author: Mr. Justice Stewart

text:
    CHANDLER v. ROUDEBUSH, ADMINISTRATOR OF VETERANS’ AFFAIRS, et al.
    No. 74-1599.
    Argued March 2, 1976
    Decided June 1, 1976
    Stewart, J., delivered the opinion for a unanimous Court.

      Joel L. Selig argued the cause for petitioner. With him on the briefs were Paul R. Dimond, J. Harold Flan-nery, and Stuart P. Herman.

      Assistant Attorney General Lee argued the cause for respondents. With him on the brief were Solicitor Gen

      eral Bork, Deputy Solicitor General Wallace, Kenneth S. Geller, and Robert E. Kopp.

        Jack Greenberg, James M. Nabrit III, Charles Stephen Ralston, Melvyn Leventhal, and Eric Schnapper filed a brief for the N. A. A. C. P. Legal Defense and Educational Fund, Inc., as amicus curiae urging reversal.

   Mr. Justice Stewart

delivered the opinion of the Court.

In 1972 Congress extended the protection of Title VII of the Civil Nights Act of 1964, 78 Stat. 253, as amended, 42 U. S. C. § 2000e et seq. (1970 ed. and Supp. IV), to employees of the Federal Government. A principal goal of the amending legislation, the Equal Employment Opportunity Act of 1972, Pub. L. 92-261, 86 Stat. 103, was to eradicate “ 'entrenched discrimination in the Federal service/ ” Morton v. Mancari, 417 U. S. 535, 547, by strengthening internal safeguards and by according “[a]ggrieved [federal] employees or applicants . . . the full rights available in the courts as are granted to individuals in the private sector under title VII.” The issue presented by this case is whether the 1972 Act gives federal employees the same right to a trial de novo of employment discrimination claims as “private sector” employees enjoy under Title VII.

I

The petitioner, Mrs. Jewell Chandler, is a Negro. In 1972 she was employed as a claims examiner by the Veterans’ Administration. In August of that year she applied for a promotion to the position of supervisory claims examiner. Following a selection procedure she was designated as one of three finalists for the position. The promotion was awarded to a Filipino-American male. The petitioner subsequently filed a complaint with the Veterans’ Administration alleging that she had been denied the promotion because of unlawful discrimination on the basis of sex and race. After an administrative hearing on the claim, the presiding complaints examiner submitted proposed findings to the effect that the petitioner had been discriminated against on the basis of sex but not race and recommended that she be given a retroactive promotion to the position for which she had applied. The agency rejected the proposed finding of sex discrimination as not “substantiated by the evidence,” and accordingly granted no relief. The petitioner filed a timely appeal to the Civil Service Commission Board of Appeals and Review, which affirmed the agency’s decision.

Within 30 days after receiving notice of the Commission’s decision, the petitioner brought the present suit in a Federal District Court under § 717 (c) of the Civil Rights Act of 1964, as added by § 11 of the Equal Employment Opportunity Act of 1972, 86 Stat. 111, 42 U. S. C. §§ 2000e-16 (c) (1970 ed., Supp. IV). After moving unsuccessfully for summary judgment, she initiated discovery proceedings by filing notice of two depositions and a request for the production of documents. The respondents moved for an order prohibiting discovery on the ground that the judicial action authorized by § 717 (c) is limited to a review of the administrative record. The petitioner opposed the motion, asserting that she had a right under §717 (c) to a plenary judicial trial de novo. The District Court adopted the holding of the United States District Court for the District of Columbia in Hackley v. Johnson, 360 F. Supp. 1247, rev’d sub nom. Hackley v. Roudebush, 171 U. S. App. D. C. 376, 520 F. 2d 108, that a “trial de novo is not required [under §717 (c)] in all cases” and that review of the administrative record is sufficient if “an absence of discrimination is affirmatively established by the clear weight of the evidence in the record . . . 360 F. Supp., at 1252. Applying this standard of review* the District Court determined that “the absence of discrimination is firmly established by the clear weight of the administrative record” and granted summary judgment in favor of the respondents. The Court of Appeals affirmed the judgment, agreeing with the District Court’s ruling that § 717 (c) contemplates not a trial de novo but the “intermediate scope of inquiry expounded in Hackley v. Johnson Chandler v. Johnson, 515 F. 2d 251, 255 (CA9). We granted certiorari to resolve a conflict among the Circuits concerning the nature of the judicial proceeding provided by § 717 (c). 423 U. S. 821.

II

We begin with the language of the statute. Section 717 (c), 42 U. S. C. § 2000e-16 (c) (1970 ed., Supp. IV), states that within 30 days after notice of final adverse administrative action on a federal employee’s diserimin ition complaint by either the employing agency or the Civil Service Commission (in the event a permissive appeal is taken), or after 180 days of delay by the agen3y or the Commission, the employee “may file a civil action as provided in section 706, in which civil action the head of the department agency, or unit, as appropriate, shall be the defendant.” Section 717 (d), 42 U. S. C. § 2000e-16 (d) (1970 ed., Supp. IV), goes on to specify that “[t]he provisions of section 706 (f) through (k), as applicable, shall govern civil actions brought hereunder.”

Section 706 (f) of the Civil Rights Act of 1964, 42 U. S. C. § 2000e-5 (f) (1970 ed., Supp. IV), authorizes the Equal Employment Opportunity Commission (EEOC) to bring “civil actions” on behalf of private sector employees in federal district court. Alternatively, §706 (f)(1) authorizes an individual employee to sue on his own behalf if a specified period of delay has elapsed or if the EEOC has declined to represent him on the basis of its initial determination that “there is not reasonable cause to believe that the charge is true . . . .” § 706 (b), 42 U. S. C. § 2000e-5 (b) (1970 ed., Supp. IV). Sections 706 (f) through (k), 42 U. S. C. §§2000e-5(f) through (k) (1970 ed. and Supp. IV), provide specific rules and guidelines for private-sector “civil actions.”

It is well established that § 706 of the Civil Rights Act of 1964 accords private-sector employees the right to de novo consideration of their Title VII claims. Alexander v. Gardner-Denver Co., 415 U. S. 36; McDonnell Douglas Corp. v. Green, 411 U. S. 792, 798-799; Norman v. Missouri Pacific R. Co., 414 F. 2d 73, 75 n. 2 (CA8). The “employee’s statutory right to a trial de novo under Title VII [of the Civil Rights Act of 1964] . . . ,” Alexander v. Gardner-Denver Co., supra, at 38, embodies a congressional decision to “vest federal courts with plenary powers to enforce the [substantive] requirements [of Title VII] . . . Id., at 47.

The 1972 amendments to the 1964 Act added language to § 706 which reflects the de novo character of the private sector “civil action” even more clearly than did the 1964 version. Section 706 (f)(4), 42 U. S. C. § 2000e-5 (f)(4) (1970 ed., Supp. IV), for instance, requires the chief judge of the district in which a “civil action” is pending to “immediately . . . designate a judge in such district to hear and determine the case.” The judge so designated must “assign the case for hearing at the earliest practicable date . . . .” §706 (f)(5). If the case has not been “scheduled ... for trial within one hundred and twenty days after issue has been joined,” then the designated judge may appoint a special master to hear it. Ibid. And, as under the 1964 version, if the district court “finds” that the respondent has intentionally committed an unlawful employment practice, then the court may order appropriate relief. § 706 (g), 42 U. S. C. § 2000e-5 (g) (1970 ed., Supp. IV). The terminology employed by Congress — “assign the case for hearing,” “scheduled ... for trial,” “finds” — indicates clearly that the “civil action” to which private-sector employees are entitled under the amended version of Title VII is to be a trial de novo.

Since federal-sector employees are entitled by § 717 (c) to “file a civil action as provided in section 706 [42 U. S. C. § 2000e-5 (1970 ed., Supp. IV)]” and since the civil action provided in § 706 is a trial de novo, it would seem to follow syllogistically that federal employees are entitled to a trial de novo of their employment discrimination claims. The Court of Appeals, however, held that a contrary result was indicated by the words “as applicable” in § 717 (d) and by the legislative history of § 717, and in support of that position the respondents further argue that routine de novo trials of federal employees’ claims would clash with the 1972 Act’s delegation of enforcement responsibilities to the Civil Service Commission and would contravene this Court’s view that “de novo review is generally not to be presumed.” Consolo v. FMC, 383 U. S. 607, 619 n. 17.

A. The Meaning of the Phrase “As Applicable”

The opinion of the District Court for the District of Columbia in Hackley v. Johnson, relied on by the Court of Appeals here, expressed the view that the phrase “as applicable” in § 717 (d) evidences a congressional intent to restrict or qualify the right to a de novo proceeding granted by § 717 (c). 360 F. Supp., at 1252 n. 9. A careful reading of § 717 (d) and the provisions to which it refers indicates, however, that the phrase was intended merely to reflect the fact that certain provisions in §§ 706 (f) through (k) pertain to aspects of the Title VII enforcement scheme that have no possible relevance to judicial proceedings involving federal employees.

Section 717 (d) states that “[t]he provisions of section 706 (f) through (k), as applicable, shall govern civil actions brought hereunder." Sections 706 (f) through (k) set forth specific procedures and guidelines to be followed in private-sector “civil actions." Several of these procedures could not possibly apply to civil actions involving federal employees. Section 706 (f)(1), for instance, provides that in the private sector the EEOC “may bring a civil action against any respondent not a government, governmental agency, or political subdivision” and that the Attorney General of the United States may bring a civil action for employment discrimination against a state government, agency, or political subdivision. The individual complainant retains the right to intervene in suits brought by the EEOC or the Attorney General. In the case of a “civil action” maintained by an individual complainant against a private or state governmental employer, the EEOC or the Attorney General, respectively, may be permitted to intervene “upon certification that the case is of general public importance.” These provisions, allowing suits and permissive intervention by the EEOG or the Attorney General, could have no possible application to “civil actions” under § 717 (c), because the individual federal employee or job applicant is the only party who can institute and maintain a “civil action” under that subsection.

Similarly, the provision in § 706 (f) (2) permitting the EEOC or the Attorney General to “bring an action for appropriate temporary or preliminary relief pending final disposition” of a charge where the EEOC has “conclude [d] on the basis of a preliminary investigation that prompt judicial action is necessary to carry out the purposes of this Act” could not possibly apply without modification to “civil actions” involving federal employees, because the EEOC is given no general responsibility for investigating or prosecuting the complaints of federal employees.

The most natural reading of the phrase “as applicable” in § 717 (d) is that it merely reflects the inapplicability of provisions in §§ 706 (f) through (k) detailing the enforcement responsibilities of the EEOC and the Attorney General. We cannot, therefore, agree with the view expressed, by the District Court in Hackley v. Johnson, supra, and relied on by the Court of Appeals here, that Congress used the words “as applicable" to voice its intent to disallow trials de novo by aggrieved federal employees who have received prior administrative hearings. As the Court of Appeals for the District of Columbia Circuit held in reversing Hackley v. Johnson, supra, such an interpretation of the phrase “as applicable” would require a strained and unnatural reading of §§706 (f) through (k). Hackley v. Roudebush, 171 U. S. App. D. C., at 389, 620 F. 2d, at 121. This Court pointed out in Lynch v. Alworth-Stephens Co., 267 U. S. 364, 370, that “ ‘the plain, obvious and rational meaning of a statute is always to be preferred to any curious, narrow, hidden sense that nothing but the exigency of a hard case and the ingenuity and study of an acute and powerful intellect would discover.’ ” To read the phrase “as applicable” in § 717 (d) as obliquely qualifying the federal employee’s right to a trial de novo under § 717 (c) rather than as merely reflecting the inapplicability to § 717 (c) actions of provisions relating to the enforcement responsibilities of the EEOC or the Attorney General would violate this elementary canon of construction.

B. Legislative History

The legislative history of the 1972 amendments reinforces the plain meaning of the statute and confirms that Congress intended to accord federal employees the same right to a trial de novo as is enjoyed by private-sector employees and employees of state governments and political subdivisions under the amended Civil Rights Act of 1964.

Two themes dominated the debates, proposals, and committee reports which preceded the enactment of the Equal Employment Opportunity Act of 1972. The first was the inadequacy of the individually instituted and maintained trial de novo as an enforcement technique in the private sector under the Civil Rights Act of 1964. The second was federal employees’ lack of adequate internal safeguards against employment discrimination and Congress’ perception of their lack of access to the courts to raise claims of job discrimination.

In 1971, the House Committee on Education and Labor and the Senate Committee on Labor and Public Welfare reported out bills designed to remedy these deficiencies. The proposed bills, H. R. 1746 and S. 2515, gave the EEOC cease-and-desist powers in the private sector while retaining the private-sector complainant’s preexisting right to a trial de novo in certain instances. The grant of cease-and-desist power to the EEOC provoked strong dissenting statements in both committee reports. While nearly all members of both committees agreed that the EEOC should be given enforcement powers in the private sector, there was sharp disagreement over whether the EEOC should be given the power merely to institute de novo suits in federal trial courts on behalf of employees or the power actually to adjudicate discrimination controversies subject only to review on a substantial-evidence basis in the federal courts of appeals.

The dissenting members of the two committees favored the trial de novo approach. As Senator Dominick put it in a minority statement in the Senate Report:

“The issue is no longer whether we need enforcement powers for Title VII, but rather what form and scope of enforcement is needed to best protect the rights of all parties involved. To accomplish this end the Senate is given two types of enforcement machinery to choose from — vesting EEOC with cease and desist powers or giving EEOC the authority to sue directly in Federal Courts.
“... Determination of employment civil rights deserves and requires non-partisan judgment. This judgment is best afforded by Federal court judges who, shielded from political influence by life tenure, are more likely to withstand political pressures and render their decisions in a climate tempered by judicial reflection and supported by historical judicial independence.”

In response to these criticisms and in justification of their contrary position, the majority members of the two committees set forth in considerable detail their reasons for choosing the approach of agency adjudication with appellate court review. The House committee majority thought that the EEOC was “better equipped to handle the complicated issues involved in employment discrimination cases” and “better suited to rapid resolution of such complex issues than are Courts.” In addition, the majority thought that an administrative tribunal would offer procedural advantages in that it would be “less subject to technical rules governing such matters as pleadings and motion practice . . . and . . . less constrained by formal rules of evidence ... .” The Senate Report spelled out in even greater detail the perceived differences between “enforcement by district court trials rather than through agency hearings followed by appellate court review,” stressing the delays that would be occasioned by court trials and the need for administrative expertise in recognizing and remedying complex forms of employment discrimination. The Report stated that the committee had given “full and careful consideration” to an “alternative measure providing for court enforcement for title VII” but that that proposal had been rejected in favor of the administrative agency approach.

It was against this backdrop of focused debate on the issue of administrative agency versus wholly judicial enforcement machinery in the area of discrimination in private employment that the two committees proposed extending to a federal employee the right to file a “civil action” if “aggrieved” by his employing agency’s action in dealing with his complaint of discrimination. The fact that the federal employee, prior to filing such a “civil action,” would have enjoyed the benefit of improved internal safeguards, including “appropriate procedures for an impartial [agency] adjudication of the complain [t],” might well have provided a rationale for reposing primary adjudicative authority in the appropriate federal agency rather than in the district courts. But the two committees clearly chose to permit de novo judicial trial of such complaints rather than mere judicial review of employing agency determinations: In both the House and Senate Committee Bills, the sections which accorded an aggrieved federal employee the right to file a “civil action” following adverse agency action referred not to the substantial-evidence review provisions applicable to EEOC cease-and-desist orders but rather to other provisions which retained the private-sector employee’s right to a trial de novo in specified circumstances. It is inconceivable that the two congressional committees, which were keenly aware of the consequences of vesting in an administrative agency rather than in the federal courts the primary adjudicative responsibility, did not act in a knowing and deliberate manner in thus equating a federal employee’s “civil action” with private-sector plenary trials and in eschewing any reference to the private-sector provisions of the proposed legislation which provided for agency adjudication subject only to review on a substantial-evidence basis in the federal courts of appeals.

In short, the bills reported out of the Senate and House committees and the accompanying Reports reveal a thorough and meticulous consideration of the question whether an administrative agency or a court should be given primary adjudicative responsibility for particular categories of Title VII complaints and an unambiguous choice to grant federal employees the right to plenary trials in the federal district courts.

The House Committee Bill was opposed on the floor of the House on the ground that it placed primary adjudicative responsibility over private-sector Title VII complaints in an agency which was also responsible for prosecuting such complaints. Opponents contended that such a commingling of functions would bias the agency's adjudications. This argument prevailed, and H. R. 1746 was amended on the floor by H. R. 9247, which granted the EEOC the right to file private-sector “civil actions” in district court but not the power to issue cease- and desist orders. The amendment changed H. R. 1746 in one other important respect: It deleted the provisions extending Title VII to federal employees. As amended, H. R. 1746 passed the House.

The Senate Committee Bill, like its House counterpart, was strongly opposed on the floor. As in the House, controversy centered on whether agency adjudication with limited appellate judicial review in the federal appellate courts should be the technique by which the EEOC would enforce Title VII in the private sector. Early in the four-week Senate floor debate which preceded passage of S. 2515, Senator Dominick introduced an amendment which would replace the EEOC’s cease- and desist authority with a right to institute de novo proceedings in the federal district courts on behalf of private-sector employees. This amendment conformed to the dissenting views he had expressed in the Senate Report. The principal aim of the amendment was to separate prosecutorial from adjudicative functions in private-sector Title VII proceedings.

A central theme of Senator Dominick’s argument, stressed repeatedly in the floor debate, was that the Committee Bill already contemplated the resolution of federal employees’ claims through district court and not agency adjudication. Speaking of the Senate committee’s deliberations, Senator Dominick stated that when the committee had “examined the Federal employee situation” he had

“pointed out again that we were creating an agency czar in the EEOC which could determine personnel policies in all the other Federal agencies of the Government. I doubted the wisdom of creating such an omnipotent agency. After some discussion on this ... we were able to work out an agreement whereby a Federal employee who feels he is discriminated against can go through his agency, and if he is still dissatisfied, he is empowered to bring suit in Federal court or through the existing Civil Service Board of Appeals and Beviews to Federal court. So on two of the major groups of employees covered by this legislation; namely, State and local employees on the one hand, and Federal employees on the other, the committee itself agreed to grievance remedy procedures through the Federal district courts; yet with the private employee they say, ‘No, you cannot have that. We will have an agency that can do it all by itself.’ That is discrimination in and of itself, right within the bill; and it strikes me that one of the first things we have to do is at least to put employees holding their jobs, be they government or private employees, on the same plane so that they have the same rights, so that they have the same opportunities, and so that they have the same equality within their jobs, to make sure that they are not being discriminated against and have the enforcement, investigatory procedure carried out the same way.
“As I said earlier, it seems wrong to me to say to an aggrieved employee, ‘Certainly we will hear your case. We will do the investigating. We will bring the charges. We will do everything else, but you will not get a decision for over 2 years.’ That is not justice. This is not equal employment opportunity. But if we have the investigator saying that this is a legitimate complaint, and that it will be brought to the district court and will get priority treatment there, we can get the matter decided in half the time it would take in any other way.
“It strikes me that this is right on principle. It is right in terms of administrative procedures. It conforms to what we did with State and local employees and with Federal employees.”

Senator Dominick reiterated the theme of remedial disparity throughout the floor debates, arguing for equal treatment of private-sector and federal-sector complainants: Since the latter were entitled to plenary adjudication of their claims by a federal district court, rather than mere appellate review on a substantial-evidence basis following agency adjudication, he contended, the former should be treated similarly.

Senator Dominick’s amendment was eventually adopted and S. 2515, as amended, passed the Senate. The House had already passed the amended version of H. R. 1746, which differed from the amended Senate Committee Bill in that it did not apply to federal employees. The bills accordingly went to a conference committee, which adopted the Senate Committee Bill’s provision extending Title VII to federal employees. The conference bill was enacted by the Senate and the House.

Since the federal employee provisions of the Senate bill were eventually adopted by the conference committee and passed by Congress, the legislative history of that bill is the most helpful on the issue presented here. The sequence of debate, amendment, and Senate passage of S. 2515 shows unmistakably that the Senate decided to provide both private- and federal-sector employees the adjudicative mechanism which the Senate committee had advocated for federal-, but not private-sector, employees. No changes were made or even proposed with respect to the committee’s choice to allow federal employees judicial trials rather than “substantial evidence” review of administrative dispositions of their discrimination claims. On the contrary, it was the federal-sector de novo procedure which served as the model for Senator Dominick’s proposed alteration of private-sector enforcement provisions. The passage of the Dominick amendment and the subsequent approval of S. 2515 by the Senate achieved the parity which Senator Dominick had advocated — judicial trial de novo for private as well as federal employees.

The Court of Appeals held that “the district judge faced with a demand for a trial de novo is entitled to determine, at a pretrial conference or otherwise, why the plaintiff believes that a trial de novo is necessary,” 515 F. 2d, at 255, and concluded that the petitioner had presented “nothing before the district court to indicate that a useful purpose would be served by having a trial de novo.”' Ibid. This approach substantially parallels the holding in Hackley v. Johnson:

“The trial de novo is not required in all cases. The District Court is required by the Act to examine the administrative record with utmost care. If it determines that an absence of discrimination is affirmatively established by the clear weight of the evidence in the record, no new trial is required. If this exacting standard is not met, the Court shall, in its discretion, as appropriate, remand, take testimony to supplement the administrative record, or grant the plaintiff relief on the administrative record.” 360 F. Supp., at 1252.

Nothing in the legislative history indicates that the federal-sector “civil action” was to have this chameleon-like character, providing fragmentary de novo consideration of discrimination claims where “appropriate,” ibid., and otherwise providing record review. On the contrary, the options which Congress considered were entirely straightforward. It faced a choice between record review of agency action based on traditional appellate standards and trial de novo of Title VII claims. The Senate committee selected trial de novo as the proper means for resolving the claims of federal employees. The Senate broadened the category of claims entitled to trial de novo to include those of private-sector employees, and the Senate’s decision to treat private- and federal-sector employees alike in this respect was ratified by the Congress as a whole.

C. Presumption Against De Novo Review

Given the clear expression of congressional intent, as revealed in both the plain language of § 717 and the legislative history of the 1972 amendments, we find unpersuasive the respondents’ reliance on decisions by this Court indicating that “de novo review is generally not to be presumed.” Consolo v. FMC, 383 U. S., at 619 n. 17; United States v. Carlo Bianchi & Co., 373 U. S. 709, 715.

Consolo involved review of agency action under provisions of the Administrative Procedure Act giving “a reviewing court authority to 'set aside agency action, findings, and conclusions found to be (1) arbitrary, capricious, [or] an abuse of discretion . . . [or] (5) unsupported by substantial evidence 383 U. S., at 619. In this context, the Court observed: “We do not read the opinion below as asserting that the Court of Appeals, in a direct review proceeding, may conduct a de novo review of the equities of a reparation award. We find nothing in the Shipping Act, the Hobbs Act, or the Administrative Procedure Act that would authorize a de novo review in these circumstances, and in the absence of specific statutory authorization, a de novo review is generally not to be presumed.” Id., at 619 n. 17. Here, by contrast, there is a “specific statutory authorization” of á district court “civil action,” which both the plain language of the Statute and the legislative history reveal to be a trial de novo.

The respondents’ contention that administrative dispositions of federal employee discrimination complaints would, unlike arbitral decisions under collective-bargaining agreements or preliminary EEOC findings of “no reasonable cause,” typically furnish an adequate basis for “substantial evidence” review cannot overcome the clear import of the statutory language and the legislative history. The Congress was aware of the fact that federal employees would have the benefit of “appropriate procedures for an impartial [agency] adjudication of the complain [t],” and yet chose to give employees who had been through those procedures the right to file a de novo “civil action” equivalent to that enjoyed by private-sector employees. It may well be, as the respondents have argued, that routine trials de novo in the federal courts will tend ultimately to defeat, rather than to advance, the basic purposes of the statutory scheme. But Congress has made the choice, and it is not for us to disturb it.

Since the Court of Appeals in this case erroneously concluded that § 717 (c) does not accord a federal employee the same right to a trial de novo as private-sector employees enjoy under Title VII, its judgment must be reversed and the case remanded for further proceedings consistent with this opinion.

It is so ordered.

       S. Rep. No. 92-415, p. 16 (1971) (hereinafter cited as Senate Report).

       The Veterans’ Administration accepted the examiner’s proposed finding of no race discrimination.

       The District Court in Hackley had held that even if that “exacting standard” were not met, a full trial de novo would not necessarily be required. Rather a district court could, “in its discretion, as appropriate, remand, take testimony to supplement the administrative record, or grant the plaintiff relief on the administrative record.” 360 F. Supp., at 1252.

       Four Courts of Appeals have held that §717 (c) gives federal employees the right to a trial de novo in the district court. Abrams v. Johnson, 534 F. 2d 1226 (CA6); Caro v. Schultz, 521 F. 2d 1084 (CA7); Hackley v. Roudebush, 171 U. S. App. D. C. 376, 520 F. 2d 108; Sperling v. United States, 515 F. 2d 465 (CA3). Three other Courts of Appeals have held that federal employees are not generally entitled to trials de novo. Haire v. Calloway, 526 F. 2d 246 (CA8); Chandler v. Johnson, 515 F. 2d 251 (CA9) (opinion below); Salone v. United States, 511 F. 2d 902 (CA10).

       The Attorney General of the United States is given responsibility for instituting Title VII civil actions on behalf of employees of state governments, governmental agencies, or political subdivisions. §706 (f)(1), 42 U. 8. C. §2000e-5 (f)(1) (1970 ed., Supp. IV).

       Civil Rights Act of 1964, § 706, 78 Stat. 259.

       See Hackley v. Roudebush, 171 U. S. App. D. C., at 387-388, 520 F. 2d, at 119-120.

       As stated in the Senate Report:
      “The most striking deficiency of the 1964 Act is that the EEOC does not have the authority to issue judicially enforceable orders to back up its findings of discrimination. In prohibiting discrimination in employment based on race, religion, color, sex or national origin, the 1964 Act limited the Commission’s enforcement authority to ‘informal methods of conference, conciliation and persuasion.’
      “As a consequence, unless the Department of Justice concludes that a pattern or practice of resistance to Title VII is involved, the burden of obtaining enforceable relief rests upon each individual victim of discrimination, who must go into court as a private party, with the delay and expense that entails, in order to secure the rights promised him under the law. Thus, those persons whose economic disadvantage was a prime reason for enactment of equal employment opportunity provisions find that their only recourse in the face of unyielding discrimination is one that is time consuming, burdensome, and all too often, financially prohibitive.” Senate Report 4.

       The Senate Report stated:
      “The testimony before the Labor Subcommittee reflected a general lack of confidence in the effectiveness of the complaint procedure on the part of Federal employees. Complaints have indicated skepticism regarding the Commission’s record in obtaining just resolutions of complaints and adequate remedies. This has, in turn, discouraged persons from filing complaints with the Commission for fear that doing so will only result in antagonizing their supervisors and impairing any future hope of advancement.” Id., at 14.
      “The testimony of the Civil Service Commission notwithstanding, the committee found that an aggrieved Federal employee does not have access to the courts. In many cases, the employee must overcome a U. S. Government defense of sovereign immunity or failure to exhaust administrative remedies with no certainty as to the steps required to exhaust such remedies. Moreover, the remedial authority of the Commission and the courts has also been in doubt.” Id., at 16.

       Under both committee bills, the private-sector employee could bring a civil action within 60 days after the EEOC gave notice that it had dismissed the charge of employment discrimination or that 180 days had elapsed from the filing of the charge without the EEOC having issued a complaint or having entered into an acceptable conciliation agreement. H. R. 1746, 92d Cong., 1st Sess., §8 (j) (1971) (hereinafter cited as H. R. 1746 or House Committee Bill); S. 2515, 92d Cong., 1st Sess., §4 (a) (1971) (hereinafter cited as S. 2515 or Senate Committee Bill).

       Representatives Ashbrook and Landgrebe did not favor granting the EEOC any enforcement authority. H. R. Rep. No. 92-238, p. 70 (1971) (hereinafter cited as House Report).

       Senate Report 85. Similar minority views were expressed in the Report of the House committee. House Report 58-63.

        Id., at 10-11.

       Senate Report 18.

        Id., at 17-19.

        Id., at 17.

       House Report 26.

       The House Committee Bill, supra, n. 10, provided in relevant part that a federal employee, if aggrieved by final administrative disposition of his complaint, “may file a civil action as provided in section 715 . . . .” § 11. Section 715 of the proposed bill preserved the private-sector employee’s right to institute a trial de novo in certain limited circumstances. § 8 (j). See n. 10, supra.

      The Senate Committee Bill, supra, n. 10, provided in relevant part that a federal employee, if aggrieved by final administrative disposition of his complaint or by failure to take action on his complaint, “may file a civil action as provided in section 706 (q) ....” § 11. Section 706 (q) of the proposed bill preserved the private-sector employee’s right to a trial de novo in specified instances. § 4 (a). See n. 10, supra.

       The House and Senate Reports as well as the Committee Bills themselves evince a detailed awareness of the interaction in the private sector of the new cease-and-desist remedy and the preexisting right to a trial de novo. See House Committee Bill §8 (j); House Report 12; Senate Committee Bill § 4 (a); Senate Report 24.

       The respondents argue that because private-sector employees enjoyed only a conditional right to plenary trials under the Senate Committee Bill and because the committee intended to give aggrieved federal employees the same "rights ... in the courts as are granted to individuals in the private sector under title VII,” Senate Report 16, it follows that the Senate committee intended federal employees to have trials de novo only in circumstances analogous to those where private-sector employees would enjoy the same right — i. e., where the responsible agency had dismissed the charge without a hearing or where a sufficient period of delay had elapsed from the filing of the charge. This argument overlooks the fact that the provision in the Senate Committee Bill creating a federal employee’s right to bring a “civil action” contained no reference to the substantial-evidence review provisions in the draft legislation but referred only to the provisions which pertained to private-sector trials de novo.

         E. g., 117 Cong. Rec. 31958-31959 (1971) (remarks of Rep. Martin); id., at 31969-31970 (remarks of Rep. Railsback); id., at 31972-31973 (remarks of Rep. Erlenborn); id., at 32091-32092 (remarks of Rep. Ford); id., at 32106 (remarks of Rep. Broomfield) ; id., at 32107-32108 (remarks of Rep. Shoup); id., at 32109-32110 (remarks of Rep. Fisher).

        Id., at 32111-32112.

       H. R. 9247, 92d Cong., 1st Sess., §3 (c) (1971).

       See id.; S. Conf. Rep. No. 92-681, pp. 20-21 (1972) (hereinafter referred to as Conference Report).

       117 Cong. Rec. 32113 (1971).

         E. g., 118 Cong. Rec. 311-312 (1972) (remarks of Sen. Ervin); id., at 595 (remarks of Sen. Tower); id., at 731-732 (remarks of Sen. Saxbe); id., at 732 (remarks of Sen. Brock); id., at 735 (remarks of Sen. Williams); id., at 928-929 (remarks of Sen. Món-dale) ; id., at 930 (remarks of Sen. Javits); id., at 931-932 (remarks of Sen. Allen); id., at 933 (remarks of Sen. Thurmond); id., at 943-944 (remarks of Sen. Tahnadge); id., at 944 (remarks of Sen. Chiles); id., at 1384 (remarks of Sen. Weicker).

        Id., at 591-592.

       See Senate Report 86-87.

       118 Cong. Rec. 592-593 (1972) (remarks of Sen. Dominick).

        Id., at 594.

        Id., at 595, 942, 943, 3389, 3809, 3967.

        Id., at 3979-3980.

        Id., at 4944.

       Conference Report 1,10-11, 20-21.

       See Hackley v. Roudebush, 171 U. S. App. D. C., at 413, 520 F. 2d, at 145; Sperling v. United States, 515 F. 2d, at 473.

       The respondents argue that a statement in the floor debate by Senator Williams and a statement purportedly made in that debate by Senator Cranston indicate that Congress did not intend to give federal employees the right to plenary judicial trials but only the right to record review of agency proceedings. Near the close of the debate on S. 2515 Senator Williams spoke as follows:
      “Finally, written expressly into the law is a provision enabling an aggrieved Federal employee to file an action in U. S. District Court for a review of the administrative proceeding record after a final order by his agency or by the Civil Service Commission, if he is dissatisfied with that decision. Previously, there have been unrealistically high barriers which prevented or discouraged a Federal employee from taking a case to court. This will no longer be the case. There is no reason why a Federal employee should not have the same private right of action enjoyed by individuals in the

        ;private sector, and I believe that the committee has acted wisely in this regard.” 118 Cong. Rec. 4922 (1972) (emphasis added).
      Senator Williams had an expanded version of this statement printed in the Congressional Record. Id., at 4923.
      Despite the fact that Senator Williams was one of the original sponsors of S. 2515 and its floor manager, we decline to give controlling weight to the quoted statement for three reasons. First, it is self-contradictory: While characterizing the federal-sector “civil action” as a “review of the administrative proceeding record,” Senator Williams stated in the same breath that “[t]here is no reason why a Federal employee should not have the same private right of action enjoyed by individuals in the private sector ...” Yet the private right of action enjoyed by individuals in the private sector was to be a trial de novo under the pending bill. Second, the federal-sector provision before the Senate was precisely that which the Senate committee had proposed. Indeed, Senator Williams specifically applauded the committee for having “acted wisely in this regard.” Yet the committee clearly chose to grant federal-sector employees the right to a trial de novo and omitted any reference to the record review provisions it advocated for private-sector cease-and-desist orders. The committee’s unambiguous and unaltered treatment of federal-sector “civil actions” is more probative of congressional intent than the casual remark of a single Senator in the floor debate. Cf. United States v. Automobile Workers, 352 U. S. 567, 585; Sperling v. United States, supra, at 480. Finally, as Senator Williams himself acknowledged earlier in the debate, Senator Dominick rather than he was “[t]he principal architect of . . . changes dealing with the civil service area . . . .” 118 Cong. Rec. 595 (1972). That statement was made immediately after Senator Dominick’s discussion of the Senate committee’s decision to grant federal employees the right to bring “civil actions” in district court rather than the right to have administrative adjudication of their claims with substantial-evidence review in the courts. Id., at 594.
      The other statement relied on by the respondents was purportedly made by Senator Cranston during the final portion of the floor debate. The daily edition of the Congressional Record shows Senator Cranston as having made the following statement:
      "For the first time, [my Federal EEO amendment would] permit Federal employees to sue the Federal Government in discrimination cases — under the theory of Federal sovereign immunity, courts have not generally allowed such suits — and to bring suit either prior to or after CSC review of the agency EEO decision in the case. As with other cases brought under title VII of the Civil Rights Act of 1964, Federal district court review would be based on the agency and/or CSC record and would not be a trial de novo.” 118 Cong. Rec. S2287 (daily ed. Feb. 22, 1972) (emphasis added).
      Approximately a year after the debate and 10 months after the enactment of the Equal Employment Opportunity Act of 1972, Senator Cranston informed the Senate that "the word 'not’ was misplaced” in the daily edition and that when "set forth ... in the correct manner” the italicized portion of the statement would read “review would not be based on the agency and/or CSC record and would be a trial de novo.” 119 Cong. Rec. S 1219 (daily ed. Jan. 23, 1973). The language was so corrected, see 118 Cong. Rec. 4929. We agree with the respondents that this belated correction is not probative. But we cannot agree with their further argument and the view of the Eighth Circuit, Haire v. Calloway, 526 F. 2d, at 248 n. 4, that the uncorrected version, as originally printed in the daily edition of the Congressional Record, is probative. As with Senator Williams’ remark, the uncorrected statement is self-contradictory: Senator Cranston first equated federal- and private-sector “civil actions” and then went on to characterize a federal-sector suit as “not ... a trial de novo.” Yet the private-sector suit was to be a trial de novo. And, as with Senator Williams’ remark, the Senate committee’s decision to equate federal-sector "civil actions” with private-sector trials de novo is more probative of congressional intent than a fleeting remark in the floor debate.

        United States v. Carlo Bianchi & Co., 373 U. S. 709, involved review of agency action under the Wunderlich Act, which provided that a governmental decision on a question of fact arising under a “disputes” clause of a Government contract should be final and conclusive “ ‘unless the same is fraudulent or capricious or arbitrary or so grossly erroneous as necessarily to imply bad faith, or is not supported by substantial evidence.’ ” Id., at 714. ¡The Court held that this language indicated that Congress intended to limit review to the administrative record and observed that even “in cases where Congress has simply provided for review, without setting forth the standards to be used or the procedures to be followed, this Court has held that consideration is to be confined to the administrative record and that no de novo proceeding may be held.” Id., at 715. Here Congress has not “simply provided for review" but has affirmatively chosen to grant federal employees the right to maintain a trial de novo.

      In most instances, of course, where Congress intends review to be confined to the administrative record, it so indicates, either expressly or by use of a term like “substantial evidence,” which has “become a term of art to describe the basis on which an administrative record is to be judged by a reviewing court.” Ibid. E. g., 5 U. S. C. § 706 (scope-of-review provision of Administrative Procedure Act); 12 U. S. C. § 1848 (scope-of-review provision applicable to certain orders of the Board of Governors of the Federal Reserve System); 15 U. S. C. §21 (c) (seope-of-review provision applicable to certain orders of the Interstate Commerce Commission, the Federal Communications Commission, the Civil Aeronautics Board, the Federal Reserve Board, and the Federal Trade Commission); 21 U. S. C. § 371 (f) (3) (scope-of-review provision applicable to certain orders of the Secretary of Health, Education, and Welfare).

       House Report 26.

       The goal may have been to compensate for the perceived fact that “[t]he Civil Service Commission’s primary responsibility over all personnel matters in the Government . . . create [s] a built-in conflict of interest for examining the Government’s equal employment opportunity program for structural defects which may result in a lack of true equal employment opportunity.” Senate Report 15.
      Prior administrative findings made with respect to an employment discrimination claim may, of course, be admitted as evidence at a federal-sector trial de novo. See Fed. Rule Evid. 803 (8)(C). Cf. Alexander v. Gardner-Denver Co., 415 U. S. 36, 60 n. 21. Moreover, it can be expected that, in the light of the prior administrative proceedings, many potential issues can be eliminated by stipulation or in the course of pretrial proceedings in the District Court.


source: Caselaw Access Project

license: Public Domain

text:
    March 29, 1976
    No. 75-676.
    Bowman Transportation, Inc. v. Arkansas-Best Freight System, Inc., et al.
   Affirmed on appeal from D. C. W. D. Ark.

Mr. Justice Stevens would reverse.


text:
    No. 75-856.
    No. 75-972.
    No. 75-1111.
    Levin v. Gulotta, Presiding Justice, et al.; Mildner v. Gulotta, Presiding Justice, et al.; and Gerzof v. Gulotta, Presiding Justice.
   Affirmed on appeal from D. C. E. D. N. Y.

Reported below: 405 F. Supp. 182.

Mr. Justice Marshall and Mr. Justice Powell would postpone consideration of question of jurisdiction to hearing of cases on the merits.


text:
    No. 75-896.
    Doe et al. v. Commonwealth’s Attorney for the City of Richmond et al.
   Affirmed on appeal from D. C. E. D. Ya.

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


text:
    No. 75-1124.
    Gaskin et al. v. Tennessee.
   Appeal from Ct. Crim. App. Tenn. dismissed for want of substantial federal question.


text:
    No. 75-6298.
    McKeldin v. Tennessee.
   Appeal from Sup. Ct. Tenn. dismissed for want of jurisdiction. ■ Treating the papers whereon the appeal was taken as a petition for writ of certiorari, certiorari denied.


text:
    No. A-709 (75-6221).
    Roti v. Florida.
   Sup. Ct. Fla. Application for bail, presented to Mr. Justice Stewart, and by him referred to the Court, denied.


text:
    No. A-748.
    Gaertner v. United States.
   C. A. 7th Cir. Application for bail, presented to Mr. Justice Marshall, and by him referred to the Court, denied.

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


text:
    No. A-812.
    Hoff et al. v. United States.
   Application for stay of execution and enforcement of judgment of the United States Court of Appeals for the Second Circuit, presented to Mr. Justice Brennan, and by him referred to the Court, denied.

Mr. Justice Stevens would grant the application.


text:
    No. 75-251.
    No. 75-283.
    Fitzpatrick et al. v. Bitzer, Chairman, State Employees’ Retirement Commission, et al.; and Bitzer, Chairman, State Employees’ Retirement Commission, et al. v. Matthews et al.
   C. A. 2d Cir. [Certiorari granted, 423 U. S. 1031.] Motion of Lawrence Silver, Esquire, for additional time to permit Melvin R. Shuster, Esquire, to participate in oral argument as amicus curiae, pro hac vice, denied.


text:
    No. 75-510.
    No. 75-545.
    Flint Ridge Development Co. v. Scenic Rivers Association of Oklahoma et al.; and Hills, Secretary of Housing and Urban Development, et al. v. Scenic Rivers Association of Oklahoma et al.
   C. A. 10th Cir. [Certiorari granted, 423 U. S. 1013.] Motion of the Attorney General of California for leave to file an untimely brief as amicus curiae granted.


text:
    No. 75-382.
    Federal Energy Administration et al. v. Algonquin SNG, Inc., et al.
   C. A. D. C. Cir. [Cer-tiorari granted, 423 U. S. 923.] Motion of respondents for additional time for oral argument denied. Alternative request for divided argument granted. Motion of McClure & Trotter for leave to file a brief as amicus curiae granted.


text:
    No. 75-844.
    Susenkewa et al. v. Kleppe, Secretary of the Interior, et al.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 75-877.
    Alonso v. California Department of Human Resources et al.
   Ct. App. Cal., 2d App. Dist. Certiorari denied.


text:
    No. 75-878.
    Accu-Namics, Inc. v. Usery, Secretary of Labor, et al.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 75-897.
    Enslin v. North Carolina.
   Ct. App. N. C. Certiorari denied.


text:
    No. 75-902.
    Mitchell et al. v. Hongisto, Sheriff.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 75-961.
    Gentile et al. v. United States.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 75-964.
    Seneca-Cayuga Tribe of Oklahoma et al. v. United States.
   Ct. Cl. Certiorari denied.


text:
    No. 75-965.
    Seneca-Cayuga Tribe of Oklahoma et al. v. United States.
   Ct. Cl. Certiorari denied.


text:
    No. 75-982.
    Partin v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 75-984.
    Sears v. Dann, Commissioner of Patents.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 75-1011.
    Sweeton, Chief of Police v. General Corp.
   Sup. Ct. Ala. Certiorari denied.


text:
    No. 75-1086.
    Henican et al. v. Exchange National Bank of Chicago.
   Sup. Ct. La. Certiorari denied.


text:
    No. 75-1095.
    Bankers Life & Casualty Co. v. Palm Beach Biltmore, Inc.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 75-1098.
    Park et al. v. Lansing School District et al.
   Ct. App. Mich. Certiorari denied.


text:
    No. 75-1100.
    S. S. Kresge Co. v. Baez.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 75-1101.
    Melnick et al. v. McClellan.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 75-1113.
    Hahn v. Sargent et al.
   C. A. 1st Cir. Certiorari denied.


text:
    No. 75-1117.
    Mishkin et al. v. New York.
   App. Div., Sup. Ct. N. Y.; 1st Jud. Dept. Certiorari denied.


text:
    No. 75-1129.
    HFH, Ltd., et al. v. Superior Court of Los Angeles County et al.
   Sup. Ct. Cal. Certiorari denied.


text:
    No. 75-5700.
    Gary v. Texas.
   Ct. Crim. App, Tex. Certiorari denied.


text:
    No. 75-5959.
    No. 75-6059.
    Brown v. United States; and Bryant v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 75-6002.
    Alexander v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 75-6004.
    De los Santos v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 75-6006.
    Malloy v. United States.
   C. A. 4th

Cir. Certiorari denied.


text:
    No. 75-6013.
    Crim v. United States.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 75-6020.
    Weems v. Hogan, Warden.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 75-6024.
    Morgan v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 75-6032.
    Goodie v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 75-6034.
    Rose v. United States.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 75-6035.
    Wright, aka Morgan v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 75-6037.
    Evans v. United States.
   C. A. D. C. Cir. Certiorari denied.


text:
    No. 75-6042.
    Beaver v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 75-6039.
    Martinez v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 75-6049.
    Archer v. Government of the Virgin Islands.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 75-6062.
    Willis v. United States.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 75-6068.
    Howard v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 75-6069.
    Ortega (Beltran) v. Government of the Canal Zone.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 75-6070.
    Jorden v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 75-6072.
    Burroughs v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 75-6175.
    Lemon v. Georgia.
   Sup. Ct. Ga. Certiorari denied.


text:
    No. 75-6180.
    Wilson et ux. v. Boggs.
   Ct. App. Cal., 1st App. Dist. Certiorari denied.


text:
    No. 75-6181.
    Nielsen v. Utah.
   Sup. Ct. Utah. Certiorari denied.


text:
    No. 75-6182.
    St. Andre v. Henderson, Warden.
   C. A. 5th-Cir. Certiorari denied.


text:
    No. 75 -6257.
    Bell v. Oklahoma et al.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 75-6197.
    Johnson v. Hy-Dynamic Co., Inc.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 75-527.
    Arnett, Director, Department of Fish and Game of California v. Five Gill Nets et al.
   Ct. App. Cal., 1st App. Dist. Motion of respondent Mattz for leave to proceed in forma pauperis granted. Certiorari denied.


text:
    No. 75-905.
    Senak v. United States.
   C. A. 7th Cir. Certiorari denied.

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


text:
    No. 75-1067.
    Regency Electronics, Inc. v. National Labor Relations Board et al.
   C. A. 7th Cir. Certiorari denied.

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


text:
    No. 75-1127.
    E. J. Delaney Corp. et al. v. Bonne Bell, Inc., et al.
   C. A. 10th Cir. Certiorari denied.

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


text:
    No. 75-1144.
    Hansen, Receiver v. Weyerhaeuser Co.
   C. A. 9th Cir. Certiorari denied.

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


text:
    No. 75-6229.
    Moss v. Central of Georgia Railroad Co.
   Ct. App. Ga. Certiorari denied.

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


text:
    No. 75-862.
    No. 75-930.
    No. 75-5975.
    Ingram v. Georgia, International Brotherhood or Teamsters, Chauffeurs, Warehousemen & Helpers of America et al. v. Eazor Express, Inc., et al., Cozzetti v. Central Telephone Co. et al.,
   424 U. S. 914;

424 U. S. 935; and

424 U. S. 925. Petitions for rehearing denied.


text:
    April 5, 1976
    No. 75-1024.
    Citizens for Parental Rights et al. v. San Mateo County Board of Education et al.
   Appeal from Ct. App. Cal., 1st App. Dist., dismissed for want of substantial federal question.


text:
    No. 75-6328.
    Ogrod v. Ogrod.
   Appeal from Sup. Ct. Pa. dismissed for want of substantial federal question.


text:
    No. 75-1128.
    Phoenix Newspapers, Inc., et al. v. Church.
   Appeal from Ct. App. Ariz. dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for writ of certiolari, certiorari denied.

The Chief Justice and Mr. Justice Blackmun would grant certiorari.


text:
    No. 75-1176.
    Kadans v. State Bar of Nevada.
   Appeal from Sup. Ct. Nev. dismissed for want of jurisdiction.


text:
    No. A-834 (75-1379).
    Meyer v. United States.
   C. A. 5th Cir. Application for stay of execution and enforcement of judgment of conviction entered by the United States District Court for the Northern District of Georgia, presented to Mr. Justice Marshall, and by him referred to the Court, denied.


text:
    No. A-844.
    Parham, Commissioner, Department of Human Resources of Georgia, et al. v. J. L. et al.
   Application for stay of order and judgment of the United States District Court for the Middle District of Georgia, dated February 26, 1976, and March 11, 1976, respectively, presented to Mr. Justice Powell, and by him referred to the Court, granted pending timely filing of appeal and final disposition thereon by this Court.

Mr. Justice Stevens would deny the application.


text:
    No. 74-799.
    United States v. Foster Lumber Co., Inc.
   C. A. 8th Cir. [Restored to calendar, 424 U. S. 903.] Motion of Data Products Corp. for additional time to participate in oral argument as amicus curiae, or in the alternative for the Court to grant certiorari in No. 74-996 [United States v. Data Products Corp.] and set case for oral argument denied.


text:
    No. 74-1520.
    Elrod, Sheriff, et al. v. Burns et al.
   C. A. 7th Cir. [Certiorari granted, 423 U. S. 821.] Motion of Independent Voters of Illinois et al. for additional time to participate in oral argument as amici curiae denied.


text:
    No. 75-76.
    South Dakota v. Opperman.
   Sup. Ct. S. D. [Certiorari granted, 423 U. S. 923.] Motion of Illinois Public Defender Assn, for leave to file a brief as amicus curiae denied.


text:
    No. 75-679.
    Internal Revenue Service v. Fruehauf Corp. et al.
   C. A. 6th Cir. [Certiorari granted, 423 U. S. 1047.] Motion of respondents for oral argument during the current term of Court, or, in the alterna^-tive, to vacate stay of judgment of the United States District Court for the Eastern District of Michigan denied.


text:
    No. 75-1150.
    City of Philadelphia et al. v. New Jersey et al.
   Appeal from Sup. Ct. N. J. Motion of National Solid Wastes Management Assn, for leave to file a brief as amicus curiae granted. Probable jurisdiction noted.


text:
    No. 75-823.
    Belcher v. Stengel et al.
   C. A. 6th Cir. Certiorari granted.


text:
    No. 75-353.
    No. 75-354.
    No. 75-355.
    Piper et al. v. Chris-Craft Industries, Inc.; First Boston Corp. v. Chris-Craft Industries, Inc.; and Bangor Punta Corp. et al. v. Chris-Craft Industries, Inc.
   C. A. 2d Cir. Motion of Securities Industry Assn, for leave to file a brief as amicus curiae in No. 75-354 granted. Certiorari granted. Cases consolidated and a total of one and one-half hours allotted for oral argument. Reported below: 516 F. 2d 172.


text:
    No. 75-915.
    Bounds, Correction Commissioner, et al. v. Smith et al.
   C. A. 4th Cir. Motion of respondents for leave to proceed in forma pauperis and certiorari granted.


text:
    No. 75-1028.
    Scanwell Laboratories, Inc. v. Thomas, Acting Administrator, Federal Aviation Administration, et al.
   C. A. D. C. Cir. Certiorari denied.


text:
    No. 75-773.
    Calley v. Hoffman, Secretary of the Army, et al.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 75-908.
    Shape Spa for Health & Beauty, Inc., et al. v. Rousseve et al.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 75-920.
    McNamara et al. v. Johnston et al.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 75-934.
    Flanagan et al. v. McDonnell Douglas Corp. et al.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 75-939.
    Mescalero Apache Tribe et al. v. United States.
   Ct. Cl. Certiorari denied.


text:
    No. 75-997.
    Melnik et ux. v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 75-1014.
    Arizona Public Service Co. et al. v. Arizona Power Pooling Assn. et al.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 75-1030.
    Worozbyt v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 75-1060.
    Metzger et al. v. New York.
   Ct. App. N. Y. Certiorari denied.


text:
    No. 73-1063.
    Thrift Drug, a Division of J. C. Penney Co., Inc. v. National Labor Relations Board.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 75-1068.
    Lea Associates, Inc. v. United States.
   Ct. Cl. Certiorari denied.


text:
    No. 75-1071.
    Bogatin v. New York.
   App. Div., Sup. Ct. N. Y., 2d Jud. Dept. Certiorari denied.


text:
    No. 75-1076.
    Skydell et al. v. Ecological Science Corp. et al.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 75-1088.
    Corex Corp., dba Quick Corporation of America v. United States.
   C. A. 9th Cir. Certio-rari denied.


text:
    No. 75-1090.
    Redd, dba Abajo Petroleum v. Shell Oil Co. et al.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 75-1123.
    Smith v. Arkansas.
   Sup. Ct. Ark. Certiorari denied.


text:
    No. 75-1125.
    Silverton v. California Adult Authority.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 75-1130.
    Nivens v. Signal Oil & Gas Co., Inc., et al.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 75-1131.
    Chaneyfield v. City of New York et al.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 75-1134.
    USM Corp. v. Schlegel Manufacturing Co.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 75-1137.
    Paciera v. Louisiana.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 75-1143.
    Yee v. Chun et al.
   Sup. Ct. Haw. Certiorari denied.


text:
    No. 75-1147.
    Glazers Wholesale Drug Co., Inc. v. National Labor Relations Board.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 75-1161.
    Cohoes Housing Authority v. Ippolito-Lutz, Inc.
   App. Div., Sup. Ct. N. Y., 3d Jud. Dept. Certiorari denied.


text:
    No. 75-1168.
    Southern Pacific Transportation Co. v. Lueck.
   Sup. Ct. Ariz. Certiorari denied.


text:
    No. 75-1169.
    Gabriel v. Levin et al.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 75-1179.
    Rutland Environmental Protection Assn. et al. v. Kane County et al.
   App. Ct. Ill., 2d Dist. Certiorari denied.


text:
    No. 75-1195.
    Tams-Witmark Music Library, Inc. v. Municipal Court, Sacramento Municipal Court District, County of Sacramento.
   Ct. App. Cal., 3d App. Dist. Certiorari denied.


text:
    No. 75-1196.
    Gilbert v. American Eagle Tanker Corp.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 75-5881.
    Berard v. United States.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 75-5935.
    Berger et al. v. North Dakota.
   Sup. Ct. N. D. Certiorari denied.


text:
    No. 75-5950.
    Richerson v. Wolff, Warden, et al.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 75-6045.
    Bryant v. United States.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 75-6055.
    No. 75-6078.
    Jackson v. United States; and Bradford v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 75-6080.
    Clay v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 75-6081.
    Wells v. Southern Airways, Inc., et al.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 75-6087.
    Tyler v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 75-6090.
    Kinnard v. United States.
   Ct. App. D. C. Certiorari denied.


text:
    No. 75-6091.
    Evans v. United States.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 75-6092.
    Velarde v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 75-6096.
    Gibbons v. United States.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 75-6130.
    Brooks v. Virginia.
   Sup. Ct. Va. Certiorari denied.


text:
    No. 75-6132.
    No. 75-6142.
    Kelley v. United States; and Bryant v. United States.
   C. A. 6th Cir. Certiorari denied. Reported below: 529 F. 2d 527.


text:
    No. 75-6192.
    Williams v. New York et al.
   C. A, 2d Cir. Certiorari denied.


text:
    No. 75-6176.
    Savage v. Salt Lake City.
   Sup. Ct. Utah. Certiorari denied.


text:
    No. 75-6199.
    Rich v. Bonner, Judge, et al.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 75-6201.
    Breaux v. Henderson, Warden.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 75-6203.
    Wicker v. Roth et al.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 75-6208.
    Cameron v. Hopper, Warden.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 75-6213.
    Tyler v. Wyrick, Warden.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 75-6214.
    Gause v. Arizona.
   Sup. Ct. Ariz. Certiorari denied.


text:
    No. 75-6215.
    Dishner et al. v. Moffett et al.
   C. A. D. C. Cir. Certiorari denied.


text:
    No. 75-6219.
    Boone v. Kansas.
   Sup. Ct. Kan. Certiorari denied.


text:
    No. 75-6221.
    Roti v. Florida.
   Sup. Ct. Fla. Cer-tiorari denied.


text:
    No. 75-6226.
    Owens v. Warden, Illinois State Penitentiary.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 75-6228.
    Pogue v. Government Employees Insurance Co.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 75-6232.
    Jones v. Burgwyn.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 75-6233.
    Jones v. Meeks.
   C. A. 4th Cir. Cer-tiorari denied.


text:
    No. 75-6238.
    Torrez v. Arizona.
   Sup. Ct. Ariz. Certiorari denied.


text:
    No. 75-6244.
    Gary v. Arizona.
   Sup. Ct. Ariz. Cer-tiorari denied.


text:
    No. 73 6642.
    Crosby et al. v. Middendorf, Secretary of the Navy.
   C. A. 9th Cir. Certiorari denied.

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


text:
    No. 75-579.
    Esposito v. United States.
   C. A. 7th Cir. Certiorari denied.

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


text:
    No. 75-1203.
    Fitzgerald et al. v. Porter Memorial Hospital et al.
   C. A. 7th Cir. Certiorari denied.

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


text:
    No. 75-1120.
    Witt et al. v. California.
   Ct. App. Cal., 5th App. Dist. Applications for bail, presented to The Chief Justice, and by him referred to the Court, denied. Certiorari denied.


text:
    No. 75-1142.
    Mulligan et al. v. Dunne et al.
   Sup. Ct. Ill. Motion of Illinois Liquor Control Commission for leave to file a brief as amicus curiae granted. Certiorari denied.


text:
    No. 75-6275.
    Olden v. California.
   Ct. App. Cal., 1st App. Dist. Certiorari denied.


text:
    No. 75-5687.
    No. 75-5696.
    No. 75-5828.
    Walker v. United States; Roberson v. United States; and Duncan et al. v. United States.
   C. A. D. C. Cir. Certiorari denied.

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


author: Mr. Justice Brennan,

text:
    No. 75-5688.
    Scott et al. v. United States.
   C. A. D. C. Cir. Certiorari denied.

Mr. Justice Powell would grant certiorari.

Mr. Justice Brennan,

with whom Mr. Justice Marshall concurs,

dissenting.

The Court today again refuses to grant certiorari to consider the proper implementation of the “minimization” requirement of 18 U. S. C. §2518(5), one of the core provisions of Title III of the Omnibus Crime Control and Safe Streets Act of 1968. See, e. g., Bynum v. United States, 423 U. S. 952 (1975) (Brennan, J., dissenting from denial of cert.). The “minimization” provision, which requires that every order and extension thereof authorizing electronic surveillance shall “contain a provision that the authorization to intercept shall be . . . conducted in such a way as to minimize the interception of communications not otherwise subject to interception under this chapter,”

“constitutes the congressionally designed bulwark against conduct of authorized electronic surveillance in a manner that violates the constitutional guidelines announced in Berger v. New York, 388 U. S. 41 (1967), and Katz v. United States, 389 U. S. 347 (1967). Congress has explicitly informed us that the ‘minimization’ and companion safeguards [e. g., §§2518 (3)(a), (b), (c), and (d)] were designed to assure that 'the order will link up specific person, specific offense, and specific place. Together [the provisions of Title III] are intended to meet the test of the Constitution that electronic surveillance techniques be used only under the most precise and discriminate circumstances, which fully comply with the requirement of particularity.’ S. Rep. No. 1097, 90th Cong., 2d Sess., 102 (1968).” Bynum v. United States, supra, at 952.

When the Court denied certiorari in Bynum, I indicated my reasons for believing that “we plainly fail in our judicial responsibility when we do not review these cases to give content to the congressional mandate of ‘minimization,’ ” particularly since guidance for judges authorizing electronic surveillance “is absolutely essential if the congressional mandate to confine execution of authorized surveillances within constitutional and statutory bounds is to be carried out.” Id., at 958-959, 953. That review is no less appropriate now. Indeed, it is even more urgent in light of the proliferation of opinions — exemplified by this case from the Court of Appeals for the District of Columbia Circuit — sanctioning round-the-clock surveillance in which every conversation, whether innocuous or incriminating, is intercepted.

The facts of this case are relatively simple. The Government sought and obtained authorization to intercept wire communications over a certain specified telephone on the ground that there was probable cause to believe that certain named individuals were using that telephone in connection with the commission of narcotics offenses, and that information concerning the offenses would be obtained through the interception of the communications over the telephone. The order authorized the inter ception of conversations relating to the illegal importation and transportation of narcotics and, as required by § 2518 (5), specified that the interception “shall be conducted in such a way as to minimize the interception of communications not otherwise subject to interception under this chapter.”

Although the monitoring agents were aware of the minimization requirement, the agent in charge testified that no attempt was made to minimize the interceptions. In fact, the agents listened to and recorded each and every one of the 384 calls completed over the subject telephone during the 30 days the surveillance was in effect, even though the agents’ contemporaneous reports to the supervising judge classified the intercepted calls as only 40% narcotics-related .and 60% non-narcotics-related. The agents also never informed the judge that they were taking no steps to minimize the amount of surveillance.

After the surveillance was terminated and petitioners and others were arrested, the District Judge conducted pretrial hearings on the question whether all evidence obtained during the surveillance, and the fruits thereof, had to be suppressed on the ground of noncompliance with the minimization mandate of the statute and the explicit provision of the wiretap authorization. The judge, finding that the agents “did not even attempt lip service compliance’ with the provision of the order and statutory mandate but rather completely disregarded it,” 331 F. Supp. 233, 247 (DC 1971), ordered the complete suppression of all evidence obtained directly or indirectly through the surveillance. Id., at 248. On appeal, the Court of Appeals remanded for further consideration in light of another case in which it had adopted a test by which the statutory command of minimization was considered to be satisfied if monitoring agents made good-faith efforts to minimize and if those efforts were reasonable. 164 U. S. App. D. C. 125, 504 F. 2d 194 (1974).

On remand, further hearings were held, and'the District Judge again concluded that “the monitoring agents made no attempt to comply with the minimization order of the Court but listened to and recorded all calls over the [subject’s] telephone. They showed no regard for the right of privacy and did nothing to avoid unnecessary intrusion.” Crim. No. 1088-70, Nov. 12, 1974; App. 14a. The judge again acknowledged the “knowing and purposeful failure to comply with or even attempt to comply with the minimization requirements,” id., at 17a, and held that this “admitted” “conduct would be unreasonable even if every intercepted call were narcotic-related.” Id., at 18a.

On appeal, the Court of Appeals again reversed, concluding that the surveillance was reasonable because, in light of the conversations actually intercepted, it could not identify any categories of calls which could not have been reasonably intercepted even if minimization procedures had been instituted. 170 U. S. App. D. C. 158, 516 F. 2d 751 (1975). The bad faith of the monitoring agents in not instituting any minimization procedures was thus deemed essentially irrelevant: the “agents could publicly declare their intent to disobey the minimization provisions of the wiretap order, and yet it is possible that the ultimate interceptions will be found to have been reasonable.” Id., at 163, 516 F. 2d, at 756.

Rehearing en banc was denied, 173 U. S. App. D. C. 118, 522 F. 2d 1333, with four judges stating why they believed reconsideration by the full court was absolutely essential. Their statement is pertinent as an indication of the necessity for granting certiorari in this case. The dissenters observed, id., at 118-119, 522 F. 2d, at 1333-1334 (Robinson, J., joined by Bazelon, C. J., and Wright and Leventhal, JJ.) (emphasis supplied, footnotes omitted):

"The decision in these cases appears to be seriously inconsistent with our earlier decision in United States v. James, [161 U. S. App. D. C. 88, 494 F. 2d 1007, cert. denied sub nom. Tantillo v. United States, 419 U. S. 1020 (1974)]. Beyond that, the extent to which judicial interpretations of a statute sanctioning telephone wiretaps may tolerate otherwise unconstitutional invasions of privacy is a question of exceptional and recurring importance. For these reasons — -traditional foundations for full-court consideration — I would grant rehearing en banc in these cases.
“The governing statute requires all judicially authorized wiretapping to ‘be conducted in such a way as to minimize the interception of communications not otherwise subject to interception . . . James adopted a construction of this provision which was formulated originally by the Second Circuit. Under the James standard, the duty to minimize is satisfied ‘if “on the whole the [intercepting] agents have shown a high regard for the right of privacy and have done all they reasonably could to avoid unnecessary intrusions.” ’ Thus James demands an inquiry as to the intercepting agent’s subjective intent to minimize the interception of innocent calls, as well as an objective determination that the agent could reasonably have believed that calls actually intercepted were likely to be illicit.
“The instant decision acknowledges this holding in James, but concludes that although the agents’ attitude ‘is a relevant factor to be considered, . . . the decisive factor is the second element — the objective reasonableness of the interceptions.’ The first element is relegated to a far less significant position: ‘[t]he subjective intent of the monitoring agents is not a sound basis for evaluating the legality of the seizure;’ ‘[w]hen the monitoring agents fail to manifest “a high regard for the right of privacy,” the Government will simply have a heavier burden of showing that the interceptions were reasonable.’ Indeed, the court now says that ‘the agents could publicly declare their intent to disobey the minimization provisions of the wiretap order, and yet it is possible that the ultimate interceptions will be found to have been reasonable1.’
“Despite the admitted fact that ‘[throughout these proceedings the Government has conceded that its agents did not minimize the interception of any conversations,’ and the further fact, found by the District Court, that there was a ‘knowing and purposeful failure by the monitoring agents to comply with [its] minimization order,’ the decision herein rejects the District Court’s ruling ‘that the failure to attempt minimization was itself proof that the interceptions were unreasonable.’ The opinion does concede that ‘[t]he presence or absence of a good faith attempt to minimize on the part of the agents is undoubtedly one factor to be considered in assessing whether the minimization requirements [sic] has been satisfied.’ But the court stresses that in the final analysis ‘the decision on . . . suppression . . . must ultimately be based on the reasonableness of the actual interceptions and not on whether the agents subjectively intended to minimize their interceptions.’
“This interpretation effectively destroys the subjective criterion of James’ two-pronged standard for minimization efforts, and fatally undermines the force of the minimization requirement itself. Once the decisive test of the validity of an interception becomes its ‘objective reasonableness,’ there is grave danger that determinations of reasonableness will be dictated by hindsight evaluations of evidence uncovered by wiretaps. This, in turn, is bound to generate a strong temptation to wiretap first and then use the fruits of the interception in an effort to demonstrate that the intrusion was justified. Courts have repeatedly refused to validate searches and seizures in this after-the-fact manner, and any decision which implies that Fourth Amendment safeguards apply less stringently to wiretaps than to other searches deserves close scrutiny by the entire court.
“Moreover, the practical ramifications of this decision are serious. It appears to destroy any incentive for law enforcement agents conducting wiretap surveillances to respect the rights of citizens to privacy in noncriminal telephone conversations in advance of their intrusion. It is evident that when agents endeavor in good faith to honor these rights, innocent conversations are less likely to be intercepted. But when agents completely disregard their obligations to minimize no conversation is likely to escape their ears. That in my view is a result which hardly comports with a statute explicitly requiring minimization. The court as a whole should take a hard look at these cases, and should itself define the extent to which would-be wiretappers must maintain allegiance to the statute and the Fourth Amendment.”

Moreover, in Walker v. United States, ante, p. 917, in which the Court also denies certiorari today, a unanimous panel of the Court of Appeals for the District of Columbia Circuit declared that it would have found a violation of the minimization requirement had the Court of Appeals not denied rehearing en banc in Scott:

“This panel is of the view that § 2518 (5) was violated. However, this court in a case indistinguishable on this point, United States v. Scott . . . held otherwise. Since a suggestion to rehear Scott en banc was pending at the time this case was sub judice, this panel moved the court .to rehear Scott and this case en banc. That motion was denied.... Under the circumstances, on this issue this panel is bound by the decision in Scott.” Memo., Crim. No. 1978-69, Oct. 3, 1975, p. 1; Pet. for Cert. 2a.

In light of the general importance of the minimization provision in the conduct of electronic surveillance and the conflict between the holding in Scott and other formulations of the minimization requirement, and especially in light of the Scott opinion’s denigration of the importance of the monitoring agents’ good-faith attempt to comply with the statute and its retroactive validation of a Fourth Amendment search on the basis of what was uncovered by the search, there is simply no justification for failing to grant the writ of certiorari in this case. The minimization issue is not clouded by other factors, and given the District Judge’s findings of total noncompliance with the statutory command, only an unyielding hostility to the statutory command of minimization and to the constitutional interest in privacy which it was fashioned to protect, can motivate the Court to continue to refuse to review decisions which condone round-the-clock interception of every conversation that transpires during the conduct of a particular surveillance. No concern with crowded dockets, at a time when we review a not insubstantial number of trivial cases, can excuse the failure to address this crucial issue of statutory construction, fraught as it is with substantial constitutional overtones.

This refusal is not only inexcusable, but also especially anomalous in light of related actions by this Court in the electronic surveillance area. In United States v. Kahn, 415 U. S. 143 (1974), the Court, addressing the question of who must be named in an application and order authorizing surveillance, held:

“Title III requires the naming of a person in the application or interception order only when the law enforcement authorities have probable cause to believe that the individual is ‘committing the offense’ for which the wiretap is sought.” Id., at 155.

In response to the argument of the Court of Appeals and the dissent, see id., at 158-163 (Douglas, J., joined by Brennan and Marshall, JJ.), that such a conclusion would amount to approval of a general warrant proscribed by both Title III and the Fourth Amendment, the Kahn Court relied on the minimization mandate as an adequate safeguard to prevent such unlimited invasions of personal privacy, id., at 154-155:

“[I]n accord with the statute the order required the agents to execute the warrant in such a manner as to minimize the interception of any innocent conversations. . . . Thus, the failure of the order to specify that Mrs. Kahn’s conversations might be the subject of interception hardly left the executing agents free to seize at will every communication that came over the wire — and there is no indication that such abuses took place in this case.”

Yet the Court has consistently refused, and today persists in that refusal, to confront a case presenting the minimization question and the abuse that emanates from the seizure of “every communication that came over the wire.” Indeed, the refusal is even more troubling since certiorari has been granted in United States v. Donovan, 424 U. S. 907 (1976), a case in which the Solicitor General requests that we dilute even further the standard enunciated in Kahn for naming the subjects of proposed surveillance. I fail to comprehend how, in light of the above passage from Kahn, the Court can undertake that analysis without concomitantly addressing the contours of the minimization requirement. Inaction can only continue evisceration of the statutory mandate and require that Congress take a further and clearly unnecessary step of enacting more legislation, to give concrete content to § 2518 (5).

I would grant the petition for certiorari.


text:
    No. 75-652.
    No. 75-731.
    No. 75-822.
    No. 75-5366.
    No. 75-5747.
    No. 75-5834.
    No. 75-5902.
    No. 75-6056.
    No. 75-6098.
    No. 75-6107.
    Caterine v. United States, Sun Oil Co. et al. v. Public Service Commission of New York et al., Thompson v. Kenton County Board of Election Commission et al., Fisher v. District Court of the Sixteenth Judicial District of Montana, in and for the County of Rosebud, Zimmerman v. United States et al., Harmon v. Hodge, Reed v. United States, Bonner v. Circuit Court of the City of St. Louis et al., Jackson v. Court of Appeal of California, Second Appellate District, Johnson v. Department of Water & Power et al.,
   424 U. S. 909;

424 U. S. 910;

423 U. S. 1083;

424 U. S. 382;

424 U. S. 918;

423 U. S. 1090;

424 U. S. 956;

424 U. S. 946;

424 U. S. 957; and

424 U. S. 927. Petitions for rehearing denied.


text:
    No. 75-866.
    No. 75-887.
    M. J. D. M. Truck Rentals, Inc., et al. v. O’Brien; and Anastos et al. v. M. J. D. M. Truck Rentals, Inc., et al.,
   424 U. S. 928. Petition for rehearing denied.

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


text:
    April 15, 1976
    No. 75-6110.
    Vigil v. United States.
   C. A. 10th Cir. Certiorari dismissed under this Court’s Rule 60.


text:
    April 16, 1976
    No. A-911 (75-1493).
    Moore, Governor of West Virginia v. McCartney, Secretary of West Virginia, et al.
   Application for stay of judgment of the Supreme Court of Appeals of West Virginia, presented to The Chief Justice, and by him referred to the Court, denied.


text:
    April 19, 1976
    No. 74-5887.
    Maxwell et al. v. Hixson, Clerk, Hamilton County General Sessions Court, et al.
   Affirmed on appeal from D. C. E. D. Tenn.


text:
    No. 75-870.
    Ford Motor Co. v. Coleman, Secretary of Transportation, et al.
   Affirmed on appeal from D. C. D. C.

Mr. Justice Stewart, Mr. Justice Powell, and Mr. Justice Stevens would note probable jurisdiction and set case for oral argument.


text:
    No. 75-6330.
    Workmen et al. v. Duke Power Co. et al.
   Affirmed on appeal from D. C. W. D. N. C.

Mr. Justice Brennan took no part in the consideration or decision of this case.


text:
      No. 75-1118.
    Benschoter v. First National Bank of Lawrence et al.
   Appeal from Sup. Ct. Kan. dismissed for want of substantial federal question.


text:
    No. 75-1163.
    Shade v. Public Utilities Commission of California et al.
   Appeal from Sup. Ct. Cal. dismissed for want of jurisdiction.

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


text:
    No. 75-1210.
    Quarles, Trustee v. Goodson et al.
   Appeal from Ct. Civ. App. Tex., 14th Sup. Jud. Dist., dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for writ of certiorari, certiorari denied.


text:
    No. 75-1212.
    Gostout v. Hale.
   Appeal from C. A. 2d Cir. dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for writ of certiorari, certiorari denied.


text:
    No. 75-6159.
    Masterson v. Ohio.
   Appeal from Ct. App. Ohio, Mahoning 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. 75-6323.
    Johnsrud v. Minnesota Department of Employment Services.
   Appeal from Sup. Ct. Minn, dismissed for want of substantial federal question.


text:
    No. 75-6169.
    Lovelace v. Tennessee.
   Appeal from Sup. Ct. Term, dismissed for want of substantial federal question.


text:
    No. 74-1622.
    Kirwan, Superintendent, New York State Police v. Romano.
   Appeal from D. C. W. D. N. Y. Judgment vacated and case remanded for further consideration in light of Kelley v. Johnson, ante, p. 238.

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


text:
    No. 75-1158.
    National Socialist White People’s Party et al. v. Walsh et al.
   Appeal from D. C. Conn. Judgment vacated and case remanded with directions to enter a fresh decree from which a timely appeal may be taken to the United States Court of Appeals for the Second Circuit. Butler v. Dexter, ante, p. 262.


text:
    No. 75-1194.
    Shouse et al. v. Pierce County et al.
   Appeal from D. C. W. D. Wash. Judgment vacated and case remanded with directions to enter a fresh decree from which a timely appeal may be taken to the United States Court of Appeals for the Ninth Circuit. Gonzalez v. Automatic Employees Credit Union, 419 U. S. 90 (1974).


text:
    No. 75-1065.
    John Nuveen & Co., Inc., et al. v. Sanders.
   C. A. 7th Cir. Motions of Securities Industry Assn, and Lehman Commercial Paper, Inc., for leave to file briefs as amici curiae granted. Certiorari granted, judgment vacated, and case remanded for further consideration in light of Ernst & Ernst v. Hochfelder, ante, p. 185.

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


text:
    No. A-838 (75-1421).
    Gulf States Utilities Co. v. Federal Power Commission et al.
   Application for stay of judgment of the United States Court of Appeals for the District of Columbia Circuit pending final disposition of the petition for writ of certiorari, presented to Mr. Justice Powell, and by him referred to the Court, denied.


text:
    No. A-862.
    Standard Oil Company of California v. Florida ex rel. Shevin, Attorney General of Florida.
   Application for stay of mandate of the United States Court of Appeals for the Fifth Circuit pending timely filing and disposition of a petition for writ of cer-tiorari, presented to Mr. Justice Powell, and by him referred to the Court, denied.


text:
    No. A-876.
    Thompson v. Rumsfeld, Secretary of Defense, et al.
   Application for stay of judgment of the United States District Court for the Northern District of Texas and for an injunction pending final disposition of appeal by the United States Court of Appeals for the Fifth Circuit, presented to Mr. Justice Marshall, and by him referred to the Court, denied.


text:
    No. A-892 (75-1447).
    Berger, Commissioner, Department of Social Services of New York v. Aitchison.
   Application for stay of judgment of the United States Court of Appeals for the Second Circuit pending final disposition of the petition for writ of certiorari, presented to Mr. Justice Marshall, and by him referred to the Court, denied.


text:
    No. A-867.
    Halverson v. United States.
   Application for bail and stay of judgment of the United States Court of Appeals for the Ninth Circuit pending timely filing and disposition of petition for writ of certiorari, presented to Mr. Justice Marshall, and by him referred to the Court, denied.


text:
    No. A-895.
    Kansas v. McCorgary.
   Application for stay of mandate of the Supreme Court of Kansas pending timely filing and disposition of petition for writ of certiorari, presented to Mr. Justice White, and by him referred to the Court, denied.


text:
    No. 54,
    Orig.
    United States v. Florida et al.
    [For earlier orders herein, see, e. g., 423 U. S. 1011.]
   Report of Special Master on motion of defendants for leave to file counterclaim received and ordered filed. Exceptions, if any, with supporting briefs to Report may be filed by the parties within 45 days. Reply briefs, if any, to such exceptions may be filed within 30 days.


text:
    No. 64,
    Orig.
    New Hampshire v. Maine.
    [For earlier orders herein, see, e. g., 424 U. S. 903.]
   Motion of New Hampshire Commercial Fishermen’s Assn, for leave to participate in oral argument as amicus curiae denied.


text:
    No. 74-1560.
    No. 75-5387.
    United States v. Martinez-Fuerte et al. Sifuentes v. United States.
   C. A. 9th Cir. [Certiorari granted, 423 U. S. 822]; and

C. A. 5th Cir. [Certiorari granted, 423 U. S. 945.] Motion of the Solicitor General to consolidate these cases for oral argument granted and a total of 80 minutes allotted for that purpose. Counsel for petitioner in No. 75-5387 will open the argument and 20 minutes allotted for that purpose. The Solicitor General is allotted 40 minutes for oral argument and counsel for respondent in No. 74-1560 allotted 20 minutes for oral argument.


text:
    No. 74-6632.
    Moody v. Daggett, Warden.
   C. A. 10th Cir. [Certiorari granted, 424 U. S. 942.] Motion of petitioner for appointment of counsel granted, and it is ordered that Phylis Skloot Bamberger, of New York, N. Y., is appointed to serve as counsel for petitioner in this case.


text:
    No. 75-552.
    No. 75-561.
    Kleppe, Secretary of the Interior, et al. v. Sierra Club et al.; and American Electric Power System et al. v. Sierra Club et al.
   C. A. D. C. Cir. [Certiorari granted, 423 U. S. 1047.] Motion of John D. Dingell, Esquire, for leave to file a brief as amicus curiae denied.


text:
    No. 75-777.
    National Labor Relations Board v. Enterprise Association of Steam, Hot Water, Hydraulic Sprinkler, Pneumatic Tube, Ice Machine & General Pipefitters of New York and Vicinity, Local Union No. 638.
   C. A. D. C. Cir. [Certiorari granted, 424 U. S. 908.] Motion of Public Service Electric & Gas Co. et al, for leave to file a brief as amici curiae granted.


text:
    No. 75-929.
    Estelle, Corrections Director, et al. v. Gamble.
   C. A. 5th Cir. [Certiorari granted, 424 U. S. 907.] Motion of respondent for leave to proceed further herein in forma pauperis granted. Motion for appointment of counsel granted, and it is ordered that Daniel K. Hedges, Esquire, of Houston, Tex., is appointed to serve as counsel for respondent in this case.


text:
    No. 75-1470.
    Udall et al. v. Bowen, Governor of Indiana, et al.
   Appeal from D. C. S. D. Ind. Motion to expedite consideration of appeal denied.


text:
    No. 75-6445.
    No. 75-6448.
    No. 75-6469.
    Goldbach v. McCarthy, Men’s Colony Superintendent; Fletcher v. Sweet, Judge; and Lewis v. White, Training Center Superintendent.
   Motions for leave to file petitions for writs of habeas corpus denied.


text:
    No. 75-6220.
    Perry v. United States.
   Motion for leave to file petition for writ of mandamus denied.


text:
    No. 75-978.
    E. I. du Pont de Nemours & Co. et al. v. Train, Administrator, Environmental Protection Agency, et al.
   C. A. 4th Cir. Certiorari granted.


text:
    No. 75-1278.
    Mt. Healthy City School District Board of Education v. Doyle.
   C. A. 6th Cir. Cer-tiorari granted.


text:
    No. 75-1053.
    Jones, Director, Department of Weights and Measures, Riverside County v. Rath Packing Co. et al.; and Jones, Director, Department of Weights and Measures, Riverside County v. General Mills, Inc., et al.
   Motion of California District Attorneys Assn, for leave to file a brief as amicus curiae granted. Application for recall and stay of mandates and. stay of enforcement of judgments of the United States Court of Appeals for the Ninth Circuit, presented to Mr. Justice Rehnquist, and by him referred to the Court, denied. Certiorari granted. The Solicitor General is invited to file a brief in this case expressing the views of the United States.


text:
    No. 75-774.
    No. 75-787.
    Big Rivers Electric Corp. et al. v. Environmental Protection Agency et al.; and Tennessee Valley Authority v. Environmental Protection Agency et al.
   C. A. 6th Cir. Certiorari denied. Reported below: 523 F. 2d 16.


text:
    No. 75-808.
    Natelli v. United States.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 75-950.
    California v. Harris.
   Sup. Ct. Cal. Certiorari denied.


text:
    No. 75-957.
    Evans et al. v. Fromme et al.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 75-973.
    No. 75-1220.
    United Transportation Union Lodge No. 550 et al. v. Rock et al.; and Norfolk & Western Railway Co. v. Rock et al.
   C. A. 4th Cir. Certiorari denied. Reported below: 532 F. 2d 336.


text:
    No. 75-977.
    Accuracy in Media, Inc. v. Federal Communications Commission et al.
   C. A. D. C. Cir. Certiorari denied.


text:
    No. 75-989.
    Ruyle et al. v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 75-1023.
    No. 75-1054.
    Board of Education of the City School District of Cincinnati et al. v. Bronson et al.; and Ohio State Board of Education et al. v. Bronson et al.
   C. A. 6th Cir. Certiorari denied. Reported below: 525 F. 2d 344.


text:
    No. 75-1029.
    Kennecott Copper Corp. v. Train, Administrator, Environmental Protection Agency.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 75-1041.
    Mt. Sinai Hospital of Greater Miami, Inc. v. Mathews, Secretary of Health, Education, and Welfare, et al.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 75-1048.
    Chevoor v. United States.
   C. A. 1st Cir. Certiorari denied.


text:
    No. 75-1062.
    Gigliotti v. United States.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 75-1070.
    Hay v. United States.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 75-1072.
    Blanton v. United States.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 75-1074.
    Pickette v. United States.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 75-1081.
    No. 75-1087.
    American Tobacco Co. v. Russell et al.; and Tobacco Workers International Union, AFL-CIO, Local 192 v. Russell et al.
   C. A. 4th Cir. Certiorari denied. Reported below: 528 F. 2d 357.


text:
    No. 75-1091.
    No. 75-6118.
    No. 75-6136.
    Rowell v. United States; Mathewson v. United States; and Killian v. United States.
   C. A. 5th Cir. Certiorari denied. Reported below: 524 F. 2d 1268.


text:
    No. 75-1102.
    Bowen, dba Suburbia News Delivery Service, et al. v. New York News, Inc., et al.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 75-1103.
    Local Union No. 2-477, Oil, Chemical & Atomic Workers International Union v. Continental Oil Co.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 75-1110.
    Buffa v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 75-1121.
    United States Lines, Inc. v. Shellman.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 75-1156.
    Danning, Trustee, et al. v. Loeffler, Trustee.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 75-1160.
    D’Angelo, President, Louisiana Board of Pharmacy, et al. v. Webb et al.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 75-1171.
    LaSalle National Bank, Trustee v. County Board of School Trustees of DuPage County et al.
   Sup. Ct. Ill. Certiorari denied.


text:
    No. 75-1173.
    Gatto, Administrator v. Calumet Flexicore Corp. et al.
   Sup. Ct. Ill. Certiorari denied.


text:
    No. 75-1178.
    Indelicato v. New York State Board of Parole.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 75-1202.
    A. L. v. G. R. H.
   Ct. App. Ind. Certiorari denied.


text:
    No. 75-1180.
    Division of Vocational Rehabilitation, Department of Health and Rehabilitative Services of Florida, et al. v. Thomas et al.
   Sup. Ct. Fla. Certiorari denied.


text:
    No. 75-1191.
    DeGuiseppe v. Board of Fire and Police Commissioners of the Village of Bellwood et al.
   App. Ct. Ill,, 1st Dist. Certiorari denied.


text:
    No. 75-1205.
    Agger, Trustee in Bankruptcy v. Seaboard Allied Milling Corp. et al.
   C. A. 1st Cir. Certiorari denied.


text:
    No. 75-1206.
    Weiner et al. v. Lucas, U. S. District Judge, et al.
   C. A. 9th Cir. Certiorari denied.