text:
    HECKLER, SECRETARY OF HEALTH AND HUMAN SERVICES v. REDBUD HOSPITAL DISTRICT
    No. A-32.
    Decided July 24, 1985
   Justice Rehnquist, Circuit Justice.

Applicant, the Secretary of Health and Human Services (Secretary), asks that I stay an order entered by the United States District Court for the Northern District of California pending disposition of her appeal to the Court of Appeals for the Ninth Circuit. This suit began as a challenge by the operator of a single hospital, Redbud Hospital District (Red-bud), to its Medicare reimbursement rate. In addition to affording Redbud itself preliminary relief, the District Court, in a “preliminary injunction” dated July 30, 1984, and a “modification” of that injunction dated June 14, 1985, required the Secretary to promulgate, by July 1, 1985, nationwide regulations providing hospitals like Redbud with rights to immediate administrative review and enhanced reimbursement for inpatient services. On June 28, 1985, a two-judge panel of the Ninth Circuit denied the Secretary’s request for an emergency stay. On July 1, 1985, the Secretary published the regulations in question “under protest.” 50 Fed. Reg. 27208, to be codified in 42 CFR § 412. Absent a stay, these regulations will go into effect on August 1, 1985. After considering both the Secretary’s application and Red-bud’s response, I have decided to grant in part and deny in part the Secretary’s request for a stay.

Section 1886(d) of the Social Security Act, added by the Social Security Amendments Act of 1983, Pub. L. 98-21,97 Stat. 152, 42 U. S. C. §1395ww(d) (1982 ed., Supp. I), established a prospective payment system (PPS) for Medicare payment to hospitals furnishing inpatient services to Medicare beneficiaries. Under this system, payment is made at a predetermined rate for each hospital discharge. The rate is based in part on a “hospital specific” rate, which in turn is based on the hospital’s actual operating costs during a particular “base year.” See 42 U. S. C. § 1395ww(d)(l) (1982 ed., Supp. I). The Secretary has delegated to “fiscal intermediaries” the responsibility for calculating the hospital-specific rate for each of the hospitals participating in the Medicare program.

Redbud, the operator of a sole community hospital in Cleardale, California, brought this suit against the Secretary on June 26, 1984, challenging the fiscal intermediary’s determination of Redbud’s hospital-specific rate. Redbud alleged that it would suffer losses of approximately $20,000 per month unless its hospital-specific rate were adjusted to reflect recent capital improvements completed after the close of its base year. In its prayer for relief, Redbud requested (1) a declaratory judgment that the Secretary must allow the intermediary to adjust Redbud’s hospital-specific rate to account for costs not reflected in the base year, (2) a preliminary and permanent injunction barring the Secretary “from implementing Medicare reimbursement to Redbud under PPS unless such reimbursement accounts for” those costs, and (3) an order requiring the Secretary “to instruct the intermediary to account for [those] costs.” Redbud did not seek the promulgation of nationwide regulations.

The Secretary moved to dismiss the complaint on the ground that Redbud had not obtained a final agency determination properly subject to either administrative or judicial review, and that the court therefore had no jurisdiction over Redbud’s claim. Apparently in response to this motion, Redbud then requested a hearing before the Provider Reimbursement Review Board (Board) to review the intermediary’s refusal to make the requested adjustments to Redbud’s hospital-specific rate. On July 17, 1984, the Board sent a response stating that, pursuant to a ruling of the Health Care Financing Administration, 49 Fed. Reg. 22413 (1984), it was “unable to accept” Redbud’s request for a hearing because that request was premature. On July 30, 1984, the District Court denied the Secretary’s motion to dismiss, holding that it had “jurisdiction under 42 U. S. C. § 1395oo to review the Board’s decision of July 17, 1984.” The District Court went on to state that it “also has jurisdiction under the All Writs Act to issue an injunction maintaining the status quo in this case pending agency action. ” Relying on these jurisdictional findings, the District Court then entered a “preliminary injunction” that “remanded” the case to the Secretary with instructions to promulgate “regulations or written policies” that (a) “take into account” the “extraordinary and unusual costs not necessarily reflected in a hospital’s base year costs”; (b) “take into account the special needs of hospitals serving a disproportionate number of Medicare and low-income patients”; (c) “take into account . . . the special needs of sole community hospitals and the unique effects of their status upon the hospital-specific rate”; and (d) “provide for timely and reasonable review” of intermediary estimates of hospital-specific rates under the PPS program. As to Redbud itself, the District Court ordered Redbud’s intermediary to “reconsider” its estimate of Redbud’s hospital-specific rate

“in light of regulations promulgated in accordance with the foregoing.
“Pending compliance with this order and until further order of the court, defendant is enjoined from imposing the pre-payment system upon [Redbud] or otherwise reducing [RedbudJ’s current level of reimbursement.”

No date was set for compliance with the “preliminary injunction.”

In the spring of 1985, the parties filed a number of motions in the District Court, all of which were heard on May 20, 1985. Redbud asked, inter alia, that the court modify the “preliminary injunction” by requiring the Secretary to publish, by July 1, 1985, the “regulations or written policies” described in the court’s original order. The Secretary moved to dissolve the injunction, renewing her argument that the District Court lacked jurisdiction.

At the May 20 hearing, the District Court stated that it would grant Redbud’s motion “to modify the preliminary injunction.” On June 14, 1985, the District Court entered an order stating that “[t]he following paragraph will be added to this court’s July 1984 order:

“The Secretary shall publish these implementing regulations in the Federal Register as an interim final rule by no later than July 1, 1985, effective August 1, 1985. A 45-day comment period shall follow publication of the interim final rule. The regulations shall be published in the Federal Register as a final rule no later than October 1, 1985.”

The obligation of a Circuit Justice in considering the usual stay application is “to determine whether four Justices would vote to grant certiorari, to balance the so-called ‘stay equities,’ and to give some consideration as to predicting the final outcome of the case in this Court.” Gregory-Portland Independent School District v. United States, 448 U. S. 1342 (1980) (Rehnquist, J., in chambers). In this case, however, the Secretary is not asking for the usual stay of a judgment of the Court of Appeals pending the disposition of a petition for certiorari in this Court. She asks instead that I grant a stay of the District Court’s order pending appeal to the Ninth Circuit when the Ninth Circuit itself has refused to issue the stay. As is often noted, “‘a stay application to a Circuit Justice on a matter before a court of appeals is rarely granted.’” Atiyeh v. Capps, 449 U. S. 1312, 1313 (1981) (Rehnquist, J., in chambers) (quoting Pasadena Board of Education v. Spangler, 423 U. S. 1335, 1336 (1975) (Rehnquist, J., in chambers)). Nevertheless, for the reasons set out below, I believe that the present case is sufficiently unusual to warrant granting a partial stay of the District Court’s order.

In arguing for a stay, the Secretary contends that there is a “strong probability” that the District Court’s order will be overturned on one of three distinct grounds. First, she claims that the District Court exceeded its jurisdiction in reaching the merits of Redbud’s claim for additional reimbursement. Even if the Board’s July 17, 1984, ruling that Redbud’s administrative claim was premature is a judicially reviewable final decision under 42 U. S. C. § 1395oo(f) (1982 ed., Supp. I), the scope of the District Court’s review was limited to the Board’s own jurisdictional determination. Second, the Secretary argues that the District Court’s use of a “preliminary injunction” to compel “publication of nationwide regulations is unprecedented, unwarranted, and a clear abuse of the court’s power to fashion preliminary relief.” And third, the Secretary asserts that in deeming the regulations in question mandated by Congress the District Court “clearly misconstrued” the relevant provisions of the Medicare statute.

However the Ninth Circuit may decide these questions on appeal, I am not at all certain that four Members of this Court would be inclined to review either the “finality” of the Board’s July 17, 1984, ruling or the District Court’s conclusions on the merits. I do believe, however, that the District Court’s use of a “preliminary injunction” to require the Secretary to issue regulations of nationwide application would prompt at least four Members of this Court to grant review should the Court of Appeals affirm that aspect of the District Court’s order.

Federal district courts have jurisdiction under 42 U. S. C. § 1395oo(f) (1982 ed., Supp. I) to review “any final decision of the Board” in suits brought by providers of Medicare services such as Redbud. Judicial review under § 1395oo(f) is sharply circumscribed, however, see, e. g., V. N. A. of Greater Tift County, Inc. v. Heckler, 711 F. 2d 1020, 1024-1027 (CA11 1983), and I am persuaded that the section does not authorize the kind of sweeping “preliminary” relief awarded by the District Court here. Nor do I believe that such relief is authorized, as the District Court thought, by the All Writs Act, 28 U. S. C. § 1651(a), which encompasses a limited judicial power to preserve the status quo while administrative proceedings are in progress and to prevent impairment of the effective exercise of appellate jurisdiction. See FTC v. Dean Foods Co., 384 U. S. 597, 603-604 (1966). The District Court’s requirement that the Secretary promulgate new nationwide regulations cannot possibly be justified as necessary to preserve the status quo. Redbud’s interest in maintaining the status quo is protected by that part of the District Court’s order, which I do not stay, that enjoins the Secretary from applying the prospective payment system to Redbud or “otherwise reducing [Redbud]’s current level of reimbursement” without making the requested adjustments. In its complaint Redbud did not even seek regulatory reform. Nor can I view the regulations as in any way necessary to the effective exercise of appellate jurisdiction. The District Court’s July 30, 1984, and June 14, 1985, orders, in combination, are a far cry from “the usual ‘prohibitory’ injunction which merely freezes the positions of the parties until the court can hear the case on the merits.” Heckler v. Lopez, 463 U. S. 1328, 1333 (1983) (Rehnquist, J., in chambers). Plainly, I think, the District Court has inappropriately used its “preliminary injunction” as a vehicle for final relief on the merits. University of Texas v. Camenisch, 451 U. S. 390, 395 (1981).

The new regulations will at least require significant readjustment in the administration of PPS and will therefore cause hardship to the applicant. More important, the District Court’s requirement that the Secretary promulgate new regulations is plainly not necessary to protect Redbud’s interests in this litigation. I think the “stay equities” favor the applicant.

Accordingly, I grant the application of the Secretary to stay the preliminary injunction of the District Court, as modified, pending determination of the Secretary’s appeal by the Court of Appeals for the Ninth Circuit, but only insofar as the injunction orders the Secretary to promulgate and apply nationwide regulations. In all other respects the application for a stay is denied.


source: Caselaw Access Project

author: Justice Rehnquist, Circuit Justice.

license: Public Domain

text:
    CITY OF RIVERSIDE et al. v. RIVERA et al.
    No. A-122.
    Decided August 28, 1985
   Justice Rehnquist, Circuit Justice.

Applicants, the city of Riverside and five of its current or former police officers, ask that I stay pending disposition of their petition for certiorari the mandate of the Court of Appeals for the Ninth Circuit requiring applicants to pay respondents $245,456.25 in attorney’s fees. The attorney’s fees were awarded by the District Court pursuant to 42 U. S. C. §1988, following a trial in which respondents recovered from applicants a total of $33,350 in damages. This case seems to me to present a significant question involving the construction of § 1988: should a court, in determining the amount of “a reasonable attorney’s fee” under the statute, consider the amount of monetary damages recovered in the underlying action? On August 15, 1985, I temporarily stayed the Ninth Circuit’s mandate in order to permit further study of the stay application, the response thereto, and the petition for certiorari. Having fully considered the parties’ submissions, I now grant the requested stay.

On August 1,1975, respondents were attending a large private party in the Latino section of Riverside when numerous police officers entered, forcibly broke up the party, and arrested many of the guests, including four of the respondents. The four respondents who were arrested were later prosecuted, but the charges were dismissed for lack of probable cause. Respondents, in turn, filed suit against the city of Riverside, its Chief of Police, and 30 police officers, alleging violations of the First, Fourth, Fifth, and Fourteenth Amendments to the United States Constitution, violations of 42 U. S. C. §§ 1981, 1983, 1985(3), and 1986, and pendent state claims for conspiracy, emotional distress, assault and battery, bodily injury, property damage, breaking and entering a residence, malicious prosecution, defamation, false arrest and imprisonment, and negligence. Respondents sought compensatory and punitive damages, injunctive and declaratory relief, and attorney’s fees.

Prior to trial, respondents dropped their requests for in-junctive and declaratory relief, along "with their original allegation that the police officers had acted with discriminatory intent. Also prior to trial, 17 of the individual defendants were dismissed on motions for summary judgment. After a 9-day trial, the jury returned a verdict exonerating another 9 of the individual defendants from liability, and awarding $33,350 to respondents based on 11 violations of § 1983, 4 instances of false arrest and imprisonment, and 22 instances of common negligence. Respondents did not prevail on any of their remaining theories of liability, no restraining orders or injunctions were ever issued against any of the defendants, and the city of Riverside was not compelled to, and did not, change any of its practices or policies as a result of the suit.

Respondents filed a post-trial motion for attorney’s fees pursuant to §1988. Following the submission of affidavits documenting the hours spent on the case by counsel for respondents, the District Court awarded respondents $245,456.25 in attorney’s fees. Applicants appealed the award, and the Court of Appeals affirmed. Rivera v. City of Riverside, 679 F. 2d 795 (1982). We granted certiorari, vacated the judgment, and remanded the case for further consideration in light of our then recent decision in Hensley v. Eckerhart, 461 U. S. 424 (1983). City of Riverside v. Rivera, 461 U. S. 952 (1983). On remand, and after a brief hearing, the District Court again awarded respondents $245,456.25 in attorney’s fees, and the Court of Appeals again affirmed, this time in an unpublished opinion. The Court of Appeals also denied applicants’ motion for a stay pending the disposition by this Court of a petition for certiorari.

At each stage of the proceedings in this case, applicants have challenged the attorney’s fee award on the ground that it is disproportionately large in comparison to the amount of the monetary judgment recovered. In the District Court, in opposition to respondents’ initial request for nearly $500,000 in attorney’s fees, applicants cited Scott v. Bradley, 455 F. Supp. 672 (ED Va. 1978), for the contention that “there is no reason to provide an economic windfall to Plaintiffs’ counsel by awarding them sixteen times the award received by Plaintiffs in the instant action.” App. to Pet. for Cert. 10-21. The opinion of the Court of Appeals on the first appeal states that “[a]ppellants urge this court to reduce the amount awarded . . . because the attorney’s fees were disproportionately larger than the jury verdict.” Rivera v. City of Riverside, 679 F. 2d, at 797. The Court of Appeals rejected the disproportionality argument, however, holding that “[t]he extent to which a plaintiff has ‘prevailed’ is not necessarily reflected in the amount of the jury verdict.” Id., at 798. Applicants in their petition for certiorari to this Court have framed the more general question of “the proper standards within which a district court may exercise its discretion in awarding attorney’s fees to prevailing parties under § 1988,” but although such a formulation is not a model of specificity, it does “fairly subsume,” inter alia, the disproportionality issue.

There is also presently pending before this Court a petition for certiorari in the case of City of McKeesport v. Cunningham, No. 84-1793, which raises the same issue as to dis-proportionality between the amount of a money judgment recovered and the size of the attorney’s fee award under § 1988. In that case the District Court entered judgment for the plaintiff in the amount of $17,000 as damages for the taking of property without due process of law, and 'plaintiff then moved for an award of some $35,000 in attorney’s fees and costs based on time spent on the case. The District Court, after review of the relevant materials, reduced the amount of the requested award because, among other things, the plaintiff’s lawsuit created no new law and was unlikely to benefit anyone but the plaintiff. On appeal, the Court of Appeals for the Third Circuit reversed, holding that the District Court was wrong in applying what the Court of Appeals characterized as a “negative multiplier” based on the low value of the lawsuit to the general public. Cunningham v. City of McKeesport, 753 F. 2d 262, 268-269 (1985). The Court of Appeals directed that the plaintiffs recover the full amount of attorney’s fees claimed.

In my view, the question of the proportionality of § 1988 attorney’s fees to the amount of the monetary judgment awarded, a question which seems to me to be presented by each of these cases, is likely to command the votes of four Members of the Court to grant certiorari in one of the cases and to postpone consideration of the certiorari petition in the other pending plenary review of the first. I also think, for the reasons hereafter stated, that the probability of applicants’ succeeding on the merits is substantial. As we have previously acknowledged, §1988 was enacted “to ensure ‘effective access to the judicial process’ for persons with civil rights grievances.” Hensley, supra, at 429 (quoting H. R. Rep. No. 94-1558, p. 1 (1976)). At the same time, the statute authorizes only the award of “reasonable” attorney’s fees, reflecting Congress’ intent that such fees be “adequate to attract competent counsel,” yet not so large as to “produce windfalls to attorneys.” S. Rep. No. 94-1011, p. 6 (1976); see also H. R. Rep. No. 94-1558, supra, at 9. I think the award of attorney’s fees in this case, representing more than seven times the amount of the monetary judgment obtained, is so disproportionately large that it could hardly be described as “reasonable.”

The question of what is a “reasonable” attorney’s fee involves substantial elements of judgment and discretion in the district court, but Congress has provided the courts with some guidelines for the exercise of this judgment and discretion. The Senate and House Reports accompanying § 1988 refer the courts to the 12 factors identified in Johnson v. Georgia Highway Express, Inc., 488 P. 2d 714 (CA5 1974). Those factors include “the amount involved and the results obtained.” Hensley, supra, at 430, n. 3. Perhaps more important, the House Committee on the Judiciary, in citing Johnson, chose to highlight the following five factors: “the time and labor required, the novelty and difficulty of the questions involved, the skill needed to present the case, the customary fee for similar work, and the amount received in damages, if any.” H. R. Rep. No. 94-1558, supra, at 8 (emphasis supplied).

Despite this seemingly clear statement of legislative intent, however, other Courts of Appeals in addition to the Ninth Circuit have held not only that the amount of damages received is not a mandatory consideration in awarding attorney’s fees under § 1988, but that it is not even a permissible one. For example, in DiFilippo v. Morizio, 759 F. 2d 231 (1985), the Second Circuit held: “We believe a reduction made on the grounds of a low award to be error unless the size of the award is the result of the quality of representation.” Id., at 235. Similarly, in Ramos v. Lamm, 713 F. 2d 546 (1983), the Tenth Circuit stated: “Some courts have reduced fees when the thrust of the suit was for monetary recovery and the recovery was small compared to the fees counsel would have received if compensated at a normal rate for hours reasonably expended. We reject this practice.” Id., at 557. Other courts, including the Seventh Circuit, have taken the opposite view. See, e. g., Bonner v. Coughlin, 657 F. 2d 931, 934 (1981) (“[T]he nominal nature of the damages is a factor to be considered in determining the amount of the award. . . . The amount recovered may sometimes indicate the reasonableness of the time spent to vindicate the right violated”); Scott v. Bradley, 455 F. Supp., at 675.

This Court has already recognized that “[t]he product of reasonable hours times a reasonable rate does not end the inquiry. There remain other considerations that may lead the district court to adjust the fee upward or downward, including the important factor of the ‘results obtained.’ ” Hensley, 461 U. S., at 434. Similarly, in Blum v. Stenson, 465 U. S. 886 (1984), we explained that “there may be circumstances in which the basic standard of reasonable rates multiplied by reasonably expended hours results in a fee that is either unreasonably low or unreasonably high.” Id., at 897. Neither Hensley nor Blum, however, addressed whether dispropor-tionality between the amount of the monetary judgment obtained and the amount of the attorney’s fee, standing alone, is a consideration that might properly lead a court to reduce the fee.

This is not to suggest that substantial attorney’s fees cannot be awarded in cases involving primarily injunctive or other nonpecuniary relief, see S. Rep. No. 94-1011, supra, at 6 (“It is intended that the amount of fees . . . not be reduced because the rights involved may be nonpecuniary in nature”); H. R. Rep. No. 94-1558, supra, at 9. Nor would an unusually large attorney’s fee necessarily be inappropriate where a defendant’s bad-faith conduct requires plaintiff’s counsel to spend an inordinate amount of time on a case. But in this case and in City of McKeesport, there are only monetary judgments, and it is difficult for me to believe that Congress intended by § 1988 to authorize a prevailing plaintiff to obtain more generous court-ordered attorney’s fees from a defendant than the plaintiff’s attorney might himself have fairly charged to the plaintiff in the . absence of a fee-shifting statute. The billing experience I gained in 16 years of private practice strongly suggests to me that a very reasonable client might seriously question an attorney’s bill of $245,000 for services which had resulted solely in a monetary award of less than $34,000. In this sense nearly all fees are to a certain extent “contingent,” because the time billed for a lawsuit must bear a reasonable relationship not only to the difficulty of the issues involved but to the amount to be gained or lost by the client in the event of success or failure. Nothing in the language of § 1988 or in the legislative history set forth above satisfies me that Congress intended to dispense with this element of billing judgment when a court fixes attorney’s fees pursuant to the statute.

Thus, I conclude that it is likely that certiorari will be granted in either this case or City of McKeesport, or both, and that the likelihood of applicants’ prevailing on the merits is sufficiently great to warrant the granting of a stay. Respondents contend that the supersedeas bond previously posted by applicants is inadequate to cover interest on the amount of the judgment, but this is an issue which may more properly be addressed in the first instance by the District Court.


author: Justice Stevens, Circuit Justice.

text:
    RENAISSANCE ARCADE AND BOOKSTORE et al. v. COUNTY OF COOK et al.
    No. A-173.
    Decided September 5, 1985
   Justice Stevens, Circuit Justice.

On March 8, 1985, the Circuit Court of Cook County entered a permanent injunction which prohibits petitioners from operating their adult bookstores in certain unincorporated areas of Cook County, Illinois. Petitioners’ appeal from the injunction is currently pending in the Appellate Court of Illinois for the First Judicial District. On March 20, 1985, that court denied petitioners’ motion for a stay of the injunction pending appellate review. On April 22, 1985, the Illinois Supreme Court likewise entered an order denying petitioners’ motion to stay enforcement of the injunction pending review.

Petitioners filed an application for a stay with me in my capacity as Circuit Justice for the Seventh Circuit on August 29, 1985. Because the application was not filed within 90 days of the Illinois Supreme Court’s April 22, 1985, order, however, neither this Court nor a Justice thereof has the authority to treat the application as a petition for certiorari to review “the merits of petitioners’ claim that the outstanding injunction will deprive them of rights protected by the First Amendment during the period of appellate review,” National Socialist Party v. Skokie, 432 U. S. 43, 44 (1977) (per curiam). See 28 U. S. C. § 2101(c). Moreover, because the application does not indicate that the appeal will become moot unless a stay is granted, it does not appear that an extraordinary writ may be issued pursuant to 28 U. S. C. § 1651 in aid of this Court’s appellate jurisdiction. Accordingly, the application is denied.

      The authority for the Circuit Court’s injunction is a zoning ordinance adopted by the Cook County Board of Commissioners which restricts “adult uses” and defines one such use, an “adult book store,” as:
      “An establishment having as a substantial or significant portion of its stock in trade books, magazines and other periodicals which are distinguished or characterized by their emphasis on matter depicting, describing or relating to ‘Specified Sexual Activities’ or ‘Specified Anatomical Areas,’ or an establishment with a segment or section devoted to the sale or display of such material.” County of Cook, Ill., Zoning Ordinance, §14.2 (1976), reprinted in Application, Exh. A2.
      In their application, petitioners represent that their stay request “only concerns itself with the rights of adult bookstores.” Id., ¶ 19.


text:
    KENTUCKY v. INDIANA et al.
    No. 81,
    Orig.
    Decree entered November 4, 1985
   DECREE

It Is Ordered, Adjudged, and Decreed that:

1. The boundary line between the State of Indiana and the Commonwealth of Kentucky is fixed as geodetically described in Joint Exhibit 50 to the Special Master’s Report filed with this Court on November 4, 1985. Joint Exhibit 50 is incorporated by reference herein.

2. Copies of this Decree and the Special Master’s Report (including Joint Exhibits 1-50, inclusive) shall be filed with the Clerk of this Court, the Archives Division of the Indiana Commission on Public Records of Indiana, and the Secretary of State of the Commonwealth of Kentucky.

3. Copies of this Decree and the Special Master’s Report (including Joint Exhibit 50 and paper prints of Joint Exhibits 1-49, inclusive, once they become available) shall be filed with the Office of the County Recorder in each of the following Indiana counties: the counties of Posey, Vanderburgh, Warrick, Spencer, Perry, Crawford, Harrison, Floyd, Clark, Jefferson, Switzerland, Ohio, and Dearborn; and with the County Clerk’s Office in the Commonwealth of Kentucky in each of the following Kentucky counties: the counties of Union, Henderson, Daviess, Hancock, Breckinridge, Meade, Hardin, Jefferson, Oldham, Trimble, Carroll, Gallatin, and Boone.

4. The State of Indiana and the Commonwealth of Kentucky each have concurrent jurisdiction over the Ohio River.

5. The costs of this proceeding shall be divided between the parties as recommended by the Special Master.


author: Per Curiam.

text:
    CUYAHOGA VALLEY RAILWAY CO. v. UNITED TRANSPORTATION UNION et al.
    No. 84-1634.
    Decided November 4, 1985

      Together with No. 86-170, Brock, Secretary of Labor v. United Transportation Union et al., also on petition for certiorari to the same court.

   Per Curiam.

The Secretary of Labor is authorized to inspect work sites to uncover noncompliance with the Occupational Safety and Health Act. 29 U. S. C. § 657(a). If, as a result of such an inspection, the Secretary discovers a violation of the Act, he is authorized to issue a citation to the employer fixing a reasonable time for the abatement of the violation, § 658(a), and assessing a penalty for the violation. § 666. The employer then has 15 days in which to contest the citation. § 659(a). Similarly, employees have 15 days in which to challenge as unreasonable “the period of time fixed in the citation for the abatement of the violation.” § 659(c). See generally Whirlpool Corp. v. Marshall, 445 U. S. 1, 9, n. 11 (1980). The statute and rules of the Occupational Safety and Health Review Commission also permit affected employees to participate as parties in any hearing in which the employer contests the citation. 29 U. S. C. § 659(c); 29 CFR § 2200.20(a) (1985).

If an employer contests the citation, and the Secretary intends to seek its enforcement, the Secretary must file a complaint with the Commission within 20 days, and the employer must file an answer within 15 days. 29 CFR § 2200.33 (1985). Once these pleadings are filed, a hearing to determine the validity of the citation will be held before an administrative law judge (ALJ), with discretionary review by the Commission. 29 U. S. C. §§ 659(c), 661(j).

In the present cases, the Secretary cited Cuyahoga Valley Railway Company for a violation of the Act. Cuyahoga contested the citation, the Secretary filed a complaint with the Commission, and Cuyahoga filed an answer. Respondent United Transportation Union, which represents Cuyahoga employees, properly moved to intervene in the proceedings. At the hearing, however, the Secretary moved to vacate the citation on the ground that the Federal Railway Administration, not the Secretary, had jurisdiction over the relevant safety conditions. Despite the Union’s objection, the ALJ granted the Secretary’s motion and vacated the citation. Thereafter, the Commission directed review of the ALJ’s order. The Secretary promptly objected to this action, asserting that part of the citation involved matters beyond the reach of the Act and that additional portions of the citation did not warrant litigation because of the state of the evidence. He also stated that the record before the Commission was inadequate to resolve the issue posed. Some six years later, the Commission rejected this submission and remanded the case to the ALJ for consideration of the Union’s objections.

The Court of Appeals for the Sixth Circuit affirmed the Commission’s holding that it could review the Secretary’s decision to withdraw a citation. Donovan v. United Transportation Union, 748 F. 2d 340 (1984). The court recognized that the Secretary “has the sole authority to determine whether to prosecute” a violation of the Act. Id., at 343. Here, however, the court found that the Secretary “had already made the decision to prosecute by filing a complaint and that complaint had been answered at the time the Secretary attempted to withdraw the citation.” Ibid. Because the “adversarial process was well-advanced at the time the Secretary attempted to withdraw the citation,” the court reasoned that the Commission, “as the adjudicative body, had control of the case and the authority to review the Secretary’s withdrawal of the citation.” Ibid.

Contrary to the Sixth Circuit’s decision, eight other Courts of Appeals have held that the Secretary has unreviewable discretion to withdraw a citation charging an employer with violating the Occupational Health and Safety Act. Donovan v. Allied Industrial Workers (Midland), 760 F. 2d 783, 785 (CA7 1985); Donovan v. Local 962, International Chemical Workers Union (Englehard), 748 F. 2d 1470, 1473 (CA11, 1984); Donovan v. International Union, Allied Industrial Workers (Whirlpool), 722 F. 2d 1415, 1422 (CA8 1983); Donovan v. United Steelworkers of America (Monsanto), 722 F. 2d 1158, 1160 (CA4 1983); Donovan v. Oil, Chemical and Atomic Workers International (American Petrofina), 718 F. 2d 1341, 1352-1353 (CA5 1983), cert. denied, 466 U. S. 971 (1984); Donovan v. Occupational Safety and Health Review Comm’n (Mobil Oil), 713 F. 2d 918, 926-927 (CA2 1983); Oil, Chemical and Atomic Workers International v. Occupational Safety and Health Comm’n (American Cynamid), 217 U. S. App. D. C. 137, 144-145, 671 F. 2d 643, 650-651, cert. denied, 459 U. S. 905 (1982); Marshall v. Sun Petroleum Products Co., 622 F. 2d 1176, 1187 (CA3), cert. denied, 449 U. S. 1061 (1980). We agree with the decisions of these courts.

It is apparent that the Court of Appeals’ decision is inconsistent with the detailed statutory scheme which contemplates that the rights created by the Act are to be protected by the Secretary. See Atlas Roofing Co. v. Occupational Safety and Health Comm’n, 430 U. S. 442, 444-447 (1977); Mobil Oil, supra, at 927; Sun Petroleum Products, supra, at 1187. It is also clear that enforcement of the Act is the sole responsibility of the Secretary. Oil, Chemical and Atomic Workers International v. Occupational Safety and Health Comm’n, supra, at 143, 671 F. 2d, at 649. It is the Secretary, not the Commission, who sets the substantive standards for the workplace, and only the Secretary has the authority to determine if a citation should be issued to an employer for unsafe working conditions, 29 U. S. C. §658. A necessary adjunct of that power is the authority to withdraw a citation and enter into settlement discussions with the employer. Whirlpool, supra, at 1420; Mobil Oil, supra, at 927. The Commission’s function is to act as a neutral arbiter and determine whether the Secretary’s citations should be enforced over employee or union objections. Its authority plainly does not extend to overturning the Secretary’s decision not to issue or to withdraw a citation.

The Sixth Circuit’s conclusion that the Commission can review the Secretary’s decision to withdraw a citation would discourage the Secretary from seeking voluntary settlements with employers in violation of the Act, thus unduly hampering the enforcement of the Act. Whirlpool, supra, at 1420; Mobil Oil, supra, at 927. Such a procedure would also allow the Commission to make both prosecutorial decisions and to serve as the adjudicator of the dispute, a commingling of roles that Congress did not intend. Whirlpool, supra, at 1419; Mobil Oil, supra, at 930-931; Sun Petroleum Products, supra, at 1187. Indeed, the Commission itself was created to avoid giving the Secretary both prosecutorial and adjudicatory powers. See generally Senate Committee on Labor and Public Welfare, Subcommittee on Labor, 92d Cong., 1st Sess., Legislative History of the Occupational Safety and Health Act of 1970 (S. 2193, Pub. L. 91-596) (Comm. Print 1971). Accord, Whirlpool, supra, at 1419; Mobil Oil, supra, at 930-931, and n. 21. The other Courts of Appeals to address this problem have recognized the distinct roles of the Secretary and the Commission and accordingly have acknowledged that the Secretary’s decision to withdraw a citation against an employer under the Act is not reviewable by the Commission. Based on these considerations, the petitions for certiorari are granted, and the judgment of the Court of Appeals is

Reversed.

Justice Brennan and Justice Blackmun dissent from summary disposition. They would grant certiorari and set the cases for oral argument.

Justice Marshall dissents from this summary disposition, which has been ordered without affording the parties prior notice or an opportunity to file briefs on the merits. See Maggio v. Fulford, 462 U. S. 111, 120-121 (1983) (Marshall, J., dissenting); Wyrick v. Fields, 459 U. S. 42, 51-52 (1982) (Marshall, J., dissenting).

       Vacating the citation thus did not rest solely on jurisdictional grounds. Nor did the Court of Appeals’ decision sustaining the Commission’s order focus on jurisdiction. Its holding would permit review by the Commission of the Secretary’s withdrawal of any citation, whatever the reason, provided the adversarial process was sufficiently advanced to vest control in the Commission. For these reasons and because the issue relates to the statutory division of authority between the Secretary and the Commission, rather than the question of judicial review of administrative action, the cases do not pose the question whether an agency’s decision, resting on jurisdictional concerns, not to take enforcement action is presumptively immune from judicial review under the Administrative Procedure Act, 5 U. S. C. § 701(a)(2). See Heckler v. Chaney, 470 U. S. 821, 833, n. 4 (1985).

       The Court of Appeals also relied to some extent on the position of the Commission as to the scope of its powers. The Commission, however, has since revised its view and now declines to review the Secretary’s dismissal of a citation. Pan American World Airways, Inc., 1984 OSHD ¶26,920; American Bakeries Co., 1984 OSHD ¶26,951; Copperweld Steel Co., 1984 OSHD ¶ 26,956.


author: Per Curiam. Justice Stevens,

text:
    CALIFORNIA STATE BOARD OF EQUALIZATION et al. v. CHEMEHUEVI INDIAN TRIBE
    No. 85-130.
    Decided November 4, 1985
   Per Curiam.

Since 1959 California has imposed an excise tax on the distribution of cigarettes. Respondent Chemehuevi Indian Tribe sells cigarettes on its reservation in southeastern California. The Tribe originally remitted the state tax to petitioner State Board of Equalization (petitioner) insofar as that tax was imposed on the distribution of cigarettes to non-Indian purchasers. But in 1977 the Tribe enacted a cigarette tax of its own that was the equivalent of the California tax, and then ceased collecting and remitting the state tax. When California sought to obtain the unremitted tax from the Tribe, the Tribe brought an action in the United States District Court for the Northern District of California requesting a declaratory judgment that petitioner could not lawfully apply the state tax to cigarettes sold by the Tribe to non-Indian purchasers. Respondent Tribe also sought an injunction preventing petitioner from enforcing the state cigarette tax against it. Petitioner counterclaimed for damages in the amount of back taxes claimed to be owed by respondent Tribe.

The District Court held that petitioner’s counterclaim was barred by sovereign immunity, 492 F. Supp. 55 (1979), but also held that California could lawfully require the Tribe to collect cigarette excise taxes imposed on cigarettes that it sold to non-Indians. On appeal, the Court of Appeals affirmed the first determination, but reversed the second. 757 F. 2d 1047 (CA9 1985).

The Court of Appeals observed that, unlike the Washington statute that we considered in Washington v. Confederated Tribes of Colville Indian Reservation, 447 U. S. 134 (1980), California’s cigarette tax statute “does not contain any . . . explicit ‘pass-through’ language,” 757 F. 2d, at 1056 (emphasis added), and that therefore the question of the legal incidence of the California cigarette tax was not controlled by our decision in that case. Id., at 1055-1056. It went on to observe that a “legislative intent to impose even a collection burden should be explicitly stated.” Id., at 1056, n. 11 (emphasis added). The Court of Appeals concluded that the California excise tax, properly construed, did not impose liability on the ultimate purchaser of cigarettes when the vendor was not a taxable entity. Id., at 1057, and n. 13.

We think that the Court of Appeals applied a mistaken standard in determining whether or not the California tax on cigarettes was sufficiently like the Washington tax involved in Colville so that the result in the latter case should be controlling here. None of our cases has suggested that an express statement that the tax is to be passed on to the ultimate purchaser is necessary before a State may require a tribe to collect cigarette taxes from non-Indian purchasers and remit the amounts of such tax to the State. Nor do our cases suggest that the only test for whether the legal incidence of such a tax falls on purchasers is whether the taxing statute contains an express “pass on and collect” provision. Indeed, the Washington statute in Colville did not contain an express pass-through provision; the conclusion of the District Court in that case, which we accepted, was that the statutory scheme required consumers to pay the tax whenever the vendor was untaxable, and thus the legal incidence of the tax fell on purchasers in such cases. 447 U. S., at 142, and n. 9. The test to be derived from cases such as Colville and Moe v. Confederated Salish and Kootenai Tribes, 425 U. S. 463, 481-483 (1976), is nothing more than a fair interpretation of the taxing statute as written and applied, without any requirement that pass-through provisions or collection requirements be “explicitly stated.” Cf. United States v. Mississippi Tax Comm’n, 421 U. S. 599, 607-608 (1975).

We think the fairest reading of California’s cigarette scheme as a whole is that the legal incidence of the tax falls on consuming purchasers if the vendors are untaxable. California Rev. & Tax Code Ann. §30107 (West 1979) clearly seems to place on consumers the obligation to pay the tax for all previously untaxed cigarettes. The Board’s implementing regulation does not restrict this obligation to the hypotheticals contained in the regulation; it merely indicates that the consumer has a duty to pay any tax directly to the Board when the vendor is the type of entity on which the State cannot impose a collection requirement. See Cal. Admin. Register 72, No. 16, Tit. 18, Art. 16, §4091. The regulation does not address itself to the question of legal incidence. And since both Colville and Moe hold that if the legal incidence of a state excise tax falls on non-Indian purchasers, the State may impose on the tribe the burden of collecting that tax from the purchasers, 447 U. S., at 159; 425 U. S., at 482-483, this particular regulation is inapplicable to purchasers from Indian tribes if the ultimate liability for the tax falls on the purchaser when the vendor is not taxable. We think that in the context of the entire California statutory scheme, interpreted without any of the restrictive requirements which the Court of Appeals employed, Cal. Rev. & Tax Code Ann. § 30108(a) (West 1979) evidences an intent to impose on the Tribe such a “pass on and collect” requirement. We hold that the legal incidence of California’s cigarette tax falls on the non-Indian consumers of cigarettes purchased from respondent’s smoke shop, and that petitioner has the right to require respondent to collect the tax on petitioner’s behalf.

The petition for certiorari is granted on the first three questions it presents. Insofar as the Court of Appeals held that respondent might not be required to collect the cigarette tax imposed by California on non-Indian purchasers at tribal smoke shops, its judgment is

Reversed.

Justice Brennan would deny certiorari.

Justice Marshall dissents from this summary disposition, which has been ordered without affording the parties prior notice or an opportunity to file briefs on the merits. See Maggio v. Fulford, 462 U. S. 111, 120-121 (1983) (Marshall, J., dissenting); Wyrick v. Fields, 459 U. S. 42, 51-52 (1982) (Marshall, J., dissenting).

Justice Blackmun would grant certiorari and give the case plenary consideration.

Justice Stevens,

dissenting.

The courts of appeals are better qualified to decide questions of state law than is this Court. Most circuit judges formerly practiced in States within their respective circuits. As judges, they must confront state-law issues on a regular basis. For these reasons, it has long been the settled practice in this Court to show the greatest deference to opinions of the courts of appeals on questions of state law. “In dealing with issues of state law that enter into judgments of federal courts, we are hesitant to overrule decisions by federal courts skilled in the law of particular states unless their conclusions are shown to be unreasonable.” Propper v. Clark, 337 U. S. 472, 486-487 (1949). See also Haring v. Prosise, 462 U. S. 306, 314, n. 8 (1983) (“a challenge to state-law determinations by the Court of Appeals will rarely constitute an appropriate subject of this Court’s review”); Leroy v. Great Western United Corp., 443 U. S. 173, 181, n. 11 (1979) (“it is not our practice to re-examine state-law determinations of this kind”); Bishop v. Wood, 426 U. S. 341, 345-347 (1976), and cases cited therein.

The outcome of this case depends entirely on an interpretation of the California Revenue and Taxation Code. I am not prepared to say that the Court of Appeals’ construction of the California Code is correct or incorrect. I am prepared, however, to disagree with the Court’s conclusion that we should undertake to decide the state-law question in a ease of this kind. Even if the Court is correct in its view that the Court of Appeals applied a mistaken standard in construing the California tax, that premise does not justify the action of the Court today in undertaking to decide the state-law issue on its own — particularly when that issue has not been fully briefed and argued. At most, the Court should remand the case to the Court of Appeals for a reconsideration under the proper standard. Such a remand would at least demonstrate that this Court has not forgotten that “federal judges who deal regularly with questions of state law in their respective districts and circuits are in a better position than we” to interpret state law. Butner v. United States, 440 U. S. 48, 58 (1979). Because the Court’s summary disposition conveys a different message, I respectfully dissent.

       he Court of Appeals summarized its construction of the California statute as follows:
      “Upon careful examination, it is apparent that section 30108(a) is merely a procedural section that denotes the manner in which a vendor shall collect a tax from a purchaser if and when the purchaser is obligated to pay the tax. In the case of a sale with respect to which ‘the [usual cigarette] tax imposed by Section 30101 is inapplicable,’ the vendor is required to collect the tax from the purchaser either (a) at the time of sale, if the purchaser is then obligated to pay the tax, or (b) if the purchaser is not then obligated to pay the tax, at the time the purchaser becomes so obligated. Cal. Rev. & Tax. Code § 30108(a) (West 1979). Collection by the vendor is mandatory, but only if and when the purchaser has a tax obligation. The section does not contain any substantive provisions that themselves impose any tax or that indicate when section 30101 is inapplicable. Nor does it specify under which situations a purchaser is obligated to pay the tax at the time of sale or, if the purchaser is not then obligated, when the purchaser becomes so obligated. We find no language in section 30108 — the only section on which the Board relies for its argument that the incidence of the tax falls upon the purchaser — that remotely suggests a legislative intent to have the purchaser pay the tax whenever the vendor is a non-taxable entity.” 757 F. 2d 1047, 1056-1057 (CA9 1985) (footnotes omitted).

       The portion of the Court of Appeals opinion which I have quoted in n. 1, supra, suggests that the Court of Appeals would have reached the same conclusion even if it had not used the unfortunate word “explicit” earlier in its opinion.


text:
    DELAWARE v. FENSTERER
    No. 85-214.
    Decided November 4, 1985
   Per Curiam.

In this case, the Delaware Supreme Court reversed respondent William Fensterer’s conviction on the grounds that the admission of the opinion testimony of the prosecution’s expert witness, who was unable to recall the basis for his opinion, denied respondent his Sixth Amendment right to confront the witnesses against him. 493 A. 2d 959 (1985). We conclude that the Delaware Supreme Court misconstrued the Confrontation Clause as interpreted by the decisions of this Court.

I

Respondent was convicted of murdering his fiancée, Stephanie Ann Swift. The State’s case was based on circumstantial evidence, and proceeded on the theory that respondent had strangled Swift with a cat leash. To establish that the cat leash was the murder weapon, the State sought to prove that two hairs found on the leash were similar to Swift’s hair, and that one of those hairs had been forcibly removed. To prove these theories, the State relied on the testimony of Special Agent Allen Robillard of the Federal Bureau of Investigation.

At trial, Robillard testified that one of the hairs had been forcibly removed. He explained that, in his opinion, there are three methods of determining that a hair has forcibly been removed: (1) if the follicular tag is present on the hair, (2) if the root is elongated and misshaped, or (3) if a sheath of skin surrounds the root. However, Robillard went on to say that “ ‘I have reviewed my notes, and I have no specific knowledge as to the particular way that I determined the hair was forcibly removed other than the fact that one of those hairs was forcibly removed.”’ Id., at 963. On cross-examination, Agent Robillard was again unable to recall which method he had employed to determine that the hair had forcibly been removed. He also explained that what he meant by “forcibly removed” was no more than that the hair could have been removed by as little force as is entailed in “‘brushing your hand through your head or brushing your hair.’” Pet. for Cert. 7. The trial court overruled respondent’s objection that the admission of Robillard’s testimony precluded adequate cross-examination unless he could testify as to which of the three theories he relied upon, explaining that in its view this objection went to the weight of the evidence rather than its admissibility.

The defense offered its own expert in hair analysis, Dr. Peter DeForest, who agreed with Agent Robillard that the hairs were similar to Swift’s. Doctor DeForest testified that he had observed that one of the hairs had a follicular tag. He also testified that he had spoken by telephone with Robillard, who advised him that his conclusion of forcible removal was based on the presence of the follicular tag. App. to Pet. for Cert. D-2. Doctor DeForest then proceeded to challenge the premise of Robillard’s theory — that the presence of a follicular tag indicates forcible removal. According to Dr. DeForest, no adequate scientific study supported that premise, and a follicular tag could be attached to hairs that naturally fall out.

On appeal, the Delaware Supreme Court reversed respondent’s conviction on the authority of the Confrontation Clause. Noting that “[t]he primary interest secured by the Clause is the right of cross-examination,” 493 A. 2d, at 963, the court reasoned that “[effective cross-examination and discrediting of Agent Robillard’s opinion at a minimum required that he commit himself to the basis of his opinion.” Id., at 964 (footnote omitted). Absent such an acknowledgment of the basis of his opinion, the court believed that “defense counsel’s cross-examination of the Agent was nothing more than an exercise in futility.” Ibid. Since the court could not rule out the possibility that Robillard could have been “completely discredited” had he committed himself as to the theory on which his conclusion was based, it held that respondent “was denied his right to effectively cross-examine a key state witness.” Ibid. Accordingly, the court reversed without reaching respondent’s additional claim that Ro-billard’s testimony was inadmissible under the pertinent Delaware Rules of Evidence. We now reverse the Delaware Supreme Court’s holding that Agent Robillard’s inability to recall the method whereby he arrived at his opinion rendered the admission of that opinion violative of respondent’s rights under the Confrontation Clause.

1 — I

This Court’s Confrontation Clause cases fall into two broad categories: cases involving the admission of out-of-court statements and cases involving restrictions imposed by law or by the trial court on the scope of cross-examination. The first category reflects the Court’s longstanding recognition that the "literal right to ‘confront’ the witness at the time of trial . . . forms the core of the values furthered by the Confrontation Clause.” California v. Green, 399 U. S. 149, 157 (1970). Cases such as Ohio v. Roberts, 448 U. S. 56 (1980), and Dutton v. Evans, 400 U. S. 74 (1970), gave rise to Confrontation Clause issues “because hearsay evidence was admitted as substantive evidence against the defendants.” Tennessee v. Street, 471 U. S. 409, 413 (1985). Cf. Bruton v. United States, 391 U. S. 123 (1968).

The second category of cases is exemplified by Davis v. Alaska, 415 U. S. 308, 318 (1974), in which, although some cross-examination of a prosecution witness was allowed, the trial court did not permit defense counsel to “expose to the jury the facts from which jurors, as the sole triers of fact and credibility, could appropriately draw inferences relating to the reliability of the witness.” As the Court stated in Davis, supra, at 315, “[confrontation means more than being allowed to confront the witness physically.” Consequently, in Davis, as in other cases involving trial court restrictions on the scope of cross-examination, the Court has recognized that Confrontation Clause questions will arise because such restrictions may “effectively . . . emasculate the right of cross-examination itself.” Smith v. Illinois, 390 U. S. 129, 131 (1968).

This case falls in neither category. It is outside the first category, because the State made no attempt to introduce an out-of-court statement by Agent Robillard for any purpose, let alone as hearsay. Therefore, the restrictions the Confrontation Clause places on “the range of admissible hearsay,” Roberts, supra, at 65, are not called into play.

The second category is also inapplicable here, for the trial court did not limit the scope or nature of defense counsel’s cross-examination in any way. The Court has recognized that “the cross-examiner is not only permitted to delve into the witness’ story to test the witness’ perceptions and memory, but [also] . . . allowed to impeach, i. e., discredit, the witness.” Davis, 415 U. S., at 316. But it does not follow that the right to cross-examine is denied by the State whenever the witness’ lapse of memory impedes one method of discrediting him. Quite obviously, an expert witness who cannot recall the basis for his opinion invites the jury to find that his opinion is as unreliable as his memory. That the defense might prefer the expert to embrace a particular theory, which it is prepared to refute with special vigor, is irrelevant. “ ‘The main and essential purpose of confrontation is to secure for the opponent the opportunity of cross-examination.’” Id., at 315-316 (quoting 5 J. Wigmore, Evidence §1395, p. 123 (3d ed. 1940) (emphasis in original)). Generally speaking, the Confrontation Clause guarantees an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish. See Roberts, 448 U. S., at 73, n. 12 (even where the only opportunity the defense has to cross-examine the declarant is at a preliminary hearing, except in “extraordinary cases” where defense counsel provided ineffective representation at the earlier proceeding, “no inquiry into ‘effectiveness’ is required”). This conclusion is confirmed by the fact that the assurances of reliability our cases have found in the right of cross-examination are fully satisfied in cases such as this one, notwithstanding the witness’ inability to recall the basis for his opinion: the factfinder can observe the witness’ demeanor under cross-examination, and the witness is testifying under oath and in the presence of the accused. See id., at 63, n. 6.

We need not decide whether there are circumstances in which a witness’ lapse of memory may so frustrate any opportunity for cross-examination that admission of the witness’ direct testimony violates the Confrontation Clause. In this case, defense counsel’s cross-examination of Agent Robillard demonstrated to the jury that Robillard could not even recall the theory on which his opinion was based. Moreover, through its own expert witness, the defense was able to suggest to the jury that Robillard had relied on a theory which the defense expert considered baseless. The Confrontation Clause certainly requires no more than this.

Although Green, supra, involved a witness who professed a lapse of memory on the stand, that case lends no support to respondent. In pertinent part, Green was a case in which a minor named Porter informed a police officer of a transaction in which he claimed Green supplied him with drugs. At trial, Porter professed to be unable to recall how he obtained the drugs. The prosecution then introduced Porter’s prior inconsistent statements as substantive evidence. Green, 399 U. S., at 152. This Court held that “the Confrontation Clause does not require excluding from evidence the prior statements of a witness who concedes making the statements, and who may be asked to defend or otherwise explain the inconsistency between his prior and his present version of the events in question, thus opening himself to full cross-examination at trial as to both stories.” Id., at 164. However, the Court also concluded that, in the posture of that case, it would be premature to reach the question “[wjhether Porter’s apparent lapse of memory so affected Green’s right to cross-examine as to make a critical difference in the application of the Confrontation Clause . . . .” Id., at 168. In this connection, the Court noted that even some who argue that “prior statements should be admissible as substantive evidence” believe that this rule should not apply to “the case of a witness who disclaims all present knowledge of the ultimate event,” because “in such a case the opportunities for testing the prior statement through cross-examination at trial may be significantly diminished.” Id., at 169, n. 18 (citations omitted).

We need not decide today the question raised but not resolved in Green. As Green’s, framing of that question indicates, the issue arises only where a “prior statement,” not itself subjected to cross-examination and the other safeguards of testimony at trial, is admitted as substantive evidence. Since there is no such out-of-court statement in this case, the adequacy of a later opportunity to cross-examine, as a substitute for cross-examination at the time the declaration was made, is not in question here.

Under the Court’s cases, then, Agent Robillard’s inability to recall on the stand the basis for his opinion presents none of the perils from which the Confrontation Clause protects defendants in criminal proceedings. The Confrontation Clause includes no guarantee that every "witness called by the prosecution will refrain from giving testimony that is marred by forgetfulness, confusion, or evasion. To the contrary, the Confrontation Clause is generally satisfied when the defense is given a full and fair opportunity to probe and expose these infirmities through cross-examination, thereby calling to the attention of the factfinder the reasons for giving scant weight to the witness’ testimony. Accordingly, we hold that the admission into evidence of Agent Robillard’s opinion did not offend the Confrontation Clause despite his inability to recall the basis for that opinion.

The Delaware Supreme Court also appears to have believed that the prosecution breached its “serious obligation not to obstruct a criminal defendant’s cross-examination of expert testimony,” 493 A. 2d, at 963, seemingly because the prosecution knew in advance that Agent Robillard would be unable to recall the basis for his opinion when he testified at trial. While we would agree that Robillard's testimony at the voir dire examination must be taken to have alerted both the prosecution and the defense to his lapse of memory, see App. to Brief in Opposition A-l, we do not think the prosecution was obliged to refrain from calling Robillard unless it could somehow refresh his recollection. Whether or not, under state law, Robillard’s opinion should have been admitted into evidence, nothing in the Federal Constitution forbids the conclusion reached by the trial court in this case: that the expert’s inability to recall the basis for his opinion went to the weight of the evidence, not its admissibility. See United States v. Bastanipour, 697 F. 2d 170, 176-177 (CA7 1982), cert. denied, 460 U. S. 1091 (1983). That being so, the prosecution’s foreknowledge that its expert would be unable to give the precise basis for his opinion did not impose an obligation on it, as a matter of due process, to refrain from introducing the expert’s testimony unless the basis for that testimony could definitely be ascertained. We need not decide whether the introduction of an expert opinion with no basis could ever be so lacking in reliability, and so prejudicial, as to deny a defendant a fair trial. The testimony of Dr. DeForest, suggesting the actual basis for Robillard’s opinion and vigorously disputing its validity, utterly dispels any possibility of such a claim in this case.

The petition for certiorari is granted, the judgment of the Delaware Supreme Court is reversed, and the case is remanded to that court for further proceedings not inconsistent with this opinion.

It is so ordered.

Justice Marshall dissents from this summary disposition, which has been ordered without affording the parties prior notice or an opportunity to file briefs on the merits. See Maggie v. Fulford, 462 U. S. 111, 120-121 (1983) (Marshall, J., dissenting); Wyrick v. Fields, 459 U. S. 42, 51-52 (1982) (Marshall, J., dissenting).

Justice Blackmun would grant certiorari and give this case plenary consideration.

Justice Stevens,

concurring in the judgment.

Summary reversal of a state supreme court’s application of federal constitutional strictures to its own police and prosecutors in novel cases of this kind tends to stultify the orderly development of the law. Because I believe this Court should allow state courts some latitude in the administration of their criminal law, I voted to deny certiorari. Cf. California v. Carney, 471 U. S. 386, 395 (1985) (Stevens, J., dissenting).

On the merits, I find the issue much closer to the question reserved in California v. Green, 399 U. S. 149, 168-170 (1970), than does the Court. The question reserved in Green concerned the admissibility of an earlier out-of-court statement by the witness Porter of which Porter disclaimed any present recollection at the time of trial. The question decided by the Court today concerns the admissibility of an earlier out-of-court conclusion reached by a witness who disclaims any present recollection of the basis for that conclusion. The reasons for carefully reserving the question in Green persuade me that this case should not be decided without full argument. Nevertheless, because the Court has granted certiorari and decided to act summarily, because I am not persuaded that the Federal Constitution was violated, and because the State Supreme Court remains free to reinstate its judgment on the basis of its interpretation of state law, I reluctantly concur in the judgment.

       In California v. Green, 399 U. S. 149, 171 (1970), The Chief Justice wrote separately “to emphasize the importance of allowing the States to experiment and innovate, especially in the area of criminal justice.” He correctly observed that “neither the Constitution as originally drafted, nor any amendment, nor indeed any need, dictates that we must have absolute uniformity in the criminal law in all the States.” Id., at 171-172.

       “Whether Porter’s apparent lapse of memory so affected Green’s right to cross-examine as to make a critical difference in the application of the Confrontation Clause in this case is an issue which is not ripe for decision at this juncture” (footnote omitted). Id., at 168-169. See also id., at 169, n. 18.


author: Per Curiam. Justice O’Connor,

text:
    LANIER v. SOUTH CAROLINA
    No. 85-5260.
    Decided November 4, 1985
   Per Curiam.

The motion for leave to proceed in forma pauperis is granted. The petition for a writ of certiorari is granted.

Petitioner was convicted of armed robbery. He contends that his confession should have been suppressed because it was the product of an illegal arrest. The South Carolina Court of Appeals affirmed the trial court’s rejection of his motion to suppress the confession:

“Assuming, without deciding, that Lanier’s arrest was illegal, we nevertheless hold his confession was admissible. A confession made while the accused is in custody before any warrant for his arrest has been issued is not per se inadmissible. State v. Funchess, 255 S. C. 385, 179 S. E. 2d 25, cert. denied, 404 U. S. 915, 92 S. Ct. 236, 30 L. Ed. 2d 189 (1971). Voluntariness remains as the test of admissibility. Id. Even if the arrest was illegal, the confession will be admissible if it is freely and voluntarily given. State v. Plath, 277 S. C. 126, 284 S. E. 2d 221 (1981). Since Lanier does not claim his confession was not voluntary, his argument that the confession was inadmissible is without merit.” App. to Pet. for Cert. A-2.

The South Carolina Supreme Court declined further review.

Under well-established precedent, “the fact that [a] confession may be ‘voluntary’ for purposes of the Fifth Amendment, in the sense that Miranda warnings were given and understood, is not by itself sufficient to purge the taint of the illegal arrest. In this situation, a finding of ‘voluntariness’ for purposes of the Fifth Amendment is merely a threshold requirement for Fourth Amendment analysis.” Taylor v. Alabama, 457 U. S. 687, 690 (1982). See also Dunaway v. New York, 442 U. S. 200, 217-218 (1979); Brown v. Illinois, 422 U. S. 590, 602 (1975). . The reasoning of the South Carolina Court of Appeals is inconsistent with those cases. We therefore vacate the judgment and remand the case to that court for further proceedings.

It is so ordered.

Justice O’Connor,

with whom Justice Rehnquist joins,

concurring in the judgment.

I concur in the judgment of the Court vacating the judgment and remanding this case to the South Carolina Court of Appeals. For the reasons stated in my opinion in Taylor v. Alabama, 457 U. S. 687, 694 (1982) (O’Connor, J., dissenting), I believe the court on remand can consider the timing, frequency, and likely effect of whatever Miranda warnings were given to petitioner as factors relevant to the question whether, if petitioner was illegally arrested, his subsequent confession was tainted by the illegal arrest.

Justice Marshall dissents from this summary disposition, which has been ordered without affording the parties prior notice or an opportunity to file briefs on the merits. See Maggio v. Fulford, 462 U. S. 111, 120-121 (1983) (Marshall, J., dissenting); Wyrick v. Fields, 459 U. S. 42, 51-52 (1982) (Marshall, J., dissenting).


text:
    PENNSYLVANIA v. GOLDHAMMER
    No. 84-1852.
    Decided November 12, 1985
   Per Curiam.

The Supreme Court of Pennsylvania held below that the Double Jeopardy Clause of the Fifth Amendment of the United States Constitution barred the resentencing of respondent. 507 Pa. 236, 489 A. 2d 1307 (1985). We grant certiorari, and, on the basis of our decision in United States v. DiFrancesco, 449 U. S. 117 (1980), we reverse and remand. The motion of respondent for leave to proceed in forma pauperis is granted.

Respondent was convicted in the Philadelphia Court of Common Pleas on 56 counts of forgery and 56 counts of theft. He was sentenced by the trial court to two-to-five years of imprisonment on a single theft count and five years of probation on one of the forgery counts. Sentence was suspended on the remaining counts.

Respondent appealed all 112 convictions to the Superior Court of Pennsylvania. That court ruled that the statute of limitations barred the prosecution of 34 of the theft counts, including the count on which respondent had received his sentence of imprisonment.

On appeal by the Commonwealth, the Supreme Court of Pennsylvania affirmed the Superior Court’s ruling on the statute of limitations. In addition, the Supreme Court of Pennsylvania denied petitioner’s request that the case be remanded to the trial court for resentencing on the remaining 22 theft counts. The court acknowledged that a defendant could be twice sentenced for the same count when there was an intervening retrial at the request of the defendant, but it held that resentencing on the counts which were affirmed after an appeal by the Commonwealth is barred by the Double Jeopardy Clause when the sentence of imprisonment on another count is vacated. 507 Pa., at 248-251, 489 A. 2d, at 1314-1315, citing North Carolina v. Pearce, 395 U. S. 711 (1969).

The Pennsylvania Supreme Court’s rationale is inconsistent with the rationale of the holding of this Court in DiFrancesco, supra. In DiFrancesco we upheld the constitutionality of 18 U. S. C. §3576, which allows the United States to appeal to the court of appeals the sentence given a “dangerous special offender” by a district court, and allows the court of appeals to affirm the sentence, impose a different sentence, or remand to the district court for further sentencing proceedings.

We noted that the decisions of this Court “clearly establish that a sentencing in a noncapital case] does not have the qualities of constitutional finality that attend an acquittal.” DiFrancesco, supra, at 134. In North Carolina v. Pearce, supra, we held that a court could sentence a defendant on retrial more severely than after the first trial. Any distinction between the situation in Pearce and that in DiFrancesco is “no more than a ‘conceptual nicety.’” DiFrancesco, supra, at 136 (quoting Pearce, supra, at 722). Indeed, a resentenc-ing after an appeal intrudes even less upon the values protected by the Double Jeopardy Clause than does a resentenc-ing after retrial:

“[T]he basic design of the double jeopardy provision [is to] bar . . . repeated attempts to convict, with consequent subjection of the defendant to embarrassment, expense, anxiety, and insecurity, and the possibility that he may be found guilty even though innocent. These considerations, however, have no significant application to the prosecution’s statutorily granted right to review a sentence. This limited appeal does not involve a retrial or approximate the ordeal of a trial on the basic issue of guilt or innocence.” DiFrancesco, supra, at 136.

In DiFrancesco a federal statute clearly allowed the appellate review of the sentences at issue. The Court noted that, in light of that statute, the defendant could not claim any expectation of finality in his original sentencing. 449 U. S., at 136,139. Here, because the Pennsylvania Supreme Court held that resentencing was barred by the Double Jeopardy Clause, there was no need to consider below whether the Pennsylvania laws in effect at the time allowed the State to obtain review of the sentences on the counts for which the sentence had been suspended. We reverse and remand the case to the Supreme Court of Pennsylvania for a determination of that issue, and for further consideration of this case in light of DiFrancesco, supra.

Reversed and remanded.

Justice Brennan dissents from summary disposition and would vote to deny the petition.

Justice Marshall dissents from this summary disposition, which has been ordered without affording the parties prior notice or an opportunity to file briefs on the merits. See Maggio v. Fulford, 462 U. S. 111, 120-121 (1983) (Marshall, J., dissenting); Wyrick v. Fields, 459 U. S. 42, 51-52 (1982) (Marshall, J., dissenting).

Justice Blackmun would grant the petition and set the case for argument.

Justice Stevens,

dissenting.

In United States v. DiFrancesco, 449 U. S. 117 (1980), this Court upheld the constitutionality of a federal statute that permitted Government appeals from certain sentences. Today, the Court summarily reverses because it finds that the “Pennsylvania Supreme Court’s rationale is inconsistent with the rationale of the holding of this Court in DiFran-cesco.” Ante, at 29.

The Pennsylvania Supreme Court opinion does not mention DiFrancesco. The appellate briefs before the Pennsylvania court did consider that case, however. Indeed, Mr. Gold-hammer argued that DiFrancesco did not govern precisely because no Pennsylvania statute authorized government appeals of sentences at the time of his conviction and sentencing. Mr. Goldhammer has raised the same argument before this Court in his response to the Commonwealth’s petition. Moreover, it should be noted that, unlike the situation in DiFrancesco, the Pennsylvania prosecutor made no attempt to take an appeal from the sentences imposed by the trial court. The Commonwealth, in its petition and in its reply, has not adequately addressed these points.

The majority recognizes that the Pennsylvania court’s judgment may ultimately be supported by state-law grounds. See ante, at 30-31. In view of that uncertainty, and in view of the Commonwealth’s failure to address this important issue, I would simply deny certiorari. I would presume that the Pennsylvania Supreme Court determined that DiFrancesco did not govern for the plausible state-law reason that had been argued to it.

Three factors support this presumption. First, Pennsylvania’s current statutory framework for permitting government appeals from sentences was not in place at the time of Mr. Goldhammer’s conviction and sentencing. Second, Pennsylvania courts are now. applying the new statutory framework, with full knowledge of DiFrancesco. Third, and perhaps most importantly, we should assume that a State Supreme Court is familiar with this Court’s precedents and with its own State’s law. Because the majority’s summary reversal reflects a contrary assumption, I respectfully dissent.

       See Brief for Appellant in No. CR 84-1852, p. 13, n. 3; Brief for Appel-lee in No. CR 84-1852, pp. 13-15.

       See id., at 14 (“At the time the instant case arose in Pennsylvania, the Commonwealth did not have the right to appeal from a sentence. That right did not exist until the sentencing guidelines were approved in July, 1982. See 42 Pa. C. S. A. § 9781”).

       See Brief in Opposition 9, n. 6 (“At the time of the trial and sentence here, there was no statutory provision in Pennsylvania for appeal of sentences”).

       See this Court’s Rule 21.5 (“The failure of a petitioner to present with accuracy, brevity, and clearness whatever is essential to a ready and adequate understanding of the points requiring consideration will be a sufficient reason for denying his petition”).

       See 42 Pa. Cons. Stat. §9781 (1982); 204 Pa. Code §303.1 et seq. (1982), reproduced following Pa. Stat. Ann., Tit. 42, § 9721 (Purdon 1982).

       See, e. g., Commonwealth v. Dixon, 344 Pa. Super. 293, 496 A. 2d 802 (1985); Commonwealth v. Hutchinson, 343 Pa. Super. 596, 495 A. 2d 956 (1985); Commonwealth v. Drumgoole, 341 Pa. Super. 468, 491 A. 2d 1352 (1985).

       See Commonwealth v. Drumgoole, supra, at 477, n. 2, 491 A. 2d, at 1356, n. 2 (“Appellee also suggests that to grant the relief sought by the Commonwealth ‘would appear to be a violation of the Fifth Amendment Constitutional guarantee against double jeopardy.’ This argument has been resolved contrary to appellee’s claim. United States v. DiFrancesco, 449 U. S. 117 . . .”).