text:
    No. 83-5414.
    Johnson v. Norman et al.
   C. A. 5th Cir. Certiorari denied.


source: Caselaw Access Project

license: Public Domain

text:
    No. 83-5416.
    Johnson v. Zimmerman, Superintendent, State Correctional Institution at Huntingdon.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 83-5417.
    Warren v. Tampa, Florida, Police Department et al.
   C. A. 6th Cir. Certiorari denied.


author: Justice Rehnquist,

text:
    No. 82-1390.
    Ashley et al. v. City of Jackson, Mississippi, et al.
   C. A. 5th Cir. Certiorari denied.

Justice Rehnquist,

with whom Justice Brennan joins,

dissenting.

This case presents the question whether a victim of alleged discrimination may have his right to sue totally extinguished by a prior suit to which he was not a party and in which a consent decree was entered before his cause of action even accrued. Because I think the Court of Appeals for the Fifth Circuit erred in holding that a district court cannot entertain a suit challenging practices allegedly mandated or permitted by a prior consent decree, I dissent from the denial of certiorari.

In March 1974, consent decrees were entered in two suits alleging race discrimination in the city of Jackson’s hiring and promoting practices in its Police Department. United States v. City of Jackson, Civil Action No. J-74-66(N) (SD Miss.); Corley v. Jackson Police Dept., Civil Action No. 73J-4(C) (SD Miss.). As described by the District Court in this case:

“The consent decree entered in United States of America v. City of Jackson required, inter alia, that the City of Jackson adopt and seek to achieve a goal for hiring blacks for one-half of all vacancies in all job classifications, subject to the availability of qualified applicants, until such time as the proportion of blacks to whites in each such classification equalled the proportion of blacks to whites in the working age population of the City of Jackson. The Corley v. Jackson Police Department consent decree incorporated by reference the United States of America v. City of Jackson decree and further provided that the Jackson Police Department establish separate promotion eligibility lists for white and black employees and that it make future promotions, subject to the availability of qualified black candidates, alternately from each such list in a one-to-one ratio until the proportion of black persons in supervisory positions and in the ranks above patrolman substantially equalled the proportion of blacks to whites in the working age population of the City of Jackson.” App. to Pet. for Cert. 13A.

In 1976 and 1978, petitioners, who are white, filed two suits against the city of Jackson alleging that the city had discriminated against them in the Police Department by hiring or promoting less qualified blacks solely on the basis of their race. In substance, the complaints alleged that the “goals” established in the prior consent decrees were being treated as strict quotas by the city, and that blacks were being hired and promoted over whites without regard to relative qualifications. See First Amended and Supplemental Complaint in Civil Action No. J76-70(R) (SD Miss.), pp. 36-88; Complaint in Civil Action No. J78-0218(C) (SD Miss.), pp. 20-22. Petitioners contended that the challenged practices were not required by the consent decrees or, in the alternative, that the consent decrees were themselves illegal. As a third option, assuming respondents’ practices under the consent decrees were necessary to remedy the effects of the city’s past racial discrimination, petitioners claimed that they themselves were now victims of that prior discrimination and, as such, were entitled to compensation.

Both suits were brought only after timely charges of discrimination had been filed with the Equal Employment Opportunity Commission (EEOC), and statutory notices of the right to sue had been received. Jurisdiction of the District Court was invoked under the Fifth and Fourteenth Amendments to the Constitution, under Title VII of the Civil Rights Act of 1964, 42 U. S. C. § 2000e-5, and under various other provisions of federal law. The court consolidated the two actions.

Petitioners also filed motions for leave to intervene in the consent decree suits in order to challenge those decrees on their face. The United States opposed the motions on the grounds, among others, that they were untimely and asserted interests already adequately represented by the defendant city. The motions to intervene were denied. No appeal was taken.

Following a hearing, the District Court dismissed the consolidated suits for lack of subject-matter jurisdiction. The court determined that “[t]he practices complained of are the result of consent decrees which were entered” in the prior cases, App. to Pet. for Cert. 12a, and, thus, that the suits constitute an impermissible collateral attack on the consent decrees over which a different court has continuing jurisdiction. The dismissal was affirmed on the same grounds by the Fifth Circuit, and this petition followed.

I find myself at a loss to understand the origins of the doctrine of “collateral attack” employed by the lower courts in this case to preclude a suit brought by parties who had no connection with the prior litigation. Their cause of action did not even accrue until at least a year after the entry of the consent decrees. And their attempt to intervene in those suits, more than three years after entry of the consent decrees, was denied as untimely.

It is a fundamental premise of preclusion law that nonparties to a prior action are not bound by the judgment. Sea-Land Services, Inc. v. Gaudet, 414 U. S. 573, 593 (1974); Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U. S. 100, 110 (1969). This rule can be traced to an opinion of Chief Justice Marshall in Davis v. Wood, 1 Wheat. 6, 8-9 (1816); it is part of our “deep-rooted historic tradition that everyone should have his own day in court.” 18 C. Wright, A. Miller, & E. Cooper, Federal Practice and Procedure §4449, p. 417 (1981). Only a few Terms ago, we had occasion to stress that “[i]t is a violation of due process for a judgment to be binding on a litigant who was not a party nor a privy and therefore has never had an opportunity to be heard.” Parklane Hosiery Co. v. Shore, 439 U. S. 322, 327, n. 7 (1979).

This principle should apply with all the more force to a consent decree, which is little more than a contract between the parties, formalized by the signature of a judge. The central feature of any consent decree is that it is not an adjudication on the merits. The decree may be scrutinized by the judge for fairness prior to his approval, but there is no contest or decision on the merits of the issues underlying the lawsuit. Such a decree binds the signatories, but cannot be used as a shield against all future suits by nonparties seeking to challenge conduct that may or may not be governed by the decree.

Nonparties have an independent right to an adjudication of their claim that a defendant’s conduct is unlawful. Suppose, for example, that the Government sues a private corporation for alleged violations of the antitrust laws and then enters into a consent decree. Surely, the existence of that decree does not preclude a future suit by another corporation alleging that the defendant company’s conduct, even if authorized by the decree, constitutes an antitrust violation. The nonparty has an independent right to bring his own private antitrust action for treble damages or in-junctive relief. See 2 P. Areeda & D. Turner, Antitrust Law ¶330, p. 143 (1978). Similarly, if an action alleging unconstitutional prison conditions results in a consent decree, a prisoner subsequently harmed by prison conditions is not precluded from bringing suit on the mere plea that the conditions are in accord-anee with the consent decree. Such compliance might be relevant to a defense of good-faith immunity, see Pet. for Cert. in Bennett v. Williams, O. T. 1982, No. 82-1704, but it would not suffice to block the suit altogether.

In litigation under Title VII of the Civil Rights Act of 1964 we have constantly stressed the importance of individual enforcement actions, and have shown great reluctance to find such actions precluded. Thus, in Alexander v. Gardner-Denver Co., 415 U. S. 36 (1974), we held that an individual does not forfeit his private cause of action if he first pursues his grievance under the nondiscrimination clause of a collective-bargaining agreement.

“Title VII . . . specifies with precision the jurisdictional prerequisites that an individual must satisfy before he is entitled to institute a lawsuit. In the present case, these prerequisites were met when petitioner (1) filed timely a charge of employment discrimination with the Commission, and (2) received and acted upon the Commission’s statutory notice of the right to sue .... There is no suggestion in the statutory scheme that a prior arbitral decision either forecloses an individual’s right to sue or divests federal courts of jurisdiction.” Id., at 47.

In this case, petitioners have satisfied the same prerequisites, and “[t]here is no suggestion in the statutory scheme that a prior [consent decree to which petitioners were not parties] either forecloses an individual’s right to sue or divests federal courts of jurisdiction.” Ibid.

In General Telephone Co. v. EEOC, 446 U. S. 818, 332 (1980), we held that the EEOC may seek classwide relief under Title VII without being certified as the class representative under Rule 23 of the Federal Rules of Civil Procedure, even though we recognized that a judgment so obtained would not “be binding upon all individuals with similar grievances in the class or subclasses that might be certified.”

“In light of the ‘general intent to accord parallel or overlapping remedies against discrimination,’... we are unconvinced that it would be consistent with the remedial purpose of the statutes to bind all ‘class’ members with discrimination grievances against an employer by the relief obtained under an EEOC judgment or settlement against the employer. This is especially true given the possible differences between the public and private interests involved.” Id., at 333 (citing Alexander, supra, at 47).

We did acknowledge in that case that “where the EEOC has prevailed in its action, the court may reasonably require any individual who claims under its judgment to relinguish his right to bring a separate private action.” 446 U. S., at 333 (emphasis added). But we were unwilling to bind a class member to a prior judgment when that class member decides to forgo the available class relief because he thinks he can obtain better relief in a private action. It certainly seems to follow that we would not preclude someone who was not a party to the prior action from bringing a private enforcement suit.

Finally, just last Term, in W. R. Grace & Co. v. Rubber Workers, 461 U. S. 757 (1983), we held that a union, which declined to participate in conciliation between the EEOC and a private corporation, could subsequently challenge layoffs made pursuant to the conciliation agreement as in violation of the seniority provisions of its collective-bargaining agreement with the corporation. The unanimous Court was unmoved by the Company’s claim that such suits would subject it to conflicting obligations. “The dilemma,” we stressed, “was of the Company’s own making.” Id., at 767. The Company was attempting, by hiding behind the conciliation agreement, “to shift the loss to its male employees, who shared no responsibility for the sex discrimination.” Id., at 770.

In sum, I see no justification, either in general principles of preclusion or the particular policies implicated in Title VII suits, for the District Court’s refusal to take jurisdiction over this case. Accordingly, I would grant certiorari to review the judgment of the Court of Appeals for the Fifth Circuit.


text:
    No. 82-1633.
    Hospital Building Co. v. Trustees of Rex Hospital et al.
   C. A. 4th Cir. Motion of Federation of American Hospitals for leave to file a brief as amicus curiae granted. Certiorari denied.

Justice Brennan and Justice White would grant certiorari.


author: Justice Brennan, Justice Marshall,

text:
    No. 82-6498.
    Banks v. Texas.
   Ct. Crim. App. Tex. Certio-rari denied.

Justice Brennan,

dissenting.

Adhering to my view that the death penalty is in all circumstances cruel and unusual punishment prohibited by the Eighth and Fourteenth Amendments, Gregg v. Georgia, 428 U. S. 153, 227 (1976), I would vacate the death sentence in this case.

Justice Marshall,

dissenting.

Adhering to my view that the death penalty is under all circumstances cruel and unusual punishment forbidden by the Eighth and Fourteenth Amendments, I would vacate the judgment of the Texas Court of Criminal Appeals insofar as it left undisturbed the death sentence imposed in this case. Gregg v. Georgia, 428 U. S. 153, 231 (1976) (Marshall, J., dissenting). However, even if I believed that the death penalty could be imposed under certain circumstances, I would grant certiorari and vacate the death sentence imposed here because the holding below is inconsistent with this Court’s decision in Witherspoon v. Illinois, 391 U. S. 510 (1968).

In Witherspoon v. Illinois, this Court held that in a case in which the State seeks the death penalty, members of the venire cannot be excluded for cause simply because they voice general objections to the death penalty or express moral or religious scruples against its infliction. The only members of the venire who can properly be excluded for cause based upon their attitude toward the death penalty are those who make “unmistakably clear (1) that they would automatically vote against the imposition of capital punishment without regard to any evidence that might be developed at the trial of the case before them, or (2) that their attitude toward the death penalty would prevent them from making an impartial decision as to the defendant’s guilt.” Id., at 522, n. 21 (emphasis in original). This Court has noted that the logic of Witherspoon would invalidate the exclusion for cause of members of a venire who indicate that there are some kinds of cases in which they would refuse to recommend capital punishment. Ibid. This Court has also noted that the logic of Witherspoon would invalidate the exclusion for cause of prospective jurors in the penalty phase of a capital trial simply because such jurors aver frankly that while they will honestly find facts and answer interrogatories based on their findings, the prospect of the death penalty may affect their honest judgment of the facts or what they may deem to be a reasonable doubt. Adams v. Texas, 448 U. S. 38, 50 (1980).

At petitioner’s trial, the judge excluded several members of the venire on the ground that their'opposition to the death penalty was so irrevocable, automatic, and unbending that they could properly be excused under the Witherspoon standard. The record indicates, however, that the trial court and the Texas Court of Criminal Appeals, which affirmed the trial court’s imposition of the death penalty, committed clear error in the application of the Witherspoon standard.

The Texas Court of Criminal Appeals justified the exclusion of one prospective juror by reference to a single exchange between this juror and the prosecuting attorney:

‘“Q. Is this feeling on your part so firm that you would automatically vote against the death penalty, regardless of what the facts of the case might be?
‘“A. Yes, sir.’” Banks v. State, 643 S. W. 2d 129, 133 (1982).

This one exchange, however, is part of a complicated colloquy the ambiguous character of which is hidden by the Texas court’s selective quotation. Certain responses of the potential juror in question indicate that she was apprehensive about the prospect of serving on a jury in a capital case and was, in general, strongly opposed to capital punishment. Other responses indicate, however, that this juror was not so unalterably opposed to the death penalty that she would either automatically vote against the imposition of capital punishment without regard to the evidence developed at trial or allow her general attitude toward the death penalty to prevent her from making an impartial decision as to the defendant’s guilt. For example, the excluded member of the venire stated the following in a colloquy with the petitioner’s attorney:

“Q. [L]et me ask you if selected as a juror, would you follow the court’s instructions and answer the questions from the evidence that you heard?
“A. I sure would, to the best of my ability.
“Q. All right, and then you would let the law take its course. Then the Judge and his job come into play after you answer questions. Would you do that.
“A. Right; I sure would.
“Q. All right, and regardless of the death penalty or life sentence, you would answer — you would follow the Judge’s instructions to you, would you not?
“A. Well, I would feel like I had to, you know.
“Q. All right, and you would answer any questions asked of you from the evidence that you heard in this trial. Would you do that?
“A. Yes, sir.
“Q. I submit, Your Honor, she is qualified.” Pet. for Cert. 4-5.

Indeed, the question and answer sequence immediately prior to this potential juror’s exclusion by the trial judge shows that she expressed a positive conviction that she was willing to set aside her personal antipathy toward capital punishment and find facts solely on the basis of evidence presented at trial.

“‘Q. Mrs. Rogers, being a conscientious citizen of our county, you would, if chosen as a juror in this case or any case follow the judge’s instructions, and you would answer any questions that the judge gives you from the evidence that you heard in the courtroom, wouldn’t you?
‘“A. I certainly would.’” 643 S. W. 2d, at 135.

These statements clearly indicate that the trial court plainly erred in excluding this potential juror. If a member of the venire is mistakenly excluded, any subsequently imposed death sentence cannot be allowed to stand. See, e. g., Davis v. Georgia 429 U. S. 122 (1976) (per curiam). This Court should review this case in order to enforce the standards established by Witherspoon and Adams. I therefore dissent from the denial of certiorari.

      Under Texas law, upon a finding that a defendant is guilty of a capital offense, the court conducts a separate sentencing procedure to determine whether the defendant shall be sentenced to death or to life imprisonment. At this proceeding, the State and the defendant are permitted to present evidence in support of arguments for and against a sentence of death. At the conclusion of these presentations, the court submits to the jury three questions: (1) whether the conduct of the defendant that caused the death of the deceased was committed deliberately and with the reasonable expectation that the death of the deceased or another would result; (2) whether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society; and (3) if raised by the evidence, whether the conduct of the defendant in killing the deceased was unreasonable in response to the provocation, if any, by the deceased. If the jury finds that the State has proved beyond a reasonable doubt that the answer to each of the three questions is “yes,” the court imposes the death sentence. If the jury finds that the answer to any question is “no,” the court imposes a sentence of life imprisonment. See Tex. Code Crim. Proc. Ann., Art. 37.071 (Vernon 1981 and Supp. 1982-1983).


author: Justice Brennan and Justice Marshall,

text:
    No. 82-6973.
    No. 82-6979.
    No. 83-5077.
    No. 83-5124.
    No. 83-5146.
    No. 83-5366.
    Lindsey v. Louisiana. LaRette v. Missouri. Smith v. Missouri. Hopkinson v. Wyoming. Craig et al. v. North Carolina. James v. Louisiana.
   Sup. Ct. La.;

Sup. Ct. Mo.;

Sup. Ct. Mo.;

Sup. Ct. Wyo.;

Sup. Ct. N. C.; and

Sup. Ct. La. Certiorari denied. Reported below: No. 82-6973, 428 So. 2d 420; No. 82-6979, 648 S. W. 2d 96; No. 83-5077, 649 S. W. 2d 417; No. 83-5124, 664 P. 2d 43; No. 83-5146, 308 N. C. 446, 302 S. E. 2d 740; No. 83-5366, 431 So. 2d 399.

Justice Brennan and Justice Marshall,

dissenting.

Adhering to our views that the death penalty is in all circumstances cruel and unusual punishment prohibited by the Eighth and Fourteenth Amendments, Gregg v. Georgia, 428 U. S. 153, 227, 231 (1976), we would grant certiorari and vacate the death sentences in these cases.


text:
    No. 82-7013.
    Smith v. United States.
   C. A. 7th Cir. Certiorari denied.

Justice Brennan and Justice Marshall would grant certiorari.


text:
    No. 83-222.
    Borman’s Inc. v. Allied Supermarkets, Inc.
   C. A. 6th Cir. Motion of Creditors’ Committee of Allied Supermarkets, Inc., for leave to intervene as a party respondent denied. Alternative request to file a brief as amicus curiae granted. Certiorari denied.


text:
    No. 83-308.
    Kelly v. United States.
   C. A. D. C. Cir. Motion of petitioner to defer consideration of the petition for writ of certiorari denied. Certiorari denied.


text:
    No. 83-5231.
    Duckett v. Raines, Warden, et al.
   C. A. 9th Cir. Certiorari denied.

Justice O’Connor took no part in the consideration or decision of this petition.


text:
    No. 82-1398.
    M/V POLLUX et al. v. Goodpasture, Inc.,
   460 U. S. 1084. Petition for rehearing denied.


text:
    No. 81-523.
    Container Corporation of America v. Franchise Tax Board,
   463 U. S. 159. Petition for rehearing denied.

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


text:
    October 13, 1983
    No. 82-1959.
    Arnold Industries, Inc., et al. v. Stickler.
   C. A. 10th Cir. Certiorari dismissed under this Court’s Rule 53.


text:
    October 17, 1983
    No. 83-468.
    Burlington Northern Railroad Co. v. United States et al.
   C. A. D. C. Cir. Certiorari dismissed under this Court’s Rule 53.


text:
    No. 82-1493.
    Healy et al. v. United States Brewers Assn., Inc., et al.
   Affirmed on appeal from C. A. 2d Cir.

Justice White, Justice Rehnquist, and Justice O’Connor would note probable jurisdiction and set case for oral argument. Justice Powell took no part in the consideration or decision of this case.


text:
    No. 82-6798.
    Auclair v. Wyoming.
   Appeal from Sup. Ct. Wyo. dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for writ of certiorari, certiorari denied.


text:
    No. 83-292.
    Clooney v. Town of Harrisville.
   Appeal from C. A. 1st Cir. dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for writ of certiorari, certiorari denied.


text:
    No. 83-302.
    Avedisian v. May et al.
   Appeal from C. A. 4th 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. 83-341.
    Pearson v. Ohio.
   Appeal from Ct. App. Ohio, Cuyahoga 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. 83-374.
    Logan v. Supreme Court of Iowa et al.
   Appeal from Sup. Ct. Iowa dismissed for want of substantial federal question.


text:
    No. 83-5320.
    Fullmer v. Utah.
   Appeal from Sup. Ct. Utah dismissed for want of substantial federal question.


text:
    No. D-332.
    In re Disbarment of Parsons.
    [For earlier order herein, see 460 U. S. 1078.]
   Disbarment entered.


text:
    No. D-333.
    In re Disbarment of Baxter.
    [For earlier order herein, see 461 U. S. 902.]
   Disbarment entered.


text:
    No. D-335.
    In re Disbarment of Huber.
    [For earlier order herein, see 461 U. S. 902.]
   Disbarment entered.


text:
    No. D-336.
    In re Disbarment of McLean.
    [For earlier order herein, see 461 U. S. 902.]
   Disbarment entered.


text:
    No. D-337.
    In re Disbarment of Vandoren.
    [For earlier order herein, see 461 U. S. 903.]
   Disbarment entered.


text:
    No. D-338.
    In re Disbarment of Collins.
    [For earlier order herein, see 461 U. S. 922.]
   Disbarment entered.


text:
    No. D-340.
    In re Disbarment of Long.
    [For earlier order herein, see 461 U. S. 922.]
   Disbarment entered.


text:
    No. D-341.
    In re Disbarment of Scacchetti.
    [For earlier order herein, see 461 U. S. 940.]
   Disbarment entered.


text:
    No. D-342.
    In re Disbarment of Baker.
    [For earlier order herein, see 461 U. S. 941.]
   Disbarment entered.


text:
    No. D-344.
    In re Disbarment of Stroh.
    [For earlier order herein, see 461 U. S. 941.]
   Disbarment entered.


text:
    No. D-346.
    In re Disbarment of Hollingsworth.
    [For earlier order herein, see 461 U. S. 953.]
   Disbarment entered.


text:
    No. D-347.
    In re Disbarment of Rocap.
    [For earlier order herein, see 461 U. S. 953.]
   Disbarment entered.


text:
    No. D-365.
    In re Disbarment of Rayburn.
   It is ordered that Harry Newton Rayburn, Jr., of Jackson, Miss., be suspended from the practice of law in this Court and that a rule issue, returnable within 40 days, requiring him to show cause why he should not be disbarred from the practice of law in this Court.


text:
    No. D-366.
    In re Disbarment of McMurray.
   It is ordered that Joseph C. McMurray, of Juneau, Alaska, be suspended from the practice of law in this Court and that a rule issue, returnable within 40 days, requiring him to show cause why he should not be disbarred from the practice of law in this Court.


text:
    No. D-367.
    In re Disbarment of Treuber.
   It is ordered that William F. Treuber, of Smithtown, N. Y., be suspended from the practice of law in this Court and that a rule issue, returnable within 40 days, requiring him to show cause why he should not be disbarred from the practice of law in this Court.


text:
    No. D-368.
    In re Disbarment of Glasschroeder.
   It is ordered that Allan F. Glasschroeder, of Milwaukee, Wis., be suspended from the practice of law in this Court and that a rule issue, returnable within 40 days, requiring him to show cause why he should not be disbarred from the practice of law in this Court.


text:
    No. D-369.
    In re Disbarment of Cantagallo.
   It is ordered that Phillip John Cantagallo, of Ashtabula, Ohio, be suspended from the practice of law in this Court and that a rule issue, returnable within 40 days, requiring him to show cause why he should not be disbarred from the practice of law in this Court.


text:
    No. D-370.
    In re Disbarment of Goldfarb.
   It is ordered that Carl Goldfarb, of Charlotte, N. C., be suspended from the practice of law in this Court and that a rule issue, returnable within 40 days, requiring him to show cause why he should not be disbarred from the practice of law in this Court.


text:
    No. D-371.
    In re Disbarment of Jones.
   It is ordered that Harold B. Jones, of Midland, Tex., be suspended from the practice of law in this Court and that a rule issue, returnable within 40 days, requiring him to show cause why he should not be disbarred from the practice of law in this Court.


text:
    No. D-372.
    In re Disbarment of Chagra.
   It is ordered that Joseph Salim Chagra, of El Paso, Tex., be suspended from the practice of law in this Court and that a rule issue, returnable within 40 days, requiring him to show cause why he should not be disbarred from the practice of law in this Court.


text:
    No. 82-818.
    No. 82-852.
    National Labor Relations Board v. Bildisco & Bildisco, Debtor-In-Possession, et al.; and Local 408, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America v. National Labor Relations Board et al.
   C. A. 3d Cir. [Certiorari granted, 459 U. S. 1145.] Motion of American Federation of Labor and Congress of Industrial Organizations for leave to file a supplemental brief as amicus curiae denied.


text:
    No. 82-945.
    Sure-Tan, Inc., et al. v. National Labor Relations Board.
   C. A. 7th Cir. [Certiorari granted, 460 U. S. 1021.] Motion of Mexican American Legal Defense and Educational Fund, Inc., et al. for leave to file a brief as amici curiae granted.


text:
    No. 83-507.
    Carpenters Pension Trust for Southern California v. Shelter Framing Corp. et al.
   C. A. 9th Cir. Motion of petitioner to defer consideration in Nos. 83-245 and 83-291, infra, or in the alternative, to expedite consideration of the petition for writ of certiorari in No. 83-507 denied.


text:
    No. 82-1577.
    Michigan Canners & Freezers Assn., Inc., et al. v. Agricultural Marketing and Bargaining Board et al.
   Appeal from Sup. Ct. Mich. Probable jurisdiction noted.


text:
    No. 83-245.
    No. 83-291.
    Pension Benefit Guaranty Corporation v. R. A. Gray & Co.; and Oregon-Washington Carpenters-Employers Pension Trust Fund v. R. A. Gray & Co.
   Appeals from C. A. 9th Cir. Motion of G & R Roofing Co. for leave to file a brief as amicus curiae in No. 83-245 granted. Probable jurisdiction noted, cases consolidated, and a total of one hour allotted for oral argument. Reported below: 705 F. 2d 1502.


text:
    No. 82-1734.
    Palmore v. Sidoti.
   Dist. Ct. App. Fla., 2d Dist. Certiorari granted.


text:
    No. 82-1994.
    Kirby Forest Industries, Inc. v. United States.
   C. A. 5th Cir. Certiorari granted.


text:
    No. 82-2042.
    Westinghouse Electric Corp. v. Vaughn et al.
   C. A. 8th Cir. Certiorari granted.


text:
    No. 82-2056.
    Escondido Mutual Water Co. et al. v. La Jolla Band of Mission Indians et al.
   C. A. 9th Cir. Certio-rari granted.


text:
    No. 83-271.
    National Collegiate Athletic Assn. v. Board of Regents of the University of Oklahoma et al.
   C. A. 10th Cir. Certiorari granted.


text:
    No. 83-95.
    Patton et al. v. Yount.
   C. A. 3d Cir. Motion of respondent for leave to proceed in forma pauperis and certio-rari granted.


text:
    No. 83-128.
    United States v. Gouveia et al.
   C. A. 9th Cir. Motions of respondents Robert Ramirez, Philip Segura, Robert E. Mills, and Raymond Pierce for leave to proceed in forma pauperis granted. Certiorari granted.


text:
    No. 82-6840.
    James v. Kentucky.
   Sup. Ct. Ky. Motion of petitioner for leave to proceed in forma pauperis and certiorari granted.


text:
    No. 82-1678.
    Fulton et al. v. Plumbers & Steamfitters, Local 598, et al.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 82-1911.
    Gibson v. South Carolina.
   Sup. Ct. S. C. Certiorari denied.


text:
    No. 82-1976.
    Alabama v. McCrary.
   Ct. Crim. App. Ala. Certiorari denied.


text:
    No. 82-2019.
    Weech et al. v. United States.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 82-2100.
    Behrend et al. v. Government National Mortgage Assn. et al.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 82-6789.
    Jones v. Jago, Superintendent, London Correctional Institute.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 82-6797.
    Bloch v. Ambach, Commissioner of Education of New York.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 82-6811.
    Pirolli v. Florida.
   Dist. Ct. App. Fla., 4th Dist. Certiorari denied.


text:
    No. 82-6903.
    Latner v. United States.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 82-6919.
    Wayne v. Raines, Administrator, Arizona Correctional Training Center-Tucson, et al.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 82-6920.
    Snead v. United States.
   Ct. App. D. C. Certiorari denied.


text:
    No. 82-6975.
    Rodriguez v. Wisconsin.
   Ct. App. Wis. Certiorari denied.


text:
    No. 83-86.
    S. E. Nichols of Ohio, Inc. v. National Labor Relations Board.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 83-114.
    No. 83-123.
    Galvan et al. v. United States; and Jamardo v. United States.
   C. A. 11th Cir. Certiorari denied. Reported below: 702 F. 2d 1315.


text:
    No. 83-120.
    New York Racing Assn., Inc. v. National Labor Relations Board et al.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 83-129.
    No. 83-289.
    Holloway et al. v. Valley et al.; and Rapides Parish School Board et al. v. Valley et al.
   C. A. 5th Cir. Certiorari denied. Reported below: 702 F. 2d 1221.


text:
    No. 82-2017.
    Martin v. Mitchell, Warden, et al.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 83-132.
    Struthers Patent Corp. et al. v. Nestle Co., Inc.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 83-136.
    Lake Erie Alliance for the Protection of the Coastal Corridor, Inc., et al. v. United States Army Corps of Engineers et al.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 83-137.
    Berlitz Schools of Languages of America, Inc. v. Bartelt et al.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 83-195.
    Delta Farms Reclamation District No. 2028 v. Superior Court of the County of San Joaquin (Fernandez et al., Real Parties in Interest).
   Sup. Ct. Cal. Cer-tiorari denied.


text:
    No. 83-201.
    Weiss v. United States.
   C. A. 3d Cir. Cer-tiorari denied.


text:
    No. 83-213.
    New York State Association for Retarded Children, Inc., et al. v. Carey, Governor of New York, et al.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 83-225.
    Van Emmerik v. Montana Dakota Utilities Co. et al.
   Sup. Ct. S. D. Certiorari denied.


text:
    No. 83-255.
    Benson et al. v. Massachusetts.
   Sup. Jud. Ct. Mass. Certiorari denied.


text:
    No. 83-259.
    Eastern Air Lines, Inc. v. Atlantic Richfield Co.
   Temp. Emerg. Ct. App. Certiorari denied.


text:
    No. 83-265.
    Chaffee v. United States.
   C. A. 1st Cir. Certiorari denied.


text:
    No. 83-273.
    Galardo, dba Term Con Electronics, et al. v. AMP Inc. et al.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 83-285.
    No. 83-5296.
    Kelly v. United States; and Kelly v. United States.
   C. A. 3d Cir. Cer-tiorari denied. Reported below: 708 F. 2d 121.


text:
    No. 83-288.
    Blanck v. McKeen et al.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 83-290.
    Ivy v. Natchitoches Parish School Board et al.
   Ct. App. La., 3d Cir. Certiorari denied.


text:
    No. 83-294.
    Lindsey v. Kelly, Superintendent of the Chicago Park District, et al.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 83-301.
    No. 83-307.
    Alaska Lumber & Pulp Co., Inc. v. Reid Brothers Logging Co.; and Ketchikan Pulp Co. v. Reid Brothers Logging Co.
   C. A. 9th Cir. Certiorari denied. Reported below: 699 F. 2d 1292.


text:
    No. 83-339.
    Provoda v. Belen Board of Education, dba Belen Consolidated Schools, et al.
   C. A. 10th Cir. Cer-tiorari denied.


text:
    No. 83-363.
    Connecticut v. Ubaldi.
   Sup. Ct. Conn. Cer-tiorari denied.


text:
    No. 83-376.
    Yalkowsky et al. v. Shedler et al.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 83-433.
    Yalkowsky v. Neale et al.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 83-470.
    Radue v. United States.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 83-471.
    Cruz v. United States.
   C. A. 5th Cir. Cer-tiorari denied.


text:
    No. 83-481.
    Thompson v. Hedrick et al.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 83-5026.
    Jackson v. Butterworth, Sheriff of Broward County, Florida.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 83-5028.
    Leycock v. Government of the Virgin Islands.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 83-5054.
    Maxcy v. United States.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 83-5060.
    Abbott v. Adan, Individually, and as Administratrix of the Estate of Adan.
   App. Div., Sup. Ct. N. Y., 1st Jud. Dept. Certiorari denied.


text:
    No. 83-5062.
    Johnson v. Hubbard et al.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 83-5079.
    Henry v. Ohio.
   Ct. App. Ohio, Cuyahoga County. Certiorari denied.


text:
    No. 83-5149.
    Hagler v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 83-5160.
    Zboinski v. Illinois.
   App. Ct. Ill., 1st Dist. Certiorari denied.


text:
    No. 83-5163.
    Weeks v. United States.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 83-5169.
    Atencia v. Illinois.
   App. Ct. Ill., 1st Dist. Certiorari denied.


text:
    No. 83-5170.
    April v. Illinois.
   App. Ct. Ill., 1st Dist. Certiorari denied.


text:
    No. 83-5173.
    Tejeda-Gallegos v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 83-5181.
    Booker v. United States.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 83-5206.
    Ljubas v. United States.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 83-5300.
    Parisie v. Greer, Warden, Menard Correctional Center.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 83-5303.
    Harvey v. Pincus et al.
   C. A. 3d Cir. Cer-tiorari denied.


text:
    No. 83-5314.
    Thomas v. Cox, Warden.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 83-5319.
    Egger v. Phillips.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 83-5346.
    Kodadek v. United States.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 83-5350.
    Smith v. North Carolina.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 83-5362.
    Bonner v. United States.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 83-5378.
    Walker v. Dugger, Superintendent, Florida State Prison, et al.
   Sup. Ct. Fla. Certiorari denied.


text:
    No. 83-5391.
    Heise v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 83-5398.
    Flemmings v. New Jersey.
   Super. Ct. N. J., App. Div. Certiorari denied.


text:
    No. 83-5421.
    Fowler v. Alabama.
   Sup. Ct. Ala. Certio-rari denied.


text:
    No. 83-5423.
    Greer v. United States.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 83-5427.
    Berick v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 83-5435.
    Hernandez v. United States.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 83-5462.
    Hardin v. United States.
   C. A. 7th Cir. Certiorari denied.


author: Justice Brennan,

text:
    No. 82-1718.
    Randall Book Corp. v. Maryland.
   Ct. Sp. App. Md. Certiorari denied.

Justice Brennan,

with whom Justice Marshall joins,

dissenting.

Petitioner was charged with violating Md. Ann. Code, Art. 27, §416D (1982), which makes a person or firm guilty of a misdemeanor “if it knowingly displays for advertising purposes any picture, photograph, drawing, sculpture or other visual representation or image of a person or portion of the human body that depicts sadomasochistic abuse, sexual conduct or sexual excitement, or any verbal description or narrative account of these activities or items.” The Circuit Court for Baltimore County dismissed the charges, concluding that the statute was unconstitutionally vague and overbroad.

On the State’s appeal, the Maryland Court of Special Appeals reversed. 53 Md. App. 30, 452 A. 2d 187 (1982). The court, relying on Smiley v. State, 294 Md. 461, 450 A. 2d 909 (1982), concluded that the statute is constitutional and remanded to the trial court for further proceedings. In Smiley, the Maryland Court of Appeals construed the statute to prohibit only “obscene material,” which this Court has held is unprotected by the First Amendment. See Miller v. California, 413 U. S. 15, 23 (1973).

In my view, the statute is unconstitutional on its face, notwithstanding the state court’s limiting construction. I continue to believe that “at least in the absence of distribution to juveniles or obtrusive exposure to unconsenting adults, the First and Fourteenth Amendments prohibit the State and Federal Governments from attempting wholly to suppress sexually oriented materials on the basis of their allegedly 'obscene’ contents.” Paris Adult Theatre I v. Slaton, 413 U. S. 49, 113 (1973) (Brennan, J., dissenting). See also New York v. Ferber, 458 U. S. 747, 775-777 (1982) (Brennan, J., concurring in judgment).

Since a criminal trial of petitioner under this statute will in my view violate the Constitution of the United States, it is clear that “identifiable . . . constitutional polic[y]” will be “undermined by the continuation of the litigation in the state courts.” See Flynt v. Ohio, 451 U. S. 619, 623 (1981) (Stewart, J., dissenting); id., at 623-624 (Stevens, J., dissenting). Accordingly, the decision below is final within the meaning of 28 U. S. C. § 1257, and we have jurisdiction to review it. Cox Broadcasting Corp. v. Cohn, 420 U. S. 469, 483 (1975).

I would therefore grant certiorari, vacate the judgment of the Court of Special Appeals, and reinstate the dismissal of the indictment.


text:
    No. 82-2091.
    Moody v. Meyers et al.
   C. A. 5th Cir. Motions of Washington Legal Foundation, American Conservative Union et al., and Citizens Economic Foundation for leave to file briefs as amici curiae granted. Certiorari denied.


text:
    No. 82-6913.
    Jones v. Illinois.
   Sup. Ct. Ill. Certiorari denied.

Justice Brennan,

dissenting.

Adhering to my view that the death penalty is in all circumstances cruel and unusual punishment prohibited by the Eighth and Fourteenth Amendments, Gregg v. Georgia, 428 U. S. 153, 227 (1976), I would vacate the death sentence in this case.

Justice Marshall,

dissenting.

Adhering to my view that the death penalty is under all circumstances cruel and unusual punishment forbidden by the Eighth and Fourteenth Amendments, I would vacate the judgment of the Supreme Court of Illinois insofar as it left undisturbed the death sentence imposed in this case. Gregg v. Georgia, 428 U. S. 153, 231 (1976) (Marshall, J., dissenting). However, even if I believed that the death penalty could be imposed constitutionally under certain circumstances, I would grant certiorari and vacate the death sentence imposed here.

Given the wording of the Illinois death penalty statute and the trial court’s instructions in this case, I am not convinced that petitioner’s sentencing jury balanced mitigating factors and aggravating circumstances in the manner required by this Court in Lockett v. Ohio, 438 U. S. 586 (1978), and Eddings v. Oklahoma, 455 U. S. 104 (1982). Under the Illinois statute, once a sentencing jury finds a statutorily defined aggravating factor to exist, the jury proceeds to consider aggravating and mitigating factors. “If the jury determines unanimously that there are no mitigating factors sufficient to preclude the imposition of the death sentence, the court shall sentence the defendant to death.” Ill. Rev. Stat., ch. 88, ¶ 9 — 1(g) (Supp. 1982). At the sentencing trial in this case, the trial judge instructed the jury on how to evaluate mitigating evidence: “ ‘[Y]ou go out and determine whether or not this evidence has taken away the [aggravating] factors, mitigated the factors so that you might say no, we don’t want to vote for the death penalty.’” See People v. Jones, 94 Ill. 2d 275, 302, 447 N. E. 2d 161, 174 (1982) (Simon, J., concurring in part and dissenting in part). Notwithstanding other portions of the trial court’s instructions, this instruction coupled with the Illinois statute’s ambiguous reference to “preclud[ing] the imposition of the death sentence” may well have led the sentencing jury to conduct its deliberation under the assumption that petitioner had the burden of proving that the death penalty was inappropriate in his particular case. Since I do not understand this Court’s precedents to permit the placing of such a burden on a defendant, I would grant the petition.


text:
    No. 83-284.
    Moon et al. v. Hyosung America, Inc.
   C. A. 9th Cir. Motion of respondent for damages denied. Certiorari denied.


author: Justice White,

text:
    No. 83-5053.
    Petrella v. United States.
   C. A. 2d Cir. Certiorari denied.

Justice White,

with whom Justice Blackmun joins,

dissenting.

Petitioner was admitted to the United States in 1978 and obtained a 1-year trainee visa. Upon expiration of his visa, he failed to depart voluntarily and, after protracted deportation proceedings, was deported to Italy. Approximately one month later, petitioner attempted to cross the border at Highgate Springs, Vt. He was arrested and charged with violating 8 U. S. C. §1326, which proscribes unauthorized entry or attempted entry into this country by one who “has been arrested and deported or excluded and deported.”

Prior to trial, petitioner moved to dismiss the indictment on the ground that the earlier deportation proceedings had denied him due process. The District Court refused to review the earlier proceedings and denied the motion. Petitioner was found guilty by a jury and sentenced to a term of imprisonment of one year, all but 30 days of which was suspended. On appeal, the Court of Appeals for the Second Circuit affirmed petitioner’s conviction, holding that Congress did not intend to allow collateral attacks on deportation orders in § 1326 prosecutions. 707 F. 2d 64 (1983).

The question presented in this petition is unresolved. In United States v. Spector, 343 U. S. 169 (1952), the Court expressly reserved decision on this precise issue because it had not been raised in the proceedings below. Moreover, as the Court of Appeals in this case noted, the Courts of Appeals that have addressed the question of the permissibility of collateral attack are divided. 707 F. 2d., at 65. Arguably supporting petitioner’s position that collateral attack is permitted are: United States v. Rangel-Gonzales, 617 F. 2d 529, 530 (CA9 1980) (“deportations are subject to collateral attack”); United States v. Bowles, 331 F. 2d 742, 750 (CA3 1964) (deportation order may be attacked on ground that there is “no basis in fact for the Board’s conclusion in respect to deportability” or there is “no warrant in law” for issuance of order). Arguably supporting the Government’s position that collateral attack is not permitted are: United States v. De La Cruz-Sepulveda, 656 F. 2d 1129, 1131 (CA5 1981) (“a defendant cannot collaterally attack the original deportation order”); Arriaga-Ramirez v. United States, 325 F. 2d 857, 859 (CA10 1963) (“a deportation cannot be collaterally attacked in a prosecution under 8 U. S. C. § 1326”). As a further reflection of the uncertainty in this area, both parties to this proceeding rely on United States v. Rosal-Aguilar, 652 F. 2d 721, 723 (CA7 1981) (agrees that collateral attacks are barred, but accepts the proposition that the Government must prove the underlying deportation to have been “based on a valid legal predicate and obtained according to law”).

The issue presented in this case is one of considerable importance to the consistent enforcement of this Nation’s immigration laws. Accordingly, I would grant the petition to resolve the issue left open in United States v. Spector.


text:
    No. 83-5209.
    No. 83-5267.
    Booker v. Wainwright, Secretary, Florida Department of Corrections. Sullivan v. Wainwright, Secretary, Florida Department of Corrections.
   C. A. 11th Cir.; and

C. A. 11th Cir. Certiorari denied. Reported below: No. 83-5209, 703 F. 2d 1251; No. 83-5267, 695 F. 2d 1306.

Justice Brennan and Justice Marshall,

dissenting.

Adhering to our views that the death penalty is in all circumstances cruel and unusual punishment prohibited by the Eighth and Fourteenth Amendments, Gregg v. Georgia, 428 U. S. 153, 227, 231 (1976), we would grant certiorari and vacate the death sentences in these cases.


text:
    October 31, 1983
    No. 82-6768.
    Finney v. Michigan Department of Social Services.
   Appeal from Sup. Ct. Mich, dismissed for want of substantial federal question.


text:
    No. 83-140.
    Pittsburg & Midway Coal Mining Co. v. Revenue Division, Taxation and Revenue Department of New Mexico.
   Appeal from Ct. App. N. M. dismissed for want of substantial federal question.


text:
    No. 83-366.
    Penobscot Nation v. Stilphen, Commissioner, Department of Public Safety of Maine, et al.
   Appeal from Sup. Jud. Ct. Me. dismissed for want of substantial federal question.


text:
    No. 83-333.
    C.P. Chemical Co., Inc. v. Commissioner of Public Health of Massachusetts.
   Appeal from Sup. Jud. Ct. Mass. Motion of appellant to dispense with printing partial appendix granted. Appeal dismissed for want of substantial federal question.


text:
    No. 83-518.
    Jacques et ux. v. United States et al.
   Appeal from C. A. 9th Cir. dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for writ of certiorari, certiorari denied.


text:
    No. 83-5322.
    Elliott v. Elliott.
   Appeal from Sup. Ct. N. M. dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for writ of certiorari, certiorari denied.


text:
    No. 83-5375.
    Chapman v. Bank of the Commonwealth et al.
   Appeal from C. A. 6th 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. 83-5431.
    Cojanis v. Cojanis et al.
   Appeal from C. A. 9th Cir. dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for writ of certiorari, certiorari denied.


author: Justice Blackmun,

text:
    No. 82-6830.
    Smith v. Oklahoma.
   Ct. Crim. App. Okla. Motion of petitioner for leave to proceed in forma pauperis and certiorari granted. The judgment is vacated insofar as it leaves undisturbed the death penalty imposed and the case is remanded for further consideration in light of the position presently asserted by the Attorney General of Oklahoma in his memorandum filed September 14, 1983.

Justice Blackmun,

with whom Justice Brennan and Justice Marshall join,

concurring in part and dissenting in part.

I concur in the remand of this case to the Court of Criminal Appeals of Oklahoma, but I am neither comfortable nor content with this Court’s vacation of only the death penalty. I would vacate petitioner’s conviction as well as his sentence and thereby permit the Court of Criminal Appeals to review the case afresh. That court is free, of course, after appropriate consideration and if the circumstances warrant, to reinstate the conviction. I, however, would have the Oklahoma tribunal make that move affirmatively, rather than be tempted (it would be error, in my view) not to act at all because it misperceives an implication in this Court’s vacation limited to the death penalty.

I reach this conclusion because the Attorney General of Oklahoma, in his response to the petition for a writ of certiorari, says only:

“The transcript reveals that the sole evidence which linked the Petitioner to the death of the victim is contained in a statement given by the Petitioner to Sheriff Ingram. The crucial part of this statement appears on pages 137-140 of the trial transcript. According to Sheriff Ingram, the Petitioner advised him that, when he started walking away from the victim’s pickup, he observed his co-defendant Goforth, place ‘some paper or something’ under the front seat of the pickup (Tr. 139). Nowhere is it stated that the Petitioner observed his co-defendant set fire to the pickup.
“In view of the foregoing, the State concedes that it cannot be said that the Petitioner ‘contemplated that life would be taken.’ Enmund v. Florida, [458] U. S. [782, 801] ( . . . 1982).”

As I read that concession by the State, it means that there was no intent on petitioner’s part to kill and, hence, that he could not be guilty of murder, let alone incur the death penalty.

But if the State’s concession is indecisive and its language less than clear — as, evidently, a majority of the Members of this Court feels it to be — it seems to me that we should vacate the judgment entirely anyway, and let the Attorney General then clarify his concession to the Oklahoma Court of Criminal Appeals in language that is plainly understood so that that court may act and proceed accordingly. Surely, it is not for this Court to interpret, in the first instance, the extent of the State’s concession and measure its reach so begrudgingly as it does today.


text:
    No.-.
    Castillo v. United States.
   Motion to direct the Clerk to file the petition for writ of certiorari out of time denied.


text:
    No. A-187.
    Gleason v. United States.
   Application for bail, addressed to Justice Brennan and referred to the Court, denied.


text:
    No. A-242.
    Autry v. Estelle, Director, Texas Department of Corrections.
   Motion to vacate the stay of execution of sentence of death, entered by Justice White on October 5, 1983 [post, p. 1301], denied.


text:
    No. A-295.
    Coulter v. Alabama.
   Application for stay of execution of sentence of death, presented to Justice Powell, and by him referred to the Court, is granted pending the timely filing and disposition of a petition for writ of certiorari.


text:
    No. A-298.
    Evans v. Texas.
   Application to continue the stay of issuance of the mandate of the Court of Criminal Appeals of Texas, presented to Justice White, and by him referred to the Court, is granted pending the timely filing and disposition of a petition for writ of certiorari.


text:
    No. D-348.
    In re Disbarment of Davis.
    [For earlier order herein, see 461 U. S. 953.]
   Disbarment entered.


text:
    No. D-349.
    In re Disbarment of Butler.
    [For earlier order herein, see 461 U. S. 954.]
   Disbarment entered.


text:
    No. D-351.
    In re Disbarment of Hoff.
    [For earlier order herein, see 462 U. S. 1102.]
   Disbarment entered.


text:
    No. D-352.
    In re Disbarment of Rosenberg.
    [For earlier order herein, see 462 U. S. 1102.]
   Disbarment entered.


text:
    No. D-373.
    In re Disbarment of Perri.
   It is ordered that Daniel Christopher Perri, of Pensacola, Fla., be suspended from the practice of law in this Court and that a rule issue, returnable within 40 days, requiring him to show cause why he should not be disbarred from the practice of law in this Court.


text:
    No. D-374.
    In re Disbarment of McGhee.
   It is ordered that Milton Lorenzo McGhee, of Sacramento, Cal., be suspended from the practice of law in this Court and that a rule issue, returnable within 40 days, requiring him to show cause why he should not be disbarred from the practice of law in this Court.


text:
    No. D-375.
    In re Disbarment of Italiano.
   It is ordered that Thomas J. Italiano, of Parma, Ohio, be suspended from the practice of law in this Court and that a rule issue, returnable within 40 days, requiring him to show cause why he should not be disbarred from the practice of law in this Court.


text:
    No. D-376.
    In re Disbarment of Goldstein.
   It is ordered that George Edward Goldstein, of Pottstown, Pa., be suspended from the practice of law in this Court and that a rule issue, returnable within 40 days, requiring him to show cause why he should not be disbarred from the practice of law in this Court.


text:
    No. D-377.
    In re Disbarment of Mandel.
   It is ordered that David J. Mandel, of New York, N. Y., be suspended from the practice of law in this Court and that a rule issue, returnable within 40 days, requiring him to show cause why he should not be disbarred from the practice of law in this Court.


text:
    No. D-378.
    In re Disbarment of Lorenzo.
   It is ordered that Samuel Lorenzo, of Sussex, N. J., be suspended from the practice of law in this Court and that a rule issue, returnable within 40 days, requiring him to show cause why he should not be disbarred from the practice of law in this Court.


text:
    No. D-379.
    In re Disbarment of Grossman.
   It is ordered that Neal L. Grossman, of Columbus, Ohio, be suspended from the practice of law in this Court and that a rule issue, returnable within 40 days, requiring him to show cause why he should not be disbarred from the practice of law in this Court.


text:
    No. D-380.
    In re Disbarment of Desmond.
   It is ordered that Francis Patrick Desmond, of Thornton, Pa., be suspended from the practice of law in this Court and that a rule issue, returnable within 40 days, requiring him to show cause why he should not be disbarred from the practice of law in this Court.


text:
    No. 9,
    Orig.
    United States v. Louisiana et al.
    [For earlier order herein, see, e. g., 459 U. S. 963.]
   Motion of the Special Master for additional partial payment by Mississippi for services granted, and the Court approves payment of $12,500.00.

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


text:
    No. 80,
    Orig.
    Colorado v. New Mexico et al.
    [For earlier order herein, see, e. g., 463 U. S. 1204.]
   Motion of New Mexico for leave to file a reply brief granted. Exceptions of New Mexico to the Additional Factual Findings of the Special Master are set for oral argument in due course.


text:
    No. 80-1577.
    City of Mesquite v. Aladdin’s Castle, Inc.,
   455 U. S. 283. Motion of appellant to recall the judgment of this Court denied.


text:
    No. 82-958.
    McDonough Power Equipment, Inc. v. Greenwood et al.
   C. A. 10th Cir. [Certiorari granted, 462 U. S. 1130.] Motion of Sheila Brewer for leave to file a brief as amicus curiae out of time denied.


text:
    No. 82-1005.
    No. 82-1247.
    No. 82-1591.
    Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., et al.; American Iron & Steel Institute et al. v. Natural Resources Defense Council, Inc., et al.; and Ruckelshaus, Administrator, Environmental Protection Agency v. Natural Resources Defense Council, Inc., et al.
   C. A. D. C. Cir. [Certiorari granted, 461 U. S. 956.] Motion of United Steelworkers of America, AFL-CIO-CLC, for leave to file a brief as amicus curiae granted.


text:
    No. 82-1246.
    Bose Corp. v. Consumers Union of United States, Inc.
   C. A. 1st Cir. [Certiorari granted, 461 U. S. 904.] Motion of Marie Shibuya-Snell, Director of the California Department of Consumer Affairs, for leave to file a brief as ami-cus curiae out of time denied.


text:
    No. 82-6758.
    Turner v. County of Siskiyou et al.
   Ct. App. Cal., 3d App. Dist. Motion of petitioner for leave to proceed in forma pauperis denied. Petitioner is allowed until November 21, 1983, within which to pay the docketing fee required by Rule 45(a) and to submit a petition in compliance with Rule 33 of the Rules of this Court.

Justice Brennan, Justice Marshall, Justice Blackmun, and Justice Stevens would grant the motion for leave to proceed in forma pauperis and would deny the petition for writ of certiorari.


text:
    No. 82-6765.
    Unterthiner v. Desert Hospital District of Palm Springs.
   Sup. Ct. Cal. Motion of petitioner for leave to proceed in forma pauperis denied. Petitioner is allowed until November 21, 1983, within which to pay the docketing fee required by Rule 45(a) and to submit a petition in compliance with Rule 33 of the Rules of this Court.


author: Justice Brennan, Justice Stevens,

text:
    No. 82-6778.
    No. 82-6907.
    No. 82-6956.
    No. 83-5040.
    No. 83-5100.
    No. 83-5349.
    Brown v. Herald Co., Inc., dba Globe Democrat Publishing Co. Alexander v. Texas et al. Cross v. Secretary of State. Eno et al. v. United States Department of Housing and Urban Development et al. Linfield v. Board of Higher Education of the City of New York. Miller v. Pierce, Secretary of Housing and Urban Development, et al.
   C. A. 8th Cir.;

Ct. Crim. App. Tex.;

Appeal from Ct. App. Cal., 3d App. Dist.;

C. A. 1st Cir.;

C. A. 2d Cir.; and

C. A. 9th Cir. Motions of petitioners and appellant for leave to proceed in forma pauperis denied. Petitioners and appellant are allowed until November 21, 1983, within which to pay the docketing fee required by Rule 45(a) and to submit petitions and a jurisdictional statement in compliance with Rule 33 of the Rules of this Court.

Justice Brennan,

with whom Justice Marshall and Justice Blackmun join,

dissenting.

In each of these cases, the Court has denied petitioner’s or appellant’s motion to proceed informa pauperis without initially addressing the issue whether the questions presented in the petition for certiorari or jurisdictional statement merit our plenary review — and the Court is apparently announcing today that this will be our practice in the future. At a time when at least some of us proclaim that we are sorely pressed for adequate time to do our work, this treatment is both unfair and wasteful, and I respectfully dissent.

Ordinarily, a $200 filing fee must be paid before a petition for certiorari or a jurisdictional statement, properly conforming to the requirements of this Court’s Rule 33, may be filed. This Court’s Rule 45. However, 28 U. S. C. § 1915(a) provides that “[a]ny court of the United States may authorize the commencement, prosecution or defense of any suit, action or proceeding, civil or criminal, or appeal therein, without prepayment of fees and costs or security therefor, by a person who makes affidavit that he is unable to pay such costs or give security therefor.” This Court’s Rule 46.1, which implements this statute, provides that “[a] party desiring to proceed in this Court informa pauperis shall file a motion for leave to so proceed, together with his affidavit in the form prescribed in Fed. Rules App. Proc., Form 4 . . . setting forth with particularity facts showing that he comes within the statutory requirements.” If the motion is granted, no filing fee is charged, and a single typewritten petition or jurisdictional statement may be filed.

Each year, roughly 1,000 motions supported by affidavit are made for leave to proceed in forma pauperis. These motions usually accompany a petition for a writ of certiorari or a jurisdictional statement, and our practice heretofore has almost always been not to pass on the in forma pauperis motion but to proceed directly to grant or deny the petition based on the merits of the questions presented in the petition or statement. Yet in the instant cases, each of which presents questions so lacking in merit as to have virtually no chance of receiving a plenary hearing, the Court has chosen instead to focus initially on the affidavits supporting the in forma pauperis motions and to deny the motions. This practice simply postpones the determination of the merits of the questions presented until after deficiencies in the in forma pauperis motion are corrected or the filing fee is paid. That approach multiplies our work to no purpose.

I cannot concur in this treatment. Not only does the Court fail to provide the parties with any guidance as to how their affidavits may be considered in the future, it also prescribes no standards by which litigants and those screening the motions may determine when an individual is sufficiently poor to warrant a grant of in forma pauperis status. The only statement the Court has ever made on this subject is that an affiant must show he is unable to “ ‘pay or give security for the costs . . . and still be able to provide’ himself and dependents ‘with the necessities of life.’” Adkins v. E. I. DuPont de Nemours & Co., 335 U. S. 331, 339 (1948). This is hardly a meaningful standard; it indeed suggests that a wide array of factors must be considered before ruling on a motion.

But, even with an articulated set of standards against which to make decisions, under today’s procedure we lose, not gain. Certainly that should be clear to those of us who perceive that we engage in a never-ending struggle to find time needed for important work. The likely result of disposing of cases as the Court does today will be to encourage parties bringing these motions to resubmit their petitions or appeals with a new affidavit they hope will strike a more sympathetic chord — thus increasing the time we must spend to dispose of frivolous cases. Where.it is clear that the merits involved are almost certainly insufficient to demand full review (as has been our experience in all but a handful of informa pauperis cases each year) no purpose is served by indulging in that waste. It is important that we try to avoid the waste of the parties’ time, but perhaps even more important that this Court’s time not be used in this unnecessary exercise. As Justice Stevens has stated in a similar context, “given the volume of frivolous, illegible, and sometimes unintelligible petitions that are filed in this Court, our work is facilitated by the practice of simply denying certiorari once a determination is made that there is no merit to the petitioner’s claim.” Davis v. Jacobs, 454 U. S. 911, 914 (1981) (opinion respecting denial of certiorari). What possible justification can support the scrutiny of 1,000 affidavits in support of in forma pauperis motions each year? Except, perhaps, in cases of extreme abuse, where a petition or appeal wholly lacks merit, we surely benefit all concerned by relying on that reason for disposing finally of the case. Our time certainly can be spent in more productive effort than the determination of whether a petitioner or appellant is able to pay $200 plus the cost of printing and still provide himself and his dependents with the necessities of life.

Justice Stevens,

dissenting.

Although I agree with Justice Brennan that we should simply deny unmeritorious certiorari petitions without scrutinizing the petitioner’s right to proceed informa pauperis, I would not grant any such petition without making sure that the petitioner is unable to pay the required costs. If such examination disclosed the kind of disrespect for our rules that has motivated the Court’s unusual action in these cases, I would deny the petition even if it would otherwise have merited review. That would remove any incentive a petitioner might otherwise have to seek in forma pauperis status although ineligible for such status, without requiring the Court to assume the burden of examining every motion for leave to proceed in forma pauperis. In borderline cases the petitioner should, of course, be given an opportunity to pay the required costs before final action is taken on his application. I see no purpose, however, in insisting that these petitioners — none of whom is represented by counsel who could advise them that their petitions stand no chance of being granted — pay a fee for the privilege of having their petitions denied.

       This new procedure emerged last Term, when in several instances the Court denied parties’ motions to proceed in forma pauperis because the parties were deemed either not to be sufficiently poor or to have failed to file adequate affidavits.

       Rule 46.1 further provides that “if the district court or the court of appeals has appointed counsel under the Criminal Justice Act of 1964, as amended, the party need not file an affidavit.”

       Approximately 1,000 additional motions are filed in which Rule 46 does not require an affidavit.

       I note in passing that Form 4 of the Federal Rules of Appellate Procedure does not even call for a description of the debts of the affiant; nor does it call for the affiant’s age; nor does it call for an indication of the cost of living in the affiant’s place of residence. Hence, I doubt that the Court could successfully develop standards based on the information currently available.
      Furthermore, it is no answer that there is a wide range of motions, such as motions for extensions of time, that the Court decides without the aid of explicit standards. Motions to proceed in forma pauperis are a special case since they will determine whether an individual gains access to this Court.

       See, e. g., Unterthiner v. Desert Hospital District Of Palm Springs, No. 82-6765 (approximately $1,000,000 net assets, $2,500 salary per month, and four dependents), ante, p. 928.


text:
    No. 83-141.
    No. 83-236.
    No. 83-283.
    Hawaii Housing Authority et al. v. Midkiff et al.; Portlock Community Assn. (Maunalua Beach) et al. v. Midkiff et al.; and Kahala Community Assn., Inc., et al. v. Midkiff et al.
   Appeals from C. A. 9th Cir. Probable jurisdiction noted, cases consolidated, and a total of one hour allotted for oral argument.

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

Reported below: 702 F. 2d 788.


text:
    No. 82-2120.
    Smith et al. v. Robinson, Rhode Island Associate Commissioner of Education, et al.
   C. A. 1st Cir. Certiorari granted.


text:
    No. 83-173.
    Wasman v. United States.
   C. A. 11th Cir. Certiorari granted.


text:
    No. 83-371.
    Federal Communications Commission et al. v. ITT World Communications, Inc., et al.
   C. A. D. C. Cir. Certiorari granted.


text:
    No. 83-185.
    Cooper et al. v. Federal Reserve Bank of Richmond.
   C. A. 4th Cir. Certiorari granted limited to Question 1 presented by the petition.


text:
    No. 82-1414.
    Pratt-Farnsworth, Inc., et al. v. Carpenters Local Union No. 1846 of the United Brotherhood of Carpenters & Joiners of America, AFL-CIO, et al.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 82-1704.
    Bennett et al. v. Williams.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 82-1839.
    Mann, Administrator of the Estate of Mann v. Gold et al.; and Mann, Administrator of the Estate of Mann v. Canter et al.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 82-1882.
    Church of Scientology of Portland et al. v. Rudie et al.
   Ct. App. Ore. Certiorari denied.


text:
    No. 82-1997.
    Rollins et al. v. United States.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 82-2003.
    No. 82-2013.
    Licensed Beverage Distributors Assn. v. United States; and Texas et al. v. United States.
   C. A. 5th Cir. Certiorari denied. Reported below: 695 F. 2d 136.


text:
    No. 82-2007.
    Andrew v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 82-2088.
    Equitable Life Assurance Society of the United States v. Burns et al.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 82-2092.
    No. 83-252.
    Petti et al. v. United States; and Bartolatta v. United States.
   C. A. 9th Cir. Certiorari denied. Reported below: 707 F. 2d 520.


text:
    No. 82-2095.
    Gardner et al. v. Pan American World Airways, Inc.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 82-2139.
    Armstrong v. Armstrong.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 82-2163.
    Garbin v. Ff11lorida.
   Dist. Ct. App. Fla., 4th Dist. Certiorari denied.


text:
    No. 82-6204.
    Tolbert v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 82-6746.
    Reed v. Oklahoma.
   Ct. Crim. App. Okla. Certiorari denied.


text:
    No. 82-6794.
    Davis v. Oklahoma.
   Ct. Crim. App. Okla. Certiorari denied.


text:
    No. 82-6808.
    Locks v. Sumner, Warden of San Quentin Prison.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 82-6862.
    Allard v. New Hampshire.
   Sup. Ct. N. H. Certiorari denied.


text:
    No. 82-6878.
    Ivy v. Texas.
   Ct. Crim. App. Tex. Certiorari denied.


text:
    No. 82-6889.
    Audia v. West Virginia.
   Sup. Ct. App. W. Va. Certiorari denied.


text:
    No. 82-6890.
    Dysart v. United States.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 82-6902.
    Hall v. Iowa et al.
   C. A. 8th Cir. Certio-rari denied.


text:
    No. 82-6910.
    Frazier et al. v. Manson, Commissioner of Corrections, et al.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 82-6912.
    Gukeisen v. United States.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 82-6939.
    Unger v. United States.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 82-6942.
    Roberson v. Estelle, Director, Texas Department of Corrections.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 82-6978.
    Newsome v. Illinois.
   App. Ct. Ill., 1st Dist. Certiorari denied.


text:
    No. 82-7002.
    Wallace v. Lockhart, Director of Arkansas Department of Corrections.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 82-7004.
    Adams v. Dayan.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 82-7005.
    Bowring v. Warden, Powhatan Correctional Center.
   Sup. Ct. Va. Certiorari denied.


text:
    No. 82-7006.
    Craig v. United States.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 82-7015.
    Banks et al. v. Block, Secretary of Agriculture, et al.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 82-7029.
    Howard v. United States.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 83-29.
    No. 83-169.
    Roemer v. United States; and Marcello v. United States.
   C. A. 5th Cir. Certiorari denied. Reported below: 703 F. 2d 805.


text:
    No. 83-35.
    Mallette Bros. Construction Co., Inc., et al. v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 83-54.
    Lopez v. United States.
   C. A. 5th Cir. Cer-tiorari denied.


text:
    No. 83-78.
    Verrussio v. United States.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 83-119.
    In re Edwards.
   Sup. Ct. S. C. Certiorari denied.


text:
    No. 83-134.
    Nesglo, Inc., et al. v. Chase Manhattan Bank, N.A., et al. (two cases).
   C. A. 1st Cir. Certiorari denied.


text:
    No. 83-172.
    Court House Plaza Co. v. City of Palo Alto et al.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 83-193.
    No. 83-342.
    Ranier & Associates et al. v. Waldschmidt, Trustee; and Waldschmidt, Trustee v. Ranier & Associates et al.
   C. A. 6th Cir. Certiorari denied. Reported below: 706 F. 2d 171.


text:
    No. 83-198.
    Bank of America National Trust & Savings Assn. v. Federal Deposit Insurance Corporation.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 83-206.
    Miller v. United States.
   C. A. Fed. Cir. Certiorari denied.


text:
    No. 83-228.
    S & Vee Cartage Co., Inc., et al. v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 83-247.
    Gould et al. v. Control Laser Corp. et al.
   C. A. Fed. Cir. Certiorari denied.


text:
    No. 83-251.
    PRC Harris, Inc. v. Boeing Co.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 83-306.
    Parrott v. Wilson et al.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 83-311.
    Strassner v. Strassner.
   App. Div., Sup. Ct. N. Y., 2d Jud. Dept. Certiorari denied.


text:
    No. 83-314.
    Ostric v. Corporation of St. Mary’s College, Notre Dame, et al.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 83-315.
    DeVRY Inc. v. McClandon.
   App. Ct. Ill., 1st Dist. Certiorari denied.


text:
    No. 83-319.
    Stillman v. United States.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 83-323.
    Clemmons v. Johnson Brothers Wholesale Liquor Co.
   Sup. Ct. Kan. Certiorari denied.


text:
    No. 83-330.
    Wold v. Bull Valley Management Co., Inc.
   Sup. Ct. Ill. Certiorari denied.


text:
    No. 83-337.
    Dew v. City of Florence.
   Sup. Ct. S. C. Certiorari denied.


text:
    No. 83-343.
    Rouse SI Shopping Center, Inc. v. Morse/Diesel, Inc., et al.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 83-344.
    Formaldehyde Institute, Inc., et al. v. Frechette, Commissioner of Public Health of Massachusetts.
   Sup. Jud. Ct. Mass. Certiorari denied.


text:
    No. 83-345.
    McCarthy et al. v. Charles D. Bonanno Linen Service, Inc., et al.
   C. A. 1st Cir. Certiorari denied.


text:
    No. 83-348.
    Storrs v. State Medical Board; and Rosi v. State Medical Board.
   Sup. Ct. Alaska. Certiorari denied.


text:
    No. 83-349.
    Lang v. Georgia.
   Ct. App. Ga. Certiorari denied.


text:
    No. 83-351.
    Puerto Rico Electric Power Authority v. General Electric Co.
   Sup. Ct. P. R. Certiorari denied. Reported below:-P. R. R.-.


text:
    No. 83-352.
    Trans-World Sewing Machine Co., Inc. v. Standard Sewing Equipment Corp.
   Ct. App. Kan. Certio-rari denied.


text:
    No. 83-354.
    Local Union No. 3, International Brotherhood of Electrical Workers, AFL-CIO v. Ingram et al.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 83-355.
    Holter et al. v. Moore & Co. et al.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 83-362.
    Beres et al. v. Hope Homes, Inc., et al.
   Ct. App. Ohio, Summit County. Certiorari denied.


text:
    No. 83-367.
    Harden v. E. I. du Pont de Nemours & Co.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 83-377.
    Officenters International Corp. of Atlanta v. Interstate North Associates.
   Ct. App. Ga. Cer-tiorari denied.


text:
    No. 83-381.
    Metropolitan Erecting Co., Inc. v. Inryco, Inc., et al.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 83-384.
    Hudenburg v. Neff, Executor of the Estate of Lummis, et al.
   Ct. App. Tex., 14th Sup. Jud. Dist. Certiorari denied.


text:
    No. 83-386.
    Massarsky v. General Motors Corp.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 83-387.
    Putney v. Consolidated Rail Corporation.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 83-390.
    City of Austin, Texas, et al. v. Decker Coal Co. et al.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 83-391.
    California Glazed Products, Inc. v. Burns & Russell Company of Baltimore City.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 83-392.
    Ruiz v. Cupp, Superintendent, Oregon State Penitentiary.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 83-394.
    McKenzie et al. v. General Motors Corp. et al.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 83-402.
    Skaggs Cos., Inc. v. Whatley.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 83-406.
    Grant et al. v. Erie Insurance Exchange et al.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 83-407.
    Vickroy v. City of Springfield, Missouri.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 83-409.
    Coastal Steel Corp. v. Wheelabrator-Frye, Inc., et al.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 83-417.
    Vu et ux. v. Singer Co.
   C. A. 9th Cir. Cer-tiorari denied.


text:
    No. 83-420.
    A.D.M. Corp. et al. v. Thomson et al.
   C. A. 1st Cir. Certiorari denied.


text:
    No. 83-423.
    Fillmore v. Alabama.
   Ct. Crim. App. Ala. Certiorari denied.


text:
    No. 83-428.
    Barwick v. South Carolina.
   Sup. Ct. S. C. Certiorari denied.


text:
    No. 83-429.
    Davis v. Connecticut.
   Sup. Ct. Conn. Cer-tiorari denied.


text:
    No. 83-441.
    Yalkowsky v. Mollen, Presiding Justice of Appellate Division of the Supreme Court of New York, Second Judicial Department, et al.
   C. A. 2d Cir. Certio-rari denied.


text:
    No. 83-443.
    U.S.S. Polypropylene Division, a Division of United States Steel Corp. v. Studiengesellschaft Kohle m.b.H.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 83-444.
    Balliviero v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 83-445.
    Oakland Raiders v. City of Berkeley.
   Ct. App. Cal., 1st App. Dist. Certiorari denied.


text:
    No. 83-452.
    Dixon v. United States.
   C. A. 3d Cir. Cer-tiorari denied.


text:
    No. 83-456.
    Miller et al. v. United States, et al.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 83-480.
    Ducommun et al. v. Commissioner of Internal Revenue.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 83-482.
    Nathanson v. United States.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 83-487.
    Mangalick Enterprises, Inc. v. Freedman et al.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 83-509.
    Feldman v. United States.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 83-519.
    National Cash Register Corp. v. Rose.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 83-532.
    Cohen et ux. v. Smith, Attorney General, et al.
   C. A. 9th.Cir. Certiorari denied.


text:
    No. 83-5014.
    Helmich v. United States.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 83-5016.
    Adams v. Florida Parole and Probation Commission.
   Dist. Ct. App. Fla., 1st Dist: Certiorari denied.


text:
    No. 83-5017.
    Williams v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 83-5035.
    Ward v. United States.
   C. A. 5th Cir. Cer-tiorari denied.


text:
    No. 83-5037.
    Robbins v. Marshall, Superintendent, Southern Ohio Correctional Facility.
   C. A. 6th Cir. Cer-tiorari denied.


text:
    No. 83-5067.
    Edgington et al. v. New Mexico.
   Ct. App. N. M. Certiorari denied.


text:
    No. 83-5087.
    Koenig v. South Dakota.
   Sup. Ct. S. D. Certiorari denied.


text:
    No. 83-5109.
    Litt v. United States.
   C. A. 6th Cir. Cer-tiorari denied.


text:
    No. 83-5117.
    Hill v. Zimmerman, Superintendent, State Correctional Institute at Huntingdon, et al.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 83-5122.
    Persinger v. United States.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 83-5162.
    Gutierrez v. United States.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 83-5168.
    Graham v. Houseman, Acting District Director of the Portland Office of the United States Immigration and Naturalization Service, et al.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 83-5171.
    Brown v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 83-5189.
    Dampier v. Illinois.
   App. Ct. Ill., 1st Dist. Certiorari denied.


text:
    No. 83-5213.
    Barnett v. United States.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 83-5280.
    Connor v. United States.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 83-5334.
    Attwell v. Heckler, Secretary of Health and Human Services.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 83-5340.
    Burnette v. Ponte, Superintendent, Massachusetts Correctional Institute.
   C. A. 1st Cir. Certiorari denied.


text:
    No. 83-5342.
    McAdoo v. Federal Bureau of Investigation.
   C. A. D. C. Cir. Certiorari denied.


text:
    No. 83-5343.
    Higgs v. Kentucky.
   Sup. Ct. Ky. Certiorari denied.


text:
    No. 83-5344.
    Wachter v. Green et al.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 83-5347.
    Fair v. Department of Social Services.
   Cir. Ct. Mich., Ingham County. Certiorari denied.


text:
    No. 83-5348.
    Siroonian v. New York Foundling Hospital et al.
   App. Div., Sup. Ct. N. Y., 1st Jud. Dept. Certiorari denied.


text:
    No. 83-5358.
    Kent v. New York City Department of Sanitation.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 83-5360.
    Appleby v. Massachusetts.
   Sup. Jud. Ct. Mass. Certiorari denied.


text:
    No. 83-5363.
    No. 83-5382.
    No. 83-5383.
    Cauble v. United States; Williams v. United States; and Guion v. United States.
   C. A. 4th Cir. Certiorari denied. Reported below: 714 F. 2d 134.


text:
    No. 83-5369.
    Donnell v. Freeman et al.
   Sup. Ct. Mo. Certiorari denied.


text:
    No. 83-5379.
    Ronson v. Walters, Commissioner of Corrections of New York, et al.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 83-5392.
    Servidio v. United States.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 83-5395.
    Harren v. Garrison, Warden.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 83-5401.
    Marshall v. Oklahoma.
   Ct. Crim. App. Okla. Certiorari denied.


text:
    No. 83-5409.
    Groce v. Washington State Department of Corrections et al.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 83-5418.
    Johnson v. Foltz, Warden.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 83-5422.
    Edwards v. Denton et al.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 83-5433.
    Jameson v. United States.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 83-5479.
    Lau Tung Lam v. United States.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 83-5482.
    Johnson, aka Latif v. United States.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 83-5492.
    Gallop v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 83-5496.
    Simpson v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 83-5506.
    Clark v. United States.
   Ct. App. D. C. Certiorari denied.


text:
    No. 82-1861.
    McCarren et al. v. Town of Springfield, Vermont, et al.
   C. A. 2d Cir. Certiorari denied.

Justice Rehnquist,

dissenting.

The town of Springfield, Vermont, wishes to construct and operate a hydroelectric generating facility on the neighboring Black River, and in June 1978, applied to the Federal Energy Regulatory Commission for a license to do so. FERC has never ruled on this application. In January 1980, the town of Cavendish, Vermont, petitioned the Vermont Public Service Board for a declaratory judgment that Springfield’s proposed project was subject to the provisions of Vt. Stat. Ann., Tit. 30, §248 (Supp. 1983), which states that “[n]o company as defined [herein] . . . may begin site preparation for or construction of an electric generating facility within the state . . . unless the . . . board . . . [issues a certificate of public good].” App. to Pet. for Cert. 58a-59a.

Springfield appeared before the Public Service Board and contended that FERC’s licensing jurisdiction pre-empted the authority of the Board, but after briefing and argument the Board ruled that it had jurisdiction under § 248 and prohibited Springfield from commencing site preparation until Springfield obtained a certificate of public good.

Although Vermont law afforded Springfield a right of appeal from the Board’s decision to the Supreme Court of Vermont, Springfield did not avail itself of this right. Instead, it collaterally attacked the Board’s ruling by an action filed in the United States District Court for the District of Vermont, seeking a declaratory judgment that the Board’s ruling was null and void on pre-emptive grounds. The District Court, in a thorough and well-reasoned opinion, canvassed the related issues raised by petitioners as a defense to its proceeding with the respondent’s suit: res judicata, abstention, and the principles of Younger v. Harris, 401 U. S. 37 (1971). 549 F. Supp. 1134 (1982). Rejecting all of them, it ruled in favor of respondents on the merits of the preemption claim, and the Court of Appeals affirmed substantially for the reasons set forth in the opinion of the District Court. 722 F. 2d 728 (1983). I would grant certiorari to review the District Court’s refusal to accord any res judicata weight to the determination of the Vermont Public Service Board.

The District Court held that res judicata did not apply, because “the policy against permitting [the Board] to act beyond its jurisdiction outweighs the policy underlying the doctrine of res judi-cata.” 549 F. Supp., at 1148. The District Court, relying on our decisions in Durfee v. Duke, 375 U. S. 106 (1963), and Kalb v. Feuerstein, 308 U. S. 433 (1940), in effect held that where the merits of the issue tendered by the federal plaintiff could result in a conclusion that the federal regulatory scheme ousted the state regulatory scheme, res judicata does not apply. I think this misreads the decisions upon which the District Court relied, and slights our recent decision in Insurance Corporation of Ireland, Ltd. v. Compagnie des Bauxites de Guinee, 456 U. S. 694, 702, n. 9 (1982), where the Court said:

“A party that has had an opportunity to litigate the question of subject-matter jurisdiction may not, however, reopen that question in a collateral attack upon an adverse judgment. It has long been the rule that principles of res judicata apply to jurisdictional determinations — both subject matter and personal. See Chicot County Drainage Dist. v. Baxter State Bank, 308 U. S. 371 (1940); Stoll v. Gottlieb, 305 U. S. 165 (1938).”

Kalb v. Feuerstein was a case in which Congress had confided exclusive jurisdiction for settlement of claims to the federal bankruptcy courts, and thereby ousted the state courts of jurisdiction to adjudicate such claims. 308 U. S., at 440. But here, although the federal courts may have reached an entirely correct conclusion on the merits of the federal pre-emption issue, there is not the remotest suggestion that Congress by enactment of legislation authorizing federal licensing of hydroelectric projects intended to deprive the Vermont Public Service Board of authority to hear any claim relating to such projects that would otherwise be within the jurisdiction of the Board.

Although the fact that the adjudicating agency in this case was a state agency, rather than a state court, may make some difference as to the extent to which res judicata principles apply, it is by no means dispositive of the issue. “Occasionally courts have used language to the effect that res judicata principles do not apply to administrative proceedings, but such language is certainly too broad.” United States v. Utah Construction & Mining Co., 384 U. S. 394, 421-422 (1966) (footnotes omitted).

At a time when judges and observers are increasingly concerned with the workload of the federal courts, the application of principles of res judicata to disputes such as this might both conserve the time of the federal courts and make for a more orderly resolution of this and similar disputes.

      This case may also present a question left open in Gibson v. Berryhill, 411 U. S. 564, 575-577 (1973): whether respondents were required by the line of cases beginning with Younger v. Harris, 401 U. S. 37 (1971), to pursue their avenues of appeal from the administrative ruling within the state court system. As this Court observed in Huffman v. Pursue, Ltd,., 420 U. S. 592, 608 (1975), “[virtually all of the evils at which Younger is directed . . . inhere in federal intervention prior to completion of state appellate proceedings.”


author: Justice O’Connor,

text:
    No. 82-1971.
    Schaefer v. National Labor Relations Board.
   C. A. Bd Cir. Certiorari denied.

Justice O’Connor,

with whom Justice Powell and Justice Rehnquist join,

dissenting.

I would grant certiorari in this case to clarify the application of the National Labor Relations Board’s policy of deferral to private resolutions of labor disputes. The Board applies this formal policy to both arbitral and nonarbitral settlements of labor disputes, including settlements of unfair labor practice charges. See Central Cartage Co., 206 N. L. R. B. 337, 338 (1973). In this case, petitioner made apparent concessions in collective-bargaining negotiations to get the employees’ union to withdraw its unfair labor practice charges. See 246 N. L. R. B. 181, 187, 190 (1979). Petitioner also paid cash settlements to four employees in exchange for waivers of any backpay they might be entitled to receive. 261 N. L. R. B. 272, 273 (1982). The Board refused, however, to defer to the union’s waiver because the parties had not resolved the legal merits of the charges and because petitioner had not provided substantial remedies for his unfair labor practice. 246 N. L. R. B., at 190. The Board also determined that the four employees could not settle their backpay claims without Board approval and ordered petitioner to make full restitution. 261 N. L. R. B., at 273. The Court of Appeals for the Third Circuit affirmed. 697 F. 2d 558 (1983).

I — I

The Board’s application of its deferral policy in this case is inexplicable. For example, the Board asserts that the settlement negotiations did not address and resolve the unfair labor practice claims. Brief in Opposition 7-8. The record clearly indicates, however, and, ironically, the Board’s General Counsel found objectionable, see 246 N. L. R. B., at 190, that petitioner and the union engaged in extensive discussions concerning withdrawal of the charges. Id., at 187. The Board has regularly held that its decision to defer does not depend on whether it agrees with the parties’ actual resolution of the dispute. See, e. g., Howard Electric Co., 166 N. L. R. B. 838, 341 (1967) (deference to arbitral settlement); Terminal Transport Co., 185 N. L. R. B. 672, 673 (1970) (same). Rather, it requires the parties to discuss the charges to assure that the employees have made a clear and knowing waiver of their statutory right to process complaints before the Board. See Coca-Cola Bottling Co., 243 N. L. R. B. 501, 502 (1979) (deference to nonarbitral settlement). It is beyond peradventure that the union and the four employees who accepted cash settlements made such a waiver here.

Similarly, the record contradicts the Board’s contention that petitioner did not remedy the unfair labor practice. Brief in Opposition 8-9. Surely at least some of petitioner’s bargaining concessions were attributable to the union’s agreement to withdraw the unfair labor practice charges. Any concessions the union made, including waiver of the charges, would be binding upon the employees, absent evidence that the union acted in bad faith. See Hines v. Anchor Motor Freight, Inc., 424 U. S. 554, 564-567 (1976). Even if the union’s waiver was not determinative, the cash settlements the four employees accepted would be. No one who understands the economic logic of the old hunter’s adage that “a bird in the hand is worth two in the bush” could dispute the substantiality of the remedy provided. Certainly the Board cannot do so, as it has approved settlements which contained no back-pay awards. See, e. g., Krause Honda, Ltd., 8 AMR ¶ 18, 221 (1981) (nonarbitral settlement); Beloit Corp., Jones Division, 6 AMR ¶ 14, 177 (1979) (same).

Moreover, the Board’s assertion that settlements reached after its decisions have issued are not substantial remedies is contrary to its previous rulings. See, e. g., Krause Honda, Ltd., supra (ruling that the timing of settlements does not affect Board’s deferral policy). Issuance of an adverse Board decision should make employers more willing to settle on more generous terms. Thus, settlements reached after Board decisions should be more, not less, likely to afford substantial redress for violations of the Act than are settlements reached before that time. The Board has not articulated a substantial reason for treating such a settlement less deferentially in this case.

Finally, the Board’s assertion that formal determinations of backpay claims are preferable to private resolutions of such claims, 261 N. L. R. B., at 273; 697 F. 2d, at 562, is antithetical both to the national labor policy of encouraging private dispute resolutions and to the Board’s own statements that nonarbitral settlements deserve as much respect as formal resolutions of back-pay claims. See Krause Honda, Ltd., supra; Coca-Cola Bottling Co., supra. Again, the Board has offered no reason for departing from its longstanding policy in this case.

Were this simply an isolated instance of law being erroneously applied to the facts of this case I would not suggest that the Court expend its time and resources reviewing it, but the opinions of the Courts of Appeals strongly suggest that there is marked disagreement on the circumstances under which the policy of Board deferral must be exercised. See, e. g., Roadway Express, Inc. v. NLRB, 647 F. 2d 415, 422-423, and n. 15 (CA4 1981) (noting four opinions of Board and criticizing inconsistent application of deferral policy to nonarbitral settlements); NLRB v. Pincus Brothers, Inc.-Maxwell, 620 F. 2d 367 (CA3 1980) (three opinions on application of deferral policy to arbitral settlement); Douglas Aircraft Co. v. NLRB, 609 F. 2d 352 (CA9 1979) (Board must defer to ar-bitral settlement unless it is “palpably wrong”). In my opinion, this intercircuit confusion makes this case appropriate for certio-rari review.

Moreover, I believe that an essential aspect of our national labor policy is at stake in this case. A commitment to private dispute resolution undergirds our entire national labor policy, which recognizes that the societal rewards of private negotiations outweigh any need for uniformity of result or adjudicative resolution of every labor dispute. Parties accept the risk that private settlements will differ from possible Board dispositions when they elect to proceed by negotiation, and the Board recognizes such possibilities when it adopts a policy of deference. The Board’s deferral policy is deeply rooted in our national commitment to private dispute resolution and, until openly and expressly changed, must be applied uniformly and strictly. Private dispute resolution processes become unworkable if their finality is cast into doubt by the prospect of unprincipled Board interference. When there is confusion about the circumstances in which deference will be exercised, employers and employees cannot be fully committed to private dispute resolution as a means of achieving industrial stability. I would therefore grant certiorari to clarify the application of this important national labor policy.