author: Per Curiam. Mr. Justice Stevens,

text:
    ALABAMA et al. v. PUGH et al.
    No. 77-1107.
    Decided July 3, 1978
   Per Curiam.

Respondents, inmates or former inmates of the Alabama prison system, sued petitioners, who include the State of Alabama and the Alabama Board of Corrections as well as a number of Alabama officials responsible for the administration of its prisons, alleging that conditions in Alabama prisons constituted cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments. The United States District Court agreed and issued an order prescribing measures designed to eradicate cruel and unusual punishment in the Alabama prison system. The Court of Appeals for the Fifth Circuit affirmed but modified some aspects of the order which it believed exceeded the limits of the appropriate exercise of the court's remedial powers. 559 F. 2d 283.

Among the claims raised here by petitioners is that the issuance of a mandatory injunction against the State of Alabama and the Alabama Board of Corrections is unconstitutional because the Eleventh Amendment prohibits federal courts from entertaining suits by private parties against States and their agencies. The Court of Appeals did not address this contention, perhaps because it was of the view that in light of the numerous individual defendants in the case dismissal as to these two defendants would not affect the scope of the injunction. There can be no doubt, however, that suit against the State and its Board of Corrections is barred by the Eleventh Amendment, unless Alabama has consented to the filing of such a suit. Edelman v. Jordan, 415 U. S. 651 (1974); Ford Motor Co. v. Department of Treasury, 323 U. S. 459 (1945); Worcester County Trust Co. v. Riley, 302 U. S. 292 (1937). Respondents do not contend that Alabama has consented to this suit, and it appears that no consent could be given under Art. I, § 14, of the Alabama Constitution, which provides that “the State of Alabama shall never be made a defendant in any court of law or equity.” Moreover, the question of the State’s Eleventh Amendment immunity is not merely academic. Alabama has an interest in being dismissed from this action in order to eliminate the danger of being held, in contempt if it should fail to comply with the mandatory injunction. Consequently, we grant the petition for certio-rari limited to Question 2 presented by petitioners, reverse the judgment in part, and remand the case to the Court of Appeals with instructions to order the dismissal of the State of Alabama and the Alabama Board of Corrections from this action.

So ordered.

Mr. Justice Brennan and Mr. Justice Marshall dissent.

Mr. Justice Stevens,

dissenting.

This Court is much too busy to spend its time correcting harmless errors. Nothing more is accomplished by the summary action it takes today.

The Court does not question the propriety of the injunctive relief entered by the District Court and upheld by the Court of Appeals. Striking the State’s name from the list of parties will have no impact on the effectiveness of that relief. If the state officers disobey the injunction, financial penalties may be imposed on the responsible state agencies. Hutto v. Finney, 437 U. S. 678. The District Court’s asserted error did not trouble the Court of Appeals because it has no practical significance. It does not justify the exercise of this Court’s certio-rari jurisdiction. I respectfully dissent.

       Respondents contend that petitioners failed to raise the Eleventh Amendment issue in the District Court. The Court held in Edelman v. Jordan, 415 U. S. 651, 678 (1974), however, that “the Eleventh Amendment defense sufficiently partakes of the nature of a jurisdictional bar so that it need not be raised in the trial court . . . .”

       “Whether the mandatory injunction issued against the State of Alabama and the Alabama Board of Corrections violates the State’s Eleventh Amendment immunity or exceeds the jurisdiction granted federal courts by 42 U. S. C. § 1983.”

      Surely the Court does not intend to resolve summarily the issue debated by my Brothers in their separate opinions in Hutto v. Finney, 437 U. S. 678, 700 (BreNNAN, J., concurring), and 708-709, n. 6 (Powell, J., concurring in part and dissenting in part).


source: Caselaw Access Project

license: Public Domain

text:
    June 26, 1978
    No. 76-1606.
    Consumers Union of United States, Inc., et al. v. Heimann, Superintendent of Banks of New York.
   Appeal from D. C. S. D. N. Y. Judgment vacated and case remanded for further consideration in light of Hicklin v. Orbeck, 437 U. S. 618 (1978).


text:
    No. 75-1723.
    Muzquiz et al. v. City of San Antonio et al.
   C. A. 5th Cir. Certiorari granted, judgment vacated, and case remanded for further consideration in light of Monell v. Department of Social Services of City of New York, 436 U. S. 658 (1978).


text:
    No. 76-1543.
    United States v. Grasso.
   C. A. 2d Cir. Motion of respondent for leave to proceed in forma pauperis and certiorari granted. Judgment vacated and case remanded for further consideration in light of United States v. Scott, 437 U. S. 82 (1978), and Arizona v. Washington, 434 U. S. 497 (1978).


text:
    No. 76-5224.
    Thurston v. Dekle, Chairman, Civil Service Board, Jacksonville, Florida, et al.
   C. A. 5th Cir. Motion of petitioner for leave to proceed in forma pauperis and certiorari granted. Judgment vacated and case remanded for further consideration in light of Monell v. Department of Social Services of City of New York, 436 U. S. 658 (1978).


text:
    No. 77-532.
    Kornit v. Board of Education of Plainview-Old Bethpage School District, Plainview, New York.
   C. A. 2d Cir. Certiorari granted, judgment vacated, and case remanded for further consideration in light of Monell v. Department of Social Services of City of New York, 436 U. S. 658 (1978).


text:
    No. 77-914.
    City of Independence, Missouri, et al. v. Owen.
   C. A. 8th Cir. Certiorari granted, judgment vacated, and case remanded for further consideration in light of Monell v. Department of Social Services of City of New York, 436 U. S. 658 (1978).


text:
    No. 77-1289.
    Lutheran Hospital of Milwaukee, Inc. v. National Labor Relations Board.
   C. A. 7th Cir. Cer-tiorari granted, judgment vacated, and case remanded for further consideration in light of Beth Israel Hospital v. National Labor Relations Board, 437 U. S. 483 (1978).


text:
    No. 77-1473.
    McArthur v. Nourse, Judge.
   Sup. Ct. Fla. Certiorari granted, judgment vacated, and case remanded for further consideration in light of Greene v. Massey, 437 U. S. 19 (1978), and Burks v. United States, 437 U. S. 1 (1978).


text:
    No. 77-1503.
    Parker, Acting Commissioner of Patents and Trademarks v. Bergy et al.
   C. C. P. A. Certiorari granted, judgment vacated, and case remanded for further consideration in light of Parker v. Flook, 437 U. S. 584 (1978).


text:
    No. 77-5996.
    Williams v. Ricketts, Warden.
   Sup. Ct. Ga. Motion of petitioner for leave to proceed in forma pauperis and certiorari granted. Judgment vacated and case remanded for further consideration in light of Greene v. Massey, 437 U. S. 19 (1978), and Burks v. United States, 437 U. S. 1 (1978).


text:
    No. 77-6355.
    Vinson v. Richmond Police Department et al.
   C. A. 4th Cir. Motion of petitioner for leave to proceed in forma pauperis and certiorari granted. Judgment vacated and case remanded for further consideration in light of Monell v. Department of Social Services of City of New York, 436 U. S. 658 (1978).


text:
    No. A-1066.
    Board of Education, Bratenahl Local School District v. State Board of Education of Ohio et al.
   Application for stay of judgment of the Supreme Court of Ohio, presented to Mr. Justice Stevens, and by him referred to the Court, denied.


text:
    No. 77-388.
    Washington et al. v. Confederated Bands and Tribes of the Yakima Indian Nation.
   C. A. 9th Cir. [Probable jurisdiction noted, 435 U. S. 903.] Motion of the Solicitor General for leave to participate in oral argument as amicus curiae granted and 15 additional minutes allotted for that purpose. Appellants also allotted an additional 15 minutes for oral argument.


text:
    No. 77-533.
    Hisquierdo v. Hisquierdo.
   Sup. Ct. Cal. [Certiorari granted, 435 U. S. 994.] Motion of the Solicitor General for leave to participate in oral argument as amicus curiae granted and 15 additional minutes allotted for that purpose. Respondent also allotted 15 additional minutes for oral argument.


text:
    No. 77-891.
    Beal, Secretary of Welfare of Pennsylvania, et al. v. Franklin et al.
   D. C. E. D. Pa. [Probable jurisdiction noted, 435 TJ. S. 913.] Motion of Americans United for Life, Inc., for leave to file a brief as amicus curiae granted.


text:
    No. 77-961.
    New York Telephone Co. et al. v. New York State Department of Labor et al.
   C. A. 2d Cir. [Certiorari granted, 435 U. S. 941.] Motions of Center on National Labor Policy and Stephen R. Havas et al. for leave to file briefs as amici curiae granted.


text:
    No. 77-1305.
    Parklane Hosiery Co., Inc., et al. v. Shore.
   C. A. 2d Cir. [Certiorari granted, 435 U. S. 1006.] Motion of Washington Legal Foundation for leave to file a brief as amicus curiae granted.


text:
    No. 77-1427.
    New York City Transit Authority et al. v. Beazer et al.
   C. A. 2d Cir. Certiorari granted limited to Questions 3 and 4 presented by the petition.


text:
    No. 75-1710.
    Rankin County Board of Education et al. v. Adams et al.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 75-1797.
    Commissioners of Election of Union County et al. v. Lytle.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 77-555.
    Buck v. Board of Education of the City of New York et al.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 77-657.
    Flint et al. v. Gagliardi.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 77-688.
    Lowell School District No. 71 v. Kerr.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 77-731.
    City of Pittsburgh v. Mahone et al.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 77-919.
    British American Commodity Options Corp. v. Commodity Futures Trading Commission.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 77-1261.
    Myslajek et al. v. United States et al.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 77-1312.
    Donohoe Construction Co., Inc. v. Montgomery County Council et al.
   C. A. 4th Cir. Certiorari

denied.


text:
    No. 77-5061.
    Thomas v. California.
   App. Dept., Super. Ct. Cal., County of Orange. Certiorari denied.


text:
    No. 77-5935.
    Shaw v. Georgia.
   Sup. Ct. Ga. Certio-rari denied.


text:
    No. 77-6571.
    Bartoli v. United States.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 77-890.
    New York v. Garland.
   App. Div., Sup. Ct. N. Y., 2d Jud. Dept. Motion of respondent for leave to proceed in forma pauperis granted. Certiorari denied.


author: Mr. Justice Brennan,

text:
    No. 77-1146.
    Carver v. Florida.
   Dist. Ct. App. Fla., 2d Dist. Certiorari denied.

Mr. Justice Brennan,

with whom Mr. Justice Stewart and Mr. Justice Marshall join,

dissenting.

On February 12, 1976, members of the Pinellas County, Fla., Sheriff's office seized from petitioner, an employee of a movie theater, a copy of an allegedly obscene movie. Subsequently, petitioner, after reserving his right to appeal from the denial of various pretrial motions, pleaded nolo contendere to the felony of possessing obscene material with the intent to exhibit, defined in Fla. Stat. § 847.011 (1) (a) (1977). Section 847.011 (l)(a), which is set out in the margin, has been authoritatively construed by the Florida Supreme Court to contain the standards enunciated by this Court in Miller v. California, 413 U. S. 15 (1973), and Paris Adult Theatre I v. Slaton, 413 U. S. 49 (1973). See Rhodes v. State, 283 So. 2d 351, 354-355, 359 (1973). Because I continue to adhere to my view that “at least in the absence of distribution to juveniles or obtrusive exposure to unconsenting adults, the First and Fourteenth Amendments prohibit the State and Federal Governments from attempting wholly to suppress sexually oriented materials on the basis of their allegedly 'obscene’ contents,” Paris Adult Theatre I v. Slaton, supra, at 113 (dissenting opinion), I would grant certiorari and summarily reverse petitioner’s conviction. See Miller v. California, supra, at 47 (Brennan, J., dissenting).

      “A person who knowingly . . . has in his possession, custody, or control with intent to sell, lend, give away, distribute, transmit, show, transmute, or advertise in any manner, any obscene, lewd, lascivious, filthy, indecent, sadistic, or masochistic . . . motion-picture film ... is guilty of a misdemeanor of the first degree .... A person who, after having been convicted of a violation of this subsection, thereafter violates any of its provisions, is guilty of a felony of the third degree . . .


text:
    No. 77-1426.
    Cargal v. Georgia.
   Ct. App. Ga. Certio-rari denied.

Mr. Justice Brennan,

with whom Mr. Justice Stewart and Mr. Justice Marshall join,

dissenting.

Petitioner, convicted of distributing obscene materials under Ga,. Code §26-2101 (1975), asks this Court to decide the question:

“Whether jury instructions on scienter allowing a finding of 'constructive knowledge’ in an obscenity case are sufficient to meet . . . constitutional minimum standards. . . ?” Pet. for Cert. 2.

In Ballew v. Georgia, 435 U. S. 223 (1978), we granted certio-rari to consider, but did not reach, precisely this issue. See Pet. for Cert. in Ballew v. Georgia, O. T. 1977, No. 76-761, p. 2. I see no reason to suppose that this issue is any less worthy of consideration on certiorari now than it was when we accepted it in Ballew. For this reason, I would grant certiorari. See also Sewell v. Georgia, 435 U. S. 982 (1978) (Brennan, J., dissenting from dismissal of appeal); Teal v. Georgia, 435 U. S. 989 (1978) (same); Robinson v. Georgia, 435 U. S. 991 (1978) (Brennan, J., dissenting from vacation of judgment and remand). Barring this, I would grant this petition and summarily reverse. See Ballew, supra, at 246 (opinion of Brennan, J.); Sanders v. Georgia, 424 U. S. 931 (1976) (dissent from denial of certiorari).


text:
    No. 77-1203.
    Mitchell v. Beard, Administratrix.
   C. A. 7th Cir. Motion of respondent for leave to proceed in forma pauperis granted. Certiorari denied.

Mr. Justice Powell would grant certiorari.


text:
    No. 77-1221.
    Flynn et al. v. Bauman.
   C. A. 7th Cir. Certiorari denied.

Mr. Justice Powell would grant certio-rari.


text:
    No. 77-1294.
    Reeves v. Wand.
   C. A. 7th Cir. Certio-rari denied.

Mr. Justice Powell would grant certiorari.


text:
    No. 77-1519.
    Lansing Board of Education et al. v. N. A. A. C. P. et al.
   C. A. 6th Cir. Certiorari denied.

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


text:
    No. 76-1172.
    No. 76-1800.
    First National Bank of Boston et al. v. Bellotti, Attorney General of Massachusetts, United States v. Sotelo et ux.,
   435 U. S. 765; and

436 U. S. 268. Petitions for rehearing denied.


text:
    No. 76-6767.
    No. 77-293.
    No. 77-950.
    No. 77-1161.
    No. 77-1228.
    No. 77-1275.
    No. 77-1287.
    No. 77-1297.
    No. 77-5291.
    No. 77-6293.
    No. 77-6378.
    No. 77-6399.
    No. 77-6408.
    No. 77-6412.
    No. 77-6420.
    No. 77-6421.
    No. 77-6424.
    No. 77-6426.
    No. 77-6445.
    No. 77-6497.
    No. 77-6503.
    No. 77-6633.
    No. 77-6647.
    No. 77-6659.
    Scott et al. v. United States, Kulko v. Superior Court of California in and for the City and County of San Francisco (Horn, Real Party in Interest), Collection Consultants, Inc., et al. v. Texas, Drebin et al. v. United States, Nickell v. United States, Martin B. Glauser Dodge Co. v. Chrysler Corp. et al., Fisher v. Ohio, Lax v. United States, Lee v. United States, Harris v. United States District Court for the District of Kansas, Thomas v. Georgia, Batten v. Virginia, Clayton v. Loggins, Correctional Superintendent, et al., Justice v. Hesselden Plumbing Co., Wion v. United States, Sek v. Bethlehem Steel Corp., Corn v. Georgia, Downing v. Fraggassi et al., O’Neal v. Griffin et al., Sellars v. Busch et al., DeSantis v. United States, Pierce v. Indiana et al., Davis v. United States, Supplee v. United States,
   436 U. S. 128;

436 U. S. 84;

436 U. S. 901;

436 U. S. 904;

436 U. S. 904;

436 U. S. 913;

435 U. S. 1005;

436 U. S. 917;

436 U. S. 931;

436 U. S. 928;

436 U. S. 914;

436 U. S. 909;

436 U. S. 909;

436 U. S. 909;

436 U. S. 910;

436 U. S. 920;

436 U. S. 914;

436 U. S. 910;

436 U. S. 920;

436 U. S. 928;

436 U. S. 911;

436 U. S. 922;

436 U. S. 929; and

436 U. S. 930. Petitions for rehearing denied.


text:
    No. 77-1286.
    No. 77-6130.
    City of East Detroit v. Llewellyn et al., Little v. United States,
   435 U. S. 1008; and

435 U. S. 969. Motions for leave to file petitions for rehearing denied.


text:
    June 28, 1978
    No. 77-6680.
    Frazier v. United States.
   C. A. 4th Cir. Certiorari dismissed under this Court's Rule 60.


text:
    July 3, 1978
    No. 77-929.
    Black v. Payne, Executive Officer, Public Employees’ Retirement System, et al.
   Appeal from Ct. App. Cal., 3d App. Dist., dismissed for want of substantial federal question.


text:
    No. 77-1067.
    No. 77-1078.
    No. 77-1271.
    Los Angeles County et al. v. Associated General Contractors of California et al.; Associated General Contractors of California et al. v. Kreps, Secretary of Commerce, et al.; and Kreps, Secretary of Commerce v. Associated General Contractors of California et al.
   Appeals from D. C. C. D. Cal. Judgment vacated and cases remanded to consider question of mootness. Reported below: 441 F. Supp. 955.


text:
    No. 77-5541. No. 77-5708.
    Downs v. Ohio; and Shelton v. Ohio.
   Appeals from Sup. Ct. Ohio. Motions for leave to proceed in forma pauperis granted. Judgments vacated insofar as they leave undisturbed the death penalties imposed, and cases remanded for further proceedings. See Lockett v. Ohio, ante, p. 586. Reported below: No. 77-5541, 51 Ohio St. 2d 47, 364 N. E. 2d 1140; No. 77-5708, 51 Ohio St. 2d 68, 364 N. E. 2d 1152.


text:
    No. 76-1308.
    Woods et al. v. Ohio.
   Sup. Ct. Ohio. Motion of American Civil Liberties Union of Ohio Foundation, Inc., for leave to file a brief as amicus curiae and cer-tiorari granted. Judgment vacated insofar as it leaves undisturbed the death penalty imposed, and case remanded for further proceedings. See Lockett v. Ohio, ante, p. 586.


text:
    No. 76-1871.
    United States v. Moriani.
   C. A. 3d Cir. Motion of respondent for leave to proceed in forma pauperis and certiorari granted. Judgment vacated and case remanded for further consideration in light of United States v. Grayson, ante, p. 41.

In the following cases (No. 76-6523 through No. 77-6645) motions for leave to proceed in forma pauperis and petitions for writs of certiorari are granted, judgments are vacated insofar as they leave undisturbed the death penalties imposed, and the cases are remanded for further proceedings.. See Lockett v. Ohio, ante, p. 586.


text:
    No. 76-6523.
    No. 76-6525.
    No. 76-6547.
    No. 76-6575.
    No. 76-6769.
    Roberts v. Ohio. Hall v. Ohio. Black v. Ohio. Lytle v. Ohio. Bates v. Ohio. Strodes v. Ohio. Bayless v. Ohio. Osborne v. Ohio. Hancock v. Ohio. Edwards v. Ohio. Lane v. Ohio. Harris v. Ohio. Royster v. Ohio. Perryman v. Ohio. Miller v. Ohio. Jackson v. Ohio. Williams v. Ohio. Weind v. Ohio. Osborne v. Ohio. Cooper v. Ohio. Wade v. Ohio.
   Sup. Ct. Ohio. Reported below: 48 Ohio St. 2d 221, 358 N. E. 2d 530;

Sup. Ct. Ohio. Reported below: 48 Ohio. St. 2d 325, 358 N. E. 2d 590;

Sup. Ct. Ohio. Reported below: 48 Ohio St. 2d 262, 358 N. E. 2d 551;

Sup. Ct. Ohio. Reported below: 48 Ohio St. 2d 391, 358 N. E. 2d 623;

Sup. Ct. Ohio, Reported below: 48 Ohio St. 2d 315, 358 N. E. 2d 584;

No. 76-6783.

No. 76-6784.

No. 76-6786.

No. 76-6829.

No. 76-6837.

No. 76-6838.

No. 76-6951.

No. 76-6952.

No. 76-6985.

No. 77-5221.

No. 77-5547.

No. 77-5604.

No. 77-5787.

No. 77-5826.

No. 77-6333.

No. 77-6645.

Sup. Ct. Ohio. Reported below: 48 Ohio St. 2d 113, 357 N. E. 2d 375;

Sup. Ct. Ohio. Reported below: 48 Ohio St. 2d 73, 357 N. E. 2d 1035;

Sup. Ct. Ohio. Reported below: 49 Ohio St. 2d 135, 359 N. E. 2d 78;

Sup. Ct. Ohio. Reported below: 48 Ohio St. 2d 147, 358 N. E. 2d 273;

Sup. Ct. Ohio. Reported below: 49 Ohio St. 2d 31, 358 N. E. 2d 1051;

Sup. Ct. Ohio. Reported below: 49 Ohio St. 2d 77, 358 N. E. 2d 1081;

Sup. Ct. Ohio. Reported below: 48 Ohio St. 2d 351, 359 N. E. 2d 67;

Sup. Ct. Ohio. Reported below: 48 Ohio St. 2d 381, 358 N. E. 2d 616;

Sup. Ct. Ohio. Reported below: 49 Ohio St. 2d 14, 358 N. E. 2d 1040;

Sup. Ct. Ohio. Reported below: 49 Ohio St. 2d 198, 361 N. E. 2d 419;

Sup. Ct. Ohio. Reported below: 50 Ohio St. 2d 253, 364 N. E. 2d 236;

Sup. Ct. Ohio. Reported below: 51 Ohio St. 2d 112, 364 N. E. 2d 1364;

Sup. Ct. Ohio. Reported below: 50 Ohio St. 2d 224, 364 N. E. 2d 224;

Sup. Ct. Ohio. Reported below: 50 Ohio St. 2d 211, 364 N. E. 2d 216;

Sup. Ct. Ohio. Reported below: 52 Ohio St. 2d 163, 370 N. E. 2d 725; and

Sup. Ct. Ohio. Reported below: 53 Ohio St. 2d 182, 373 N. E. 2d 1244.


text:
    No. 76-6965.
    Jordan v. Arizona.
   Sup. Ct. Ariz. Motion for leave to proceed in forma pauperis and certiorari granted. Judgment vacated insofar as it leaves undisturbed the death penalty imposed, and case remanded for further proceedings. See Lockett v. Ohio, ante, p. 586.


text:
    No. 77-306.
    Hall v. Illinois.
   App. Ct. Ill., 4th Dist. Certiorari granted, judgment vacated, and case remanded for further consideration in light of Franks v. Delaware, ante, p. 154.

Mr. Justice Stewart and Mr. Justice White would grant certiorari and set case for oral argument.


text:
    No. 77-635.
    Friday, President of the University of North Carolina, et al. v. Uzzell et al.
   C. A. 4th Cir. Certiorari granted, judgment vacated, and case remanded for further consideration in light of Regents of the University of California v. Bakke, ante, p. 265.

Mr. Justice White dissents.


text:
    No. A-815.
    Jimenez et al. v. Sims et al.
   D. C. S. D. Tex. Application for stay, presented to Mr. Justice Rehnquist, and by him referred to the Court, denied without prejudice to appellants’ filing with the court below a motion for clarification of the opinion and amended judgment of that court.


text:
    No. 8,
    Orig.
    Arizona v. California et al.
   Joint motion of the States and the United States for entry of a supplemental decree; motion of Fort Mojave Indian Tribe et al. for leave to intervene as indispensable parties; and motion of Colorado River Indian Tribes et al. for leave to intervene are set for oral argument on Monday, October 2, 1978. A total of one and one-half hours allotted for oral argument. [For earlier order herein, see, e. g., 383 U. S. 268.]


text:
    No. 76-811.
    Regents of the University of California v. Bakke,
   ante, p. 265. Order heretofore entered on November 15, 1976 [429 U. S. 953], granting stay pending final disposition of the case in this Court is hereby vacated.


text:
    No. 73,
    Orig.
    California v. Nevada.
   Preliminary Report of Special Master received, ordered filed, and adopted by the Court. Accordingly, motion of California State Assemblyman Mike Cullen for leave to file a brief as amicus curiae, motion of the State of Nevada for leave to file an amended answer setting forth a counterclaim, and motion of the State of California for leave to file an amended complaint granted. [For earlier order herein, see 433 U. S. 918.]


text:
    No. 77-533.
    Hisquierdo v. Hisquierdo.
   Sup. Ct. Cal. [Certiorari granted, 435 U. S. 994.] Motion of Ray C. Bennett, Esquire, to permit Howard M. Fields, Esquire, to present oral argument pro hac vice on behalf of respondent granted.


text:
    No. 77-753. No. 77-754.
    International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America v. Daniel; and Local 705, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America et al. v. Daniel.
   C. A. 7th Cir. [Certiorari granted, 434 U. S. 1061.] Motion of American Bar Assn, for leave to file a brief as amicus curiae denied.


text:
    No. 77-891.
    Beal, Secretary of Welfare of Pennsylvania, et al. v. Franklin et al.
   D. C. E. D. Pa. [Probable jurisdiction noted, 435 U. S. 913.] Motion of United States Catholic Conference for leave to participate in oral argument as amicus curiae denied. Motion of Legal Defense Fund for Unborn Children to present oral argument as amicus curiae denied.


text:
    No. 77-1163.
    No. 77-1164.
    No. 77-1186.
    Friedman et al. v. Rogers et al.; Rogers et al. v. Friedman et al.; and Texas Optometric Assn., Inc. v. Rogers et al.
   D. C. E. D. Tex. [Probable jurisdiction noted, 435 U. S. 967.] Motion of American Optometric Assn, for leave to file a brief as amicus curiae granted.


text:
    No. 77-803.
    Barry, Chairman, Racing and Wagering Board of New York, et al. v. Barchi.
   D. C. S. D. N. Y. [Probable jurisdiction noted, 435 U. S. 921.] Motion of Jockeys’ Guild, Inc., for leave to file a brief as amicus curiae granted.


text:
    No. 77-926.
    Cannon v. University of Chicago et al.
   C. A. 7th Cir. Certiorari granted.


text:
    No. 76-688.
    Chicago Typographical Union No. 16 v. National Labor Relations Board et al.
   C. A. D. C. Cir. Certiorari denied.


text:
    No. 77-174.
    Machen v. Patterson.
   C. A. 4th Cir. Cer-tiorari denied.


text:
    No. 77-884.
    Garrett v. Estelle, Corrections Director, et al.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 77-972.
    Morgan v. Texas.
   Ct. Crim. App. Tex. Certiorari denied.


text:
    No. 77-1154.
    New York v. James.
   Ct. App. N. Y. Cer-tiorari denied.


text:
    No. 77-1173.
    Trinity Trucking & Materials Corp. v. National Labor Relations Board.
   C. A. 7th Cir. Cer-tiorari denied.


text:
    No. 77-1205.
    Pennsylvania v. Moody.
   Sup. Ct. Pa. Certiorari denied.


text:
    No. 77-1264.
    Reading Hospital & Medical Center v. National Labor Relations Board.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 77-1298.
    Krain v. Regents of the University of California et al.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 77-1396.
    Idaho ex rel. Moon, Treasurer of Idaho v. State Board of Examiners et al.
   C. A. 9th Cir. Cer-tiorari denied.


text:
    No. 77-1422.
    Newman et al. v. Alabama et al.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 77-1492.
    Rapides Parish Police Jury et al. v. Parnell et al.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 76-418.
    Expeditions Unlimited Aquatic Enterprises, Inc., et al. v. Smithsonian Institution et al.
   C. A. D. C. Cir. Certiorari denied.

The Chief. Justice took no part in the consideration or decision of this petition.


text:
    No. 76-1556.
    Brown et al. v. United States.
   C. A. 3d Cir. Certiorari denied.

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


text:
    No. 77-241. No. 77-242. No. 77-243.
    Communications Workers of America v. Equal Employment Opportunity Commission et al.; Telephone Coordinating Council TCC-1, International Brotherhood of Electrical Workers v. Equal Employment Opportunity Commission et al.; and Alliance of Independent Telephone Unions v. Equal Employment Opportunity Commission et al.
   C. A. 3d Cir. Certiorari denied.

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

Reported below: 556 F. 2d 167.


text:
    No. 77-270.
    Stanton, Administrator, Department of Public Welfare of Indiana, et al. v. Bond et al.
   C. A. 7th Cir. Motion of respondents for leave to proceed in forma pauperis granted. Certiorari denied.

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


text:
    No. 77-684.
    Greenblatt, Commissioner, Department of Mental Health of Massachusetts, et al. v. King.
   C. A. 1st Cir. Motion of respondent for leave to proceed in forma pauperis granted. Certiorari denied.


text:
    No. 77-881.
    Fasi, Mayor of Honolulu, et al. v. Pokini, aka Akina.
   C. A. 9th Cir. Motion of respondent for leave to proceed in forma pauperis granted. Certiorari denied.


text:
    No. 77-1219.
    Pennsylvania v. White.
   Sup. Ct. Pa. Motion of respondent for leave to proceed in forma pauperis granted. Certiorari denied.


text:
    No. 77-955. No. 77-1129.
    Powell, Chief, U. S. Capitol Police v. Dellums et al.; and Wilson, Former Chief, Metropolitan Police Department, et al. v. Dellums et al.
   C. A. D. C. Cir. Motion of International Association of Chiefs of Police for leave to file a brief as amicus curiae granted. Motions of respondents to recuse Mr. Justice Blackmun and Mr. Justice Rehnquist denied. Certiorari denied.

Mr. Justice Rehnquist took no part in the consideration or decision of these motions and petitions.

Reported below: No. 77-955, 184 U. S. App. D. C. 275, 566 F. 2d 167; No. 77-1129, 184 U. S. App. D. C. 324, 566 F. 2d 216.


author: Pee Curiam.

text:
    LONG ISLAND RAIL ROAD CO. v. ABERDEEN & ROCKFISH RAILROAD CO. et al.
    No. 77-1515.
    Decided October 16, 1978
   Pee Curiam.

Petitioner, the Long Island Rail Road Co., seeks a writ of certiorari to review the judgment of the United States Court of Appeals for the Fifth Circuit setting aside an order of the Interstate Commerce Commission. That judgment directed that proceeds collected by petitioner pursuant to an interim terminal surcharge be held in a separate trust fund pending determination of final rates by the Commission on remand. We stayed the trust fund portion of the court’s order on March 6, 1978, and we now grant the petition for certiorari, limited to Question 1 presented by petitioner, and reverse the judgment of the Court of Appeals insofar as it impresses a trust on the proceeds from the interim terminal surcharge.

The Railroad Retirement Amendments of 1973 imposed increased taxes on railroads in order to fund additional retirement benefits for railroad employees. 87 Stat. 162. Coupled with that action, Congress amended § 15a of the Interstate Commerce Act to permit railroads to offset the increased tax liability imposed by the Amendments by means of increases in general rate levels. § 201 (4), 87 Stat. 166, 49 U. S. C. § 15a (6). Section 15a (6) (a) authorizes the Commission promptly to establish requirements for petitions for adjustment of interstate rates of common carriers based on increases in railroad retirement taxes. Such procedures are to be designed to “facilitate fair and expeditious action on any such petition.” Section 15a (6) (b) directs the Commission to permit interim increases in the general level of interstate rates within 30 days of the filing of a proper petition, “ [n] otwithstanding any other provision of law.” The Commission can withhold its permission only if it finds that the requested increase is not “in an amount approximating that needed to offset increases in expenses” resulting from the Amendments. Finally, §15a(6)(c) requires the Commission to commence hearings for the purpose of making final rate determinations within 60 days of the establishment of the interim rates. Such final rates are to be determined in accordance with the “standards and limitations applicable to ratemaking generally.” If the final increases in rates are less than the interim increases, refunds must be made by the carrier, subject to such tariff provisions as the Commission deems sufficient.

Since the issue on which we grant certiorari does not relate directly to the rate increase proceedings, the briefest description of them will suffice. All railroads other than petitioner sought permission from the Commission to increase their rates in order to offset the increased taxes imposed by the Amendments. Petitioner, because of its unique revenue structure, sought permission to impose a surcharge for the use of its terminal facilities for the same purpose. The Commission allowed the railroads other than petitioner to increase their interim rates, but denied petitioner's request for an interim terminal surcharge. Increases in Freight Bates and Charges— 1973, 346 I. C. C. 305 (1973). Petitioner sought review of the denial of its request by the Commission in a three-judge District Court, and that court set aside the relevant portions of the Commission’s order and enjoined the Commission from refusing petitioner’s terminal surcharge as an interim rate increase under §15a(6)(b). Long Island R. Co. v. United States, 388 F. Supp. 943 (EDNY 1974).

No appeal was taken from this judgment, and the Commission subsequently allowed petitioner to impose an interim terminal surcharge in the amount of 12.5%. Thereafter the Commission issued a report and order which approved petitioner’s request for a permanent 12.5% terminal surcharge, and required all railroads to incorporate that surcharge into their tariffs to and from points on petitioner’s lines. Increases in Freight Rates and Charges — 1973, 350 I. C. C. 673 (1973).

Respondent railroads petitioned the Fifth Circuit to set aside the Commission’s order. The Court of Appeals, for reasons which do not concern us here, set aside the order of the Commission allowing petitioner to impose the terminal surcharge and remanded for further proceedings to determine final rates. Aberdeen & Rockfish R. Co. v. United States, 565 F. 2d 327, 333-335 (1977). Then, stating that “[i]t seems to us equitable,” the court sua sponte “restore[d]” the 12.5% interim terminal surcharge that petitioner had been collecting prior to the Commission’s final order, but directed that the proceeds be kept “in a separate trust fund . . . subject to further just and equitable orders of the Interstate Commerce Commission.” Id., at 335.

We agree with petitioner and the United States that the Court of Appeals’ direction to hold proceeds from the interim terminal surcharge in a separate trust fund pending determination of final rates by the Commission is contrary both to the earlier holding of the three-judge court and to Congress’ intent in adopting the Amendments. The interim terminal surcharge approved by the three-judge court clearly was meant to remain in effect until a permanent rate was approved by the Commission. See Long Island R. Co. v. United States, supra, at 947. Because of the Court of Appeals’ decision setting aside the Commission’s order, there has as yet been no determination of final rates by the Commission. The Court of Appeals’ order explicitly recognizes as much. Aberdeen & Rockfish R. Co. v. United States, supra, at 334. We also agree that petitioner could have continued to collect the interim terminal surcharge whether or not the Court of Appeals had explicitly authorized it to do so. Thus, far from maintaining the relative positions of the parties pending final order of the Commission, normally considered the “status quo,” the Court of Appeals’ imposition of the trust fund requirement significantly altered those positions.

Such an alteration is at odds with the purpose of § 15a (6)(b). The entire thrust of § 15a (6)(b) is to provide an expeditious method of allowing higher rates in order to minimize the effect that increased railroad retirement taxes would have on the railroads’ financial condition. At the time of the adoption of the Amendments, Congress was acutely aware of the deteriorating financial condition of the Nation’s railroads and the drain which the increased tax liabilities would have on their already dwindling resources. S. Rep. No. 93-221, pp. 2-4 (1973). Congress also recognized that the Commission’s normal ratemaking processes would not be responsive to the railroads’ needs to recover immediately their increased retirement benefit contributions. The delays experienced in approving the final rates have shown the legitimacy of Congress’ concerns.

Section 15a (6) (b) was enacted to ensure that the much-needed funds would get to the railroads as soon as possible: once the interim rates were filed, they could not be suspended until final rate determinations by the Commission. While the Commission normally has the power under § 15 (7) of the Interstate Commerce Act to suspend rates for a period not to exceed seven months, Congress deprived the Commission of even that limited authority in §15a(6)(b), which begins with the words: “Notwithstanding any other provision of law.” The Conference Report on the Amendments to the Interstate Commerce Act states:

“The Commission could withhold permission to file tariffs if it found that the proposed increase clearly exceeded the amount needed to cover the increases in costs, but otherwise once the tariffs were filed, the Commission would have no authority to suspend them pending final determination.” Joint Explanatory Statement of the Committee of the Conference, H. R. Rep. No. 93-319, p. 12 (1973) (emphasis added).

By impressing the trust on proceeds from these interim charges made by petitioner, the Court of Appeals has exercised authority which Congress clearly did not wish to repose even in the Commission. We have held that where Congress has vested the Commission with authority to suspend rates pending final determination of their lawfulness, that power may not be exercised by a court. Arrow Transp. Co. v. Southern R. Co., 372 U. S. 658 (1963); see Atchison, T. & S. F. R. Co. v. Wichita Bd. of Trade, 412 U. S. 800, 820 (1973) (plurality opinion); id., at 828-829 (White, J., concurring in part and dissenting in part); United States v. SCRAP, 412 U. S. 669, 691 (1973). We think it follows a fortiori from these decisions that where Congress has denied authority to the Commission to suspend interim rates, as it has here, a reviewing court may not exercise such power, absent a declaration of unlawfulness by the Commission. See Arrow Transp. Co. v. Southern R. Co., supra, at 667 n. 14; Board of R. Comm’rs v. Great Northern R. Co., 281 U. S. 412, 429-430 (1930). Congress provided a refund mechanism in § 15a (6) (c) in the event that the final rates approved by the Commission are less than the interim rates. Congress undoubtedly was satisfied that this procedure was adequate to protect the interests of the parties affected by the terminal surcharge, and respondent railroads have advanced no reasons for concluding otherwise.

In Atchison, T. & S. F. R. Co. v. Wichita Bd. of Trade, supra, the plurality recognized a limited power in a reviewing court to suspend rates pending review of a final order of the Commission. See Scripps-Howard Radio, Inc. v. FCC, 316 U. S. 4 (1942). That conclusion was based on the fact that there was no “provision in the relevant statutes depriving federal courts of their general equitable power to preserve the status quo to avoid irreparable harm pending review.” Atchison, T. <& S. F. B. Co. v. Wichita Bd. of Trade, supra, at 820. The plurality also noted that subsequent legislation might “affect the relation between court and agency and so the propriety of injunctive relief.” 412 U. S., at 823 n. 16. In the limited context of interim rate increases under § 15a (6) (b), we think the Amendments are “subsequent legislation” that evidences a clear purpose to oust any equitable power that a reviewing court might otherwise possess to disturb those interim rates pending determination of final rates by the Commission. See Arrow Transp. Co. v. Southern R. Co., supra, at 671 n. 22.

The petition for certiorari accordingly is granted, limited to the question set forth in footnote 1, supra. The judgment of the Court of Appeals is reversed insofar as it requires petitioner to keep the proceeds collected from its interim terminal surcharge in a separate trust, and the case is remanded for proceedings consistent with this opinion.

So ordered.

         “Did the Court of Appeals thwart the purpose of the Railroad Retirement Amendments and frustrate the final judgment of a three-judge court when it deprived the LIRR of the immediate use of its interim terminal surcharge?” Pet. for Cert. 2.

       S. Rep. No. 93-221, p. 3 (1973); H. R. Rep. No. 93-204, pp. 7-8 (1973). The agreement between representatives of railroad labor and management to support increases in railroad retirement taxes conditioned such support on the simultaneous passage of legislation to modify the Commission’s existing ratemaking procedures to permit prompt rate increases. S. Rep. No. 93-221, pp. 2, 7 (App. A).


author: Per Curiam.

text:
    CAREY, STATE’S ATTORNEY OF COOK COUNTY, ILLINOIS v. WYNN et al.
    No. 78-229.
    Decided October 16, 1978

      Together with No. 78-239, Diamond v. Wynn et al., also on appeal from the same court.

   Per Curiam.

A three-judge District Court entered a declaratory judgment holding unconstitutional certain sections of the Illinois Abortion Act of 1975, Ill. Rev. Stat., ch. 38, § 81-21 et seg. (Supp. 1976). Wynn v. Scott, 449 F. Supp. 1302 (ND Ill. 1978). The District Court assumed that Illinois prosecutors would recognize and abide by the declaratory judgment and denied plaintiffs’ request for injunctive relief. Id., at 1331.

The appeals from the declaratory judgment invalidating certain provisions of the statute are dismissed for want of jurisdiction. Title 28 U. S. C. § 1253, the jurisdictional statute under which these appeals are taken, does not authorize an appeal from the grant or denial of declaratory relief alone. Gerstein v. Coe, 417 U. S. 279 (1974). The declaratory judgment is appealable to the Court of Appeals, and we are informed that appeals to that court have been taken.

Appeals dismissed.

Mr. Justice Stevens took no part in the consideration or decision of these cases.


author: Per Curiam. Me. Justice Brennan-,

text:
    NATIONAL LABOR RELATIONS BOARD v. BAYLOR UNIVERSITY MEDICAL CENTER
    No. 78-80.
    Decided October 30, 1978
   Per Curiam.

Upon a complaint issued by the National Labor Relations Board and on the basis of a substantial record of evidence before a Hearing Examiner, the Board held that respondent's no-solicitation rule with respect to corridors and the cafeteria of the respondent hospital was overly broad and an unfair labor practice in violation of § 8 (a)(1) of the National Labor Relations Act, 29 U. S. C. § 158 (a)(1).

The Court of Appeals for the District of Columbia Circuit refused to enforce the Board’s order. 188 U. S. App. D. C. 109, 578 F. 2d 351 (1978). In reaching this conclusion, the Court of Appeals dealt with corridors and the cafeteria separately, assigning different reasons for its holding with respect to each. As to corridors, the court simply concluded that there was no substantial evidence supporting the Board’s conclusion that the corridors were not entitled to the same protection accorded other areas devoted essentially to patient care.

The court’s holding with respect to the cafeteria was based, however, on a legal judgment that no valid distinction can be made between a hospital cafeteria and cafeterias and restaurants that operate independently or in department stores. In the latter type of cases, the Board uniformly has held that the presumption in favor of the right to solicit on nonwork time in non work areas, established by Republic Aviation Corp. v. NLRB, 324 U. S. 793 (1945), is inapplicable. The Court of Appeals therefore applied the general rule applicable to commercial cafeterias and restaurants to the hospital cafeteria.

In Beth Israel Hospital v. NLRB, 437 U. S. 483 (1978), the Court concluded that the Republic Aviation presumption did apply to a hospital cafeteria maintained and operated primarily for employees and rarely used by patients or their families. The corridors of the hospital serving patients’ rooms, operating and treatment rooms, and other areas used by patients and their families were neither involved nor considered by the Court in Beth Israel.

As the Court’s decision in Beth Israel is relevant to the cafeteria issue in this case, we grant the petition for a writ of certiorari, vacate the judgment, and remand the case to the Court of Appeals for reconsideration in light of Beth Israel only on that issue. Insofar as the petition for certiorari seeks review of the corridor issue, the petition is denied.

Me. Justice Brennan-,

with whom Mr. Justice White and Mr. Justice Marshall join,

dissenting in part.

I dissent from the decision to limit the remand in this case to the cafeteria issue.

The NLRB sought enforcement of an order rescinding the operation of Baylor’s no-solicitation rule in, inter alia, the hospital’s cafeteria and corridors. The Board’s order rested on its decision in St. John’s Hospital and School of Nursing, Inc., 222 N. L. R. B. 1150 (1976), disapproving “the prohibition [of solicitation] in areas other than immediate patient-care areas . . . absent a showing that disruption to patient care would necessarily result if solicitation and distribution were permitted in those areas,” Beth Israel Hospital v. NLRB, 437 U. S. 483, 495 (1978). In refusing enforcement, the Court of Appeals determined that St. John’s was inconsistent with congressional intent to minimize disruption in hospitals, and that because in hospital matters the Board was also acting outside of its area of expertise, its decision was “entitled to little of the deference traditionally accorded to NLRB actions,” 188 U. S. App. D. C. 109, 111, 578 F. 2d 351, 353 (1978). These bases for legal determination of the validity of no-solicitation rules, which the Court of Appeals then applied to the specific problems of the cafeteria and corridors, are precisely the bases which Beth Israel Hospital v. NLRB, supra, rejected as erroneous.

Beth Israel refused to accept petitioner’s claim that the Board’s St. John’s opinion constituted an impermissible construction of the NLRB’s policies as applied to the health-care industry by the 1974 amendments. Instead, the Court held that

“the Board’s general approach of requiring health-care facilities to permit employee solicitation and distribution during nonworking time in nonworking areas, where the facility has not justified the prohibitions as necessary to avoid disruption of health-care operations or disturbance of patients, is consistent with the Act.” 437 U. S., at 507.

Beth Israel did, of course, recognize the special considerations appropriate to labor disputes in hospital settings, and reminded the NLRB that it bears

“ ‘a heavy continuing responsibility to review its policies concerning organizational activities in various parts of hospitals. Hospitals carry on a public function of the utmost seriousness and importance. They give rise to unique considerations that do not apply in the industrial settings with which the Board is more familiar. The Board should stand ready to revise its rulings if future experience demonstrates that the well-being of patients is in fact jeopardized.’ ” Id., at 508, quoting NLRB v. Beth Israel Hospital, 554 F. 2d 477, 481 (CA1 1977).

Nonetheless, Beth Israel reaffirmed the Court’s oft-expressed view that the function of striking the balance between the conflicting interests of employers and employees is a responsibility which Congress committed primarily to the Board, subject to limited judicial review, NLRB v. Truck Drivers, 353 U. S. 87, 96 (1957), and held that in the area of hospital labor relations the decisions of the Board are entitled to the traditional deference. Beth Israel Hospital, 437 U. S., at 500-501.

While it is true that the facts of Beth Israel involved only a hospital cafeteria, nowhere did the opinion hint that its analysis was to apply only within a cafeteria’s four walls. Indeed, after approving the Board’s general principle of requiring hospitals to justify their prohibitions of solicitation, the Court in its very'next sentence stated that “with respect to the application of that principle to petitioner’s cafeteria, ihe Board was appropriately sensitive to the importance of petitioner’s interest . . . .” Id., at 507 (emphasis added). Beth Israel, then, is clearly a case of general import, with application to disputes over the validity of rules inhibiting solicitation wherever applied within the hospital.

I, of course, intimate no view upon the merits of the corridors issue. It may well be that on the facts of the case the hospital has justified the prohibition of solicitation as necessary to avoid disruption of health-care operations or disturbance of patients. It is our role, however, to insure that the proper legal standard is applied to the facts. For that reason, I would follow our usual practice of granting the petition, vacating the judgment, and remanding the case without limitation for reconsideration in light of Beth Israel.

      In the present ease, the Board had applied the Republic Aviation presumption to all areas of the hospital deemed by it not devoted “strictly [to] patient care,” in accord with its decision in St. John’s Hospital and School of Nursing, Inc., 222 N. L. R. B. 1150 (1976). The Board held that the corridors throughout the hospital and the cafeteria were noncare areas.

      There is one element of Beth Israel, identified in the majority opinion in this case, which is only relevant to the cafeteria issue — the holding that the NLRB can validly distinguish between hospital cafeterias and independent restaurants. But the fact that the Court of Appeals’ decision runs afoul of this additional aspect of Beth Israel hardly makes its other shortcomings, which are equally applicable to both disputed areas of the building, irrelevant.


author: Per Curiam. Mr. Justice Brennan, Mr. Justice Marshall, Mr. Justice Powell,

text:
    PRESNELL v. GEORGIA
    No. 77-6885.
    Decided November 6, 1978
   Per Curiam.

Petitioner was indicted and found guilty by a jury of three capital offenses — rape, kidnaping with bodily injury, and murder with malice aforethought. Under Georgia law, a jury may impose the death penalty if it finds that the offender committed a capital felony under at least 1 of 10 statutorily enumerated aggravating circumstances. Ga. Code § 27-2534.1 (b) (1975). The only such circumstance relevant here is that

“[t]he [capital] offense . . . was committed while the offender was engaged in the commission of another capital felony . . . §27-2534.1 (b)(2).

At the penalty phase of petitioner’s trial, the jury was instructed that it could impose the death penalty (1) for rape if that offense was committed while petitioner was engaged in the commission of murder, (2) for kidnaping with bodily injury if that offense was committed while petitioner was engaged in the commission of rape, or (3) for murder if that offense was committed while petitioner was engaged in the commission of “kidnapping with bodily harm, aggravated sodomy.” The jury found that all three offenses were committed during the commission of the specified additional offenses, and it imposed three death sentences on petitioner.

On appeal, the Supreme Court of Georgia held that the first two death sentences imposed by the jury could not stand. 241 Ga. 49, 52, 64, 243 S. E. 2d 496, 501, 508 (1978). Both sentences depended upon petitioner’s having committed forcible rape, and the court determined that the jury had not properly convicted petitioner of that offense.

In addition, the Supreme Court of Georgia held that the State could not rely upon sodomy as constituting the bodily injury associated with the kidnaping. Nonetheless, despite the fact that the jury had been instructed that the death penalty for murder depended upon a finding that it was committed while petitioner was engaged in “kidnapping with bodily harm, aggravated sodomy” (emphasis added), the Georgia Supreme Court upheld the third death penalty imposed by the jury. It did so on the theory that, despite the lack of a jury finding of forcible rape, evidence in the record supported the conclusion that petitioner was guilty of that offense, which in turn established the element of bodily harm necessary to make the kidnaping a sufficiently aggravating circumstance to justify the death sentence.

In Cole v. Arkansas, 333 U. S. 196 (1948), petitioners were convicted at trial of one offense but their convictions were affirmed by the Supreme Court of Arkansas on the basis of evidence in the record indicating that they had committed another offense on which the jury had not been instructed. In reversing the convictions, Mr. Justice Black wrote for a unanimous Court:

“It is as much a violation of due process to send an accused to prison following conviction of a charge on which he was never tried as it would be to convict him upon a charge that was never made. . . .
“To conform to due process of law, petitioners were entitled to have the validity of their convictions appraised on consideration of the case as it was tried and as the issues were determined in the trial court.” Id., at 201-202.

These fundamental principles of procedural fairness apply with no less force at the penalty phase of a trial in a capital case than they do in the guilt-determining phase of any criminal trial. Cf. Gardner v. Florida, 430 U. S. 349 (1977). In light of these principles, the death sentence for the crime of murder with malice aforethought cannot stand.

Insofar as the petition for certiorari challenges the conviction for kidnaping with bodily injury and the imposition of the death sentence, it is granted along with petitioner’s motion to proceed in forma pauperis. The judgment of the Supreme Court of Georgia affirming the conviction for kid-naping with bodily injury and the death sentence for murder is reversed, and the case is remanded for further proceedings not inconsistent with this opinion. Insofar as the petition challenges the convictions for murder, kidnaping, and statutory rape, it is denied.

It is so ordered.

Mr. Justice Brennan,

concurring.

I join the opinion of the Court. For the reasons stated in my dissenting opinion in Gregg v. Georgia, 428 U. S. 153, 227 (1976), I would in addition hold that the death penalty violates the Eighth and Fourteenth Amendments and that therefore petitioner may not be resentenced to death in any proceedings following remand from this Court.

Mr. Justice Marshall,

concurring.

While I join the opinion of the Court, I again emphasize my opinion that the death penalty in any proceeding is unconstitutional.

Mr. Justice Powell,

with whom The Chief Justice and Mr. Justice Rehnquist join,

dissenting.

If, as the per curiam opinion for the Court states, the Supreme Court of Georgia had found petitioner guilty of kidnap-ing with bodily injury in spite of a failure of the jury to return a proper guilty verdict for that crime, I would join this decision. My review of the record and the opinion of the Georgia court, however, has convinced me that petitioner’s conviction for that crime might well have been upheld on the basis of the jury’s proper verdict. Because the opinion of the Supreme Court of Georgia is fundamentally ambiguous on this point, I would remand the case for clarification rather than vacating petitioner’s sentence of death. Accordingly, I dissent.

Petitioner was indicted for five offenses: murder of Lori Ann Smith; kidnaping of Lori Ann Smith; rape of Andrea Furlong; aggravated sodomy of Andrea Furlong; and the kidnaping of Andrea Furlong “with bodily injury.” The aggravated sodomy charge was not submitted to the jury, as the aggravated sodomy of Andrea was alleged to have supplied the bodily injury element of her kidnaping. The jury returned guilty verdicts on all four counts. It sentenced petitioner to death on three of the counts: (i) the murder of Lori Ann, with the kidnaping of Andrea with bodily injury as a specified aggravating circumstance; (ii) the rape of Andrea, with the murder of Lori Ann as a specified aggravating circumstance; and (iii) the kidnaping of Andrea with bodily injury, with the rape of Andrea as a specified aggravating circumstance. Petitioner also was sentenced to a term of years for the kidnaping of Lori Ann.

On appeal, the Georgia court vacated the death sentences for the rape of Andrea and the kidnaping of Andrea with bodily injury. With respect to the rape of Andrea, the court noted that the jury was instructed on both forcible and statutory rape and returned a verdict that did not distinguish between the two crimes. As only forcible rape was a capital crime under Georgia law, petitioner had to be resentenced as if he had been convicted only of statutory rape. With respect to the kidnaping of Andrea, the court did not indicate whether it vacated the sentence because it believed our recent opinion in Coker v. Georgia, 433 U. S. 584 (1977), so mandated, or because the specified aggravating circumstance for this offense, the rape of Andrea, also was tainted by the jury’s failure to distinguish between forcible and statutory rape. The court did not disturb, however, the conviction for the underlying offense of kidnaping with bodily injury.

The Georgia court did affirm the sentence of death for the murder of Lori Ann, the kidnaping of Andrea with bodily injury being the aggravating circumstance. The validity of that kidnaping conviction is the matter in issue here. According to the Court, the court below ruled'that even though as a matter of state law the aggravated sodomy of Andrea could not provide the bodily-injury element of the kidnaping, that element was supplied by the evidence of forcible rape. The Court then holds that the Georgia court could not constitutionally rely on evidence of forcible rape as bodily injury, because the jury may have convicted petitioner only of statutory rape, which requires no finding of force. Statutory rape would therefore be insufficient to provide the bodily-injury element associated with the kidnaping, which in turn would render that offense insufficient as an aggravating circumstance for the purpose of imposing the death penalty.

Although the opinion of the Georgia court is not a model of clarity, a careful reading of the decision persuades me that the Court has misconstrued a critical part of what was held below. The Court is correct that the Georgia Supreme Court was not entitled to rely upon the evidence in the record of forcible rape to supply the bodily-injury component of the kidnaping. But it is incorrect to say that the court below necessarily rejected the jury’s unambiguous finding of aggravated sodomy as establishing the bodily injury that converted simple kidnap-ing into a capital offense under Georgia law. On this point the opinion of the state court is hopelessly obscure. As the Court observes, portions of the opinion may be read as indicating that aggravated sodomy, a crime that has as an element a forcible assault upon the victim, cannot constitute “bodily injury” with respect to the crime of kidnaping with bodily injury. Ante, at 15 n. 2. An equally plausible reading of the opinion, however, is that once the court determined that the evidence of harm inflicted during the rape established bodily injury, it did not think it necessary to decide the question whether aggravated sodomy, considered alone, also could establish that element. Certainly that question was not necessarily decided by the court, as it believed that bodily injury was proved, at least in part, by the evidence of forcible rape. Moreover, the trial court expressly held that the sodomy did satisfy the bodily injury requirement, and the Georgia Supreme Court did not reverse that ruling.

The validity of petitioner’s conviction for kidnaping with bodily injury, and the use of that conviction as an aggravating circumstance for the purpose of sentencing, cannot be determined without resolution of this state-law question. If the court below meant to rule that as a matter of Georgia law evidence of forcible sodomy does not constitute proof of “bodily injury” for the purposes of the kidnaping offense, although proof of forcible rape would suffice, then the death sentence must be vacated and the conviction for kidnaping with bodily injury must be reversed. A criminal defendant is “entitled to have the validity of [his] convictio[n] appraised on consideration of the case as it was tried and as the issues were determined in the trial court.” Cole v. Arkansas, 333 U. S. 196, 202 (1948). Here, the jury was permitted to find petitioner guilty of kidnaping with bodily injury if he committed aggravated sodomy during the offense. The jury also was allowed to specify this kidnaping as an aggravating circumstance of the murder if it coincided with aggravated sodomy. If it was an error of state law so to instruct the jury, the court may not redeem the mistake by ruling that the jury could have believed other evidence indicating petitioner had injured his victim in other ways. Cf. Duncan v. Louisiana, 391 U. S. 145 (1968). This is particularly true here, as the Georgia court ruled that the jury cannot be deemed to have returned a guilty verdict on the forcible rape charge itself.

If, however, the aggravated sodomy, accomplished by force, did satisfy the bodily-injury element under state law, it would appear that the jury properly convicted petitioner of that crime and was permitted to use that conviction as an aggravating circumstance with respect to the murder conviction. Because the question is substantial and was not resolved by the court below, I would remand the case for clarification.

       Petitioner was indicted and found guilty by the jury of “rape.” Because the jury had been instructed both on forcible and statutory rape, but did not in its verdict specify which offense it had found, the Supreme Court of Georgia interpreted the “rape” conviction as one for statutory rape — an offense that includes no element of bodily harm. Moreover, there was no jury finding of forcible rape at the penalty phase of the trial.

       Although the Georgia Supreme Court did not explain this holding, the holding itself is unambiguous. First, the Georgia court unequivocally stated:
      “The only evidence of bodily injury, to support the crime of the kidnapping with bodily injury of the older child, is the bodily injury which resulted from the rape of that child.” 241 Ga., at 52, 243 S. E. 2d, at 501. Second, after concluding that the evidence of forcible rape could supply the bodily injury element of the crime of kidnaping, the Georgia court added:
      “The state’s attempted reliance upon sodomy as constituting the bodily injury associated with the kidnapping of the older child is not ground for retrial.” Ibid., 243 S. E. 2d, at 502.

       In the present case, when the Supreme Court of Georgia ruled on petitioner’s motion for rehearing it recognized that, prior to its opinion in the case, petitioner had no notice, either in the indictment, in the instructions to the jury, or elsewhere, that the State was relying on the rape to establish the bodily injury component of aggravated kidnaping:
      “On motion for rehearing the defendant urges, among other things, that he was not on notice that evidence as to the older child’s injuries which resulted from her being raped would provide the evidence of her bodily injury to convict him of her kidnapping with bodily injury. He was on notice, however, that he was charged with forcible rape as well as kidnapping with bodily injury of the older child.

        “Motion for rehearing denied." Id., at 67, 243 S. E. 2d, at 510.

       Because the jury convicted petitioner of the same offense that it relied upon to find the statutory aggravating circumstances necessary to impose the death penalty — kidnaping with bodily injury, to wit, aggravated sodomy — the Georgia Supreme Court’s affirmance of that conviction on the basis of the bodily injury resulting from the rape is also unconstitutional under Cole v. Arkansas, 333 U. S. 196 (1948). Accordingly, under the dictates of that case, id., at 200, 202, the conviction must be reversed.

       As the Court observes, ante, at 14, Ga. Code § 27-2534.1 (b) (2) (1975) limits those crimes whose commission in the course of a homicide will sustain a death sentence to certain enumerated felonies. Statutory-rape is not such an offense, although forcible rape is.

       See n. 1, supra.

       The court below actually identified two problems with the rape conviction, a state-law double jeopardy violation as well as the ambiguity of the jury verdict discussed in the text. This is made clear by a close reading of the opinion. It begins by observing:
      “The only evidence of bodily injury, to support the crime of the kidnapping with bodily injury of the older child, is the bodily injury which resulted from the rape of that child. Thus, the convictions for both kidnapping with bodily injury and forcible rape cannot be upheld.” 241 Ga. 49, 52, 243 S. E. 2d 496, 501 (1978).
      This Court apparently believes that “both” convictions could not be upheld because of the failure of the jury to distinguish in both instances between forcible and statutory rape. Immediately after this sentence, however, the Georgia court cited its decision in State v. Estevez, 232 Ga. 316, 206 S. E. 2d 475 (1974). That decision involves the protection against double jeopardy provided by the Georgia Constitution, a protection of substantially broader scope than that provided by the Federal Constitution.
      Under the Georgia Constitution, a defendant cannot be convicted and punished for separate crimes arising from the same criminal conduct. Ibid. It is plain that the Georgia court was concerned that separate punishments for both the kidnaping of Andrea with bodily harm and the forcible rape would violate this protection in a situation where rape was the only bodily harm involved. It had ruled that double jeopardy applied to similar facts in Allen v. State, 233 Ga. 200, 203, 210 S. E. 2d 680, 682 (1974). When the Georgia court stated that “both” convictions could not stand, it therefore meant not that each was invalid, but that petitioner could be punished only for one. It is in this context that the court determined that petitioner had not been punished for forcible rape and, “[a]s a consequence of the foregoing, there is evidence of bodily injury, not a part of the crime of statutory rape, to support the crime of kidnapping with bodily injury.” 241 Ga., at 52, 243 S. E. 2d, at 502.

       The trial court instructed the jury that it could convict petitioner of kidnaping with bodily injury only if it found that petitioner had committed aggravated sodomy upon Andrea’s person. To make this finding, the jury was required to find beyond a reasonable doubt that petitioner in the course of kidnaping Andrea “performed a sexual act involving his sexual organ with the mouth of Andrea Furlong, forcibly and against her will.” Unlike the charge on forcible rape, the jury was not given the option of convicting petitioner for this offense on the ground that Andrea was under the age of consent. Accordingly, the jury could have convicted petitioner on this count only if it found he had committed an act of force on Andrea’s person.
      Similarly, during the sentencing stage the jury was instructed that in order to impose death for the murder of Lori Ann, it had to find that petitioner was “engaged in the commission of another capital felony, to-wit: The kidnapping with bodily harm, aggravated sodomy, of Andrea Furlong.”

       There is no apparent reason why aggravated sodomy should not satisfy the bodily-injury requirement. Both forcible rape and aggravated sodomy require the use of force as elements of the offense. The only distinction between the two crimes under Georgia law relates to the part of the body violated. Compare Ga. Code §26-2001 with Ga. Code §26-2002 (1975). As both crimes involve a violent interference with the person, each logically would supply the element of bodily injury required by the kidnaping offense.

       Counsel for petitioner moved for acquittal on the kidnaping count, arguing that aggravated sodomy did not constitute bodily injury for purposes of the kidnaping offense. The trial court was specific in its ground for rejecting this motion:
      “I will give you a precise ruling so that you will have the advantage of your motion. I will hold specifically that the act of aggravated sodomy committed upon her person was such harm that aggravated the kidnapping and made it a higher crime. I hold that it does not require, the law does not require, a physical bruising injury or battery, but that the act of sodomy itself is as vile and as gross as anything can be as an act of harm against a ten year old child, and I don’t have any problem with it.” Record 990-991.
      Nowhere in its opinion does the Georgia court state that this view of the law was incorrect.

       The Court’s opinion, as I read it, does not preclude resentencing of petitioner for the murder and Mdnaping-with-bodily-harm convictions, if the court below does determine the jury verdicts with respect to those counts to have been proper.


text:
    BOARD OF TRUSTEES OF KEENE STATE COLLEGE et al. v. SWEENEY
    No. 77-1792.
    Decided November 13, 1978
   Per Curiam.

The petition for a writ of certiorari is granted. In Furnco Construction Co. v. Waters, 438 U. S. 567 (1978), we stated that “[t]o dispel the adverse inference from a prima facie showing under McDonnell Douglas, the employer need only 'articulate some legitimate, nondiscriminatory reason for the employee’s rejection.’ ” Id., at 578, quoting McDonnell Douglas Corp. v. Green, 411 U. S. 792, 802 (1973). We stated in McDonnell Douglas that the plaintiff “must ... be afforded a fair opportunity to show that [the employer’s] stated reason for [the plaintiff’s] rejection was in fact pretext.” Id., at 804. The Court of Appeals in the present case, however, referring to McDonnell Douglas, stated that “in requiring the defendant to prove absence of discriminatory motive, the Supreme Court placed the burden squarely on the party with the greater access to such evidence.” 569 F. 2d 169, 177 (CA1 1978) (emphasis added).

While words such as “articulate,” “show,” and “prove,” may-have more or less similar meanings depending upon the context in which they are used, we think that there is a significant distinction between merely “articulat[ing] some legitimate, nondiscriminatory reason” and “prov[ing] absence of discriminatory motive.” By reaffirming and emphasizing the McDonnell Douglas analysis in Furnco Construction Co. v. Waters, supra, we made it clear that the former will suffice to meet the employee's prima facie case of discrimination. Because the Court of Appeals appears to have imposed a heavier burden on the employer than Furnco warrants, its judgment is vacated and the case is remanded for reconsideration in the light of Furnco, supra, at 578.

It is so ordered.

Mr. Justice Stevens,

with whom Mr. Justice Brennan, Mr. Justice Stewart, and Mr. Justice Marshall join,

dissenting.

Whenever this Court grants certiorari and vacates a court of appeals judgment in order to allow that court to reconsider its decision in the light of an intervening decision of this Court, the Court is acting on the merits. Such action always imposes an additional burden on circuit judges who — more than any other segment of the federal judiciary — are struggling desperately to keep afloat in the flood of federal litigation. For that reason, such action should not be taken unless the intervening decision has shed new light on the law which, if it had been available at the time of the court of appeals’ decision, might have led to a different result.

In this case, the Court’s action implies that the recent opinion in Furnco Construction Corp. v. Waters, 438 U. S. 567, made some change in the law as explained in McDonnell Douglas Corp. v. Green, 411 U. S. 792. When I joined the Furnco opinion, I detected no such change and I am still unable to discern one. In both cases, the Court clearly stated that when the complainant in a Title VII trial establishes a prima facie case of discrimination, “the burden which shifts to the employer is merely that of proving that he based his employment decision on a legitimate consideration, and not an illegitimate one such as race.”

The Court of Appeals’ statement of the parties’ respective burdens in this case is wholly faithful to this Court’s teachings in McDonnell Douglas. The Court of Appeals here stated:

“As we understand those cases [McDonnell Douglas and Teamsters v. United States, 431 U. S. 324], a plaintiff bears the initial burden of presenting evidence sufficient to establish a prima facie ease of discrimination. The burden then shifts to the defendant to rebut the prima facie case by showing that a legitimate, nondiscriminatory reason accounted for its actions. If the rebuttal is successful, the plaintiff must show that the stated reason was a mere pretext for discrimination. The ultimate burden of persuasion on the issue of discrimination remains with the plaintiff, who must convince the court by a preponderance of the evidence that he or she has been the victim of discrimination.” 569 F. 2d 169, 177 (CA1 1978) (emphasis added).

This statement by the Court of Appeals virtually parrots this Court’s statements in McDonnell Douglas and Furnco. Nonetheless, this Court vacates the judgment on the ground that “the Court of Appeals appears to have imposed a heavier burden on the employer than Furnco warrants.” Ante, at 25. As its sole basis for this conclusion, this Court relies on a distinction drawn for the first time in this case “between merely 'articulat[ing] some, legitimate, nondiscriminatory reason’ and ‘prov[ing] absence of discriminatory motive.’” Ante, at 25. This novel distinction has two parts, both of which are illusory and were unequivocally rejected in Furnco itself.

First is a purported difference between “articulating” and “proving” a legitimate motivation. Second is the difference between affirming a nondiscriminatory motive and negating a discriminatory motive.

With respect to the first point, it must be noted that it was this Court in Furnco, not the Court of Appeals in this case, that stated that the employer’s burden was to “prov[e] that he based his employment decision on a legitimate consideration.” Indeed, in the paragraph of this Court’s opinion in Furnco cited earlier, the words “prove” and “articulate” were used interchangeably, and properly so. For they were descriptive of the defendant’s burden in a trial context. In litigation the only way a defendant can “articulate” the reason for his action is by adducing evidence that explains what he has done; when an executive takes the witness stand to “articulate” his reason, the litigant for whom he speaks is thereby proving those reasons. If the Court intends to authorize a method of articulating a factual defense without proof, surely the Court should explain what it is.

The second part of the Court’s imaginative distinction is also rejected by Furnco. When an employer shows that a legitimate nondiscriminatory reason accounts for his action, he is simultaneously demonstrating that the action was not motivated by an illegitimate factor such as race. Furnco explicitly recognized this equivalence when it defined the burden on the employer as “that of proving that he based his employment decision on a legitimate consideration, and not an illegitimate one such as race.” Whether the issue is phrased in the affirmative or in the negative, the ultimate question involves an identification of the real reason for the employment decision. On that question — as all of these cases make perfectly clear — it is only the burden of producing evidence of legitimate nondiscriminatory reasons which shifts to the employer; the burden of persuasion, as the Court of Appeals properly recognized, remains with the plaintiff.

In short, there is no legitimate basis for concluding that the Court of Appeals erred in this case — either with or without the benefit of Furnco. The Court’s action today therefore needlessly imposes additional work on circuit judges who have already considered and correctly applied the rule the Court directs them to reconsider and reapply.

       While the Court of Appeals did make the statement that the dissent quotes, post, at 27, it also made the statement quoted in the text above. These statements simply contradict one another. The statement quoted in the text above would make entirely superfluous the third step in the
        Furnco-McDonnell Douglas analysis, since it would place on the employer at the second stage the burden of showing that the reason for rejection was not a pretext, rather than requiring contrary proof from the employee as a part of the third step. We think our remand is warranted both because we are unable to determine which of the two conflicting standards the Court of Appeals applied in reviewing the decision of the District Court in this case, and because of the implication in its opinion that there is no difference between the two standards. We, of course, intimate no view as to the correct result if the proper test is applied in this case.

       We quite agree with the dissent that under Furnco and McDonnell Douglas the employer’s burden is satisfied if he simply “explains what he has done” or “produe[es] evidence of legitimate nondiscriminatory reasons.” Post, at 28,29. But petitioners clearly did produce evidence to support their legitimate nondiscriminatory explanation for refusing to promote respondent during the years in question. See 569 F. 2d, at 172-173, 178; App. to Pet. for Cert. B-2 to B-24. Nonetheless, the Court of Appeals held that petitioners had not met their burden because the proffered legitimate explanation did not “rebut” or “disprove” respondent’s prima facie case or “prove absence of nondiscriminatory motive.” 569 F. 2d, at 177 — 179 ; see App. to Pet. for Cert. B-25. This holding by the Court of Appeals is further support for our belief that the court appears to have imposed a heavier burden on the employer than Furnco, and the dissent here, require.

       This language is quoted from the following paragraph in Furnco:

      “When the prima facie case is understood in the light of the opinion in McDonnell Douglas, it is apparent that the burden which shifts to the employer is merely that of proving that he based his employment decision on a legitimate consideration, and not an illegitimate one such as race. To prove that, he need not prove that he pursued the course which would both enable him to achieve his own business goal and allow him to consider the most employment applications. Title VII prohibits him from having as a goal a work force selected by any proscribed discriminatory practice, but it does not impose a duty to adopt a hiring procedure that maximizes hiring of minority employees. To dispel the adverse inference from a prima facie showing under McDonnell Douglas, the employer need only 'articulate some legitimate, nondiscriminatory reason for the employee’s rejection.’” 438 U. S., at 577-578 (emphasis in original).
      The comparable passage in McDonnell Douglas reads as follows:
      “The burden then must shift to the employer to articulate some legitimate, nondiscriminatory reason for the employee’s rejection. We need not attempt in tiie instant case to detail every matter which fairly could be recognized as a reasonable basis for a refusal to hire. Here petitioner has assigned respondent’s participation in unlawful conduct against it as the cause for his rejection. We think that this suffices to discharge petitioner’s burden of proof at this stage and to meet respondent’s prima facie case of discrimination.” 411 U. S., at 802-803.

       The Court also suggests that “further support” for its decision is derived from the Court of Appeals’ “holding” that “petitioners had not met their burden because the proffered legitimate explanation did not 'rebut’ or 'disprove’ respondent’s prima facie case . . . 569 F. 2d, at 177-179.” Ante, at 25-26, n. 2. The actual “holding” of the Court of Appeals was that “the trial court’s finding that sex discrimination impeded the plaintiff’s second promotion was not clearly erroneous.” 569 F. 2d 169, 179 (CA1 1978). The Court of Appeals reached this conclusion by considering all of the evidence presented by both parties to determine whether the evidence of discrimination offered by the plaintiff was ''sufficient ... to sustain the district court’s findings” in light of the counter evidence offered by the employer. Ibid. Such factual determinations by two federal courts are entitled to a strong presumption of validity.

       438 U. S., at 577 (quoted in n. 1, supra; emphasis added). It should also be noted that the Court of Appeals did not state that the petitioners’ burden here was to “prove” anything; rather, the burden which shifted to them as defendants was to “show” a legitimate reason for their action.

       See n. 1, supra.

       438 U. S., at 577.


text:
    UNITED STATES v. CALIFORNIA
    No. 5,
    Orig.
    Decided June 23, 1947,
    May 17, 1965, and May 15, 1978— Order and decree entered October 27, 1947 — Supplemental decree entered January 31, 1966 — Second supplemental decree entered June 13, 1977 — Third supplemental decree entered November 27, 1978
   THIRD SUPPLEMENTAL DECREE

To carry into effect this Court’s decision of May 15, 1978, 436 U. S. 32, and for the purpose of identifying with greater particularity parts of the boundary line, as defined by the Supplemental Decree herein of January 31, 1966, 382 U. S. 448, and by the Second Supplemental Decree herein of June 13, 1977, 432 U. S. 40, between the submerged lands of the United States and the submerged lands of the State of California, it is ORDERED, ADJUDGED, AND DECREED that this Court’s Supplemental Decree be, and the same is hereby, further supplemented as follows:

1. The United States has no right, title, or interest by virtue of the claim-of-right exception of § 5 of the Submerged Lands Act, 67 Stat. 32, 43 U. S. C. § 1313, in the tidelands (that is, lands lying between the lines of mean high water and mean lower low water) and submerged lands (that is, lands lying seaward of the line of mean lower low water) within the Channel Islands National Monument, as said Monument was established by Presidential Proclamation No. 2281, 52 Stat. 1541 (Apr. 26, 1938), and enlarged by Presidential Proclamation JSTo. 2825, 63 Stat. 1258 (Feb. 9, 1949), to encompass “the areas within one nautical mile of the shoreline of Anacapa and Santa Barbara Islands . . . In all other respects, the terms of the Supplemental Decree and of the Second Supplemental Decree apply fully to the tidelands and submerged lands within the Channel Islands National Monument.

2. The land area above the mean high-water line of Anacapa and Santa Barbara Islands, and the land area above the mean high-water line of all islets and rocks within one nautical (geographical) mile of the coastline of Anacapa and Santa Barbara Islands are lands as to which the State of California has no title or property interest.

3. The Court retains jurisdiction to entertain such further proceedings, enter such orders, and issue such writs as from time to time may be deemed necessary or advisable to give proper force and effect to this decree and the prior decrees of this Court or to effectuate the rights of the parties in the premises.

Mr. Justice Marshall took no part in the formulation of this decree.