text:
    No. A-415 (84-851).
    Mobil Oil Corp. et al. v. Dow Jones & Co., Inc., et al.
   C. A. 9th Cir. Application for stay or temporary injunctive relief~ addressed to THE CHIEF JUSTICE and referred to the Court, denied.

JUSTICE MARSHALL, JUSTICE POWELL, and JUSTICE O'CONNOR took no part in the consideration or decision of this application.


source: Caselaw Access Project

license: Public Domain

text:
    No. A-417.
    Nichols v. United States.
   C. A. 5th Cir. Application to recall and stay the mandate, addressed to JUSTICE BRENNAN and referred to the Court, denied.


text:
    No. D-456.
    In re Disbarment of O'Brien.
   Disbarment entered. [For earlier order herein, see ante, p. 914.]


text:
    No. D-466.
    In re Disbarment of Hill.
   It is ordered that Bobby L. Hill, of Savannah, Ga., 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-467.
    In re Disbarment of McGlasson.
   It is ordered that Howard Allen McGlasson, Jr., of Savannah, Ga., 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-468.
    In re Disbarment of DiAngelus.
   It is ordered that Lawrence James DiAngelus, of Media, 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. 79,
    Orig.
    Oklahoma v. Arkansas.
   Motion of plaintiff to dismiss the bill of complaint denied. [For earlier order herein, see, e. g., p. 808.]


text:
    No. 94,
    Orig.
    South Carolina v. Regan, Secretary of the Treasury.
    [For earlier order herein, see, e. g., 466 U. S. 948.]
   Report of the Special Master on motion of the National Governors' Association for leave to intervene is received and ordered filed.


text:
    No. 83-1368.
    Northwest Wholesale Stationers, Inc. v. Pacific Stationery & Printing Co.
   C. A. 9th Cir. [Certiorari granted, ante, p. 814.] Motion of the Solicitor General for leave to participate in oral argument as amicus curiae and for divided argument granted.


text:
    No. 83-1492.
    National Railroad Passenger Corporation v. Atchison, Topeka & Santa Fe Railway Co. et al. Atchison, Topeka & Santa Fe Railway Co. et al. v. National Railroad Passenger Corporation.
   C. A. 7th Cir. [Probable jurisdiction noted, ante, p. 813]; and

No. 83-1633.

C. A. 7th Cir. [Probable jurisdiction postponed, ante, p. 813.] Motion of the Solicitor General for divided argument granted.


text:
    No. 83-1673.
    Devine, Director, Office of Personnel Management v. Nutt et al.
   C. A. Fed. Cir. [Certiorari granted, ante, p. 814.] Motion of the Solicitor General to dispense with printing the joint appendix granted.


text:
    No. 83-2161.
    Montana et al. v. Blackfeet Tribe of Indians.
   C. A. 9th Cir. [Certiorari granted, ante, p. 815.] Motion of the Solicitor General for leave to participate in oral argument as amicus curiae and for divided argument granted.


text:
    No. 84-4.
    Williamson County Regional Planning Commission et al. v. Hamilton Bank of Johnson City.
   C. A. 6th Cir. [Certiorari granted, ante, p. 815.] Motion of California et al. for leave to participate in oral argument as amici curiae, for divided argument, and for additional time for oral argument denied. Motion of the Solicitor General for leave to participate in oral argument as amicus curiae and for divided argument granted.


text:
    No. 84-48.
    United States v. Bagley.
   C. A. 9th Cir. [Certiorari granted, ante, p. 1016.] Motion for appointment of counsel granted, and it is ordered that Thomas W. Hillier II, Esquire, of Seattle, Wash., be appointed to serve as counsel for respondent in this case.


text:
    No. 84-68.
    Kerr-McGee Corp. v. Navajo Tribe of Indians et al.
   C. A. 9th Cir. [Certiorari granted, ante, p. 879.] Motion of the Solicitor General for leave to participate in oral argument as amicus curiae and for divided argument granted.


text:
    No. 84-262.
    Mountain States Telephone & Telegraph Co. v. Pueblo of Santa Ana.
   C. A. 10th Cir. [Certiorari granted, ante, p. 879.] Motion of Public Service Company of New Mexico for leave to file a brief as amicus curiae granted. JUSTICE O'CONNOR took no part in the consideration or decision of this motion.


text:
    No. 84-438.
    Superintendent, Massachusetts Correctional Institution at Walpole v. Hill et al.
   Sup. Jud. Ct. Mass. [Certiorari granted, ante, p. 1016.] Motion for appointment of counsel granted, and it is ordered that Jamie Ann Sabino, of Wellesley, Mass., be appointed to serve as counsel for respondents in this case.


text:
    No. 84-465.
    Black, Director, Missouri Department of Corrections and Human Resources, et al. v. Romano.
   C. A. 8th Cir. [Certiorari granted, ante, p. 1033.] Motion for appointment of counsel granted, and it is ordered that Jordan B. Cherrick, Esquire, of St. Louis, Mo., be appointed to serve as counsel for respondent in this case.


text:
    No. 84-571.
    Walters, Administrator of Veterans’ Affairs, et al. v. National Association of Radiation Survivors et al.
   Appeal from D. C. N. D. Cal. Probable jurisdiction noted.


text:
    No. 84-592.
    Williams et al. v. Vermont et al.
   Appeal from Sup. Ct. Vt. Probable jurisdiction noted.


text:
    No. 84-5743.
    Baldwin v. Alabama.
   Sup. Ct. Ala. Motion of petitioner for leave to proceed in forma pauperis and certiorari granted.


text:
    No. 83-2060.
    Clapps v. United States.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 83-2160.
    Elliott v. United States.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 83-6481.
    Dickinson v. Peeples.
   C. A. 11th Cir. Cer-tiorari denied.


text:
    No. 83-6908.
    Nichols v. United States.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 84-82.
    Parker v. Texas.
   Ct. App. Tex., 6th Sup. Jud. Dist. Certiorari denied.


text:
    No. 84-87.
    Hanes v. Heckler, Secretary of Health and Human Services.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 84-168.
    Even v. National Guard Bureau et al.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 84-311.
    DeAngelis v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 84-348.
    Ballard v. Blount et al.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 84-367.
    Tober Saifer Shoe Co. v. Allman et al.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 84-368.
    Patino’s, Inc. v. Poston et al.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 84-379.
    Clark Oil & Refining Corp. v. Alpine Shipping Co. et al.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 84-410.
    O’Connell Machinery Co., Inc. v. M.V. “Americana” et al.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 84-451.
    Jefferson County Community Center for Developmental Disabilities, Inc. v. National Labor Relations Board.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 84-459.
    Nelms v. Tennessee.
   Ct. Crim. App. Tenn. Certiorari denied.


text:
    No. 84-461.
    Piscataway Township Board of Education v. T. G. et ux., Individually, and on Behalf of Their Infant Child, D. G., et al.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 84-467.
    Carter-Glogau Laboratories, Inc. v. National Labor Relations Board.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 84-469.
    Williams v. Virginia National Bank.
   Ct. App. Wash. Certiorari denied.


text:
    No. 84-593.
    Beeson v. Hudson et al.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 84-599.
    Vintero Corp. v. Corporacion Venezolana de Fomento.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 84-601.
    Wheeling Pittsburgh Steel Corp. v. Duffy.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 84-607.
    Laborers’ International Union of North America, AFL-CIO v. Petramale et al.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 84-639.
    Gathercole v. Global Associates.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 84-665.
    Massaro et al. v. Brotherhood of Locomotive Engineers et al.
   Sp. Ct. R. R. R. A. Certiorari denied.


text:
    No. 84-669.
    Porter v. Butterick, Commissioner for the Borough of Beach Haven, New Jersey, et al.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 84-671.
    Rye et ux. v. Seattle Times Co. et al.
   Ct. App. Wash. Certiorari denied.


text:
    No. 84-676.
    Barnett v. United Air Lines, Inc., et al.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 84-686.
    Fizer Corp., t/a The Go Go Rama v. Vassallo, Director, New Jersey Division of Alcoholic Beverage Control.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 84-729.
    Porter v. United States.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 84-758.
    Caci v. United States.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 84-759.
    Wagman v. United States.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 84-771.
    Leisner v. Bahou, President of the New York State Civil Service Commission, et al.
   Ct. App. N. Y. Certiorari denied.


text:
    No. 84-781.
    Iowa Express Distribution, Inc. v. National Labor Relations Board.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 84-5063.
    Weatherless v. United States.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 84-5081.
    Kinzhuma v. United States.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 84-5085.
    Curry v. United States.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 84-5104.
    Champion v. Alabama.
   Ct. Crim. App. Ala. Certiorari denied.


text:
    No. 84-5116.
    Brodine v. United States.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 84-5257.
    Smith et al. v. Kansas et al.
   Sup. Ct. Kan. Certiorari denied.


text:
    No. 84-5262.
    Barnes v. Ohio.
   Ct. App. Ohio, Van Wert County. Certiorari denied.


text:
    No. 84-5321.
    Fuller v. Osborne, Sheriff of Tazewell County.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 84-5322.
    Lemeron v. Powers et al.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 84-5430.
    Forrester v. Chase Manhattan Bank.
   C. A. D. C. Cir. Certiorari denied.


text:
    No. 84-5441.
    Mysliwiec v. Donovan, Secretary of Labor.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 84-5466.
    Roberts v. United States.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 84-5553.
    Vega-Barvo v. United States.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 84-5591.
    Cooley v. Nix, Warden.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 84-5592.
    Ferenc v. Florida.
   Dist. Ct. App. Fla., 1st Dist. Certiorari denied.


text:
    No. 84-5993.
    Burton v. American District Telegraph Co.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 84-5595.
    Foster v. Louisiana.
   Sup. Ct. La. Certiorari denied.


text:
    No. 84-5596.
    Cunningham v. Holland, Warden.
   Sup. Ct. App. W. Va. Certiorari denied.


text:
    No. 84-5611.
    Drew v. Brice et al.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 84-5612.
    Larsen v. Maggio, Warden.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 84-5654.
    McKinney v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 84-5658.
    Culp v. United States Parole Commission.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 84-5667.
    DeBordez v. United States.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 84-5669.
    Berriel-Ochoa et al. v. United States.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 84-5671.
    Hattaway v. United States.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 84-5674.
    Brown v. United States.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 84-5686.
    Gaynor v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 84-5693.
    Black v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 84-5694.
    Lawrence v. Commissioner of Internal Revenue et al.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 84-5697.
    Zaldivar v. United States.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 84-5698.
    Vigil v. United States.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 84-5705.
    Stead v. United States.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 84-5708.
    Rowell v. United States.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 84-5709.
    Robinson v. United States.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 84-5711.
    Jones v. United States.
   Ct. App. D. C. Certiorari denied.


text:
    No. 84-5715.
    D’Arco v. United States.
   C. A. 2d Cir. Certiorari denied.


author: CHIEF JUSTICE BURGER,

text:
    No. 84-169.
    Brown, Warden v. Chaney.
   C. A. 10th Cir. Motion of respondent for leave to proceed in forma pauperis granted. Certiorari denied.

CHIEF JUSTICE BURGER,

with whom JUSTICE WHITE and JUSTICE REHNQUIST join,

dissenting.

In this case, the Court of Appeals vacated respondent's death sentence because it found that the state prosecutor withheld information that might have been material to the jury's sentencing decision. I would grant certiorari because I believe this case raises two important issues worthy of this Court's attention-how to distinguish a specific from a general request for exculpatory information, and how to determine whether withheld information was material to a sentencing decision.

I

Kendal Ashmore was a horse breeder. On the morning of March 17, 1977, Mrs. Ashmore and her assistant, Kathy Brown, went to meet a man who had expressed an interest in Morgan horses. Phillip Ashmore returned home from work that evening to find that his wife had not returned. He soon received a tele- phone call in which the caller told him that he had abducted Mrs. Ashmore and Brown. The caller demanded $14 million in $100 bills, and warned Mr. Ashmore not to tell anyone about the call. Mr. Ashmore called his attorney, who contacted the Federal Bureau of Investigation.

The next day, Mr. Ashmore gathered the ransom money. The caller again telephoned, and told Mr. Ashmore to leave the money at a specified location at a local rodeo arena or his wife would be “dead.” The caller also told Mr. Ashmore that the Ashmores’ truck was at 91st Street and Memorial Avenue in Tulsa. This call was traced to respondent’s home phone.

Mr. Ashmore delivered the money to the predetermined spot at the rodeo grounds. Later that same day, he received a call telling him that the money had not been left in the proper place, that he should pick up the money, and try again the next day. The caller also told Mr. Ashmore that if he did not do exactly as he was told, “I’m going to send back a big hunk of your old lady in a box to you in the mail . . . .” This call was traced to a service station phone booth; the respondent’s palm print was taken from the receiver handle on the telephone.

After the second call, the police set up surveillance of the respondent’s home, which was about two miles from the rodeo grounds where the money was to be left. At about 3:20 a. m., the police arrested the respondent and searched his house. The bodies of Mrs. Ashmore and Brown were later found in a shallow grave on property rented by the respondent.

The respondent was indicted and tried for the murder of Mrs. Ashmore. Prior to trial, the respondent made several requests for exculpatory evidence. Only the following four were considered by the court below:

“1. Statements of all persons who have been interviewed by . . . any . . . governmental agency in connection with the subject matter of this case ....
“2. Stenographic recordings or transcriptions of any oral statement made by any person to ... a member of any . . . governmental agency in connection with the subject matter of the case.
“4. The names and addresses of all persons who may have some knowledge of the facts involved in the instant case.
“13. Any and all oral statements made to . . . any . . . law enforcement official.”

Four FBI records were not disclosed pursuant to this request that arguably should have been. None of the withheld documents bear on the guilt or innocence of the respondent. None suggest that he was not involved in the kidnaping, and none are relevant to rebut an inference that he intended that the victims be killed.

The first, and the one considered most critical by the cuit, is a statement made to the FBI by Ms. Poppy Weaver. Ms. Weaver said that at 4:10 on the afternoon of March 17, 1977, she was in a store parking lot in Jenks, Okla. She glanced from a distance of about eight or nine parking spaces at a blue-and-white pickup she identified as belonging to the victim. The FBI report indicates that Ms. Weaver stated that she saw Mrs. Ashmore sitting in the driver’s seat, with an unidentified man and woman also in the truck. The FBI statement does not reflect the fact that Ms. Weaver later stated that she was never able to identify Mrs. Ashmore as having been in the truck.

The second is a statement made to the Mr. Hamilton said that he saw a man get out of the Ashmore pickup truck at 91st Street and Memorial Avenue in Tulsa between 8 a. m. and 8:30 a. m. on March 18, 1977. Mr. Hamilton said he saw the man then get into a black car that was waiting there.

The third is a statement by a Jenks public school student, Kyle West. The youth told the police that he saw a “shiny red” pickup truck parked at 91st Street and Memorial Avenue on the afternoon of March 17. His report said nothing about any other vehicles.

The fourth is a transcription of a statement made by the victim’s husband. During the first phone call from the kidnapers, Mr. Ashmore told the FBI, the caller told him: “There are four of us. We’re not kidding. If your wife tries anything like that Honky that works for you, we’ll do her the same way.”

At trial, respondent was convicted of murder and sentenced to death. Although his counsel argued that unnamed accomplices might have been the actual killers, no testimony was introduced to support this claim. On appeal, the Oklahoma Court of Criminal Appeals affirmed, Chaney v. State, 612 P. 2d 269 (1980), and this Court denied the petition for a writ of certiorari. Chaney v. Oklahoma, 450 U. S. 1025 (1981).

After Chaney’s direct appeals were exhausted, the four withheld documents at issue here surfaced. After two unsuccessful state-court applications for postconviction relief, Chaney sought a writ of habeas corpus from the Federal District Court, arguing that the prosecutor wrongfully withheld the requested documents. The District Court refused to grant the writ, finding that Chaney’s counsel had made only a general request for exculpatory evidence, and, under the due process standard applicable to such requests, the withheld evidence did not create a reasonable doubt as to Chaney’s conviction or death sentence.

The Tenth Circuit reversed, and vacated the death sentence. 730 F. 2d 1334 (1984). It found that the requests for information were "as specific as possible” because Chaney did not know the names of the withheld witnesses. It then found that while the withheld evidence was not material to Chaney’s conviction, it was material to the imposition of the death penalty because the withheld reports “might well have made the jurors, or one of them” doubt the prosecutor’s claim that Chaney had no accomplices. Id., at 1357. It found that the possibility that others were involved in the kidnaping and the killings bore on the establishment of aggravating circumstances, and constituted “important mitigating evidence.”

II

It is well settled that in certain circumstances a prosecutor is required to disclose exculpatory evidence to a defendant. Brady v. Maryland, 373 U. S. 83 (1963); Moore v. Illinois, 408 U. S. 786 (1972). In United States v. Agurs, 427 U. S. 97 (1976), this Court recognized that witholding of exculpatory testimony could arise in three different situations. The Court held that the knowing use of perjured testimony requires that the conviction be set aside “if there is any reasonable likelihood that the false testimony could have affected the judgment of the jury.” Id., at 103. The second situation involves a “specific request” — a request that gives “the prosecutor notice of exactly what the defense desire[s]” — for information in the prosecution files. Id., at 106. In the face of such a request, the information should be provided either to the defense or the court if “the subject matter of such a request is material, or indeed if a substantial basis for claiming materiality exists . . . .” Ibid. The third situation arises when only a general request or no request at all has been made, perhaps because “exculpatory information in the possession of the prosecutor” is “unknown to defense counsel.” Ibid. In this situation, all “obviously exculpatory” evidence should be provided to the defense; if it is not, and the omitted evidence “creates a reasonable doubt that did not otherwise exist, constitutional error has been committed.” Id., at 112. The Court recognized that the prosecutor was not obligated to disclose “any information that might affect the jury’s verdict,” id., at 108, because the Constitution “surely does not demand” complete discovery of prosecution files as a routine practice. Id., at 109.

In the context of Agurs, the distinction between “specific” and “general” requests seems self-explanatory. The paradigmatic “specific” request is one for statements made to police by a named accomplice. Id., at 104. The paradigmatic “general” request seeks “anything exculpatory” or “all Brady material.” Id., at 106-107. Since

Since Agurs, however, courts and prosecutors have struggled to distinguish “specific” from “general” requests. Part of the problem arises because not all requests fall into obvious “specific” or “general” categories. Part of the problem arises from a tension inherent in Agurs’ formulation: the defense must give the prosecutor notice of what is desired, but notice alone — such as notice that the defense desires every document in the prosecution’s files— is not enough to overcome the prosecutor’s interest in avoiding premature or excessive discovery.

Some courts have resolved this tension in a common-sense manner. They have found “specific” only those requests that give notice “of the defendant[’s] interest in a particular piece of evidence.” Commonwealth v. Jackson, 388 Mass. 98, 110, 445 N. E. 2d 1033, 1040 (1983) (emphasis added). Nor is it a “specific” request to seek statements of all persons who have been interviewed by the State but who are not expected to be called as witnesses. Thompson v. Missouri, 724 F. 2d 1314 (CA8 1984). Similarly, a request for written statements taken from any witnesses subsequent to the murder is “general.” United States ex rel. Moore v. Brierton, 560 F. 2d 288 (CA7 1977).

The Court of Appeals’ holding below conflicts sharply with this body of cases. It treats as “specific” those requests which seek in a blanket fashion all reports prepared by all investigatory agencies. See also United States v. Warhop, 732 F. 2d 775, 778 (CA10 1984) (request for any “F. B. I. interview statements” was “more than sufficient” to be specific) (citing opinion below). It justifies this broad right of discovery by focusing on what heretofore has been an imponderable — the defendant’s ability to phrase the request more precisely.

This Court has suggested that the critical distinction does not derive from the defendant’s ability to frame a more detailed request; the Court in Agurs understood that “exculpatory information in the possession of the prosecutor may be unknown to defense counsel.” Agurs, supra, at 106. The Court addressed this dilemma by requiring some information to be released when there was only a general request or no request at all. In Agurs, it did not matter whether the withheld information was available elsewhere; this would suggest that neither does it matter whether the request was “as specific as possible.”

The opinion of the Court of Appeals conflicts squarely with those courts that have held that sweeping requests for all information in the government’s files are not “specific.” It conflicts fundamentally with Agurs by relying on the state of the defendant’s knowledge; its holding has already been followed within its Circuit. The conflict at issue here deserves the attention of this Court.

Ill

Even if we were to agree with the Court of Appeals that the requests for information here were “specific,” a substantial question still would arise as to whether the withheld information justifies setting aside the jury’s sentencing decision. This Court has never applied Brady or Agurs to a sentencing decision. The question of what constitutes “material” information in the context of the sentencing decision merits our attention. the

To decide whether the withheld information was material to the sentencing decision raises a host of questions that have never been considered by this Court. Brady and Agurs in terms do not deal with evidence on mitigating circumstances. Do the standards for reversible error that apply in the guilt phase apply unchanged in the sentencing phase, or must new standards be crafted? Should the court look to the sentence imposed in light of all the evidence, or should it look only to whether a violation occurred? Do they apply only to sentences imposed by juries, or also to sentences imposed by judges? Do Brady and Agurs apply only to capital sentencing decisions, or to all sentencing decisions?

In addressing these issues, the Court of Appeals held that the death penalty should be set aside because the withheld evidence “might have affected” one juror’s assessment of whether mitigating circumstances existed but did not consider the overwhelming evidence that the respondent intended that the victim would be killed.

The approach taken by the court below significantly alters the balance struck in Agurs between a prosecutor’s duty to reveal exculpatory evidence and his interest in avoiding premature or excessive discovery of his files. Evidence material to mitigation is not always self-evident; here, at most, the mitigating evidence shows only that other people were involved with the respondent in a scheme to kidnap and murder two women. A prosecutor cannot fairly be presumed to recognize the utility of such information to the defense. The only way a prudent prosecutor could ensure sustaining a conviction under the rule applied below is to open to the defense all files-including those files that deal with ongoing investigations into alleged accomplices. In Agurs, this Court explicitly held that this was not constitutionally required.

Iv

The Court of Appeals opinion highlights a conflict in the courts, and raises broad issues worthy of this Court's attention. I would grant the petition for a writ of certiorari.

       730 F. 2d 1334, 1340 (CA10 1984) (emphasis deleted).

       Chaney’s own attorney stated at the federal habeas hearing that Ms. Weaver told him that “she in fact did not make those statements, was not sure, and was not sure at this time, which was April of ’81, nor was she sure in March of 1977 when Agent McLain talked with her.” Id., at 1355, n. 27. In the course of the federal habeas proceeding, the District Court stated that both the District Attorney and Chaney’s counsel had indicated that Ms. Weaver had stated that she could not testify that the woman she saw on March 17 was the victim. this

       The Tulsa County District Attorney, S. M. Fallís, testified that this formation was not exculpatory because the truck was already in police custody at the time of this sighting. Fallís testified that the individual seen leaving the truck was an employee of Mr. Ashmore’s. Id., at 1348. because there

       Mr. Fallís explained that this statement was not exculpatory because was no known connection between any red pickup truck and the facts of this case. Ibid.

       Mr. Fallís testified that tapes of the other phone calls, in which the caller stated that more than one person was involved, were played to the jury. Even if exculpatory, this evidence was thus cumulative6

       The jury found all four aggravating circumstances argued by the State: the
      “1) the defendant knowingly created a great risk of death to more than one person in that he did in fact kill, without authority of law, two persons, Kendal Inez Ashmore and Kathy Ann Brown, as the evidence shows.
      “2) The defendant committed the murder for remuneration or the promise of remuneration in that the evidence shows that the defendant kidnapped and killed both Kathy Ann Brown and Kendal Inez Ashmore and was attempting to extort $500,000 from the family of Kendal Inez Ashmore.
      “3) The murder was especially heinous, atrocious and cruel in that the defendant bound the victims and choked them to death with pieces of cloth and buried their bodies in a shallow grave.
      “4) The murder was committed for the purpose of avoiding or preventing a lawful arrest or prosecution in that the evidence shows that the defendant killed the victims after kidnapping them in order to prevent them from testifying against defendant for the kidnapping charge.” Id., at 1352, n. 24.
      At least the first two aggravating circumstances would be unaffected by a finding that Chaney was not present at the killings, so long as he intended that the victims die. The Court of Appeals did not consider Chaney’s intent.

       In Brady, this Court stated in dicta that withheld evidence must be produced when it is material to either guilt or punishment, but did not actually need to reach the issue because the right to a resentencing hearing was not before the Court. The Court has never commented on what would constitute “materiality” in the sentencing context. the “materiality”

       One obvious difference distinguishes the application of the “materiality” test to the sentencing phase of the trial. In the guilt phase, some evidence is not relevant to the elements of the substantive offense. In the sentencing phase, virtually all credible evidence is relevant.

       The evidence is overwhelming both that Chaney intended that the victims would die, and that he was the actual killer. The evidence indicates that he was the caller who warned that Mrs. Ashmore would be “dead” or pieces of her body returned in a box if the ransom request was not complied with — one call was traced to his home phone; his palm print was found oh the phone from which the other call was made. Other physical evidence — the contents of the victim’s stomach, the length of the hair on her legs, the sharpness of the crease in her pants, the amount of makeup on her face, the condition of the gravesite — all supported an inference that she was killed within a short time of her abduction, before Chaney’s arrest. Still more evidence — the theft of towels like those used in the murder from the hotel room he stayed in, his sighting near the burial scene at about the alleged time of the killing and burial, with dirt on his pants up to the knees — all constitute powerful evidence that he was involved in the actual killing.
      Moreover, some of the withheld evidence supports an inference that Chaney, and not any supposed confederate, was the actual killer. Ms. Weaver reportedly told the FBI that she saw the Ashmore’s pickup truck about 100 miles from the burial site on the afternoon of the kidnaping, at about the time the prosecution argued that the murder occurred. She saw three people in the truck; she ultimately could identify none of those persons as Mrs. Ashmore. At about this time, Chaney was seen near the burial site. One logical conclusion is that any supposed confederates were far from the burial site in Mrs. Ashmore’s truck but without Mrs. Ashmore at the most likely time of the killings, while Chaney was near the grave. This supports, rather than contradicts, a finding that Chaney himself was the killer.
      The court below did not take this evidence into account. Cf. Strickland v. Washington, 466 U. S. 668, 695 (1984) (When sentence challenged for lack of effective assistance of counsel, “the question is whether there is a reasonable probability that, absent the errors, the sentencer . . . would have concluded that the balance of aggravating and mitigating circumstances did not warrant death”).


author: JUSTICE BRENNAN and JUSTICE MARSHALL,

text:
    No. 84-5399.
    No. 84-5609.
    No. 84-5613.
    No. 84-5642.
    No. 84-5672.
    Neal v. Mississippi. Green v. Zant, Superintendent, Georgia, Diagnostic and Classification Center. Hill v. Alabama. Rook v. North Carolina. James v. Florida.
   Sup. Ct. Miss.;

C. A. 11th Cir.;

Sup. Ct. Ala.;

Gen. Ct. Justice, Super. Ct. Div., Wake County, N.C.; and

Sup. Ct. Fla. Certiorari denied. Reported below: No. 84-5399, 451 So. 2d 743; No. 84-5609, 738 F. 2d 1529; No. 84-5613, 455 So. 2d 938; No. 84-5672, 453 So. 2d 786.

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. 84-5324.
    No. 84-5450.
    Brown v. Newsome, Warden, et al., In re Harris,
   ante, p. 919; and

ante, p. 915. Petitions for rehearing denied.


author: JUSTICE BRENNAN,

text:
    December 11, 1984
    No. A-445.
    Stephens v. Kemp, Superintendent, Georgia Diagnostic and Classification Center.
   Application for stay of execution of sentence of death, presented to JUSTICE POWELL, and by him referred to the Court, denied.

JUSTICE BLACKMUN and JUSTICE STEVENS dissent and would grant the application for stay of execution pending the ultimate resolution of the cases now pending in the United States Court of Appeals for the Eleventh Circuit and cited in JUSTICE BRENNAN'S dissent, immediately post.

JUSTICE BRENNAN,

with whom JUSTICE MARSHALL joins,

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) (BRENNAN, J., dissenting), I would grant the application and vacate the death sentence in this case. But even if I believed otherwise, I would at the very least stay this impending execution indefinitely. As I argued in my dissent from the Court's earlier vacation of its stay in this case, a person should not be executed while the constitutionality of his sentence is in doubt. Ante, p. 1043. Accordingly, I would stay Stephens' execution pending the ultimate resolution of Ross v. Hopper, 716 F. 2d 1528 (CA11 1983), rehearing en banc granted, 729 F. 2d 1293 (1984); Spencer v. Zant, 715 F. 2d 1562 (CA11 1983), reconsideration en banc stayed, 729 F. 2d 1293 (1984); and McCleskey v. Zant, 580 F. Supp. 338 (ND Ga.), hearing en bane granted, 729 F. 2d 1293 (CA11 1984).


text:
    No. 84-5411.
    Wilson v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 83-1845 (A-455).
    Stephens v. Kemp, Superintendent, Georgia Diagnostic and Classification Center.
   ante, p. 1043. Petition for rehearing denied. Supplementary application for stay of execution of sentence of death denied. JUSTICE BLACKMUN and JUSTICE STEVENS would grant the supplementary application for stay of execution pending the ultimate resolution of the cases now pending in the United States Court of Appeals for the Eleventh Circuit and cited in JUSTICE BRENNAN'S earlier dissent, ante, this page.

JUSTICE BRENNAN,

with whom JUSTICE MARSHALL joins,

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) (BRENNAN, J., dissenting), I would grant the supplementary application for stay of execution. But even if I believed otherwise, 1 would grant the supplementary application for the reasons set forth in my earlier dissents in this case. See ante, p. 1043; ante, p. 1099.


text:
    December 21, 1984
    No. 84-851.
    Mobil Oil Corp. et al. v. Dow Jones & Co., Inc., et al.
   C. A. 9th Cir. Certiorari dismissed under this Court’s Rule 53.


text:
    December 29, 1984
    No. 84-628.
    McDonnell Douglas Corp. v. Fisher, Judge, United States District Court for the Eastern District of Texas et al.
   C. A. 5th Cir. Certiorari dismissed under this Court's Rule 53.


text:
    January 7, 1985
    No. 84-450.
    Central Jersey Industries, Inc., et al. v. Unites States Railway Assn. et al.
   Affirmed on appeal from Sp. Ct. R. R. R. A.


text:
    No. 84-720.
    Deukmejian, Governor of California, et al. v. National Meat Assn. et al.
   Affirmed on appeal from C. A. 9th Cir.


text:
    No. 84-695.
    King v. United States District Court for the Central District of California et al. (Integrity Home Loan Co., Inc., et al., Real Parties in Interest).
   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. 84-766.
    Jamason et al. v. Florida.
   Appeal from Sup. Ct. Fla. dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for writ of certiorari, certiorari denied.


text:
    No. 84-733.
    Rogers v. North Carolina.
   Appeal from Ct. App. N. C. dismissed for want of substantial federal question.


text:
    No. 84-828.
    National Association for the Advancement of Colored People, Inc., et al. v. South Carolina ex rel. Daniel, Lieutenant Governor of South Carolina, et al.
   Appeal from D. C. S. C. dismissed for want of jurisdiction.


text:
    No. 83-1554.
    United States v. DiMatteo et al.
   C. A. 11th Cir. Motion of respondent Morris Kessler for leave to proceed in forma pauperis and certiorari granted. Judgment vacated and case remanded for further consideration in light of Luce v. United States, ante, p. 38.

Justice Powell took no part in the consideration or decision of this motion and this case.


text:
    No.---.
    Bonin v. American Airlines, Inc., et al.
   Motion to direct the Clerk to file a petition for writ of certiorari that does not comply with the Rules of this Court denied.


text:
    No.---.
    California et al. v. Federal Communications Commission et al.
   Motion to direct the Clerk to file a petition for writ of certiorari out of time denied.

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


text:
    No. A-423.
    Gold v. United States.
   C. A. 11th Cir. Application for stay and/or bail, addressed to Justice Brennan and referred to the Court, denied.


text:
    No. A-457 (84-5424).
    Herships v. Rees.
   Sup. Ct. Cal. Application for stay, addressed to Justice Brennan and referred to the Court, denied.


text:
    No. 79,
    Orig.
    Oklahoma v. Arkansas.
   Report of the Special Master is adopted. It is ordered that the parties are directed to submit a proposed decree to the Special Master for his approval and submission, together with any recommendations, to this Court. [For earlier order herein, see, e. g., ante, p. 1083.]


text:
    No. D-447.
    In re Disbarment of Thornell.
    [For earlier order herein, see 468 U. S. 1223.]
   Disbarment entered.


text:
    No. D-450.
    In re Disbarment of Reisch.
   Disbarment entered. [For earlier order herein, see ante, p. 808.]


text:
    No. D-460.
    In re Disbarment of Hines.
   Disbarment entered. [For earlier order herein, see ante, p. 915.]


text:
    No. D-469.
    In re Disbarment of Utermahlen.
   It is ordered that Warren Douglas Utermahlen, of Milford, 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-470.
    In re Disbarment of Hayes.
   It is ordered that Frank Alan Hayes, of San Antonio, 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. 83-812.
    No. 83-929.
    Wallace, Governor of Alabama, et al. v. Jaffree et al.; and Smith et al. v. Jaffree et al.
   C. A. 11th Cir. [Probable jurisdiction noted, 466 U. S. 924.] Motion of appellants in No. 83-929 for leave to file a supplemental brief after argument granted.


text:
    No. 83-1329.
    Ponte, Superintendent, Massachusetts Correctional Institution v. Real.
   Sup. Jud. Ct. Mass. [Certiorari granted, ante, p. 814.] Motion of Barbara A. H. Smith to permit Martin E. Levin, Esquire, to present oral argument pro hac vice on behalf of petitioner granted.


text:
    No. 83-1569.
    No. 83-1733.
    Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc.; and Soler Chrysler-Plymouth, Inc. v. Mitsubishi Motors Corp.
   C. A. 1st Cir. [Certiorari granted, ante, p. 916.] Motion of International Chamber of Commerce for leave to file a brief as amicus curiae granted. Motion of American Arbitration Association for leave to file a brief as amicus curiae in No. 83-1569 granted.


text:
    No. 83-1673.
    Devine, Director, Office of Personnel Management v. Nutt et al.
   C. A. Fed. Cir. [Certiorari granted, ante, p. 814.] Motion of the Solicitor General to permit Charles A. Rothfeld, Esquire, to present oral argument pro hac vice granted.


text:
    No. 83-1750.
    United States v. Miller.
   C. A. 9th Cir. [Certiorari granted, ante, p. 814.] Motion of respondent for leave to proceed further herein informa pauperis granted. Motion for appointment of counsel granted, and it is ordered that Jerrold M. Ladar, Esquire, of San Francisco, Cal., be appointed to serve as counsel for respondent in this case.


text:
    No. 83-1785.
    Air France v. Saks.
   C. A. 9th Cir. [Certiorari granted, ante, p. 815.] Motion of the Republic of France for leave to participate in oral argument as amicus curiae and for divided argument granted.


text:
    No. 83-2143.
    Tennessee v. Street.
   Ct. Crim. App. Tenn. [Certiorari granted, ante, p. 929.] Motion for appointment of counsel granted, and it is ordered that George Stuart Hampton, Esquire, of Elizabethtown, Tenn., be appointed to serve as counsel for respondent in this case.


text:
    No. 84-28.
    No. 84-143.
    Brockett v. Spokane Arcades, Inc., et al.; and Eikenberry, Attorney General of Washington, et al. v. J-R Distributors, Inc., et al.
   C. A. 9th Cir. [Probable jurisdiction noted, ante, p. 813.] Motion of Mississippi Citizens for Decency through Law for leave to file a brief as amicus curiae granted.


text:
    No. 84-261.
    Commodity Futures Trading Commission v. Weintraub et al.
   C. A. 7th Cir. [Certiorari granted, ante, p. 929.] Motion of John K. Notz, Jr., Trustee for the Chicago Discount Commodity Brokers, Inc., for leave to file a brief as amicus curiae granted.


text:
    No. 84-267.
    Clark, Secretary of the Interior, et al. v. Southern Oregon Citizens Against Toxic Sprays, Inc.,
   ante, p. 1028. Motion of respondent for attorney’s fees denied.


text:
    No. 84-315.
    Leverson v. Conway, Commissioner, Vermont Department of Motor Vehicles,
   ante, p. 926. Appellee is directed to file a response to the petition for rehearing within 30 days.


text:
    No. 84-320.
    National Farmers Union Insurance Cos. et al. v. Crow Tribe of Indians et al.
   C. A. 9th Cir. [Certiorari granted, ante, p. 1032.] Motion for appointment of counsel granted, and it is ordered that Clarence T. Belue, Esquire, of Hardin, Mont., be appointed to serve as counsel for respondents Leroy Sage and Flora Not Afraid in this case. Justice White took no part in the consideration or decision of this motion.


text:
    No. 84-634.
    Chevron U. S. A., Inc., et al. v. Hammond, Governor of Alaska, et al.
   C. A. 9th Cir. The Solicitor General is invited to file a brief in this case expressing the views of the United States.

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


text:
    No. 84-5004.
    Ball v. United States.
   C. A. 4th Cir. [Certiorari granted, ante, p. 816.] Motion of the Solicitor General to permit Andrew J. Pincus, Esquire, to present oral argument pro hac vice granted.


text:
    No. 84-5266.
    Chambers v. American Greetings Corp.
   C. A. 8th Cir. Motion to direct the Clerk to file a petition for writ of certiorari that does not comply with the order of this Court entered October 9, 1984 [ante, p. 878], denied.

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


author: Justice Brennan and Justice Marshall,

text:
    No. 84-5706.
    Paleno et vir v. County of Lake et al.
   Appeal from Ct. App. Cal., 1st App. Dist. Motion of appellants for leave to proceed in forma pauperis denied. Appellants are allowed until January 28, 1985, within which to pay the docketing fee required by Rule 45(a) and to submit a statement as to jurisdiction in compliance with Rule 33 of the Rules of this Court.

Justice Brennan and Justice Marshall,

dissenting.

For the reasons expressed in Brown v. Herald Co., 464 U. S. 928 (1983), we would dismiss the appeal for want of jurisdiction and, treating the papers whereon the appeal would be taken as a petition for writ of certiorari, we would deny certiorari without reaching the merits of the motion to proceed in forma pauperis.


text:
    No. 84-5824.
    In re Solis.
   Petition for writ of habeas corpus denied.


text:
    No. 84-5782.
    In re Ayers.
   Petition for writ of mandamus denied.


text:
    No. 84-498.
    United States v. National Bank of Commerce.
   C. A. 8th Cir. Certiorari granted.


text:
    No. 84-679.
    Bateman Eichler, Hill Richards, Inc. v. Berner et al.
   C. A. 9th Cir. Certiorari granted.


text:
    No. 84-363.
    Northeast Bancorp, Inc., et al. v. Board of Governors of the Federal Reserve System et al.
   C. A. 2d Cir. Motion of Chase Manhattan Corp. for leave to file a brief as amicus curiae granted. Certiorari granted.


text:
    No. 83-1751.
    Robinson v. Mississippi.
   Sup. Ct. Miss. Certiorari denied.


text:
    No. 83-2012.
    Heyward v. United States.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 83-2051.
    Etlin v. Etlin.
   Sup. Ct. Va. Certiorari denied.


text:
    No. 83-2112.
    Gouveia, Trustee v. Hammond Clinic et al.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 83-2130.
    Rodriguez v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 83-6846.
    Alerte v. Illinois.
   App. Ct. Ill., 1st Dist. Certiorari denied.


text:
    No. 83-6891.
    No. 83-6911.
    No. 83-6925.
    Alvarez v. United States; Llanez-Diaz v. United States; and Nunez-Varela v. United States.
   C. A. 4th Cir. Certiorari denied. Reported below: 732 F. 2d 1200.


text:
    No. 83-6951.
    Crouch v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 83-6965.
    Bagwell v. Brannon et al.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 84-276.
    Texas Farm Bureau v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 84-318.
    Perez et al. v. Medina et al.
   C. A. 1st Cir. Certiorari denied.


text:
    No. 84-329.
    Bank of Nova Scotia v. United States.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 84-333.
    Richards v. United States.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 84-339.
    Scarpelli v. United States.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 84-357.
    Wright v. United States.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 84-364.
    Gibbs v. United States.
   C. A. 3d Cir. Cer-tiorari denied.


text:
    No. 84-387.
    Barre’ et al. v. Civil Service Commission of the City of New Orleans.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 84-389.
    Moore, U. S. Representative, Sixth District, Louisiana, et al. v. United States House of Representatives et al.
   C. A. D. C. Cir. Certiorari denied.


text:
    No. 84-400.
    Winnett v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 84-416.
    Swisher v. Tennessee.
   Ct. Crim. App. Tenn. Certiorari denied.


text:
    No. 84-458.
    Hendrix v. United States.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 84-505.
    No. 84-680.
    Percy et al. v. Cameo Convalescent Center, Inc., et al.; and Cameo Convalescent Center, Inc. v. Senn et al.
   C. A. 7th Cir. Certiorari denied. Reported below: 738 F. 2d 836.


text:
    No. 84-506.
    Metropolitan Hospital v. Provider Reimbursement Review Board of the United States Department of Health and Human Services et al.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 84-517.
    Parker v. United States.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 84-527.
    Security Bank & Trust Company of Lawton, Oklahoma v. United States.
   C. A. Fed. Cir. Certiorari denied.


text:
    No. 84-540.
    Township of Winslow et al. v. Booth et al.
   Super. Ct. N. J., App. Div. Certiorari denied.


text:
    No. 84-548.
    National Transient Division, International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers & Helpers, AFL-CIO, et al. v. Donovan, Secretary of Labor.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 84-556.
    American Security Council v. Federal Communications Commission et al.
   C. A. D. C. Cir. Certiorari denied.


text:
    No. 84-566.
    O’Leary v. United States.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 84-606.
    Kromnick et al. v. School District of Philadelphia et al.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 84-620.
    New Jersey-Philadelphia Presbytery of the Bible Presbyterian Church et al. v. New Jersey State Board of Higher Education et al.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 84-630.
    McInnes v. Yamaha Motor Corp., U. S. A.
   Sup. Ct. Tex. Certiorari denied.


text:
    No. 84-645.
    Hustler Magazine, Inc. v. Wood et al.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 84-649.
    Blinder, Robinson & Co., Inc., et al. v. Securities and Exchange Commission.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 84-653.
    Schleifer v. Children’s Memorial Hospital.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 84-670.
    Schmertz et al. v. Nassau County Board of Supervisors et al.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 84-672.
    Islamic Republic of Iran v. Pahlavi et al.
   Ct. App. N. Y. Certiorari denied.


text:
    No. 84-673.
    Perwin v. Wilentz, Chief Justice, Supreme Court of New Jersey, et al.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 84-675.
    State Farm Fire & Casualty Co. v. Perry.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 84-678.
    Wolf v. Banco Nacional de Mexico, S.A.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 84-687.
    Brown et al. v. Puget Sound Electrical Apprenticeship & Training Trust et al.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 84-688.
    Vosch, Executrix of the Last Will of Lowry, et al. v. Werner Continental, Inc.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 84-689.
    Poolaw v. City of Anadarko, Oklahoma, et al.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 84-692.
    Hawkins v. Alex. Brown & Sons et al.
   Ct. App. D. C. Certiorari denied.


text:
    No. 84-697.
    Nguyen v. Nguyen.
   Ct. App. Colo. Certiorari denied.


text:
    No. 84-709.
    Buxbom v. Naegele Outdoor Advertising Company of California, Inc.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 84-712.
    Ayers et al. v. Spartan Grain & Mill Co.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 84-725.
    Snapper Power Equipment Division of Fuqua Industries, Inc. v. Wood.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 84-727.
    Koonce v. Indiana.
   Ct. App. Ind. Certiorari denied.


text:
    No. 84-728.
    Aldous v. Aldous.
   App. Div., Sup. Ct. N. Y., 3d Jud. Dept. Certiorari denied.


text:
    No. 84-734.
    Smith v. Harmsen et al.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 84-740.
    Moore v. Reynolds Metals Company Retirement Program for Salaried Employees.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 84-742.
    Crane et al. v. Edward Hines Lumber Co. et al.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 84-745.
    DeMaise v. United States.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 84-752.
    Beard v. United States District Court for the Southern District of Georgia.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 84-775.
    Butterworth, Sheriff, et al. v. Sandstrom.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 84-784.
    Tracey v. United States.
   C. A. 1st Cir. Certiorari denied.


text:
    No. 84-785.
    Ferlito v. New York.
   App. Div., Sup. Ct. N. Y., 2d Jud. Dept. Certiorari denied.


text:
    No. 84-811.
    Gibson et al. v. Boeing Co. et al.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 84-819.
    Clements v. United States.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 84-829.
    Pryor v. Commissioner of Internal Revenue.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 84-831.
    DeRosa v. United States.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 84-5077.
    Torniero v. United States.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 84-5110.
    Neal v. Nebraska.
   Sup. Ct. Neb. Certiorari denied.


text:
    No. 84-5119.
    Jackson v. Pulley, Warden.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 84-5154.
    Kamyan v. United States.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 84-5210.
    Tyler v. Black et al.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 84-5224.
    Johnston v. Pittman, Attorney General of Mississippi, et al.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 84-5251.
    Bamman et al. v. United States.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 84-5254.
    Salazar v. United States.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 84-5258.
    Maybusher v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 84-5288.
    Caldwell et al. v. United States.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 84-5304.
    Rashed v. Delaware County, Pennsylvania, et al.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 84-5317.
    Butler v. Wainwright, Secretary, Florida Department of Corrections, et al.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 84-5323.
    Earnest v. Vannice et al.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 84-5346.
    Volanty v. Texas.
   Ct. App. Tex., 13th Sup. Jud. Dist. Certiorari denied.


text:
    No. 84-5363.
    Brymer v. Rose, Warden, et al.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 84-5372.
    Jackson et al. v. Kentucky.
   Sup. Ct. Ky. Certiorari denied.


text:
    No. 84-5408.
    Allen v. California.
   Ct. App. Cal., 2d App. Dist. Certiorari denied.


text:
    No. 84-5410.
    Sans v. United States.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 84-5420.
    Pollard v. White et al.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 84-5435.
    Prince v. Wainwright, Secretary, Florida Department of Corrections.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 84-5443.
    Shields v. Henderson, Superintendent, Auburn Correctional Facility.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 84-5492.
    Reynosa v. United States.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 84-5500.
    Silverstein et al. v. United States.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 84-5523.
    Young v. New Jersey.
   Super. Ct. N. J., App. Div. Certiorari denied.


text:
    No. 84-5527.
    Richards v. Lehman, Secretary of the Navy, et al.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 84-5601.
    Walker v. Maggio, Warden.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 84-5608.
    Braswell v. Connecticut.
   Sup. Ct. Conn. Certiorari denied.


text:
    No. 84-5623.
    Howell v. Trumpower, Warden.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 84-5624.
    Creel v. Procunier, Director, Texas Department of Corrections.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 84-5627.
    Fulford v. Maggio, Warden, et al.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 84-5628.
    Allsberry v. Trumpower, Warden.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 84-5631.
    Seifert v. Minnesota.
   Sup. Ct. Minn. Certiorari denied.


text:
    No. 84-5655.
    Cotner v. Museman et al.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 84-5656.
    Howell v. Cole, Judge, et al.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 84-5660.
    Melton v. Rison, Warden.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 84-5661.
    Ridley v. Walker.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 84-5663.
    Colon-Rivera v. Puerto Rico Department of Social Services et al.
   C. A. 1st Cir. Certiorari denied.


text:
    No. 84-5664.
    Van Sant v. Russell.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 84-5665.
    Miller v. Allsbrook.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 84-5666.
    Glenn v. Jeffes, Commissioner, Bureau of Correction of Pennsylvania, et al.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 84-5670.
    Paul v. Continental Group, Inc., et al. (two cases).
   C. A. 2d Cir. Certiorari denied.


text:
    No. 84-5673.
    Jackson v. Smith, Superintendent, Attica Correctional Facility.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 84-5676.
    Hall v. Medical College of Ohio at Toledo et al.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 84-5677.
    Cody v. Poole et al.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 84-5678.
    Dyer v. Oklahoma.
   Ct. Crim. App. Okla. Certiorari denied.


text:
    No. 84-5680.
    Jurgins v. Caliguiri et al.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 84-5682.
    Hayes v. Procunier, Director, Texas Department of Corrections.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 84-5684.
    Boles v. Baker et al.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 84-5685.
    LaGrange v. Butler et al.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 84-5688.
    Oberski v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 84-5691.
    Rodriguez v. Wainwright, Secretary, Florida Department of Corrections.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 84-5695.
    Gerson v. Byrne et al.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 84-5701.
    Hendrix v. Duckworth, Warden, et al.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 84-5703.
    Wood v. Allis-Chalmers Corp.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 84-5704.
    Smith v. Mississippi.
   Cir. Ct. Miss., Sunflower County. Certiorari denied.


text:
    No. 84-5712.
    Golden v. Newsome, Warden.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 84-5713.
    Lewis v. Frosch, Administrator of National Aeronautics and Space Administration, et al.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 84-5718.
    Hubbard v. Wade, District Attorney, Dallas County, Texas, et al.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 84-5729.
    Golden v. United States.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 84-5733.
    Valdovinos-Valdovinos v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 84-5734.
    Williams v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 84-5737.
    Palumbo v. United States.
   C. A. 1st Cir. Certiorari denied.


text:
    No. 84-5740.
    Ahmad v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 84-5750.
    Dingus v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 84-5755.
    Thibodeaux v. Thibodeaux et al.
   Sup. Ct. La. Certiorari denied.


text:
    No. 84-5756.
    Rasco v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 84-5763.
    Viccarone et al. v. United States.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 84-5764.
    Thaper v. New Jersey Department of Education et al.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 84-5767.
    Boyer v. Commissioner of Internal Revenue.
   C. A. D. C. Cir. Certiorari denied.


text:
    No. 84-5771.
    Stuart v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 84-5775.
    Illsley v. Storey, Warden.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 84-5784.
    Harlan v. United States.
   C. A. 1st Cir. Certiorari denied.


author: Justice White,

text:
    No. 83-2025.
    Mordaunt et al. v. Incomco et al.
   C. A. 9th Cir. Certiorari denied.

Justice White,

with whom The Chief Justice and Justice Brennan join,

dissenting.

Responding to a magazine advertisement, petitioners entered into discretionary commodities futures contracts with respondents. Petitioners gave respondents over $45,000 to invest in the commodities futures market. Investment decisions were left entirely to respondents, who received a commission for each transaction they conducted. The accounts were soon worth far less than $45,000, and petitioners canceled the agreements. They then brought the present action in Federal District Court, alleging violations of federal and state securities laws. The District Court entered judgment for petitioners, concluding that the advertisement had been false and misleading and that the accounts constituted “investment contracts” within the meaning of the -federal securities laws. See 15 U. S. C. §77b. The Court of Appeals reversed. 686 F. 2d 815 (1982). It held that because respondents’ prosperity did not hinge on the success or failure of petitioners’ investments— respondents earned $20,000 in commissions while petitioners were losing $27,000 — the required “common enterprise” was lacking.

Section 2(1) of the Securities Act of 1933 defines “security” to include an “investment contract.” 48 Stat. 74, as amended, 15 U. S. C. § 77b(1). Almost 40 years ago this Court held that an “investment contract” is a “contract, transaction or scheme whereby a person invests his money in a common enterprise and is led to expect profits solely from the efforts of the promoter or a third party . . . .” SEC v. Howey Co., 328 U. S. 293, 298-299 (1946). The lower courts have disagreed over whether a trading account like that involved here satisfies the requirement of a “common enterprise.” Some require a pooling of investments— horizontal commonality. See Curran v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 622 F. 2d 216 (CA6 1980), aff’d on other grounds, 456 U. S. 353 (1982); Hirk v. Agri-Research Council, Inc., 561 F. 2d 96 (CA7 1977); Wasnowic v. Chicago Board of Trade, 352 F. Supp. 1066 (MD Pa. 1972), aff’d, 491 F. 2d 752 (CA3 1973), cert. denied, 416 U. S. 994 (1974). Under this approach, discretionary futures contracts do not qualify as securities. Other courts require only the existence of a relationship between an investor and a broker — vertical commonality — and reach the opposite result. SEC v. Continental Commodities Corp., 497 F. 2d 516 (CA5 1974); cf. Commercial Iron & Metal Co. v. Bache & Co., 478 F. 2d 39 (CA10 1973); Booth v. Peavey Co. Commodities Services, 430 F. 2d 132 (CA8 1970). The SEC in the past seems to have taken the position that discretionary commodities futures contracts are securities. In re Carlson, 46 S. E. C. 1125 (1977) (horizontal pooling promised but not implemented); see also SEC v. Continental Commodities Corp., supra, at 520.

Like the Fifth Circuit, the Ninth Circuit has rejected the horizontal commonality requirement. E. g., Meyer v. Thomson & McKinnon Auchincloss Kohlmeyer, Inc., 686 F. 2d 818 (1982), cert. denied, 460 U. S. 1023 (1983); Brodt v. Bache & Co., 595 F. 2d 459, 461 (1978). However, its conception of vertical commonality is more stringent. The Fifth Circuit has stated that the “critical inquiry” is whether there is “promoter dominance,” that is, “whether the fortuity of the investments collectively is essentially dependent upon promoter expertise.” SEC v. Continental Commodities Corp., supra, at 522, and n. 12; see also Taylor v. Bear Stearns & Co., 572 F. Supp. 667, 671 (ND Ga. 1983). Under the Ninth Circuit’s rule it is not enough that the promoter has control of the investments. “Vertical commonality” also requires a correlation between the success of the promoter and that of the accounts themselves. See 686 F. 2d, at 817; Brodt v. Bache & Co., supra, at 462.

The importance of this conflict is not limited to the classification of discretionary commodities futures contracts. In related areas the lower courts are similarly divided as to whether Howey requires vertical or horizontal commonality. For example, the Ninth Circuit relied on its decision in this case in concluding that vertical commonality rendered a sale/leaseback transaction a security. United States v. Jones, 712 F. 2d 1316, cert. denied sub nom. Webber v. United States, 464 U. S. 986 (1983). In contrast, the Sixth Circuit has relied on Curran, supra, in applying a horizontal commonality test to a loan participation agreement. Union Planters National Bank of Memphis v. Commercial Credit Business Loans, Inc., 651 F. 2d 1174, cert. denied, 454 U. S. 1124 (1981).

In light of the clear and significant split in the Circuits, I would grant certiorari.


text:
    No. 83-6824.
    Williams v. Mississippi.
   Sup. Ct. Miss. Certiorari denied.

Justice Brennan and Justice Marshall would grant certiorari.


author: Justice Rehnquist,

text:
    No. 84-336.
    Bushey et al. v. New York State Civil Service Commission et al.
   C. A. 2d Cir. Certiorari denied.

Justice Rehnquist,

with whom The Chief Justice and Justice White join,

dissenting.

In Steelworkers v. Weber, 443 U. S. 193 (1979), this Court held that a private employer does not violate Title VII of the 1964 Civil Rights Act when it voluntarily undertakes “affirmative action,” as long as that action is taken “to eliminate conspicuous racial imbalance in traditionally segregated job categories.” Id., at 209. But the Weber Court began its analysis by stating:

“We emphasize at the outset the narrowness of our inquiry. Since the Kaiser-USWA plan does not involve state action, this case does not present an alleged violation of the Equal Protection Clause of the Fourteenth Amendment.” Id., at 200.

I believe that this case squarely presents the question left open in Weber.

The controversy here centers on a written examination required of all applicants seeking the position of “Correction Captain” in the New York State prison correctional system. The exam results are combined with credit for seniority and Armed Forces service to arrive at a ranking list, which list is used to fill positions as they become open. The specific test in issue was administered to 275 candidates on January 30, 1982. Thirty-two of these were minority candidates, and 243 were nonminority. The test was an objective test consisting of 103 questions. Of the minority candidates, eight, or 25%, passed the examination by scoring 70% or higher. Forty-eight percent of the nonminorities passed.

The State reviewed these results in light of a rule of the Equal Employment Opportunity Commission, which states that evidence that an employer selects minority candidates for employment positions at a rate that is less than 80% of the selection rate for nonminorities “will generally be regarded . . . as evidence of adverse impact,” see 29 CFR § 1607.4(D) (1984). It concluded that the test’s minority selection rate of approximately 50% demonstrated an adverse impact on minority candidates. Given this statistical disparity, the fact that the State had been sued by minorities with respect to two prior examinations for correctional officer positions, and the lack of any indication that minorities would not perform equally well in the position of Correction Captain, the State unilaterally decided to raise the scores of minority candidates by establishing a separate normalization curve for minority candidates and equating the mean of that curve with the mean for nonminorities. The upshot of this action was that eight more minority candidates passed the test; although no non-minority candidates were taken off the list the scores of all minority candidates were increased, and the highest scoring minority candidate became the highest scoring of all the candidates.

Petitioners are several nonminority candidates who claim they were injured by the State’s action because they were “bumped” down the ranking list by minority candidates whose scores were increased. They brought suit claiming that the State’s unilateral adoption of race-conscious employment policies violated Title VII and the Fourteenth Amendment. The District Court agreed that the State’s action violated Title VII for three reasons: first, it did not believe that the evidence supplied by the State established a prima facie case of discrimination; second, it did not believe in any event that the State could take race-conscious action when it had not attempted or considered rebutting a prima facie case with proof that the employment decisions were based on legitimate job-related criteria — in this case a professionally developed job-related examination; and third, it thought the remedy adopted by the State was “fundamentally flawed.” 571 F. Supp. 1562 (1983).

The Court of Appeals for the Second Circuit reversed. 733 F. 2d 220 (1984). It held that the State had properly determined that a prima facie case was made out by reference to the EEOC guidelines. It then reasoned that the State was not required to rebut this case before taking the affirmative race-conscious steps taken here. The court suggested that the District Court’s analysis was contrary to Title VII’s policy favoring voluntary compliance because it only permitted the State to take race-conscious actions after there had been a judicial determination that the Act had been violated. Such a rule would actually promote litigation, and would only result in the State’s waiting to be sued and then settling. The court relied on its prior opinion in Kirkland v. New York State Dept. of Correctional Services, 711 F. 2d 1117 (1983), cert. denied, 465 U. S. 1005 (1984), in which it had approved a settlement with respect to the results of the written examination for Correction Lieutenant. The court also relied on Weber, supra, noting that in Weber this Court had approved voluntary affirmative action even in the absence of a determination that the employer had discriminated. In a footnote, the opinion refused to distinguish Weber on the ground that this case involved a public employer. 733 F. 2d, at 227, n. 8. Finally, the court rejected the District Court’s characterization of the “remedy” as “fundamentally flawed,” noting that the score adjustment did not displace nonminority candidates from the list or bar their advancement. It nevertheless remanded the case for determination of whether the remedy “unnecessarily trammelled] the interests” of nonminority employees, as that standard was set in Weber.

I believe that the Court of Appeals’ opinion reaches questionable conclusions on difficult and important questions, and that certiorari should therefore be granted. Principal among these decisions is the court’s unexplained extension of Weber to allow voluntary affirmative action by state employers. This Court has never taken the position that, consistent with the restraints of the Fourteenth Amendment, a state agency may establish preferential classifications on the basis of race in the absence of rulings by an appropriate body that constitutional or statutory violations have occurred. See University of California Regents v. Bakke, 438 U. S. 265, 302-310 (1978) (opinion of Powell, J.). Cf. Firefighters v. Stotts, 467 U. S. 561, 583 (1984) (again reserving the question of a public employer’s ability to adopt voluntary affirmative-action plans). Certainly the express reservation of the question in Weber suggests that a public employer may fare differently in this regard from a private employer, and no decision of this Court subsequent to Weber holds that it is consistent with the Fourteenth Amendment for a state agency unilaterally to decide to use race-based criteria to favor minorities in employment decisions. The States are not granted the enforcement power under §5 of the Fourteenth Amendment that many Members of this Court found important in upholding the congressional Act in Fullilove v. Klutznick, 448 U. S. 448, 472 (1980) (opinion of Burger, C. J.); id., at 500 (Powell, J., concurring). Nor is there even a hint in the opinions below that the State Correction Department has violated the Fourteenth Amendment, either in utilizing this particular test or otherwise, by purposefully discriminating against minority employees. The test itself has been deemed irrelevant to this litigation. All that has happened here is that the State has perceived a statistical disparity in the test results of minority and nonminority applicants, and, at least in part because it fears a lawsuit by minority applicants, it has chosen to do away with that disparity by discriminating against similarly situated nonminority applicants.

I find unpersuasive the Court of Appeals’ argument that requiring a judicial determination of discrimination in these cases will undermine Title VII’s policy favoring voluntary compliance. Although voluntary compliance is a laudable goal, Members of this Court have recognized on other occasions that “affirmative action” plans must be policed to prevent the practice of discrimination for discrimination’s sake, see Bakke, supra, at 307-310 (opinion of Powell, J.); cf. Fullilove, supra, at 480 (opinion of Burger, C. J.); and to protect the interests of innocent third parties, see Weber, 448 U. S., at 208-209. These interests will not be sufficiently protected if agencies charged with discrimination may simply cave in to the allegations without even considering justifications for, or attempting to justify, their original employment decisions, particularly where the allegations are based only upon disparate impact. I therefore disagree with the Court of Appeals’ suggestion that it would in any event be sufficient for the State to wait until it is sued and then settle; in these situations the state employer is in a difficult position; it has a duty to act nondis-criminatorily toward both minority and nonminority applicants and its employment decisions must be justified to both sides. States should not be allowed to practice racial discrimination anew under the guise of atoning for past discrimination or because of the difficulties with mounting an otherwise legitimate defense to a lawsuit.

Thus, even if it were clear that state agencies may engage in this sort of “affirmative action” in the absence of a finding of discrimination, review here is still warranted to address the circumstances under which this type of “affirmative action” would be permissible.

Petitioners did not press their Fourteenth Amendment claim on appeal, and it may be that the Court sees this fact as an adequate basis for denying certiorari. But I do not think that review of these issues is thereby foreclosed. Petitioners may be precluded from arguing directly that the state action here violated the Fourteenth Amendment, but I think that when a state employer claims that arguably discriminatory conduct on its part is nonetheless authorized by Title VII, the claim of such statutory authorization must be considered in the light of the prohibitions of the Fourteenth Amendment. I doubt that when Congress amended Title VII in 1972 to bring state agencies within its mandate it intended to allow those agencies to claim that their actions were shielded under Title VII even if the actions would violate the Fourteenth Amendment. The issue is one of statutory construction, but as always the statute must be read with the presumption that Congress did not intend to authorize conduct that is prohibited by the Constitution. See NLRB v. Catholic Bishop of Chicago, 440 U. S. 490, 500-501 (1979).

I think this Court should grant certiorari in this case to decide the question left open in Weber, and to address the other difficult questions presented by the decision of the Court of Appeals.

       See Kirkland v. New York State Dept. of Correctional Services, 711 F. 2d 1117 (CA2 1983), cert. denied, 465 U. S. 1005 (1984); Kirkland v. New York State Dept. of Correctional Services, 520 F. 2d 420 (CA2 1975), cert. denied, 429 U. S. 823 (1976), on remand, 628 F. 2d 796 (CA2 1980), cert. denied, 450 U. S. 980 (1981).

       The court dismissed petitioners’ claim under 42 U. S. C. § 1983, and that decision was not appealed.

       That this question is both important and unsettled is reflected in the several diverse opinions of the judges of the Court of Appeals for the Fifth Circuit, sitting en bane in Williams v. City of New Orleans, 729 F. 2d 1554 (1984).


text:
    No. 84-384.
    Gould, Inc., et al. v. Adams et al.
   C. A. 3d Cir. Certiorari denied.

Justice White,

with whom Justice Brennan and Justice Powell join,

dissenting.

Petitioner Gould, Inc. (Gould), discontinued its operations at the Wilkening plant, where it had employed respondents. Under a pension plan negotiated with respondents’ union, assets were to be used first to pay pensions to “current retirees” — beneficiaries who had already retired. If any assets then remained, they were to go to employees with vested rights to benefits, as they reached retirement age. When the plant closed, however, the pension fund’s relevant assets were insufficient to pay even the current retirees.

Respondents’ union brought a grievance under the collective-bargaining agreement, seeking to force Gould to fund pension benefits for the beneficiary former employees in full. The grievance proceeded to arbitration, and although the arbitrator held that Gould did not have to fund the plan in full, he found that Gould improperly changed its actuarial assumptions to reduce its contributions at the time it began to consider closing the plant. The arbitrator ordered the parties to determine by negotiations the amount by which Gould’s contributions were less than they would have been if proper actuarial assumptions had been used, and he directed Gould to pay that amount into the pension fund. After negotiations, Gould and respondents’ union agreed that the undercontribution amount was $570,600. However, without notice to respondents, Gould and the union then negotiated a settlement. Under the settlement, Gould agreed to guarantee full pension rights for the current retirees through a supplemental annuity, but Gould was absolved of the responsibility to deposit $570,600 with the plan’s trustee, petitioner First Trust Co. Vested employees were not entitled to any benefits under the settlement.

Respondents, all vested employees, brought suit. In their amended complaint, respondents for the first time alleged that Gould’s failure to place the $570,600 in the trust violated the arbitrator’s award, and thus the collective-bargaining agreement; and that in negotiating the settlement, their union breached its duty of fair representation. See Vaca v. Sipes, 386 U. S. 171 (1967); Hines v. Anchor Motor Freight, Inc., 424 U. S. 554 (1976).

The Court of Appeals found that this amendment was timely despite our recent decision in DelCostello v. Teamsters, 462 U. S. 151 (1983), where we held that the uniform national 6-month statute of limitations found in § 10(b) of the National Labor Relations Act, 29 U. S. C. § 160(b), was applicable by analogy in Vaca v. Sipes cases. 739 F. 2d 858 (1984). Instead, the Court of Appeals borrowed the 3-year statute of limitations in the Employee Retirement Income Security Act (ERISA), 29 U. S. C. § 1113(a)(2), as “arguably more appropriate.” 739 F. 2d, at 866. The Court of Appeals reasoned that while speed and finality are paramount in most Vaca v. Sipes situations, these policies are less relevant in pension disputes because the effect of the dispute on day-to-day management of the business is slight. The absence of an immediate effect on any employees except those currently retired also makes it likely that employees will not be aware of their grievance immediately. In the end, the Court of Appeals concluded that this was a pension matter governed by the ERISA limitations period, not an ordinary Vaca v. Sipes claim covered by the rule we announced in DelCostello.

The rule adopted below departs from the policy we recently announced in DelCostello of having a single statute of limitations for fair representation suits. Petitioners argue that the effect of this decision will be to reintroduce much of the uncertainty and lack of uniformity which marked the pre-DelCastello period. If the limitations period for a union’s resolution of a wide variety of disputes turns on the nature of the issue, rather than the nature of the union’s discharge of its duty of representation, petitioners assert that the DelCostello decision will have been rendered largely meaningless.

I would grant certiorari to decide this important question involving the reach and application of the rule we announced in DelCostello.

      In relevant part, that Act provides for a 3-year statute of limitations dating from “the earliest date (A) on which the plaintiff had actual knowledge of the breach.” 29 U. S. C. § 1113(a)(2).


text:
    No. 84-385.
    No. 84-591.
    Honda Motor Co., Ltd. v. Coons; and Coons v. Honda Motor Co., Ltd.
   Sup. Ct. N. J. Certiorari denied. Reported below: 94 N. J. 307, 463 A. 2d 921, and 96 N. J. 419, 476 A. 2d 763.

Justice Rehnquist,

dissenting.

In his cross-petition for certiorari Walter P. Coons seeks review of the New Jersey Supreme Court’s holding that the New Jersey tolling statute, N. J. Stat. Ann. § 2A:14-22 (West 1952), violates the Commerce Clause of the United States Constitution because it tolls the statute of limitations for claims against corporations not represented in New Jersey. Coons v. American Honda Motor Co., 94 N. J. 307, 463 A. 2d 921 (1983). We upheld the constitutionality of this statute against equal protection and due process challenges in G. D. Searle & Co. v. Cohn, 455 U. S. 404 (1982). We expressly reserved the Commerce Clause question in Searle because the applicable New Jersey law was unclear. Id., at 413-414. We also vacated the judgment below and remanded to New Jersey courts a previous appeal arising out of Coons’ lawsuit, for reconsideration in light of Searle. Honda Motor Co. v. Coons, 455 U. S. 996 (1982). That remand resulted in the New Jersey Supreme Court holding here, which Coons claims misapplies the Commerce Clause. Coons’ suit has clarified the New Jersey law on the subject, and in striking down the New Jersey statute I think that the Supreme Court of New Jersey has gone beyond any of our Commerce Clause decisions. I would grant certiorari to review its decision.

Coons was burned badly when the fuel filler cap on his Honda motorcycle malfunctioned during a collision. New Jersey provides a 2-year statute of limitations for the type of injury suffered by Coons. N. J. Stat. Ann. § 2A:14-2 (West 1952). Coons waited four years, however, and brought suit in state court against Honda Motor Co. (American Honda) and its parent Honda Motor Co. of Japan (Honda of Japan). American Honda had a certificate to do business in New Jersey, as required by N. J. Stat. Ann. § 14A:13-4 (West 1969); Honda of Japan had no certificate. Because Honda of Japan had no certificate it was not “represented” in New Jersey under N. J. Stat. Ann. § 2A:14-22 (West 1952), and that statute therefore tolled the 2-year limitations period for all unrepresented corporations. Thus American Honda successfully asserted a statute of limitations defense to Coons’ complaint, but Honda of Japan could not.

A divided New Jersey Supreme Court held that interstate commerce was unconstitutionally burdened by § 14-22’s requirement that a foreign corporation must qualify to do business in New Jersey before it could avail itself of the statute of limitations provided in N. J. Stat. Ann. § 2A:14-2 (West 1952). The court relied on, inter alia, our holdings in Allenberg Cotton Co. v. Pittman, 419 U. S. 20 (1974), and Sioux Remedy Co. v. Cope, 235 U. S. 197 (1914), to describe the tolling statute as a “forced-licensure provision,” which when placed on corporations engaged in interstate commerce amounted to a “per se” violation of the Commerce Clause. 94 N. J., at 316-319, 463 A. 2d, at 926-927. Although both Allenberg Cotton and Sioux Remedy involved States which closed their courts entirely to foreign corporations, the New Jersey Supreme Court held that the rationale of those cases extended to the mere tolling of a statute of limitations against corporations unrepresented in the State.

I am not so sure that Allenberg Cotton and Sioux Remedy can be taken so far. The States involved in those cases totally barred foreign corporations from the state courts. Thus out-of-state corporations which entered into contracts in-state had no forum in which to enforce those contracts, and out-of-state competition was effectively precluded. New Jersey, however, provides greater protection to the contractual and legal interests of foreign corporations. For example, N. J. Stat. Ann. § 14A:13-11 (West 1969), states in part:

“(2) The failure of a foreign corporation to obtain a certificate of authority to transact business in this State shall not impair the validity of any contract or act of such corporation, and shall not prevent such corporation from defending any action or proceeding in any court of this State.”

See also Materials Research Corp. v. Matron, Inc., 64 N. J. 74, 312 A. 2d 147 (1973).

The contested New Jersey statute simply tolls the statute of limitations for most civil suits. As the Court noted in Searle, the tolling statute attempts to preserve a cause of action against absent defendants who may be difficult to find ■ and difficult to serve. 455 U. S., at 410. Moreover, the enactment of the New Jersey long-arm statute has not fully relieved the difficulty facing residents injured by absent defendants. See ibid.

The statute does not place an insuperable burden on a foreign corporation because the corporation may always plead laches as a defense to a plaintiff whose tardiness impairs the corporation’s ability to defend itself. See id., at 411. All the corporation need do to commence running of the limitations period is to become represented in New Jersey. As we stated in Chase Securities Corp. v. Donaldson, 325 U. S. 304, 314 (1945), and reiterated in Searle, supra, at 408, statutes of limitations represent a public policy decision about the privilege to litigate. Their shelter has never been a fundamental or natural right, but is provided only by legislative grace, subject to a relatively large degree of legislative control.

In drafting the contested statute the New Jersey Legislature sought to balance reasonable protection of its citizens from foreign tortfeasors against the requirement for unimpeded interstate commerce. The impact on interstate commerce here is fairly negligible. The New Jersey Supreme Court provided little discussion of why interstate commerce would actually be impeded by tolling a statute of limitations, subject to a laches defense, against an absent defendant not represented in the State. The existence of the tolling provision certainly did not dissuade Honda of Japan from selling motorcycles in New Jersey.

As we stated in Pike v. Bruce Church, Inc., 397 U. S. 137, 142 (1970):

“Where the statute regulates even-handedly to effectuate a legitimate local public interest, and its effects on interstate commerce are only incidental, it will be upheld unless the burden imposed on such commerce is clearly excessive in relation to the putative local benefits.”

See also Sioux Remedy, supra, at 201. The tolling provision of N. J. Stat. Ann. § 2A:14-22 (West 1952), does not so scarcely benefit local interests and so clearly burden interstate commerce that we should decline the opportunity to review this constitutional issue of first impression. The Court should grant certiorari review for Nos. 84-385 and 84-591.

       New Jersey Stat. Ann. § 2A:14-22 (West 1952), has now been amended. See 1984 N. J. Laws, ch. 131. At the time of this lawsuit the statute stated in part:
      “[I]f any corporation . . . not organized under the laws of this state, against whom there is such a cause of action, is not represented in this state by any person or officer upon whom summons or other original process may be served, when such cause of action accrues or at any time before the expiration of the times so limited, the time or times during which such person ... is not residing within this state or such corporation ... is not so represented within this state shall not be computed as part of the periods of time within which such an action is required to be commenced by this section. . . .”
      According to the New Jersey Supreme Court, a corporation cannot be “represented” in New Jersey for purposes of the above statute until it has received a certificate of authority to do business. See Coons v. American Honda Motor Co., 94 N. J. 307, 312-316, 463 A. 2d 921, 924-925 (1983).

       Honda of Japan brought the main petition in this case, No. 84-385, complaining of the New Jersey Supreme Court’s decision, on rehearing, to apply its Commerce Clause holding prospectively. See Coons v. Honda Motor Co., 96 N. J. 419, 476 A. 2d 763 (1984). The cross-petition, No. 84-591, was filed under this Court’s Rule 19.5, and this Court should grant both the main petition and cross-petitions in order to reach the latter. See this Court’s Rules 19.5, 20.5. If we were to reverse the New Jersey Supreme Court’s Commerce Clause holding, there would be no need to address the issue presented in the main petition.


text:
    No. 84-421.
    Rowland et al. v. Demery.
   C. A. 9th Cir. Motion of respondent for leave to proceed in forma pauperis granted. Certiorari denied.


text:
    No. 84-533.
    Wainwright, Secretary, Florida Department of Corrections v. Arango.
   C. A. 11th Cir. Motion of respondent for leave to proceed in forma pauperis granted. Certiorari denied.


text:
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    District of Columbia Board of Parole et al. v. Brandon.
   C. A. D. C. Cir. Motion of respondent for leave to proceed in forma pauperis granted. Certiorari denied.


text:
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    Florida v. Jamison.
   Dist. Ct. App. Fla., 4th Dist. Motion of respondent for leave to proceed informa pauperis granted. Certiorari denied.