is so filed, this order is to remain in effect pending this Court’s action on petition. Should petition for writ of certiorari be denied, this order is to terminate automatically. In the event petition for writ of certiorari is granted, this order is to remain in effect pending issuance of mandate of this Court. The State of Georgia is requested to file a response to petition for a writ of certiorari as expeditiously as possible.


text:
    February 28, 1977
    No. 76-954.
    Cuyahoga County Bar Assn. et al. v. Supreme Court of Ohio et al.
   Affirmed on appeal from D. C. S. D. Ohio.


text:
    No. 76-5774.
    P. J. P. v. Oregon ex rel. Juvenile Department of Polk County et al.
   Appeal from Ct. App. Ore. dismissed for want of substantial federal question.


text:
    No. 76-5944.
    Chochrek v. Cupp, Penitentiary Superintendent.
   Appeal from C. A. 9th 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. 74-1486.
    United States v. Bernstein.
   C. A. 4th Cir. Certiorari granted, judgment vacated, and case remanded for further consideration in light of United States v. Donovan, 429 U. S. 413 (1977).


text:
    No. 76-169.
    United States v. Barletta et al.
   C. A. 8th Cir. Certiorari granted, judgment vacated, and case remanded for further consideration in light of United States v. Donovan, 429 U. S. 413 (1977).


text:
    No. 76-597.
    United States v. Cabral.
   C. A. 9th Cir. Motion of respondent for leave to proceed in forma pauperis granted. Certiorari granted, judgment vacated, and case remanded for further consideration in light of United States v. Donovan, 429 U. S. 413 (1977).


text:
    No. 76-720.
    United States v. Lee.
   C. A. 6th Cir. Certiorari granted, judgment vacated, and case remanded for further consideration in light of United States v. Donovan, 429 U. S. 413 (1977).


text:
    No. 76-5415.
    Gilbert v. United States.
   C. A. 5th Cir. Motion for leave to proceed in forma pauperis and certiorari granted. On representation of the Acting Solicitor General, set forth in his brief for the United States filed February 7, 1977, judgment vacated, and case remanded for reconsideration in light of position presently asserted by the Government.


text:
    No. 76-941.
    Gibson, Sheriff v. Small.
   C. A. 4th Cir. Certiorari granted, judgment vacated, and case remanded for further consideration in light of Codd v. Velger, 429 U. S. 624 (1977).


text:
    No. D-46.
    In re Disbarment of Mardian.
   It having been reported to the Court that the Supreme Court of California and the United States District Court for the District of Columbia have vacated their orders suspending Robert Charles Mardian from the practice of law, it is ordered that the order of this Court entered March 31, 1975 [420 U. S. 1001], suspending Robert Charles Mardian from the further practice of law in this Court is vacated and that the rule to show cause issued March 31, 1975, is discharged.

Mr. Justice Rehnquist took no part in the consideration or decision of this order.


text:
    No. 75-1126.
    No. 75-1385.
    Trans World Airlines, Inc. v. Hardison et al.; and International Association of Machinists & Aerospace Workers, AFL-CIO, et al. v. Hardison et al.
   C. A. 8th Cir. [Certiorari granted, 429 U. S. 958.] Motions of New York State Division of Human Rights, Central Conference of American Rabbis et al., General Conference of Seventh-Day Adventists, and American Civil Liberties Union for leave to file briefs as amici curiae granted.


text:
    No. 75-1771.
    Commissioner of Internal Revenue v. Standard Life & Accident Insurance Co.
   C. A. 10th Cir. [Certiorari granted, 429 U. S. 814.] Motion of Acting Solicitor General for additional time for oral argument on behalf of petitioner granted and 15 additional minutes allotted for that purpose. Respondent also granted 15 additional minutes for oral argument.


text:
    No. 76-99.
    Occidental Life Insurance Company of California v. Equal Employment Opportunity Commission.
   C. A. 9th Cir. [Certiorari granted, 429 U. S. 1022.] Motion of Texas Association of Business for leave to file a brief as amicus curiae granted.


text:
    No. 76-143.
    Splawn v. California.
   Ct. App. Cal., 1st App. Dist. [Certiorari granted, 429 U. S. 997.] Motion of Citizens for Decency Through Law, Inc., for leave to file a brief as amicus curiae granted.


text:
    No. 76-422.
    Dothard, Director, Department of Public Safety of Alabama, et al. v. Rawlinson et al.
   Appeal from D. C. M. D. Ala. [Probable jurisdiction noted, 429 U. S. 976.] Motion of the Attorney General of Alabama for additional time for oral argument denied.


text:
    No. 76-444.
    No. 76-454.
    Northeast Marine Terminal Co., Inc., et al. v. Caputo et al.; and International Terminal Operating Co., Inc. v. Blundo et al.
   Appeals from C. A. 2d Cir. [Certiorari granted, 429 U. S. 998.] Motion of West Gulf Maritime Assn. for leave to file a brief as amicus curiae granted.


text:
    No. 76-447.
    Milliken, Governor of Michigan, et al. v. Bradley et al.
   C. A. 6th Cir. [Certiorari granted, 429 U. S. 958.] Motion of Michigan Education Assn. for leave to file a brief as amicus curiae denied.


text:
    No. 76-931.
    Stops et ux. v. Little Horn State Bank.
   Sup. Ct. Mont. The Solicitor General is invited to file a brief in this case expressing the views of the United States.


text:
    No. 76-5206.
    Roberts v. Louisiana.
   Sup. Ct. La. [Certiorari granted, 429 U. S. 938.] Motion of Americans for Effective Law Enforcement, Inc., et al., for leave to file a brief as amici curiae granted. Motion of the Attorney General of California for leave to participate in oral argument as amicus curiae denied.


text:
    No. 76-5843.
    No. 76-6124.
    Bell v. Malley, Warden; and Blake v. Thompson, Warden.
   Motions for leave to file petitions for writs of habeas corpus denied.


text:
    No. 76-930.
    Ray, Governor of Washington, et al. v. Atlantic Richfield Co. et al.
   Appeal from D. C. W. D. Wash. Probable jurisdiction noted. The Solicitor General is invited to file a brief in this case expressing the views of the United States.


text:
    No. 76-750.
    Sears, Roebuck & Co. v. San Diego County District Council of Carpenters.
   Sup. Ct. Cal. Certiorari granted.


text:
    No. 76-938.
    Federal Maritime Commission et al v. Pacific Maritime Assn. et al.
   C. A. D. C. Cir. Certiorari granted.


text:
    No. 75-500.
    No. 75-509.
    No. 75-513.
    Anderson v. United States; Malloway v. United States; and Doolittle et al. v. United States.
   C. A. 5th Cir. Certiorari denied. Reported below: 518 F. 2d 500.


text:
    No. 75-611.
    Ganem et al. v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 75-963.
    Kilgore v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 75-1393.
    No. 75-1394.
    Principie v. United States; and Labriola et al. v. United States.
   C. A. 2d Cir. Certiorari denied. Reported below: 531 F. 2d 1132.


text:
    No. 75-1813.
    Civella et al. v. United States.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 75-1816.
    Labriola v. New York.
   App. Div., Sup. Ct. N. Y., 1st Jud. Dept. Certiorari denied.


text:
    No. 75-1838.
    No. 75-6957.
    Green v. United States; and Hill et al. v. United States.
   C. A. 8th Cir. Certiorari denied. Reported below: 534 F. 2d 1262.


text:
    No. 75-6944.
    Schwartz v. United States.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 76-232.
    Haina v. Maryland.
   Ct. Sp. App. Md. Certiorari denied.


text:
    No. 76-414.
    No. 76-5509.
    Kilcullen v. United States; and Reddall v. United States.
   C. A. 1st Cir. Certiorari denied. Reported below: 546 F. 2d 435.


text:
    No. 76-654.
    Parker v. South Louisiana Contractors, Inc., et al.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 76-747.
    Pent-R-Books, Inc. v. United States.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 76-783.
    Ho Chung Tsao et al. v. Immigration and Naturalization Service.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 76-787.
    Prasse v. United States; and Lebonick v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 76-826.
    Illinois Terminal Railroad Co. v. United States et al.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 76-843.
    Casco Bank & Trust Co. et al. v. United States.
   C. A. 1st Cir. Certiorari denied.


text:
    No. 76-853.
    No. 76-865.
    Stassi v. United States; and Stassi, aka Rogers v. United States.
   C. A. 2d Cir. Certiorari denied. Reported below: 544 F. 2d 579.


text:
    No. 76-858.
    Gould, Inc. v. National Labor Relations Board.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 76-861.
    Cannon v. Commissioner of Internal Revenue.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 76-946.
    Walton v. Walton, a Minor, by Baker.
   Dist. Ct. Colo., Jefferson County. Certiorari denied.


text:
    No. 76-949.
    Gibson v. Missouri.
   Ct. App. Mo., Springfield Dist. Certiorari denied.


text:
    No. 76-952.
    Inmobiliaria Melia de Puerto Rico, Inc. v. Paine, Webber, Jackson & Curtis, Inc.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 76-953.
    Ronwin v. Special Committee on Examinations and Admissions of the Arizona Supreme Court.
   Sup. Ct. Ariz. Certiorari denied.


text:
    No. 76-955.
    Dover Conveyor & Equipment Co., Inc. v. Ohio Savings & Trust Co.
   Ct. App. Ohio, Tuscarawas County. Certiorari denied.


text:
    No. 76-1064.
    Rossi v. United States.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 76-5522.
    Rose v. United States.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 76-5535.
    Capasso v. United States.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 76-5561.
    Myers v. United States.
   C. A. D. C. Cir. Certiorari denied.


text:
    No. 76-5563.
    Allen et al. v. United States.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 76-5672.
    Fields v. Maggio, Warden.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 76-5678.
    Thacker v. Garrison, Warden.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 76-5730.
    Proctor v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 76-5733.
    Lovell v. United States.
   C. A. 1st Cir. Certiorari denied.


text:
    No. 76-5740.
    Ford v. Pitchess.
   Sup. Ct. Cal. Certiorari denied.


text:
    No. 76-5748.
    Testa v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 76-5759.
    Aaron v. North Carolina.
   Ct. App. N. C. Certiorari denied.


text:
    No. 76-5766.
    Taravella v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 76-5769.
    Wallace v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 76-5779.
    Erickson v. Illinois.
   App. Ct. Ill., 2d Dist. Certiorari denied.


text:
    No. 76-5787.
    Jermendy v. United States.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 76-5792.
    Haugen v. Bryan.
   Sup. Ct. Nev. Certiorari denied.


text:
    No. 76-5800.
    Cowden v. United States.
   C. A. 1st Cir. Certiorari denied.


text:
    No. 76-5803.
    Levingston v. United States.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 76-5807.
    Karkaria v. Karkaria.
   Super. Ct. Pa. Certiorari denied.


text:
    No. 76-5824.
    Austing v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 76-5846.
    Boyd v. United States.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 76-5885.
    Raygosa-Gaeta v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 76-5917.
    Swanson v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 76-5925.
    Neikirk v. Arkansas.
   Sup. Ct. Ark. Certiorari denied.


text:
    No. 76-5999.
    Bolus v. Engle et al.
   Sup. Ct. Ohio. Certiorari denied.


text:
    No. 76-6000.
    Caver v. Alabama; and White v. Alabama.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 76-6002.
    Rot v. Manchester Gas Co.
   C. A. D. C. Cir. Certiorari denied.


text:
    No. 76-6006.
    Felix v. Cardwell, Warden.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 76-6008.
    Campise v. Hamilton, Sheriff.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 76-6013.
    Tribbitt v. Wainwright, Secretary, Department of Offender Rehabilitation of Florida.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 76-6015.
    Mottu v. Estelle, Corrections Director.
   Ct. Crim. App. Tex. Certiorari denied.


text:
    No. 76-6022.
    Bradley v. California.
   Ct. App. Cal., 2d App. Dist. Certiorari denied.


text:
    No. 76-6098.
    Melvin et al. v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 76-6108.
    Osborne v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 76-6110.
    Sledge v. United States.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 76-6123.
    Tefsa, aka Teffa v. United States.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 76-6128.
    Danise v. United States.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 76-6137.
    Powless v. United States.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 76-768.
    Rios et al. v. Enterprise Association Steamfitters, Local No. 638 of U. A., et al.
   C. A. 2d Cir. Certiorari denied.

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


text:
    No. 75-1318.
    No. 76-566.
    No. 76-569.
    No. 76-570.
    No. 76-622.
    No. 76-5408.
    No. 76-5427.
    No. 76-5473.
    No. 76-5531.
    No. 76-5556.
    No. 76-5731.
    No. 76-5763.
    Pearson v. Dodd et al., Iaconetti v. United States, New York Shipping Assn., Inc. v. National Labor Relations Board et al., International Longshoremen’s Assn., AFL-CIO v. National Labor Relations Board et al., Johnson Bronze Co. v. Ostapowicz, Manville v. Michigan, Burbank v. Warden, Illinois State Penitentiary, Guerra v. United States, Kelley v. United States et al., Sellars v. Estelle, Corrections Director, Berryhill v. Georgia, Mayfield v. United States,
   429 U. S. 396;

429 U. S. 1041;

429 U. S. 1041;

429 U. S. 1041;

429 U. S. 1041;

429 U. S. 1063;

429 U. S. 1045;

429 U. S. 1046;

429 U. S. 1047;

429 U. S. 1076;

429 U. S. 1054; and

429 U. S. 1071. Petitions for rehearing denied.


text:
    No. 76-5414.
    Powell v. California,
   429 U. S. 1032. Motion for leave to file petition for rehearing denied.


text:
    March 7, 1977
    No. 76-976.
    Roundtree et al. v. Berger, Commissioner, Department of Social Services of New York, et al.
   Affirmed on appeal from D. C. E. D. N. Y.


text:
    No. 76-699.
    American Party of Idaho et al. v. Evans, Chairman, State Board of Examiners, et al.
   Appeal from D. C. Idaho dismissed for want of jurisdiction.


text:
    No. 76-995.
    Drewett et al. v. Louisiana.
   Appeal from Sup. Ct. La. dismissed for want of substantial federal question.


text:
    No. 76-5820.
    Maynard v. New York.
   Appeal from Sup. Ct. N. Y. dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for writ of certiorari, certiorari denied.


text:
    No. 75-1706.
    No. 75-1755.
    National Labor Relations Board v. Local 742, United Brotherhood of Carpenters & Joiners of America, et al.; and J. L. Simmons Co., Inc. v. Local 742, United Brotherhood of Carpenters & Joiners of America, et al.
   C. A. D. C. Cir. Certiorari granted, judgment vacated, and cases remanded for further consideration in light of NLRB v. Pipefitters, 429 U. S. 507 (1977). Reported below: 174 U. S. App. D. C. 456, 533 F. 2d 683.


text:
    No. A-655 (76-1193).
    Robb, Former Director of Department of Mental Health, et al. v. Kennedy.
   Application for recall and stay of mandate of the United States Court of Appeals for the Eighth Circuit, presented to Mr. Justice Rehnquist, and by him referred to the Court, denied.


text:
    No. A-709.
    Melvin v. United States.
   Application for stay of mandate of the United States Court of Appeals for the First Circuit and for bail pending timely filing of a petition for writ of certiorari, presented to Mr. Justice Brennan, and by him referred to the Court, denied.


text:
    No. 75-1605.
    Nixon v. Administrator of General Services et al.
   Appeal from D. C. D. C. Cir. [Probable jurisdiction noted, 429 U. S. 976.] Motion of appellees for additional time for oral argument granted and 15 additional minutes allotted for that purpose. Appellant also allotted 15 additional minutes for oral argument.


text:
    No. 75-1771.
    Commissioner of Internal Revenue v. Standard Life & Accident Insurance Co.
   C. A. 10th Cir. [Certiorari granted, 429 U. S. 814.] Motion of Lincoln National Life Insurance Co. for leave to file a brief as amicus curiae granted.


text:
    No. 76-422.
    Dothard, Director, Department of Public Safety of Alabama, et al. v. Rawlinson et al.
   Appeal from D. C. M. D. Ala. [Probable jurisdiction noted, 429 U. S. 976.] Motions of Women’s Legal Defense Fund et al. and American Civil Liberties Union for leave to file briefs as amici curiae granted.


text:
    No. 76-423.
    Puyallup Tribe, Inc., et al. v. Department of Game of Washington et al.
   Sup. Ct. Wash. [Certiorari granted, 429 U. S. 976.] Motion of respondents Northwest Steelheaders Council of Trout, Unlimited, et al. for additional time for oral argument denied. Alternative request for divided argument granted.


text:
    No. 76-447.
    Milliken, Governor of Michigan, et al. v. Bradley et al.
   C. A. 6th Cir. [Certiorari granted, 429 U. S. 958.] Motion of respondent Detroit Board of Education to argue on behalf of all respondents denied. Divided argument on behalf of respondents allowed.


text:
    No. 76-496.
    Wolman et al. v. Essex, Superintendent of Public Instruction of Ohio, et al.
   Appeal from D. C. S. D. Ohio. [Probable jurisdiction noted, 429 U. S. 1037.] Motion of National Coalition for Public Education and Religious Liberty for leave to file a brief as amicus curiae granted.


text:
    No. 76-558.
    Raymond Motor Transportation, Inc., et al. v. Rice, Secretary, Wisconsin Department of Transportation, et al.
   Appeal from D. C. W. D. Wis. Probable jurisdiction noted.

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


text:
    No. 76-697.
    Northrup v. United States District Court for the District of Rhode Island et al.
   C. A. 1st Cir. Certiorari denied.


text:
    No. 76-863.
    A. Lasaponara & Sons, Inc., et al. v. National Labor Relations Board.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 76-913.
    Fisher v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 76-936.
    Empire Gas Corp. et al. v. United States et al.
   Temp. Emerg. Ct. App. Certiorari denied.


text:
    No. 76-948.
    Leib et al. v. Twentieth Century Corp. et al.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 76-958.
    Commerce Union Bank, Trustee, et al. v. Kinkade et al.
   Sup. Ct. Ky. Certiorari denied.


text:
    No. 76-960.
    Johnson v. Indiana.
   Sup. Ct.. Ind. Certiorari denied.


text:
    No. 76-964.
    Richard’s Lumber & Supply Co. et al. v. Kaufman & Broad Homes, Inc., et al.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 76-965.
    Purer v. Jordan et al.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 76-966.
    Wolf et al. v. Trans World Airlines, Inc. et al.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 76-973.
    Arizona et al. v. Cook Paint & Varnish Co. et al.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 76-977.
    Volvo of America Corp. v. Schwarzer, U. S. District Judge (Rosack, Real Party in Interest).
   C. A. 9th Cir. Certiorari denied.


text:
    No. 76-980.
    In re Kraft.
   Sup. Ct. Idaho. Certiorari denied.


text:
    No. 76-983.
    Gosper v. Fancher et al.
   Ct. App. N. Y. Certiorari denied.


text:
    No. 76-985.
    Gevyn Construction Corp. v. Limbach Co.
   C. A. 1st Cir. Certiorari denied.


text:
    No. 76-991.
    Kottis, Administratrix v. United States Steel Corp.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 76-993.
    Ronald F. Riviere, D. D. S., Inc. v. Ohio et al.
   Sup. Ct. Ohio. Certiorari denied.


text:
    No. 76-998.
    Wiener King, Inc. v. Wiener King Corp. et al.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 76-1011.
    Walgreen Louisiana Co., Inc., et al. v. City of New Orleans et al.
   Sup. Ct. La. Certiorari denied.


text:
    No. 76-1044.
    Estate of Whitlock et al. v. Commissioner of Internal Revenue et al.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 76-1046.
    Voeller v. Voeller.
   Super. Ct. N. J. Certiorari denied.


text:
    No. 76-1054.
    Catanzaro v. Central Gulp Steamship Corp. et al.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 76-1092.
    Falcone et al. v. United States.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 76-1101.
    Ivler v. United States.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 76-1103.
    Beran et al. v. United States.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 76-5599.
    Benitez-Cortez v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 76-5602.
    Baldwin v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 76-5752.
    No. 76-5764.
    No. 76-6135.
    No. 76-6171.
    Armedo-Sarmiento v. United States; Roldan v. United States; Rodriguez-Parra v. United States; and Montes-Gomez v. United States.
   C. A. 2d Cir. Certiorari denied. Reported below: 545 F. 2d 785.


text:
    No. 76-5785.
    Clark v. Malley, Warden.
   Sup. Ct. N. M. Certiorari denied.


text:
    No. 76-5809.
    Kline v. Wisconsin.
   Sup. Ct. Wis. Certiorari denied.


text:
    No. 76-5811.
    Atwell et al. v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 76-5812.
    Runkle v. Estelle, Corrections Director.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 76-5832.
    Ainsworth v. Reed, Penitentiary Superintendent.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 76-5841.
    Towns v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 76-5857.
    Galliano v. United States.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 76-5876.
    Stockwell v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 76-5879.
    Withers v. United States.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 76-5886.
    Rudd v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 76-5894.
    Sclafani v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 76-5897.
    Parker v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 76-5900.
    Chew v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 76-5903.
    Alvarez v. District Director, U. S. Immigration and Naturalization Service.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 76-5977.
    Fox v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 76-5989.
    Beitling v. United States.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 76-6016.
    Love v. Gray, Warden.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 76-6018.
    Ash v. Iowa.
   Sup. Ct. Iowa. Certiorari denied.


text:
    No. 76-6020.
    Smith v. Hopper, Warden.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 76-6032.
    Rado v. Connecticut.
   Sup. Ct. Conn. Certiorari denied.


text:
    No. 76-6035.
    Malley v. Manson et al.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 76-6036.
    Brown v. Florida.
   Ct. App. Fla., 3d Dist. Certiorari denied.


text:
    No. 76-6041.
    Michele v. Fogg, Correctional Superintendent.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 76-6049.
    Jones v. Brierton, Warden.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 76-6050.
    Huffman v. Estelle, Corrections Director.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 76-6051.
    Tucker v. Gunn, Warden.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 76-6053.
    Kawamura v. Verska.
   Ct. App. Cal., 2d App. Dist. Certiorari denied.


text:
    No. 76-6057.
    Owens v. Office of the Dean, Rutgers Law School, et al.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 76-6088.
    Zapata v. Watkins et al.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 76-6127.
    Refuge v. Maggio, Warden.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 76-6129.
    Babson v. United States.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 76-6139.
    Blackwell v. United States.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 76-6143.
    DeVoll v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 76-6157.
    Pearce et al. v. United States.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 76-6164.
    Wueschinski v. United States.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 76-6165.
    McIntosh et al. v. United States.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 76-6168.
    Busby v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 76-6170.
    Watters v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 76-6182.
    Woods et al. v. United States.
   C. A. D. C. Cir. Certiorari denied.


text:
    No. 76-493.
    Estelle, Corrections Director v. Mabry.
   C. A. 5th Cir. Motion of respondent for leave to proceed in forma pauperis granted. Certiorari denied.


author: Mr. Justice White,

text:
    No. 76-530.
    Martinez, Administratrix v. Shrock et al.
   C. A. 3d Cir. Certiorari denied.

Mr. Justice White,

with whom Mr. Justice Brennan and Mr. Justice Marshall

join, dissenting.

Petitioner’s decedent, a retired Army sergeant, died shortly after undergoing a gall bladder operation performed by respondents, two Army surgeons. Petitioner instituted survival and wrongful-death claims under New Jersey law in the Superior Court of New Jersey. Respondents removed the action to the United States District Court. The District Court dismissed the complaint on the ground that respondents were absolutely immune from personal liability for acts done within the scope of their official duties under Barr v. Mateo, 360 U. S. 564 (1959). The Court of Appeals for the Third Circuit, sitting en banc, affirmed.

The Court of Appeals placed principal reliance on its decision in Bailey v. DeQuevedo, 375 F. 2d 72, cert. denied, 389 U. S. 923 (1967), which in turn relied heavily upon Feres v. United States, 340 U. S. 135 (1950). In Feres the Court held that the United States was not subject to suit under the Federal Tort Claims Act, 28 U. S. C. §§ 1346 and 2671 et seq. (1970 ed. and Supp. V), for injuries resulting from the negligence of an Army surgeon in the performance of his duties. In Bailey the Third Circuit applied this rule to bar a diversity suit arising under state law against an Army surgeon personally.

The Court of Appeals’ reliance on Feres and Bailey deserves further scrutiny. First, in both Feres and Bailey the persons injured were active-duty military personnel, a fact critical to the reasoning in both decisions, while petitioner’s decedent was in a retired status at the time that the injury occurred. This Court has held that Feres does not apply where, as here, the person injured is a discharged veteran of the Armed Services. United States v. Brown, 348 U. S. 110 (1954). Second, the question presented in Bailey—whether the decision in Feres, which involved a statutory interpretation of the Tort Claims Act, creates an unqualified personal immunity for military physicians from suits arising under state law—has never been decided by this Court.

In the past, when Congress has seen fit to immunize certain categories of federal officials, including physicians, from suit, it has done so by statute. See 38 U. S. C. § 4116 (1970 ed. and Supp. V); 42 U. S. C. § 233. No such statute was applicable in this case. Apart from these statutes, this Court has recognized a very narrow category of judicially created absolute immunity for some federal officials. See Barr v. Mateo, supra. However, such absolute immunity heretofore has only been applied to policymaking officials, and nowhere has it been suggested that there is a judicially created unqualified immunity for Government functionaries operating at respondents’ level. Indeed, when faced with precisely the same issue presented here, the Court of Appeals for the District of Columbia Circuit held that an Army medical officer was not entitled to absolute immunity from suit. Henderson v. Bluemink, 167 U. S. App. D. C. 161, 511 F. 2d 399 (1974). Hence, there is a square conflict between the Third Circuit and the District of Columbia Circuit as to the proper resolution of the issue presented in this case.

In order to decide the serious, unsettled question presented here, and to resolve the Circuit conflict, I would grant the petition for certiorari.

      On October 8, 1976, after the Third Circuit’s decision in this case, Congress by statute declared that an action against the United States is the sole remedy for injuries resulting from the negligent or wrongful acts or omissions of medical personnel in the Armed Forces, 90 Stat. 1985, 10 U. S. C. § 1089 (1976 ed.), thereby extending statutory immunity to Army surgeons such as respondents. This statute was not made retroactive, however, and therefore has no applicability to this case. Because the decision below has broader implications than presented by the narrow facts of this case, the enactment of the new statute does not detract from the utility of affording plenary consideration to the issues here presented.


text:
    No. 76-781.
    Exxon Corp. et al. v. Environmental Protection Agency et al.
   C. A. 10th Cir. Certiorari denied.

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


text:
    No. 76-870.
    Minnesota Public Interest Research Group v. Secretary of Agriculture et al.
   C. A. 8th Cir. Certiorari denied.

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


text:
    No. 76-988.
    Blue Shield of Southern West Virginia, Inc., et al. v. Ballard et al.
   C. A. 4th Cir. Certiorari denied.

Mr. Justice Blackmun would grant certiorari.


text:
    No. 76-5854.
    Smith v. Texas.
   Ct. Crim. App. Tex. Certiorari denied.

Mr. Justice Brennan and Mr. Justice Marshall would grant certiorari and vacate the judgment insofar as it leaves undisturbed the sentence of death.

See Gregg v. Georgia, 428 U. S. 153, 227 (1976) (Brennan, J., dissenting) ; id., at 231 (Marshall, J., dissenting). Mr. Justice White would grant certiorari limited to Questions 1 and 2 presented by the petition.


text:
    No. 75-1694.
    No. 76-459.
    No. 76-851.
    No. 76-5380.
    No. 76-5577.
    No. 76-5619.
    No. 76-5816.
    No. 76-5817.
    No. 76-5818.
    No. 76-5822.
    No. 76-5844.
    Jones et al. v. New York City Human Resources Administration et al., Communications Workers of America v. Western Electric Co., Inc., et al., Albert et al. v. First National Bank & Trust Company of Marquette, Executor, Ricketts v. Texas et al., Jenkins et al. v. United States, Crane v. Hinshaw et al., Crane v. Ram Enterprises, Inc., Crane v. City of San Diego et al., Crane v. County of Riverside et al., Smock v. Kessler, Judge, et al., Johnson v. Malley, Warden,
   429 U. S. 825;

429 U. S. 1067;

429 U. S. 1074;

429 U. S. 1063;

429 U. S. 1079;

429 U. S. 1064;

429 U. S. 1077;

429 U. S. 1077;

429 U. S.1077;

429 U. S. 1077; and

429 U. S. 1059. Petitions for rehearing denied.


text:
    No. 75-6490.
    Escobar-Ordonez v. Immigration and Naturalization Service,
   426 U. S. 938. Motion for leave to file petition for rehearing denied.


text:
    March 8, 1977
    No. 76-950.
    Wobb v. Ford Motor Co. et al.
   C. A. 3d Cir. Certiorari dismissed under this Court’s Rule 60.


text:
    March 11, 1977
    No. 76-5780.
    Johnson v. United States.
   C. A. 3d Cir. Certiorari dismissed under this Court’s Rule 60.


text:
    March 21, 1977
    No. 75-765.
    No. 75-791.
    Coffin v. Califano, Secretary of Health, Education, and Welfare; and Califano, Secretary of Health, Education, and Welfare v. Coffin.
   Appeals from D. C. D. C. dismissed under this Court’s Rule 60. Reported below: 400 F. Supp. 953.


text:
    No. 75-712.
    Califano, Secretary of Health, Education, and Welfare v. Silbowitz et ux.
   Affirmed on appeal from D. C. S. D. Fla.


text:
    No. 75-727.
    No. 75-739.
    Jablon et vir v. Califano, Secretary of Health, Education, and Welfare; and Califano, Secretary of Health, Education, and Welfare v. Jablon et vir.
   Affirmed on appeal from D. C. Md. Reported below: 399 F. Supp. 118.


text:
    No. 76-772.
    County Commission of Hale County et al. v. United States.
   Affirmed on appeal from D. C. S. D. Ala.


text:
    No. 76-802.
    Howard v. Real Estate Commission of Colorado.
   Affirmed on appeal from D. C. Colo.


text:
    No. 75-1643.
    Califano, Secretary of Health, Education, and Welfare v. Abbott et ux.
   Appeal from D. C. N. D. Ohio. Motion of appellees for leave to proceed in forma pauperis granted. Judgment affirmed.


text:
    No. 76-1038.
    Allen et al. v. Austin, Secretary of State of Michigan, et al.
   Affirmed on appeal from D. C. E. D. Mich.

Mr. Justice Stewart, Mr. Justice Blackmun, and Mr. Justice Powell would postpone jurisdiction to a hearing of case on the merits.


text:
    No. 76-1039.
    Wilson v. Wilson et al.
   Affirmed on appeal from D. C. Ore.


text:
    No. 76-1013.
    Texas Eastern Transmission Corp. v. Kingsley, Director, Division of Taxation.
   Appeal from Super. Ct. N. J. dismissed for want of substantial federal question.


text:
    No. 76-1043.
    Hennigan v. Louisiana State Bar Assn.
   Appeal from Sup. Ct. La. dismissed for want of substantial federal question.


text:
    No. 76-6167.
    Bustell v. Bustell.
   Appeal from Sup. Ct. Mont. dismissed for want of substantial federal question.


text:
    No. 76-1034.
    Moreau v. Tonry et al.
   Appeal from Sup. Ct. La. dismissed for want of properly presented federal question.


text:
    No. 76-6148.
    Reiser v. Huntington National Bank et al.
   Appeal from Ct. App. Ohio, Franklin 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. 75-1663.
    Friedman v. United States.
   C. A. 10th Cir. Certiorari granted, judgment vacated, and case remanded for further consideration in light of Marks v. United States, ante, p. 188.


text:
    No. 76-728.
    Mental Patient Civil Liberties Project et al. v. Department of Public Welfare of Pennsylvania et al.
   C. A. 3d Cir. Certiorari granted, judgment vacated, and case remanded for further consideration in light of 90 Stat. 2641, 42 U. S. C. § 1988 (1976 ed.).


text:
    No. A-710.
    Pearson v. Oklahoma.
   Ct. Crim. App. Okla. Renewed application for bail, presented to Mr. Justice Brennan, and by him referred to the Court, denied.


text:
    No. A-514 (76-902).
    Olsen v. Goodman.
   Application for stay of trial in the 11th Judicial Circuit, in and for Dade County, Fla., presented to The Chief Justice, and by him referred to the Court, denied.


text:
    No. D-60.
    In re Disbarment of Hoffer.
    [For earlier order herein, see 429 U. S. 913.]
   Disbarment entered.


text:
    No. D-61.
    In re Disbarment of Hemlock.
    [For earlier order herein, see 429 U. S. 913.]
   Disbarment entered.


text:
    No. D-63.
    In re Disbarment of Smiley.
    [For earlier order herein, see 429 U. S. 913.]
   Disbarment entered.


text:
    No. D-71.
    In re Disbarment of Mason.
    [For earlier order herein, see 429 U. S. 936.]
   Disbarment entered.


text:
    No. D-72.
    In re Disbarment of Maner.
    [For earlier order herein, see 429 U. S. 936.]
   Disbarment entered.


text:
    No. D-77.
    In re Disbarment of Lacinak.
    [For earlier order herein, see 429 U. S. 937.]
   Disbarment entered.


text:
    No. D-78.
    In re Disbarment of Moore.
    [For earlier order herein, see 429 U. S. 937.]
   Disbarment entered.


text:
    No. D-94.
    In re Disbarment of Esber.
    [For earlier order herein, see 429 U. S. 1035.]
   Disbarment entered.


text:
    No. D-96.
    In re Disbarment of Hoffmann.
   It is ordered that Joseph L. Hoffmann, of Monongahela, Pa., be suspended from the practice of law in this Court and that a rule issue, returnable within 40 days, requiring him to show cause why he should not be disbarred from the practice of law in this Court.


text:
    No. D-98.
    In re Disbarment of Renshaw.
   It is ordered that Robert E. Renshaw, of Springfield, Ohio, be suspended from the practice of law in this Court and that a rule issue, returnable within 40 days, requiring him to show cause why he should not be disbarred from the practice of law in this Court.


text:
    No. 75-1126.
    No. 75-1385.
    Trans World Airlines, Inc. v. Hardison et al.; and International Association of Machinists & Aerospace Workers, AFL-CIO, et al. v. Hardison et al.
   C. A. 8th Cir. [Certiorari granted, 429 U. S. 958.] Motion of National Jewish Commission on Law and Public Affairs for leave to participate in oral argument as amicus curiae in support of respondents granted.


text:
    No. 75-1874.
    Jones, Secretary, Department of Correction of North Carolina, et al. v. North Carolina Prisoners’ Labor Union, Inc.
   Appeal from D. C. E. D. N. C. [Probable jurisdiction noted, 429 U. S. 976.] Motion of the Acting Solicitor General for leave to participate in oral argument as amicus curiae granted and five additional minutes allotted for that purpose.


text:
    No. 75-6909.
    Maness v. Wainwright, Secretary, Department of Offender Rehabilitation of Florida.
   C. A. 5th Cir. [Certiorari granted, 429 U. S. 893.] Motion of George R. Georgieff, Esquire, to permit Arthur Joel Berger, Esquire, to argue pro hac vice on behalf of respondent granted. Motion of petitioner for additional time for oral argument, or in the alternative for divided argument, denied. Motion to strike portions of respondent’s brief denied.


text:
    No. 75-1181.
    Batterton, Secretary, Department of Human Resources of Maryland, et al. v. Francis et al.
   C. A. 4th Cir. [Certiorari granted, 429 U. S. 939.] Motion of the Chamber of Commerce of the United States for divided argument and/or additional time for oral argument denied.


text:
    No. 76-63.
    Hunt, Governor of North Carolina, et al. v. Washington State Apple Advertising Commission.
   Appeal from D. C. E. D. N. C. [Probable jurisdiction postponed, sub nom. Holshouser. v. Washington State Apple Advertising Comm’n, 429 U. S. 814.] Motion of appellee for leave to file supplemental brief after argument granted.


text:
    No. 76-423.
    Puyallup Tribe, Inc., et al. v. Department of Game of Washington et al.
   Sup. Ct. Wash. [Certiorari granted, 429 U. S. 976.] Motion of the Acting Solicitor General for leave to participate in oral argument as amicus curiae granted and 15 additional minutes allotted for that purpose. Respondents also allotted 15 additional minutes for oral argument.


text:
    No. 76-919.
    Fort Belknap Indian Community, Fort Belknap Indian Reservation v. District Court of the Twelfth Judicial District of Montana, in and for the County of Blaine, et al.
   Sup. Ct. Mont. The Solicitor General is invited to file a brief in this case expressing the views of the United States.


text:
    No. 76-5187.
    Lee v. United States.
   C. A. 7th Cir. [Certiorari granted, 429 U. S. 1037.] Motion for appointment of counsel granted, and it is ordered that Joseph P. Bauer, Esquire, of Notre Dame, Ind., be appointed to serve as co-counsel for petitioner in this case.


text:
    No. 76-5416.
    Jones v. Hildebrant et al.
   Sup. Ct. Colo. [Certiorari granted, 429 U. S. 1061.] Motion of Lawyers' Committee for Civil Rights Under Law et al. for leave to file a brief as amici curiae granted.


text:
    No. 76-5206.
    Roberts v. Louisiana.
   Sup. Ct. La. [Certiorari granted, 429 U. S. 938.] Motion of the Attorney General of New York for leave to participate in oral argument as amicus curiae granted. Motion of the Attorney General of California for leave to participate in oral argument as amicus curiae denied.


text:
    No. 76-6107.
    No. 76-6125.
    No. 76-6147.
    Dove v. New York et al.; Magee v. West, U. S. District Judge; and Henry v. United States Court of Appeals for the Fourth Circuit et al.
   Motions for leave to file petitions for writs of mandamus denied.


text:
    No. 76-1057.
    Key et al. v. Doyle et al.
   Appeal from Ct. App. D. C. Further consideration of question of jurisdiction postponed to hearing of case on the merits.


text:
    No. 76-5935.
    Durst et al. v. United States.
   C. A. 4th Cir. Certiorari granted. Motion of petitioner for leave to proceed in forma pauperis and certiorari granted.


text:
    No. 75-1843.
    Crow Dog v. United States.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 76-104.
    Community School Board of Brooklyn, New York District No. 14, et al. v. Huntley.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 76-450.
    Ingram Corp. v. United States.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 76-625.
    Huntley et al. v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 76-671.
    Solitron Devices, Inc. v. United States.
   Ct. Cl. Certiorari denied.


text:
    No. 76-686.
    Daley v. Califano, Secretary of Health, Education, and Welfare, et al.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 76-729.
    Gibson et al. v. Grimm, Judge.
   Sup. Ct. Mo. Certiorari denied.


text:
    No. 76-754.
    B. F. Goodrich Co. et al. v. United States Department of Transportation et al.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 76-770.
    Cahn v. United States.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 76-773.
    Gordon et ux. v. United States.
   Ct. Cl. Certiorari denied.


text:
    No. 76-784.
    Civil Service Commission of the City of New York et al. v. Berns.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 76-789.
    Noll v. Virginia.
   Sup. Ct. Va. Certiorari denied.


text:
    No. 76-790.
    Miller v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 76-799.
    Alberts, Inc. v. National Labor Relations Board et al.
   C. A. D. C. Cir. Certiorari denied.


text:
    No. 76-820.
    Okagbare v. Immigration and Naturalization Service.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 76-827.
    Lambros v. United States.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 76-840.
    Texas Industrial Accident Board et al. v. Industrial Foundation of the South.
   Sup. Ct. Tex. Certiorari denied.


text:
    No. 76-876.
    MacDonald, Chairman, Navajo Tribal Council v. Sekaquaptewa, Chairman, Hopi Tribal Council, et al.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 76-881.
    First Bank & Trust Co. v. Bloom, Acting Comptroller of the Currency, et al.
   C. A. 1st Cir. Certiorari denied.


text:
    No. 76-895.
    Wheaton v. United States.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 76-897.
    Hess, Trustee, et al. v. United States.
   Ct. Cl. Certiorari denied.


text:
    No. 76-915.
    Patrick v. United States.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 76-921.
    Rapoport v. United States.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 76-997.
    Kannisto v. City and County of San Francisco et al.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 76-1002.
    Lahmann v. Haubrock et al.
   Sup. Ct. Ohio. Certiorari denied.


text:
    No. 76-1004.
    Castlewood International Corp. v. Distilled Spirits Council of the United States, Inc.
   C. A. D. C. Cir., Certiorari denied.


text:
    No. 76-1014.
    Bedell v. Arkansas.
   Sup. Ct. Ark. Certiorari denied.


text:
    No. 76-1017.
    Grant v. Parke, Davis & Co.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 76-1024.
    Baum v. Anderson.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 76-1031.
    Pappageorge v. California.
   Ct. App. Cal., 2d App. Dist. Certiorari denied.


text:
    No. 76-1041.
    Harris v. Arkansas.
   Sup. Ct. Ark. Certiorari denied.


text:
    No. 76-1045.
    Dwyer et al. v. Climatrol Industries, Inc., et al.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 76-1049.
    Baker et ux. v. Briggs, Administrator; and Baker et ux. v. Pihl, Judge.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 76-1050.
    Caplan v. Howard et al.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 76-1051.
    Crabbe et al. v. Hord.
   Ct. Civ. App. Tex., 2d Sup. Jud. Dist. Certiorari denied.


text:
    No. 76-1055.
    Tucker v. Peoples Savings Bank, Bridgeport.
   Sup. Ct. Conn. Certiorari denied.


text:
    No. 76-1059.
    Elkins v. Ohio.
   Sup. Ct. Ohio. Certiorari denied.


text:
    No. 76-1063.
    Tucker v. Hartford National Bank & Trust Co.
   Sup. Ct. Conn. Certiorari denied.


text:
    No. 76-1108.
    Riley v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 76-1129.
    Coco v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 76-1147.
    Turner v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 76-1155.
    Berzonski v. United States.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 76-1158.
    Kelley et al. v. United States.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 76-1173.
    Klein v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 76-1181.
    Rosenberg et al. v. United States.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 76-5581.
    Morrow v. United States.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 76-5683.
    Farries v. United States.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 76-5696.
    Shaw v. Briscoe, Governor of Texas, et al.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 76-5739.
    Thurmond v. United States.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 76-5776.
    Payne v. Hopper, Warden.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 76-5788.
    McGrath v. Califano, Secretary of Health, Education, and Welfare.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 76-5797.
    Moore v. Ristaino et al.
   C. A. 1st Cir. Certiorari denied.


text:
    No. 76-5815.
    Zannis v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 76-5821.
    Reese v. United States et al.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 76-5826.
    Philion v. Harris, Warden.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 76-5833.
    Worthy v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 76-5864.
    Clay et al. v. United States.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 76-5865.
    Johnson v. Missouri.
   Ct. App. Mo., St. Louis District. Certiorari denied.


text:
    No. 76-5868.
    Smith v. Texas.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 76-5880.
    No. 76-5947.
    DeLuca v. United States; and Wallace v. United States.
   C. A. 3d Cir. Certiorari denied. Reported below: 546 F. 2d 420.


text:
    No. 76-5883.
    Roots v. Wainwright, Secretary, Department of Offender Rehabilitation of Florida.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 76-5893.
    Johnson v. United States.
   C. A. 5th Cir. Certiorari denied.