author: Justice O’Connor Justice White, Justice Rehnquist,

text:
    INWOOD LABORATORIES, INC., et al. v. IVES LABORATORIES, INC.
    No. 80-2182.
    Argued February 22, 1982
    Decided June 1, 1982

      O’ConnoR, J., delivered the opinion of the Court, in which Burger, C. J., and Brennan, Blackmun, Powell, and Stevens, JJ., joined. White, J., filed an opinion concurring in the result, in which Marshall, J., joined, post, p. 859. Rehnquist, J., filed an opinion concurring in the result, post, p. 864.

      Milton A. Bass argued the cause for petitioners. With him on the briefs for petitioner Inwood Laboratories, Inc., in No. 80-2182 were Jacob Laufer and Steven R. Trost. Peter T. Cobrin filed briefs for petitioner Premo Pharmaceutical Laboratories, Inc., in No. 80-2182. Robert V. Marrow filed briefs for petitioners in No. 81-11.

      Marie V. Driscoll argued the cause for respondent. With her on the brief were Gerald W. Griffin, Egon E. Berg, and Steven J. Baron.

      Jerrold J. Ganzfried argued the cause for the United States as amicus curiae urging reversal. With him on the brief were Solicitor General Lee, Assistant Attorney General Baxter, Deputy Solicitor General Shapiro, Barry Grossman, and Robert J. Wiggers.

      Together with No. 81-11, Darby Drug Co., Inc., et al. v. Ives Laboratories, Inc., also on certiorari to the same court.

       Briefs of amici curiae urging reversal were filed by Robert Abrams, Attorney General, Shirley Adelson Siegel, Solicitor General, and Peter G. Crary, Assistant Attorney General, for the State of New York; by Alfred

        Miller for the American Association of Retired Persons et al.; and by Milton A. Bass, Jacob Laufer, I. Scott Bass, and Steven R. Trost for the National Association of Pharmaceutical Manufacturers, Inc.
      Briefs of amici curiae urging affirmance were filed by Gerald W. Gorman for the American Academy of Family Physicians; by Michael R. Sonnenreich, Michael X. Morrell, and William H. Kenety for Medicine in the Public Interest; and by Joel E. Hoffman, Jerry D. Anker, Daniel L. Koffsky, and Louis G. Santucci for the Pharmaceutical Manufacturers Association.

        Alfred B. Engelberg filed a brief for the Generic Pharmaceutical Industry Association as amicus curiae.

   Justice O’Connor

delivered the opinion of the Court.

This action requires us to consider the circumstances under which a manufacturer of a generic drug, designed to duplicate the appearance of a similar drug marketed by a competitor under a registered trademark, can be held vicariously liable for infringement of that trademark by pharmacists who dispense the generic drug.

I

In 1955, respondent Ives Laboratories, Inc. (Ives), received a patent on the drug cyclandelate, a vasodilator used in long-term therapy for peripheral and cerebral vascular diseases. Until its patent expired in 1972, Ives retained the exclusive right to make and sell the drug, which it did under the registered trademark CYCLOSPASMOL. Ives marketed the drug, a white powder, to wholesalers, retail pharmacists, and hospitals in colored gelatin capsules. Ives arbitrarily selected a blue capsule, imprinted with “Ives 4124,” for its 200 mg dosage and a combination blue-red capsule, imprinted with “Ives 4148,” for its 400 mg dosage.

After Ives’ patent expired, several generic drug manufacturers, including petitioners Premo Pharmaceutical Laboratories, Inc., Inwood Laboratories, Inc., and MD Pharmaceutical Co., Inc. (collectively the generic manufacturers), began marketing cyclandelate. They intentionally copied the appearance of the CYCLOSPASMOL capsules, selling cyclandelate in 200 mg and 400 mg capsules in colors identical to those selected by Ives.

The marketing methods used by Ives reflect normal industry practice. Because cyclandelate can be obtained only by prescription, Ives does not direct its advertising to the ultimate consumer. Instead, Ives’ representatives pay personal visits to physicians, to whom they distribute product literature and “starter samples.” Ives initially directed these efforts toward convincing physicians that CYCLOSPASMOL is superior to other vasodilators. Now that its patent has expired and generic manufacturers have entered the market, Ives concentrates on convincing physicians to indicate on prescriptions that a generic drug cannot be substituted for CYCLOSPASMOL.

The generic manufacturers also follow a normal industry practice by promoting their products primarily by distribution of catalogs to wholesalers, hospitals, and retail pharmacies, rather than by contacting physicians directly. The catalogs truthfully describe generic cyclandelate as “equivalent” or “comparable” to CYCLOSPASMOL. In addition, some of the catalogs include price comparisons of the generic drug and CYCLOSPASMOL and some refer to the color of the generic capsules. The generic products reach wholesalers, hospitals, and pharmacists in bulk containers which correctly indicate the manufacturer of the product contained therein.

A pharmacist, regardless of whether he is dispensing CY-CLOSPASMOL or a generic drug, removes the capsules from the container in which he receives them and dispenses them to the consumer in the pharmacist’s own bottle with his own label attached. Hence, the final consumer sees no identifying marks other than those on the capsules themselves.

a

>

Ives instituted this action in the United States District Court for the Eastern District of New York under §§ 32 and 43(a) of the Trademark Act of 1946 (Lanham Act), 60 Stat. 427, as amended, 15 U. S. C. § 1051 et seq., and under New York’s unfair competition law, N. Y. Gen. Bus. Law § 368-d (McKinney 1968).

Ives’ claim under § 32, 60 Stat. 437, as amended, 15 U. S. C. § 1114, derived from its allegation that some pharmacists had dispensed generic drugs mislabeled as CYCLOSPASMOL. Ives contended that the generic manufacturers’ use of lookalike capsules and of catalog entries comparing prices and revealing the colors of the generic capsules induced pharmacists illegally to substitute a generic drug for CYCLOSPAS-MOL and to mislabel the substitute drug CYCLOSPASMOL. Although Ives did not allege that the petitioners themselves applied the Ives trademark to the drug products they produced and distributed, it did allege that the petitioners contributed to the infringing activities of pharmacists who mislabeled generic cyclandelate.

Ives’ claim under § 43(a), 60 Stat. 441, 15 U. S. C. § 1125(a), alleged that the petitioners falsely designated the origin of their products by copying the capsule colors used by Ives and by promoting the generic products as equivalent to CYCLOSPASMOL. In support of its claim, Ives argued that the colors of its capsules were not functional and that they had developed a secondary meaning for the consumers.

Contending that pharmacists would continue to mislabel generic drugs as CYCLOSPASMOL so long as imitative products were available, Ives asked that the court enjoin the petitioners from marketing cyclandelate capsules in the same colors and form as Ives uses for CYCLOSPASMOL. In addition, Ives sought damages pursuant to § 35 of the Lanham Act, 60 Stat. 439, as amended, 15 U. S. C. § 1117.

B

The District Court denied Ives’ request for an order preliminarily enjoining the petitioners from selling generic drugs identical in appearance to those produced by Ives. 455 F. Supp. 939 (1978). Referring to the claim based upon § 32, the District Court stated that, while the “knowing and deliberate instigation” by the petitioners of mislabeling by pharmacists would justify holding the petitioners as well as the pharmacists liable for trademark infringement, Ives had made no showing sufficiently to justify preliminary relief. Id., at 945. Ives had not established that the petitioners conspired with the pharmacists or suggested that they disregard physicians’ prescriptions.

The Court of Appeals for the Second Circuit affirmed. 601 F. 2d 631 (1979). To assist the District Court in the upcoming trial on the merits, the appellate court defined the elements of a claim based upon § 32 in some detail. Relying primarily upon Coca-Cola Co. v. Snow Crest Beverages, Inc., 64 F. Supp. 980 (Mass. 1946), aff’d, 162 F. 2d 280 (CA1), cert. denied, 332 U. S. 809 (1947), the court stated that the petitioners would be liable under § 32 either if they suggested, even by implication, that retailers fill bottles with generic cyclandelate and label the bottle with Ives’ trademark or if the petitioners continued to sell cyclandelate to retailers whom they knew or had reason to know were engaging in infringing practices. 601 F. 2d, at 636.

C

After a bench trial on remand, the District Court entered judgment for the petitioners. 488 F. Supp. 394 (1980). Applying the test approved by the Court of Appeals to the claim based upon § 32, the District Court found that the petitioners had not suggested, even by implication, that pharmacists should dispense generic drugs incorrectly identified as CYCLOSPASMOL.

In reaching that conclusion, the court first looked for direct evidence that the petitioners intentionally induced trademark infringement. Since the petitioners’ representatives do not make personal visits to physicians and pharmacists, the petitioners were not in a position directly to suggest improper drug substitutions. Cf. William R. Warner & Co. v. Eli Lilly & Co., 265 U. S. 526, 530-531 (1924); Smith, Kline & French Laboratories v. Clark & Clark, 157 F. 2d 725, 731 (CA3), cert. denied, 329 U. S. 796 (1946). Therefore, the court concluded, improper suggestions, if any, must have come from catalogs and promotional materials. The court determined, however, that those materials could not “fairly be read” to suggest trademark infringement. 488 F. Supp., at 397.

The trial court next considered evidence of actual instances of mislabeling by pharmacists, since frequent improper substitutions of a generic drug for CYCLOSPASMOL could provide circumstantial evidence that the petitioners, merely by making available imitative drugs in conjunction with comparative price advertising, implicitly had suggested that pharmacists substitute improperly. After reviewing the evidence of incidents of mislabeling, the District Court concluded that such incidents occurred too infrequently to justify the inference that the petitioners’ catalogs and use of imitative colors had “impliedly invited” druggists to mislabel. Ibid. Moreover, to the extent mislabeling had occurred, the court found it resulted from pharmacists’ misunderstanding of the requirements of the New York Drug Substitution Law, rather than from deliberate attempts to pass off generic cyclandelate as CYCLOSPASMOL. Ibid.

The District Court also found that Ives failed to establish its claim based upon § 43(a). In reaching its conclusion, the court found that the blue and blue-red colors were functional to patients as well as to doctors and hospitals: many elderly patients associate color with therapeutic effect; some patients commingle medications in a container and rely on color to differentiate one from another; colors are of some, if limited, help in identifying drugs in emergency situations; and use of the same color for brand name drugs and their generic equivalents helps avoid confusion on the part of those responsible for dispensing drugs. Id., at 398-399. In addition, because Ives had failed to show that the colors indicated the drug’s origin, the court found that the colors had not acquired a secondary meaning. Id., at 399.

Without expressly stating that the District Court’s findings were clearly erroneous, and for reasons which we discuss below, the Court of Appeals concluded that the petitioners violated § 32. 638 F. 2d 538 (1981). The Court of Appeals did not reach Ives’ other claims. We granted certiorari, 454 U. S. 891 (1981), and now reverse the judgment of the Court of Appeals.

Ill

A

As the lower courts correctly discerned, liability for trademark infringement can extend beyond those who actually mislabel goods with the mark of another. Even if a manufacturer does not directly control others in the chain of distribution, it can be held responsible for their infringing activities under certain circumstances. Thus, if a manufacturer or distributor intentionally induces another to infringe a trademark, or if it continues to supply its product to one whom it knows or has reason to know is engaging in trademark infringement, the manufacturer or distributor is contribu-torially responsible for any harm done as a result of the deceit. See William R. Warner & Co. v. Eli Lilly & Co., supra; Coca-Cola Co. v. Snow Crest Beverages, Inc., supra.

It is undisputed that those pharmacists who mislabeled generic drugs with Ives’ registered trademark violated § 32. However, whether these petitioners were liable for the pharmacists’ infringing acts depended upon whether, in fact, the petitioners intentionally induced the pharmacists to mislabel generic drugs or, in fact, continued to supply cyclandelate to pharmacists whom the petitioners knew were mislabeling generic drugs. The District Court concluded that Ives made neither of those factual showings.

B

In reviewing the factual findings of the District Court, the Court of Appeals was bound by the “clearly erroneous” standard of Rule 52(a), Federal Rules of Civil Procedure. Pullman-Standard v. Swint, ante, p. 273. That Rule recognizes and rests upon the unique opportunity afforded the trial court judge to evaluate the credibility of witnesses and to weigh the evidence. Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U. S. 100, 123 (1969). Because of the deference due the trial judge, unless an appellate court is left with the “definite and firm conviction that a mistake has been committed,” United States v. United States Gypsum Co., 333 U. S. 364, 395 (1948), it must accept the trial court’s findings.

IV

In reversing the District Court’s judgment, the Court of Appeals initially held that the trial court failed to give sufficient weight to the evidence Ives offered to show a “pattern of illegal substitution and mislabeling in New York. . . .” 638 F. 2d, at 543. By rejecting the District Court’s findings simply because it would have given more weight to evidence of mislabeling than did the trial court, the Court of Appeals clearly erred. Determining the weight and credibility of the evidence is the special province of the trier of fact. Because the trial court’s findings concerning the significance of the instances of mislabeling were not clearly erroneous, they should not have been disturbed.

Next, after completing its own review of the evidence, the Court of Appeals concluded that the evidence was “clearly sufficient to establish a § 32 violation.” Ibid. In reaching its conclusion, the Court of Appeals was influenced by several factors. First, it thought the petitioners reasonably could have anticipated misconduct by a substantial number of the pharmacists who were provided imitative, lower priced products which, if substituted for the higher priced brand name without passing on savings to consumers, could provide an economic advantage to the pharmacists. Ibid. Second, it disagreed with the trial court’s finding that the mislabeling which did occur reflected confusion about state law requirements. Id., at 544. Third, it concluded that illegal substitution and mislabeling in New York are neither de minimis nor inadvertent. Ibid. Finally, the Court of Appeals indicated it was further influenced by the fact that the petitioners did not offer “any persuasive evidence of a legitimate reason unrelated to CYCLOSPASMOL” for producing an imitative product. Ibid.

Each of those conclusions is contrary to the findings of the District Court. An appellate court cannot substitute its interpretation of the evidence for that of the trial court simply because the reviewing court “might give the facts another construction, resolve the ambiguities differently, and find a more sinister cast to actions which the District Court apparently deemed innocent.” United States v. Real Estate Boards, 339 U. S. 485, 495 (1950).

V

The Court of Appeals erred in setting aside findings of fact that were not clearly erroneous. Accordingly, the judgment of the Court of Appeals that the petitioners violated § 32 of the Lanham Act is reversed.

Although the District Court also dismissed Ives’ claims alleging that the petitioners violated § 43(a) of the Lanham Act and the state unfair competition law, the Court of Appeals did not address those claims. Because § 43(a) prohibits a broader range of practices than does § 32, as may the state unfair competition law, the District Court’s decision dismissing Ives’ claims based upon those statutes must be independently reviewed. Therefore, we remand to the Court of Appeals for further proceedings consistent with this opinion.

Reversed and remanded.

Justice White,

with whom Justice Marshall joins, concurring in the result.

We granted certiorari in these cases in order to review the legal standard employed by the Second Circuit in finding that a generic drug manufacturer is vicariously liable for trademark infringement committed by pharmacists who dispense the generic drug. The Court implicitly endorses the legal standard purportedly employed by the Court of Appeals, ante, at 853-854, but finds that the court erred in setting aside factual findings that were not clearly erroneous. The question whether the Court of Appeals had misapplied the clearly-erroneous rule, however, was not presented in the petitions for certiorari. This was conceded at oral argument. Tr. of Oral Arg. 69. Our Rule 21.1(a) states that “[ojnly the questions set forth in the petition or fairly included therein will be considered by the Court.” The majority suggests no reason for ignoring our own Rule. Furthermore, if the issue presented in the petitions for certiorari had been whether the clearly-erroneous standard, although properly invoked, was erroneously applied, it is doubtful in my mind that this fact-bound issue would have warranted certiorari. I nevertheless concur in reversal because I believe that the Court of Appeals has watered down to an impermissible extent the standard for finding a violation of § 32 of the Lanham Act, 15 U. S. C. § 1114.

In its first opinion in this litigation, the Court of Appeals indicated that a “manufacturer or wholesaler would be liable under § 32 if he suggested, even if only by implication, that a retailer fill a bottle with the generic capsules and apply Ives’ mark to the label, or continued to sell capsules containing the generic drug which facilitated this to a druggist whom he knew or had reason to know was engaging in the practices just described.” 601 F. 2d 631, 636 (1979) (Ives II). The District Court applied this test but concluded that no violation of § 32 had been shown. On appeal after trial, a majority of the Second Circuit found defendants liable for contributory infringement by revising and expanding the doctrine of contributory trademark infringement. 638 F. 2d 538 (1981) (Ives IV):

“By using capsules of identical color, size, and shape, together with a catalog describing their appearance and listing comparable prices of CYCLOSPASMOL and generic cyclandelate, appellees could reasonably anticipate that their generic drug product would by a substantial number of druggists be substituted illegally .... This amounted to a suggestion, at least by implication, that the druggists take advantage of the opportunity to engage in such misconduct.” Id., at 543 (emphasis added).

Ives II required a showing that petitioners intended illegal substitution or knowingly continued to supply pharmacists palming off generic cyclandelate as CYCLOSPASMOL; Ives IV was satisfied merely by the failure to “reasonably anticipate” that illegal substitution by some pharmacists was likely. In my view, this is an erroneous construction of the statutory law governing trademark protection.

William R. Warner & Co. v. Eli Lilly & Co., 265 U. S. 526 (1924), made clear that a finding of contributory infringement requires proof of either an intent to induce illegal substitution or continued sales to particular customers whom the manufacturer knows or should know are engaged in improper palming off. In that case, it was shown that the manufacturer’s salesmen actively induced, either in direct terms or by insinuation, the filling of requests for Coco-Quinine with Quin-Coco. “The wrong was in designedly enabling the dealers to palm off the preparation as that of the respondent.” Id., at 530. Coca-Cola Co. v. Snow Crest Beverages, Inc., 64 F. Supp. 980, 989 (Mass. 1946), aff’d, 162 F. 2d 280 (CA1), cert. denied, 332 U. S. 809 (1947), the case upon which the Court of Appeals relied in Ives II, stands for this very proposition. There was no contributory infringement in Snow Crest’s manufacture of a product identical in appearance to that of Coca-Cola. Judge Wyzanski observed that

“any man of common sense knows that in any line of business . . . there are some unscrupulous persons, who, when it is to their financial advantage to do so, will palm off on customers a different product from that ordered by the customer.” 64 F. Supp., at 988-989.

These cases reflect the general consensus. 2 J. McCarthy, Trademarks and Unfair Competition § 25:2 (1973) (“[T]he supplier’s duty does not go so far as to require him to refuse to sell to dealers who merely might pass off its goods”). The mere fact that a generic drug company can anticipate that some illegal substitution will occur to some unspecified extent, and by some unknown pharmacists, should not by itself be a predicate for contributory liability. I thus am inclined to believe that the Court silently acquiesces in a significant change in the test for contributory infringement.

Diluting the requirement for establishing a prima facie case of contributory trademark infringement is particularly unjustified in the generic drugs field. Preventing the use of generic drugs of the same color to which customers had become accustomed in their prior use of the brand name product interferes with the important state policy, expressed in New York and 47 other States, of promoting the substitution of generic formulations. See Warner, Consumer Protection and Prescription Drugs: The Generic Drug Substitution Laws, 67 Ky. L. J. 384 (1978-1979).

The Court of Appeals concluded that there was no “persuasive evidence of a legitimate reason” for petitioners to use imitative colors. The District Court, however, had expressly found that for purposes of § 43(a), the capsule colors were functional. With respect to functionality, I fully agree with the Court that the Court of Appeals erred in setting aside factual findings without finding that they were clearly erroneous. The District Court found that capsule color was functional in several respects: patient anxiety and confusion were likely if accustomed medicine were dispensed in a different color; capsule colors assist patients in identifying the correct pill to take; standard colors help physicians identify the drug involved in case of overdose. Clearly, the Court of Appeals could not reject these findings merely because it viewed the evidence as less persuasive than did the District Court. Rule 52(a) imposes a stricter standard.

Finally, although the Court states that a “finding of functionality may also be relevant to an action involving § 32,” it does not explicate the relationship of functionality in a § 32 case. It is my view that a finding of functionality offers a complete affirmative defense to a contributory infringement claim predicated solely on the reproduction of a functional attribute of the product. A functional characteristic is “an important ingredient in the commercial success of the product,” 601 F. 2d, at 643, and, after expiration of a patent, it is no more the property of the originator than the product itself. It makes no more sense to base contributory infringement upon the copying of functional colors than on the petitioners’ decision to use the same formulation of the drug, or even to market the generic substitute in the first place. To be sure, the very existence of generic drugs “facilitates” illegal substitution. But Ives no longer has a patent for cyclandelate, “and the defendants have a right to reproduce it as nearly as they can.” Saxlehner v. Wagner, 216 U. S. 375, 380 (1910) (Holmes, J.). Reproduction of a functional attribute is legitimate competitive activity.

I am also mindful that functionality is a defense to a suit under § 43(a) of the Lanham Act alleging damages from a competitor’s “false designation of origin” on a good. The use of a product or package design that is so similar to that of another producer that it is likely to confuse purchasers as to the product’s source may constitute “false designation of origin” within the meaning of the Act. As the Court of Appeals noted in Ives II, § 43(a) “goes beyond § 32 in making certain types of unfair competition federal statutory torts,” 601 F. 2d, at 641. Section 43(a) offers the direct protection of Ives’ interest in this case, and it is not surprising that the alleged § 43(a) violation was the primary claim in this litigation, as it has been in other cases of this genre. It would be anomalous for the imitation of a functional feature to constitute contributory infringement for purposes of § 32, while the same activity is not a “false designation of origin” under § 43(a).

I would reverse the decision of the Court of Appeals and remand for review of the District Court’s findings consistent with the principles stated above.

Justice Rehnquist,

concurring in the result.

I agree that the judgment of the Court of Appeals should be reversed. That court set aside factual findings of the District Court without having found them to be clearly erroneous as required by Rule 52(a) of the Federal Rules of Civil Procedure. I disagree, however, with the Court’s determining for itself that the findings of the District Court were not clearly erroneous. I think in the usual case this is a question best decided by the courts of appeals, who have a good deal more experience with the application of this principle than we do, and I see no reason to make an exception in this case.

I also assume, correctly I hope, that the Court’s discussion of appellate review of trial court findings in bench trials, ante, at 855, is limited to cases in which the appellate court has not found the trial court findings to be “clearly erroneous.” United States v. United States Gypsum Co., 333 U. S. 364 (1948), upon which the Court relies, establishes the authority of a reviewing court to make its own findings, contrary to those of the trial court, where it has determined the latter to be “clearly erroneous.”

I agree with the Court that these cases should be remanded to the Court of Appeals to review the District Court’s dismissal of respondent’s claims under § 43(a) of the Lanham Act and its state-law claims.

       Under the Trademark Act of 1946 (Lanham Act), 60 Stat. 427, as amended, 15 U. S. C. § 1051 et seq., the term “trade-mark” includes “any word, name, symbol, or device or any combination thereof adopted and used by a manufacturer or merchant to identify his goods and distinguish them from those manufactured or sold by others.” 15 U. S. C. § 1127. A “registered mark” is one registered in the United States Patent and Trademark Office under the terms of the Lanham Act “or under the Act of March 3, 1881, or the Act of February 20, 1905, or the Act of March 19, 1920.” Ibid.

       The generic manufacturers purchase cyclandelate and empty capsules and assemble the product for sale to wholesalers and hospitals. The petitioner wholesalers, Darby Drug Co., Inc., Rugby Laboratories, Inc., and Sherry Pharmaceutical Co., Inc., in turn, sell to other wholesalers, physicians, and pharmacies.

       Initially, the generic manufacturers did not place any identifying mark on their capsules. After Ives initiated this action, Premo imprinted “Premo” on its capsules and Inwood imprinted “Inwood 258.”

       Since the early 1970’s, most States have enacted laws allowing pharmacists to substitute generic drugs for brand name drugs under certain conditions. See generally Note, Consumer Protection and Prescription Drugs: The Generic Drug Substitution Laws, 67 Ky. L. J. 384 (1978-1979). The New York statutes involved in this action are typical of these generic substitution laws. New York law requires that prescription forms contain two lines, one of which a prescribing physician must sign. N. Y. Educ. Law § 6810 (McKinney Supp. 1981-1982). If the physician signs over the words “substitution permissible,” substitution is mandatory if a substitute generic drug is on an approved list, N. Y. Educ. Law § 6816-a (McKinney Supp. 1981-1982); N. Y. Pub. Health Law §206.1(o) (McKinney Supp. 1981-1982), and permissible if another generic drug is available. Unless the physician directs otherwise, the pharmacist must indicate the name of the generic manufacturer and the strength of the drug dispensed on the label. N. Y. Educ. Law § 6816-a(1)(c). In addition, the prescription form must specifically state that, unless the physician signs above the line “dispense as written,” the prescription will be filled generically. § 6810(6)(a).
      If a pharmacist mislabels a drug or improperly substitutes, he is guilty of a misdemeanor and subject to a fine, §§ 6811, 6815, 6816, and to revocation of his license. § 6808.

       Ives conceded that CYCLOSPASMOL and the petitioners’ generic equivalents are bioequivalent and have the same bioavailability. See 455 F. Supp. 939, 942 (EDNY 1978), and 488 F. Supp. 394, 396 (EDNY 1980). Bioavailability is an absolute term which measures both the rate and the amount of a drug which reaches the general circulation from a defined dosage. Drugs are “bioequivalent” if, when administered in equal amounts to the same individual, they reach general circulation at the same relative rate and to the same relative extent. Remington’s Pharmaceutical Sciences 1368 (15th ed. 1975).

       The state law claim was not discussed in the decision under review, and no further reference will be made to it here.

       Section 32 of the Lanham Act, 60 Stat. 437, as amended, 15 U. S. C. § 1114, provides in part:
      “(1) Any person who shall, without the consent of the registrant—
      “(a) use in commerce any reproduction, counterfeit, copy, or colorable imitation of a registered mark in connection with the sale, offering for sale, distribution, or advertising of any goods or services on or in connection with which such use is likely to cause confusion, or to cause mistake, or to deceive; or
      “(b) reproduce, counterfeit, copy, or colorably imitate a registered mark and apply such reproduction, counterfeit, copy, or colorable imitation to labels, signs, prints, packages, wrappers, receptacles or advertisements intended to be used in commerce upon or in connection with the sale, offering for sale, distribution, or advertising of goods or services on or in connection with which such use is likely to cause confusion, or to cause mistake, or to deceive,
      “shall be liable in a civil action by the registrant for the remedies hereinafter provided. Under subsection (b) of this section, the registrant shall not be entitled to recover profits or damages unless the acts have been committed with knowledge that such imitation is intended to be used to cause confusion, or to cause mistake or to deceive.”

       The claim involved two types of infringements. The first was “direct” infringement, in which druggists allegedly filled CYCLOSPASMOL prescriptions marked “dispense as written” with a generic drug and mislabeled the product as CYCLOSPASMOL. The second, “intermediate” infringement, occurred when pharmacists, although authorized by the prescriptions to substitute, allegedly mislabeled a generic drug as CYCLO-SPASMOL. The one retail pharmacy originally named as a defendant consented to entry of a decree enjoining it from repeating such actions. 455 F. Supp., at 942.

       Section 43(a) of the Lanham Act, 60 Stat. 441, 15 U. S. C. § 1125(a), provides:
      “(a) Any person who shall affix, apply, or annex, or use in connection with any goods or services, or any container or containers for goods, a false designation of origin, or any false description or representation, including words or other symbols tending falsely to describe or represent the same, and shall cause such goods or services to enter into commerce, and any person who shall with knowledge of the falsity of such designation of origin or description or representation cause or procure the same to be transported or used in commerce or deliver the same to any carrier to be transported or used, shall be liable to a civil action by any person doing business in the locality falsely indicated as that of origin or in the region in which said locality is situated, or by any person who believes that he is or is likely to be damaged by the use of any such false description or representation.”

       In general terms, a product feature is functional if it is essential to the use or purpose of the article or if it affects the cost or quality of the article. See Sears, Roebuck & Co. v. Stiffel Co., 376 U. S. 225, 232 (1964); Kellogg Co. v. National Biscuit Co., 305 U. S. 111, 122 (1938).

       To establish secondary meaning, a manufacturer must show that, in the minds of the public, the primary significance of a product feature or term is to identify the source of the product rather than the product itself. See Kellogg Co. v. National Biscuit Co., supra, at 118.

       The District Court also found that the petitioners did not continue to provide drugs to retailers whom they knew or should have known were engaging in trademark infringement. 488 F. Supp., at 397. The Court of Appeals did not discuss that finding, and we do not address it.

       Justice White, in his opinion concurring in the result, voices his concern that we may have “silently acquiesce[d] in a significant change in the test for contributory infringement.” Post, at 861. His concern derives from his perception that the Court of Appeals abandoned the standard enunciated by Judge Friendly in its first opinion, a standard which both we and Justice White approve, post, at 859-860. The Court of Appeals, however, expressly premised its second opinion on “the governing legal principles... set forth in Judge Friendly’s opinion upon the earlier appeal, 601 F. 2d 631 (2d Cir. 1979),” and explicitly claimed to have rendered its second decision by “[a]pplying those principles . . . .” 638 F. 2d 538, 542 (1981).
      Justice White’s concern is based on a comment by the Court of Appeals that the generic manufacturers “could reasonably anticipate” illegal substitution of their drugs. Id., at 543. If the Court of Appeals had relied upon that statement to define the controlling legal standard, the court indeed would have applied a “watered down” and incorrect standard. As we read the Court of Appeals’ opinion, however, that statement was intended merely to buttress the court’s conclusion that the legal test for contributory infringement, as earlier defined, had been met. See infra, at 856-857.

       Such blatant trademark infringement inhibits competition and subverts both goals of the Lanham Act. By applying a trademark to goods produced by one other than the trademark’s owner, the infringer deprives the owner of the goodwill which he spent energy, time, and money to obtain. See S. Rep. No. 1333, 79th Cong., 2d Sess., 3 (1946). At the same time, the infringer deprives consumers of their ability to distinguish among the goods of competing manufacturers. See H. R. Rep. No. 944, 76th Cong., 1st Sess., 3 (1939).

       Of course, if the trial court bases its findings upon a mistaken impression of applicable legal principles, the reviewing court is not bound by the clearly erroneous standard. United States v. Singer Manufacturing Co., 374 U. S. 174, 194, n. 9 (1963). However, in this instance the District Court applied correct legal principles when it adopted the precise test developed by the Court of Appeals. Compare 601 F. 2d 631, 636 (1979), with 488 F. Supp., at 397.

       As the opinions from the lower courts reveal, more than one inference can be drawn from the evidence presented. Prior to trial, test shoppers hired by Ives gave CYCLOSPASMOL prescriptions on which the “substitution permissible” line was signed to 83 New York pharmacists. Forty-eight of the pharmacists dispensed CYCLOSPASMOL; the rest dispensed a generic drug. Ten of the thirty-five pharmacists who dispensed a generic drug included the word CYCLOSPASMOL on the label, although 5 of those 10 also included some form of the word “generic.” Nine of the ten told the consumer of the substitution. Only 1 of the 10 charged the brand name price for the generic drug. 488 F. Supp., at 397.
      The District Court concluded that that evidence did not justify the inference that the petitioners’ catalogs invite pharmacists to mislabel. Ibid. The Court of Appeals, emphasizing that 10 of the 35 druggists who dispensed a generic drug mislabeled it as CYCLOSPASMOL, found a pattern of substitution and mislabeling. 638 F. 2d, at 543. The dissenting judge on the appellate panel, emphasizing that only 1 of 83 pharmacists attempted an illegal substitution and reaped a profit made possible by the color imitation, concluded the facts supported the District Court’s finding that mislabeling resulted from confusion about the substitution laws rather than from profit considerations. Id., at 546.
      On the basis of the record before us, the inferences drawn by the District Court are not, as a matter of law, unreasonable.

       The Court of Appeals cited no evidence to support its conclusion, which apparently rests upon the assumption that a pharmacist who has been provided an imitative generic drug will be unable to resist the temptation to profit from illegal activity. We find no support in the record for such a far-reaching conclusion. Moreover, the assumption is inconsistent with the District Court’s finding that only a “few instances,” rather than a substantial number, of mislabelings occurred. 488 F. Supp., at 397.

       The Court of Appeals characterized the District Court’s finding as resting on “a short and casual exchange with a witness . . . .” 638 F. 2d, at 544. The District Court, however, stated that its conclusion that pharmacists did not understand the drug substitution law rested upon the fact that, in numerous instances, a pharmacist told a consumer that state law prohibited filling prescriptions with generic products, even though the consumer had presented a prescription allowing generic substitution. 488 F. Supp., at 397-398.

       In reaching that conclusion, the Court of Appeals took judicial notice of the fact that, in May 1980, six indictments were handed down in New York City charging pharmacists with substituting cyclandelate for CYCLO-SPASMOL. We note that the evidence of which the Court of Appeals took judicial notice not only involved no convictions but also reflected knowledge that was not available when the District Court rendered its decision. Moreover, even if the District Court failed to consider relevant evidence, which would have been an error of law, the Court of Appeals, rather than make its own factual determination, should have remanded for further proceedings to allow the trial court to consider the evidence. See Pullman-Standard v. Swint, ante, at 291-292.

       The Court of Appeals reached that conclusion despite the District Court’s express finding that, for purposes of § 43(a), the capsule colors were functional. See supra, at 853. As the dissent below noted, the Court of Appeals’ majority either disregarded the District Court’s finding of functionality, see 638 F. 2d, at 545, n. 1 (Mulligan, J., dissenting), or implicitly rejected that finding as not “persuasive.” See id., at 547.
      While the precise basis for the Court of Appeals’ ruling on this issue is unclear, it is clear that the Court of Appeals erred. The appellate court was not entitled simply to disregard the District Court’s finding of functionality. While the doctrine of functionality is most directly related to the question of whether a defendant has violated § 43(a) of the Lanham Act, see generally Note, The Problem of Functional Features: Trade Dress Infringement Under Section 43(a) of the Lanham Act, 82 Colum. L. Rev. 77 (1982), a finding of functionality may also be relevant to an action involving § 32. By establishing to the District Court’s satisfaction that uniform capsule colors served a functional purpose, the petitioners offered a legitimate reason for producing an imitative product.
      Nor was the Court of Appeals entitled simply to dismiss the District Court’s finding of functionality as not “persuasive.” If the District Court erred as a matter of law, the Court of Appeals should have identified the District Court’s legal error. If the Court of Appeals disagreed with the District Court’s factual findings, it should not have dismissed them without finding them clearly erroneous.

       The third question in petitioner Darby Drug Co.’s petition embraced the claim that the Court of Appeals had failed to observe Rule 52(a) in overturning the District Judge’s finding of functionality. As discussed below, I agree with the Court’s invocation of Rule 52 with respect to this aspect of the decision below.

       Although Warner and other eases were decided before §32 was enacted, the purpose of the Lanham Act was to codify and unify the common law of unfair competition and trademark protection. S. Rep. No. 1333, 79th Cong., 2d Sess. (1946). There is no suggestion that Congress intended to depart from Warner and other contemporary precedents.

       “The reality is that for every link in the distributive chain (from producer to ultimate consumer) the color and shape of drugs dispensed by prescription do perform a function. For each of them, color or shape may be a convenient shorthand code by which to identify the drug and its milligram dosage so that mistakes can be avoided in the interests of pharmaceutical precaution and patient safety. For the patient-user, of course, the constancy of color and shape may be as psychologically reassuring and therefore as medically beneficial as the drug itself; in addition, they also serve to identify the drug for his ingestion . . . .”
      “[I]f the generic producer is constrained by § 43(a), trademark law, or the law of unfair competition to adopt a substantially different color . . . the therapeutic value of his generic drug might be seriously impaired and confusion at the pharmacist level could be compounded beyond redemption.” 3 R. Callmann, Unfair Competition, Trademarks and Monopolies § 82.1(m), pp. 217, 213 (Supp. 1981).

       See, e. g ., International Order of Job’s Daughters v. Lindeburg & Co., 633 F. 2d 912, 917 (CA9 1980), cert. denied, 452 U. S. 941 (1981); Keebler Co. v. Rovira Biscuit Corp., 624 F. 2d 366, 378 (CA1 1980). See generally Note, The Problem of Functional Features: Trade Dress Infringement Under Section 43(a) of the Lanham Act, 82 Colum. L. Rev. 77, 81 (1982) (“Over the past three years the rule that functionality of a copied feature bars relief in section 43(a) claims for trade dress infringement or product imitation has become the plurality view”).

       See, e. g., Truck Equip. Serv. Co. v. Fruehauf Corp., 536 F. 2d 1210 (CA8), cert. denied, 429 U. S. 861 (1976); Warner Bros., Inc. v. Gay Toys, Inc., 658 F. 2d 76 (CA2 1981). See also Note, 82 Colum. L. Rev., supra, at 78-80.

       This is not to suggest that the copying of a functional feature protects a defendant from § 32 liability predicated on active inducement of trademark infringement or protects a defendant who has also reproduced nonfunctional features.


source: Caselaw Access Project

license: Public Domain

text:
    UNITED STATES v. LOUISIANA et al. (LOUISIANA BOUNDARY CASE)
    No. 9,
    Orig.
    Decided March 17, 1975, and April 28, 1980
    Decree entered March 17, 1975
    Supplemental decree entered June 16, 1975
    Final decree entered June 22, 1981
    Order entered June 1, 1982.
   ORDER

Pursuant to this Court’s Final Decree herein entered on June 22, 1981, 452 U. S. 726, the United States and the State of Louisiana filed their Final Accountings, and, subsequently, each party filed Objections to the Accounting of the other. By an Order entered on January 11, 1982, 454 U. S. 1135, the Court referred the said Objections to its Special Master. The parties have now agreed upon these matters, have submitted to the Special Master a proposed Order, and the Special Master, with the concurrence of both parties, has recommended its entry by the Court.

Accordingly,

It Is Ordered, Adjudged, and Decreed:

1. The Final Report of the Special Master is received and ordered filed.

2. The objections to accountings previously filed are sustained to the extent recommended in the Report of the Special Master.

3. All accountings required by the Court’s Decree of June 22, 1981, have been made and, as supplemented by the ruling on the objections thereto, are now approved.

4. The United States is directed forthwith to pay over to the State of Louisiana the outstanding sum of $3,251,609.76.

5. After the payment directed by paragraph 4 above, neither party shall be accountable to the other for any further payment in respect of the matters in controversy in these proceedings between the United States and the State of Louisiana.

6. Upon receipt by the State of Louisiana of the payment directed by paragraph 4, above, the Interim Agreement of October 12,1956, shall be deemed terminated for all purposes and all sums remaining in the impounded fund account established pursuant to that Agreement are unconditionally released to the United States.

7. The account submitted by the Special Master is approved and the balance owing to him shall be paid in equal shares by the United States and the State of Louisiana.

8. The Special Master is discharged in this case insofar as the proceedings involve the controversy between the United States and the State of Louisiana.

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


text:
    CALIFORNIA v. NEVADA
    No. 73,
    Orig.
    Decided June 10, 1980
    Decree entered June 1, 1982
   The Report of the Special Master is received and ordered filed.

DECREE

For the purpose of giving effect to the opinion of this Court announced on June 10, 1980, 447 U. S. 125, and the stipulation of the parties entered into on February 5, 1982, and approved by the Special Master:

It Is Ordered, Adjudged, and Decreed As Follows:

1. That the location of the boundary between the States of California and Nevada is as hereafter specified:

Beginning at the Initial Point on the California-Nevada boundary as established under authority of the Act of June 10, 1872,17 Stat. 358, by Allexey W. Von Schmidt in 1872 as an eight (8) inch square wood post set in a large mound of stone at the intersection to the 42nd parallel of north latitude along the southern boundary of the State of Oregon and the 120th degree of longitude west from Greenwich, each as reported by him; thence running southerly along said 1872 boundary as surveyed and marked by Allexey W. Von Schmidt to a cast iron monument designated as Von Schmidt Milepost 191 on said boundary; thence S 00°09'15".21 W along a line directed toward a standard National Geodetic Survey brass marker cemented in a granite formation and stamped “VS 120, 1981”, located at the geographic position of: Latitude 38°53'51".59866 Longitude 120°00'20".93116, a distance of 80,191.63 feet to an intersection in Lake Tahoe with a line extending between two points, the first of which is a standard National Geodetic Survey brass marker cemented in granite and stamped “EAGLE ROCK, 1981,” which has a geographic position of: Latitude 39°06'33". 17268, Longitude 120°09'38".06504, and the second being a granite stone with copper bolt identified as No. 1 (Initial 1894), being the first monumented point on the California-Nevada Oblique 1893-1899 Boundary survey as determined and marked by the U. S. Coast and Geodetic Survey; thence from said intersection point in Lake Tahoe S 48°46'02".80 E, 21,568.48 feet to said Monument No. 1 (Initial 1894); thence proceeding southeasterly along the oblique California-Nevada boundary line as surveyed and marked by the U. S. Coast and Geodetic Survey under authority of the Act of August 5,1892, 27 Stat. 357, during the period 1893-1899, to Point No. 1 described in the Interstate Compact Defining the Boundary Between the States of Arizona and California executed on March 12, 1963, being a point common to Point No. 1 described in the Interstate Compact Defining A Portion of the Arizona-Nevada Boundary On The Colorado River, executed February 6, 1960. Bearings, distances, and geographic positions used hereinbefore are based upon the 1927 North American Datum and are denoted on the attached map, Exhibit A, which is incorporated herein by reference.

2. That the intersection of the two lines described herein shall form the only angle point of the true California-Nevada state boundary within the waters of Lake Tahoe, which angle point shall be considered as satisfying the definition of the intersection of the 120th meridian west of Greenwich with the 39th parallel of north latitude as prescribed in the constitutions of California and Nevada.

3. That the necessary expenses incurred by the Special Master incident to this litigation and all other proper expenses incurred jointly by the parties shall be equally borne by the parties.

4. That, except as provided in paragraph 3 herein, each party shall bear its own expenses.

5. That any unexpended funds contributed by the parties to the Special Master for necessary expenses be returned to the parties in proportion to their contributions.


text:
    March 29, 1982
    No. 81-1564.
    Koniag, Inc. v. Stratman et al.
   C. A. 9th Cir. Certiorari dismissed under this Court’s Rule 53.


text:
    No. 81-1000.
    California State Board of Equalization v. United States.
   Affirmed on appeal from C. A. 9th Cir.


text:
    No. 81-1505.
    Camellia Corp. v. Cornell.
   Appeal from Sup. Ct. Ga. dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for writ of certiorari, certiorari denied.


text:
    No. A-755.
    Yates v. United States Coast Guard et al.
   Application for injunction, addressed to JUSTICE O’Connor and referred to the Court, denied.


text:
    No. A-783.
    Karcher, Speaker, New Jersey Assembly, et al. v. Daggett et al.
   D. C. N. J. Motions of appellees to vacate the stay entered by Justice Brennan on March 15, 1982 [455 U. S. 1303], and requests to expedite docketing of the appeal denied.


text:
    No. A-791.
    Carpenter v. Jamerson, Sheriff.
   Application to continue the stay entered by the Supreme Court of Ohio, addressed to Justice Brennan and referred to the Court, denied.


text:
    No. A-786.
    Terrazas et al. v. Clements, Governor of Texas, et al.
   Application for stay of the order of the United States District Court for the Northern District of Texas, presented to Justice White, and by him referred to the Court, denied.

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


text:
    No. A-826.
    Queensgate Investment Co., dba Holiday Inn v. Liquor Control Commission of Ohio.
   Sup. Ct. Ohio. Application for stay, presented to Justice O’Connor, and by her referred to the Court, denied.


text:
    No. A-828 (81-395).
    United Steelworkers of America, AFL-CIO-CLC v. Sadlowski et al.
   C. A. D. C. Cir. [Certiorari granted, 454 U. S. 962.] Application of petitioner for leave to file a reply brief in excess of the page limitations, presented to The Chief Justice, and by him referred to the Court, denied.


text:
    No. D-248.
    In re Disbarment of Holober.
    [For earlier order herein, see 454 U. S. 936.]
   Disbarment entered.


text:
    No. D-249.
    In re Disbarment of Beatty.
    [For earlier order herein, see 454 U. S. 937.]
   Disbarment entered.


text:
    No. D-255.
    In re Disbarment of Holman.
    [For earlier order herein, see 455 U. S. 902.]
   Disbarment entered.


text:
    No. D-261.
    In re Disbarment of Hammersmith.
   It is ordered that Robert K. Hammersmith, 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-262.
    In re Disbarment of Auwaerter.
   It is ordered that John F. Auwaerter, of Sylvania, 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-263.
    In re Disbarment of Kitchen.
   It is ordered that John W. Kitchen, of Toledo, 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-264.
    In re Disbarment of Eilberg.
   It is ordered that Joshua Eilberg, of Philadelphia, 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. 80-1952.
    Blum, Commissioner of the New York State Department of Social Services, et al. v. Yaretsky et al.
   C. A. 2d Cir. [Certiorari granted, 454 U. S. 815.] Motion of petitioners for leave to file reply brief out of time granted.


text:
    No. 81-184.
    United States v. Security Industrial Bank et al.
   C. A. 10th Cir. [Probable jurisdiction noted, 454 U. S. 1122.] Motion of Security Industrial Bank for divided argument and for additional time for oral argument denied.


text:
    No. 81-334.
    Associated General Contractors of California, Inc. v. California State Council of Carpenters et al.
   C. A. 9th Cir. [Certiorari granted, 454 U. S. 1141.] Motion of respondent for divided argument to permit American Federation of Labor and Congress of Industrial Organizations to present oral argument as amicus curiae denied.


text:
    No. 81-497.
    Summit Valley Industries, Inc. v. Local 112, United Brotherhood of Carpenters & Joiners of America.
   C. A. 9th Cir. [Certiorari granted, 454 U. S. 1079.] Motion of American Federation of Labor and Congress of Industrial Organizations for leave to file a brief as amicus curiae granted.


text:
    No. 81-1731.
    Schatzle v. Kirkpatrick, Secretary of State of Missouri, et al.
   D. C. W. D. Mo. Motion of appellant to expedite consideration of the appeal denied.


text:
    No. 81-5321.
    Enmund v. Florida.
   Sup. Ct. Fla. [Certiorari granted, 454 U. S. 939.] Motion of respondent to strike portions of petitioner’s reply brief denied.


text:
    No. 81-6187.
    In re Boyer.
   Petition for writ of mandamus denied.


text:
    No. 81-6192.
    In re Hanson.
   Petition for writ of prohibition denied.


text:
    No. 81-1370.
    Energy Reserves Group, Inc. v. Kansas Power & Light Co.
   Appeal from Sup. Ct. Kan. Motion of State Corporation Commission of Kansas for leave to file a brief as amicus curiae granted. Probable jurisdiction noted.


text:
    No. 81-1095.
    Morris, Warden v. Slappy.
   C. A. 9th Cir. Certiorari granted.


text:
    No. 81-1476.
    United States v. Rodgers et al.; and United States v. Ingram et al.
   C. A. 5th Cir. Certiorari granted. Reported below: 649 F. 2d 1117 (first case); 649 F. 2d 1128 (second case).


text:
    No. 80-2128.
    Washington Metropolitan Area Transit Authority v. Hensley.
   C. A. D. C. Cir. Certiorari denied.


text:
    No. 81-547.
    Diaz et al. v. Beyer et ux.
   Ct. Civ. App. Tex., 10th Sup. Jud. Dist. Certiorari denied.


text:
    No. 81-1001.
    Rivenburgh v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 81-1115.
    Southwestern Baptist Theological Seminary v. Equal Employment Opportunity Commission.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 81-1191.
    Wiggins Brothers, Inc., et al. v. Department of Energy et al.
   Temp. Emerg. Ct. App. Certiorari denied.


text:
    No. 81-1205.
    Nitrochem, Inc. v. Interstate Commerce Commission et al.
   C. A. D. C. Cir. Certiorari denied.


text:
    No. 81-1219.
    Goodstein et al. v. United States et al.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 81-1236.
    Garner v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 81-1242.
    Gilliland et al. v. United States.
   Ct. Cl. Certiorari denied.


text:
    No. 81-1260.
    Allnutt v. United States.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 81-1264.
    Fogg v. United States.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 81-1382.
    Atkinson v. Atkinson, aka Goelz.
   Sup. Ct. Ill. Certiorari denied.


text:
    No. 81-1402.
    O’Grady et al. v. Watt, Secretary of the Interior, et al.
   C. A. D. C. Cir. Certiorari denied.


text:
    No. 81-1433.
    Reimnitz v. Illinois.
   App. Ct. Ill., 1st Dist. Certiorari denied.


text:
    No. 81-1446.
    Huntington Memorial Hospital v. Missirlian.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 81-1447.
    Loeterman et al. v. Town of Brookline et al.
   C. A. 1st Cir. Certiorari before judgment denied.


text:
    No. 81-1450.
    Michelin Tire Corp. v. Coulter.
   Ct. App. Mo., Southern Dist. Certiorari denied.


text:
    No. 81-1452.
    Fordees Corp. v. Vulcan, Inc.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 81-1456.
    Marin v. Myers et al.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 81-1471.
    Immer v. Puerto Rico Maritime Shipping Authority et al.
   C. A. D. C. Cir. Certiorari denied.


text:
    No. 81-1474.
    Cole v. Ohio.
   Ct. App. Ohio, Franklin County. Certiorari denied.


text:
    No. 81-1475.
    Taylor v. Virginia.
   Sup. Ct. Va. Certiorari denied.


text:
    No. 81-1477.
    Wells v. White, Governor of Arkansas, et al.
   Sup. Ct. Ark. Certiorari denied.


text:
    No. 81-1484.
    Allison et al. v. Continental Group, Inc.
   Sup. Ct. La. Certiorari denied.


text:
    No. 81-1519.
    Darwin v. United States.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 81-1523.
    Stewart et al. v. Socialist Workers Party et al.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 81-1539.
    Block v. United States.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 81-1541.
    Ballenger v. Alabama.
   Ct. Crim. App. Ala. Certiorari denied.


text:
    No. 81-1576.
    Snisky, t/a Panther Valley Coin Exchange v. United States.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 81-1579.
    Miller v. United States.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 81-1601.
    Irwin v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 81-1603.
    Salazar v. United States.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 81-5623.
    Johnson v. Fogg, Superintendent, Eastern New York Correctional Facility, et al.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 81-5836.
    In re Linger.
   Sup. Ct. Ohio. Certiorari denied.


text:
    No. 81-5894.
    Lee v. Gilstrap, Chief of Police, Wayne County, et al.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 81-5907.
    Ellis v. Illinois.
   App. Ct. Ill., 1st Dist. Certiorari denied.


text:
    No. 81-5949.
    Moreno v. California.
   Ct. App. Cal., 2d App. Dist. Certiorari denied.


text:
    No. 81-5980.
    Williams v. Texas.
   Ct. Crim. App. Tex. Certiorari denied.


text:
    No. 81-6163.
    Young v. Marshall.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 81-6166.
    Brent v. Maryland.
   Ct. Sp. App. Md. Certiorari denied.


text:
    No. 81-6167.
    Africa v. Pennsylvania et al.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 81-6175.
    Nelson v. Engle, Superintendent, Chillicothe Correctional Institute, et al.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 81-6176.
    Owens v. Miller.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 81-6180.
    Lindsey v. United States.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 81-6182.
    Baker v. Estelle, Director, Texas Department of Corrections.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 81-6186.
    Brennin v. Kirby, Commissioner of the Suffolk County Department of Social Services, et al.
   App. Div., Sup. Ct. N. Y., 2d Jud. Dept. Certiorari denied.


text:
    No. 81-6190.
    Szijarto v. Sinow.
   Ct. App. Cal., 2d App. Dist. Certiorari denied.


text:
    No. 81-6194.
    Turner v. Engle.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 81-6197.
    Allen v. Iowa.
   Sup. Ct. Iowa. Certiorari denied.


text:
    No. 81-6203.
    Staton v. Wainwright et al.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 81-6209.
    Scott v. Perini.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 81-6226.
    Chang v. Texas Youth Council et al.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 81-6256.
    Payne v. Kentucky.
   Sup. Ct. Ky. Certiorari denied.


text:
    No. 81-6263.
    Horton v. Compton et al.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 81-6288.
    O’Brien v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 81-6290.
    Jones v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 81-6292.
    King v. Carlson et al.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 81-6293.
    King v. Carlson et al.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 81-6305.
    Canda v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 81-6312.
    Gonsalves v. United States.
   C. A. 1st Cir. Certiorari denied.


text:
    No. 81-6319.
    Antonelli v. Chicago Police Department et al.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 81-417.
    Wainwright, Corrections Secretary v. Perez.
   C. A. 5th Cir. Motion of respondent for leave to proceed in forma pauperis granted. Certiorari denied.


text:
    No. 81-1469.
    Tennessee v. Webb.
   Sup. Ct. Tenn. Motion of respondent for leave to proceed informa pauperis granted. Certiorari denied.


text:
    No. 81-1516.
    Atkins, Chairman, Missouri Board of Probation and Parole, et al. v. Eldridge.
   C. A. 8th Cir. Motion of respondent for leave to proceed in forma pauperis granted. Certiorari denied.


text:
    No. 81-1295.
    Shearson Hayden Stone, Inc., et al. v. Hope et al.
   Ct. App. Cal., 1st App. Dist. Motion of New York Stock Exchange, Inc., et al. for leave to file a brief as amici curiae granted. Certiorari denied.


text:
    No. 81-1517.
    Hildebrand v. Board of Trustees of Michigan State University et al.
   C. A. 6th Cir. Motion of Lansing Michigan Branch of the American Civil Liberties Union of Michigan et al. for leave to file a brief as amici curiae granted. Certiorari denied.


author: Justice Brennan and Justice Marshall,

text:
    No. 81-6158.
    No. 81-6172.
    Vanderbilt v. Texas. Christopher v. Florida.
   Ct. Crim. App. Tex.; and

Sup. Ct. Fla. Certiorari denied. Reported below: No. 81-6158, 629 S. W. 2d 709; No. 81-6172, 407 So. 2d 198.

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. 81-963.
    No. 81-5508.
    No. 81-5978.
    No. 81-5998.
    No. 81-6000.
    Friendly Retirement Center, Inc. v. Colling, Successor Trustee, Souness v. Veterans Administration, Creasy v. Virginia, Smith v. Estelle, Director, Texas Department of Corrections, Rhodes v. United States Navy et al.,
   455 U. S. 940;

454 U. S. 1088;

455 U. S. 957;

455 U. S. 958; and

455 U. S. 958. Petitions for rehearing denied.


text:
    No. 81-921.
    No. 81-5560.
    Kessinger et al. v. Kentucky, Johnson v. Connecticut,
   455 U. S. 920; and

454 U. S. 1101. Motions for leave to file petitions for rehearing denied.


text:
    April 5, 1982
    No. 80-5227.
    Maffey v. Oregon ex rel. Juvenile Department of Klamath County.
   Appeal from Ct. App. Ore. dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for writ of certiorari, certiorari denied.


text:
    No. 81-1034.
    New Mexico ex rel. Rock v. Stowers.
   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. A-799 (81-1719).
    Petrusch, dba B & L Distribution Center v. Teamsters Local 317, Syracuse, New York, et al.
   C. A. 2d Cir. Application for injunction, addressed to Justice Rehnquist and referred to the Court, denied.


text:
    No. A-818.
    Conway v. United States.
   C. A. 9th Cir. Application for stay, addressed to Justice Marshall and referred to the Court, denied.


text:
    No. A-829.
    Division 732, Amalgamated Transit Union v. Metropolitan Atlanta Rapid Transit Authority.
   C. A. 11th Cir. Application for stay, presented to Justice Powell, and by him referred to the Court, denied.


text:
    No. D-250.
    In re Disbarment of Donovan.
    [For earlier order herein, see 454 U. S. 937.]
   Disbarment entered.


text:
    No. D-254.
    In re Disbarment of Wencke.
    [For earlier order herein, see 454 U. S. 1075.]
   Disbarment entered.


text:
    No. 8,
    Orig.
    Arizona v. California et al.
    [For earlier order herein, see, e. g., 444 U. S. 1009.]
   Report of the Special Master received and ordered filed. Exceptions, if any, with supporting briefs to the Report may be filed by the parties within 45 days. Reply briefs, if any, to such Exceptions may be filed within 30 days.

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


text:
    No. 92,
    Orig.
    Arkansas v. Mississippi.
   Motion for leave to file bill of complaint granted. Defendant is allowed 60 days within which to answer.


text:
    No. 80-2070.
    No. 81-24.
    Sumitomo Shoji America, Inc. v. Avagliano et al.; and Avagliano et al. v. Sumitomo Shoji America, Inc.
   C. A. 2d Cir. [Certiorari granted, 454

U. S. 962.] Motion of the Solicitor General for leave to participate in oral argument as amicus curiae and for divided argument granted.


text:
    No. 81-1404.
    Briscoe et al. v. LaHue et al.
   C. A. 7th Cir. [Certiorari granted, 455 U. S. 1016.] Motion of petitioner Carlisle W. Briscoe for leave to proceed further herein in forma pauperis granted.


text:
    No. 81-298.
    No. 81-799.
    Community Television of Southern California v. Gottfried et al.; and Federal Communications Commission v. Gottfried et al.
   C. A. D. C. Cir. [Certiorari granted, 454 U. S. 1141.] Motion of respondents to apportion advancement of funds for printing of the joint appendix denied.


text:
    No. 81-878.
    Larkin et al. v. Grendel’s Den, Inc.
   C. A. 1st Cir. [Probable jurisdiction noted, 454 U. S. 1140.] Motion of Paul W. Johnson, Esquire, to permit Gerald J. Caruso, Esquire, to present oral argument pro hoc vice granted.


text:
    No. 81-920.
    Verlinden B. V. v. Central Bank of Nigeria.
   C. A. 2d Cir. [Certiorari granted, 454 U. S. 1140.] Motion of the Solicitor General for leave to participate in oral argument as amicus curiae and for divided argument granted. Request for additional time for oral argument denied.


text:
    No. 81-1770.
    Orwoll et al. v. LaComb et al.
   D. C. Minn. Motion of Minnesota State Senate for leave to file a brief as amicus curiae granted. Motion of appellants to expedite consideration of the appeal denied.

Justice Black-mun took no part in the consideration or decision of these motions.


text:
    No. 81-6218.
    No. 81-6317.
    In re Jackson; and In re Shelby.
   Petitions for writs of mandamus denied.


text:
    No. 81-1489.
    Xerox Corp. v. County of Harris, Texas, et al.
   Appeal from Ct. App. Tex., 1st Sup. Jud. Dist. Probable jurisdiction noted.


text:
    No. 81-1181.
    Lockheed Aircraft Corp. v. United States et al.
   C. A. D. C. Cir. Certiorari granted.


text:
    No. 81-1506.
    Federal Election Commission et al. v. National Right to Work Committee et al.
   C. A. D. C. Cir. Certiorari granted.


text:
    No. 81-680.
    No. 81-1076.
    Herman & MacLean v. Huddleston et al.; and Huddleston et al. v. Herman & MacLean et al.
   C. A. 5th Cir. Certiorari in No. 81-680 granted. Certiorari in No. 81-1076 granted limited to Question 1 presented by the petition. Cases consolidated and a total of one hour allotted for oral argument. Reported below: 640 F. 2d 534.


text:
    No. 81-1214.
    Missouri v. Hunter.
   Ct. App. Mo., Western Dist. Motion of respondent for leave to proceed in forma pawperis and certiorari granted.


text:
    No. 81-1493.
    Gillette Co. v. Miner.
   Sup. Ct. Ill. Motion of National Association of Independent Insurers et al. for leave to file a brief as amici curiae granted. Certiorari granted.


text:
    No. 81-826.
    American Commercial Lines, Inc. v. Griffith et al.; Oceanic Navigation Corp. et al. v. Sarauw; and Silver Bulk Shipping, Ltd. v. McCarthy.
   C. A. 3d Cir. Certiorari denied. Reported below: 657 F. 2d 25 (first case); 655 F. 2d 526 (second case); 661 F. 2d 298 (third case).


text:
    No. 81-1231.
    Bedford Associates et al. v. United States et al.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 81-1238.
    No. 81-1253.
    No. 81-1333.
    No. 81-6062.
    Cashell v. United States; Satterwhite v. United States; Welch v. United States; and Cochran v. United States.
   C. A. 5th Cir. Certiorari denied. Reported below: 656 F. 2d 1039.


text:
    No. 81-1254.
    Athena Products, Ltd. v. United States Postal Service.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 81-1288.
    Brunswick Corp. et al. v. Federal Trade Commission et al.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 81-1302.
    No. 81-1303.
    Montedison S.p.A. v. Phillips Petroleum Co. et al.; and Standard Oil Co. (Indiana) v. Phillips Petroleum Co. et al.
   C. A. 3d Cir. Certiorari denied. Reported below: 664 F. 2d 356.


text:
    No. 81-1338.
    Arrow Transportation Co. v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 81-1441.
    Bronston v. United States.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 81-1454.
    Cianci et al. v. Division of Liquor Control, Department of Business Regulation.
   Super. Ct. Conn., Hartford Jud. Dist. Certiorari denied.


text:
    No. 81-1468.
    Coastal Petroleum Co. v. United States.
   Ct. Cl. Certiorari denied.


text:
    No. 81-1502.
    Murnane v. American Airlines, Inc., et al.
   C. A. D. C. Cir. Certiorari denied.


text:
    No. 81-1504.
    Beckstrom v. California.
   Ct. App. Cal., 4th App. Dist. Certiorari denied.


text:
    No. 81-1520.
    Bautista v. California.
   Ct. App. Cal., 2d App. Dist. Certiorari denied.


text:
    No. 81-1527.
    Hall v. Hall.
   Sup. Ct. Ark. Certiorari denied.


text:
    No. 81-1532.
    Oliver v. Aminoil, USA, Inc.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 81-1540.
    Tangren et al. v. Wackenhut Services, Inc., et al.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 81-1559.
    Villalta v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 81-1584.
    Frangella Mushroom Farms, Inc., et al. v. United States.
   Ct. Cl. Certiorari denied.


text:
    No. 81-1599.
    Mahroom v. Marsh, Secretary of the Army of the United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 81-1608.
    Coven v. United States.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 81-1628.
    Reilly v. Schweiker, Secretary of Health and Human Services.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 81-1638.
    Albert v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 81-1648.
    Anderson v. United States.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 81-1652.
    Riden v. United States Nuclear Regulatory Commission.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 81-5849.
    Pousson v. Estelle, Director, Texas Department of Corrections.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 81-5897.
    Wilson v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 81-6038.
    Moore v. United States.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 81-6079.
    Locklear v. United States.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 81-6094.
    McKee v. Harris.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 81-6130.
    Simer et al. v. United States.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 81-6144.
    Salman v. Swanson, District Director, Internal Revenue Service.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 81-6191.
    Conner v. Anderson, Warden, State Prison of Southern Michigan.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 81-6200.
    Pelczarski v. Sullivan et al.
   C. A. 1st Cir. Certiorari denied.


text:
    No. 81-6204.
    Norwood v. Woodard.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 81-6207.
    Tyler v. Tyler.
   Ct. App. Wis. Certiorari denied.


text:
    No. 81-6210.
    Taylor v. Blackburn, Warden, Louisiana State Penitentiary.
   Sup. Ct. La. Certiorari denied.


text:
    No. 81-6215.
    Drysdale v. Keith.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 81-6211.
    Trimmer v. Van Bomel.
   App. Div., Sup. Ct. N. Y., 1st Jud. Dept. Certiorari denied.


text:
    No. 81-6229.
    Wiga v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 81-6239.
    Howell v. Tanner, Commissioner, Department of Natural Resources of Georgia, et al.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 81-6250.
    Pennington v. Housewright, Director, Arkansas Department of Correction.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 81-6295.
    Antonelli v. United States.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 81-6303.
    Taylor et al. v. United States.
   Ct. Cl. Certiorari denied.


text:
    No. 81-6310.
    Jones v. United States.
   Ct. App. D. C. Certiorari denied.


text:
    No. 81-6313.
    Mangiameli v. United States.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 81-6321.
    No. 81-6328.
    Lee v. United States; and Nance v. United States.
   C. A. 9th Cir. Certiorari denied. Reported below: 666 F. 2d 353.


text:
    No. 81-6324.
    Conroy v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 81-6343.
    Green v. Carlson, Director, Federal Bureau of Prisons, et al.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 81-6325.
    Howard v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 81-6345.
    Lee v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 81-6347.
    Golden v. United States.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 81-6350.
    Ross v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 81-6351.
    Gray v. United States.
   Ct. App. D. C. Certiorari denied.


text:
    No. 81-1210.
    Raulerson v. Howell.
   C. A. 11th Cir. Motion of respondent for leave to proceed informa pauperis granted. Certiorari denied.


text:
    No. 81-6016.
    No. 81-6224.
    Chaney v. Oklahoma. Godfrey v. Georgia.
   Ct. Crim. App. Okla.; and

Sup. Ct. Ga. Certiorari denied. Reported below: No. 81-6224, 248 Ga. 616, 284 S. E. 2d 422.

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. 81-5930.
    No. 81-5955.
    No. 81-6067.
    No. 81-6099.
    Whitelaw v. MWP Limited Partnership, Dixon v. MacDougall, McColpin v. Barnes, Williams v. Carmen, Administrator, General Services Administration, et al.,
   455 U. S. 955;

455 U. S. 955;

455 U. S. 1004; and

455 U. S. 992. Petitions for rehearing denied.


text:
    No. 81-271.
    California ex rel. Cooper, City Attorney of Santa Ana, California v. Mitchell Brothers’ Santa Ana Theater et al.,
   454 U. S. 90. Motion for leave to file petition for rehearing denied.


text:
    April 6, 1982
    No. 81-1592.
    Travelers Express Co., Inc. v. Minnesota et al.
   C. A. 8th Cir. Certiorari dismissed under this Court’s Rule 53.


text:
    April 9, 1982
    No. 81-6213.
    In re Artway.
   Petition for writ of mandamus dismissed under this Court’s Rule 53.


text:
    April 19, 1982
    No. 81-1729.
    Natural Resources Defense Council, Inc., et al. v. City of New York et al.
   C. A. 2d Cir. Certiorari dismissed under this Court’s Rule 53.


text:
    No. 81-1594.
    Rafter v. Higgins et al.
   Appeal from Ct. App. N. Y. dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for writ of certiorari, certiorari denied.


text:
    No. 81-1621.
    Bilford et al. v. Florida.
   Appeal from Sup. Ct. Fla. dismissed for want of jurisdiction.


text:
    No. 81-1642.
    Best Investment Co. v. City of Dallas et al.
   Appeal from D. C. N. D. Tex. dismissed for want of jurisdiction.


text:
    No. 80-5861.
    Williams v. Lucky.
   Ct. Civ. App. Tex., 5th Sup. Jud. Dist. Motion of petitioner for leave to proceed in forma pauperis and certiorari granted. Judgment vacated and case remanded for further consideration in light of Mills v. Habluetzel, ante, p. 91.


text:
    No. 80-6701.
    Ross v. Reed et al.
   C. A. 4th Cir. Motion of petitioner for leave to proceed informa pauperis and certiorari granted. Judgment vacated and case remanded for further consideration in light of Engle v. Isaac, ante, p. 107, and United States v. Frady, ante, p. 152.


text:
    No. 81-1056.
    Washington v. Myers.
   C. A. 9th Cir. Motion of respondent for leave to proceed informa pauperis and certiorari granted. Judgment vacated and case remanded for further consideration in light of Engle v. Isaac, ante, p. 107, and United States v. Frady, ante, p. 152.


text:
    No. A-852 (81-1867).
    Cohen v. Kentucky Bar Assn.
   Sup. Ct. Ky. Application for continuation of stay, presented to Justice Brennan, and by him referred to the Court, denied.


text:
    No. 80-2162.
    Ramah Navajo School Board, Inc., et al. v. Bureau of Revenue of New Mexico.
   Ct. App. N. M. [Probable jurisdiction noted, 454 U. S. 1079.] Motion of the Solicitor General for leave to file a supplemental brief as amicus curiae denied.


text:
    No. 81-451.
    Hathorn et al. v. Lovorn et al.
   Sup. Ct. Miss. [Certiorari granted, 454 U. S. 1122.] Motion of the Solicitor General for leave to file a supplemental brief as amicus curiae denied.


text:
    No. 81-1.
    No. 81-3.
    Goldsboro Christian Schools, Inc. v. United States; and Bob Jones University v. United States.
   C. A. 4th Cir. [Certiorari granted, 454 U. S. 892.] (1) Motion of National Association for the Advancement of Colored People et al. for leave to intervene as parties respondent and for leave to participate in oral argument denied. (2) Alternative request to file a brief as amici curiae granted. (3) Motion of Laurence H. Tribe et al. for leave to file a brief as amici curiae granted. (4) Motion of Agencies of the United Church of Christ for leave to file a brief as amicus curiae granted. (5) Motion of Lawyers’ Committee for Civil Rights Under Law et al. for leave to file a supplemental brief as amici curiae granted. (6) Motion of North Carolina Association of Black Lawyers for leave to file a brief as amicus curiae granted. (7) Motion of the Solicitor General for leave to file a brief on the merits out of time granted. (8) Motion of the Solicitor General for leave to file a motion for divided argument out of time granted. (9) Motion of petitioner in No. 81-3 for an order directing respondent to act with respect to respondent’s memorandum filed January 8, 1982, denied. (10) Motions of petitioners for summary reversal denied. (11) William T. Coleman, Jr., Esquire, of Washington, D. C., a member of the Bar of this Court, is invited to brief and argue these cases as amicus curiae in support of the judgments below.


text:
    No. 81-184.
    United States v. Security Industrial Bank et al.
   C. A. 10th Cir. [Probable jurisdiction noted, 454 U. S. 1122.] Motion of appellee Beneficial Finance of Kansas, Inc., to schedule oral argument during April 1982 session denied.


text:
    No. 81-298.
    No. 81-799.
    Community Television of Southern California v. Gottfried et al.; and Federal Communications Commission v. Gottfried et al.
   C. A. D. C. Cir. [Certiorari granted, 454 U. S. 1141.] Motions of petitioners for divided argument and for additional time for oral argument granted. Ten additional minutes are allotted for that purpose.


text:
    No. 81-300.
    Ford Motor Co. v. Equal Employment Opportunity Commission.
   C. A. 4th Cir. [Certiorari granted, 454 U. S. 1030.] Motion of the Solicitor General to permit David A. Strauss, Esquire, to present oral argument pro hac vice granted.


text:
    No. 81-750.
    Fidelity Federal Savings & Loan Assn. et al. v. De la Cuesta et al.
   Ct. App. Cal., 4th App. Dist. [Probable jurisdiction noted, 455 U. S. 917.] Motion of Michigan et al. for leave to participate in oral argument as amici curiae and for divided argument denied.

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


text:
    No. 81-825.
    Pillsbury Co. et al. v. Conboy.
   C. A. 7th Cir. [Certiorari granted, 454 U. S. 1141.] Motion of petitioners to schedule oral argument during April 1982 session denied. Motion of Philip L. Barnum et al. for leave to file a brief as amici curiae granted.

Justice O’Connor took no part in the consideration or decision of these motions.


text:
    No. 81-1180.
    Dickerson, Director, Bureau of Alcohol, Tobacco and Firearms v. New Banner Institute, Inc.
   C. A. 4th Cir. [Certiorari granted, 455 U. S. 1015.] Motion of the parties to dispense with printing the joint appendix granted.


text:
    No. 81-1476.
    United States v. Rodgers et al.; and United States v. Ingram et al.
   C. A. 5th Cir. [Certiorari granted, ante, p. 904.] Motion of the parties to dispense with printing the joint appendix granted.


text:
    No. 81-1591.
    Chase Manhattan Bank, N.A. v. Vishipco Line et al.
   C. A. 2d Cir. The Solicitor General is invited to file a brief in this case expressing the views of the United States.


text:
    No. 81-1860.
    J. P. Stevens & Co., Inc. v. National Labor Relations Board et al.
   C. A. 4th Cir. Motion of petitioner to expedite consideration of the petition for writ of certiorari denied.


text:
    No. 81-1874.
    Sentinel Government Securities et al. v. United States.
   C. A. 2d Cir. Motion of petitioners to expedite consideration of the petition for writ of certio-rari denied.


text:
    No. 81-6277.
    No. 81-6342.
    In re De Vincent; and In re Green.
   Petitions for writs of mandamus denied.


text:
    No. 81-1483.
    In re Williams et al.
   Motion of FLAG, Inc., for leave to file a brief as amicus curiae granted. Petition for writ of mandamus denied.


text:
    No. 81-1578.
    Kramarsky, Commissioner, New York State Division of Human Rights, et al. v. Delta Air Lines, Inc., et al.; Kramarsky, Commissioner, New York State Division of Human Rights v. Burroughs Corp.; and Kramarsky, Commissioner, New York State Division of Human Rights, et al. v. Metropolitan Life Insurance Co.
   Appeals from C. A. 2d Cir. Probable jurisdiction noted. Reported below: 650 F. 2d 1287 and 666 F. 2d 21 (first case); 666 F. 2d 27 (second case); 666 F. 2d 26 (third case).


text:
    No. 81-1196.
    Smith v. Wade.
   C. A. 8th Cir. Certiorari granted.


text:
    No. 81-1273.
    No. 81-1472.
    Bowsher, Comptroller General of the United States, et al. v. Merck & Co., Inc.; and Merck & Co., Inc. v. Bowsher, Comptroller General of the United States, et al.
   C. A. D. C. Cir. Certiorari granted, cases consolidated, and a total of one hour allotted for oral argument. Reported below: 214 U. S. App. D. C. 418, 665 F. 2d 1236.


text:
    No. 81-1304.
    No. 81-1381.
    National Association of Greeting Card Publishers v. United States Postal Service et al.; and United Parcel Service of America, Inc. v. United States Postal Service et al.
   C. A. 2d Cir. Certiorari granted, cases consolidated, and a total of one hour allotted for oral argument. Reported below: 663 F. 2d 1186.


text:
    No. 81-1014.
    No. 81-1296.
    No. 81-1408.
    O’Brien v. United States; Brown v. United States; and Lee v. United States.
   C. A. 9th Cir. Certiorari denied. Reported below: 661 F. 2d 943.


text:
    No. 81-1086.
    Thomas, Sheriff v. Barrett et al.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 81-1113.
    Odom v. Florida.
   Sup. Ct. Fla. Certiorari denied.


text:
    No. 81-1132.
    Kelly v. Louisiana.
   Sup. Ct. La. Certiorari denied.


text:
    No. 81-1200.
    Brown v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 81-1216.
    Siller Bros., Inc. v. United States.
   Ct. Cl. Certiorari denied.


text:
    No. 81-1220.
    Schmedt v. De Baca et al.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 81-1225.
    Sandini v. Florida.
   Dist. Ct. App. Fla., 4th Dist. Certiorari denied.


text:
    No. 81-1227.
    Hubbard et al. v. United States.
   C. A. D. C. Cir. Certiorari denied.


text:
    No. 81-1256.
    New Mexico et al. v. United States.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 81-1275.
    Founding Church of Scientology v. United States.
   C. A. D. C. Cir. Certiorari denied.


text:
    No. 81-1300.
    Rex v. Cia. Pervana de Vapores, S.A., et al.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 81-1317.
    City of Parma, Ohio v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 81-1365.
    Bright v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 81-1376.
    400 E. Baltimore Street, Inc. v. Maryland.
   Crim. Ct. Baltimore City, Md. Certiorari denied.


text:
    No. 81-1388.
    Princess Sea Industries et al. v. Nevada et al.
   Sup. Ct. Nev. Certiorari denied.


text:
    No. 81-1413.
    Plaquemines Parish Mosquito Control District et al. v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 81-1428.
    Grand Laboratories, Inc. v. Schweiker, Secretary of Health and Human Services.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 81-1434.
    Frank v. Illinois.
   App. Ct. Ill., 2d Dist. Certiorari denied.


text:
    No. 81-1455.
    Howard v. Board of County Commissioners of the County of Weld, Colorado, et al.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 81-1481.
    Lamb v. Equifax Services, Inc.
   Ct. App. Ky. Certiorari denied.


text:
    No. 81-1492.
    Standard Drywall, Inc. v. United States.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 81-1535.
    Factors Etc., Inc., et al. v. Pro Arts, Inc., et al.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 81-1545.
    RKO General, Inc. v. Federal Communications Commission et al.
   C. A. D. C. Cir. Certiorari denied.


text:
    No. 81-1550.
    Melichar v. Ost.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 81-1554.
    Clark et al. v. City of Los Angeles et al.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 81-1555.
    City of Allen Park v. Michigan et al.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 81-1556.
    Narel v. Liburdi, Warden.
   Sup. Ct. Conn. Certiorari denied.


text:
    No. 81-1560.
    Vigorito v. New York.
   Sup. Ct. N. Y., Kings County. Certiorari denied.


text:
    No. 81-1562.
    Adkinson v. Campbell, Director, Division of Corrections of Alaska.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 81-1566.
    Manitowoc Engineering Co. v. Terry et al.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 81-1569.
    Rogers, President of the University of Texas at Austin, et al. v. White.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 81-1570.
    Harlow et al. v. Sargent et al.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 81-1572.
    Lane, Director, Illinois Department of Corrections v. Allen.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 81-1573.
    McShane v. United States.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 81-1575.
    Rice v. President and Fellows of Harvard College.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 81-1582.
    Quinn v. Burlington Northern Inc. Pension Plan et al.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 81-1597.
    Kilcoyne v. Morgan et al.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 81-1647.
    Broderick et al. v. United States.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 81-1654.
    McCord v. Georgia.
   Sup. Ct. Ga. Certiorari denied.


text:
    No. 81-1655.
    Baldwin v. Minnesota Commissioner of Revenue.
   Sup. Ct. Minn. Certiorari denied.


text:
    No. 81-1657.
    Tomy Corp., a subsidiary of Tomy Kogyo, Inc. v. National Labor Relations Board.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 81-1680.
    Andersen v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 81-1696.
    Hawkins v. Equal Employment Opportunity Commission et al.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 81-1702.
    Voorhies v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 81-1705.
    Helgesen v. United States.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 81-1709.
    Hawaiian Airlines, Inc. v. National Mediation Board et al.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 81-1712.
    Martino et al. v. United States.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 81-1713.
    Marquez v. United States.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 81-1722.
    Draper v. Merit Systems Protection Board.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 81-1725.
    Lebovitz v. United States.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 81-1727.
    Marchese et al. v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 81-1740.
    Davis v. United States.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 81-1743.
    Schroeder v. United States.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 81-1759.
    Flynn et al. v. United States.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 81-5839.
    Hayes v. Harris.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 81-5857.
    Abeita v. Gutierrez et al.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 81-5873.
    Innis v. Rhode Island.
   Sup. Ct. R. I. Certiorari denied.


text:
    No. 81-5940.
    Calvert v. Iowa.
   Sup. Ct. Iowa. Certiorari denied.


text:
    No. 81-5957.
    Chouinard v. New Mexico.
   Sup. Ct. N. M. Certiorari denied.


text:
    No. 81-5979.
    Griffin v. Kentucky.
   Sup. Ct. Ky. Certiorari denied.


text:
    No. 81-5984.
    Bustillos v. California.
   Ct. App. Cal., 4th App. Dist. Certiorari denied.


text:
    No. 81-5989.
    Campbell et al. v. California.
   Ct. App. Cal., 4th App. Dist. Certiorari denied.


text:
    No. 81-5990.
    Hampton v. Waters et al.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 81-5996.
    McLaughlin v. United States.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 81-6014.
    Every v. Louisiana.
   Sup. Ct. La. Certiorari denied.


text:
    No. 81-6015.
    Campbell v. Gunn, Sheriff of Bell County, Texas.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 81-6019.
    Chaka v. Board of Directors, Bur Oak Library, et al.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 81-6027.
    Monosso v. Wisconsin.
   Ct. App. Wis. Certiorari denied.


text:
    No. 81-6036.
    Turner v. Missouri.
   Sup. Ct. Mo. Certiorari denied.


text:
    No. 81-6054.
    Chambers v. Arizona.
   Ct. App. Ariz. Certiorari denied.


text:
    No. 81-6061.
    Bowman v. Wisconsin.
   Ct. App. Wis. Certiorari denied.


text:
    No. 81-6072.
    Howell v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 81-6216.
    Brown v. Engle.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 81-6221.
    Shabazz v. Oklahoma.
   Ct. Crim. App. Okla. Certiorari denied.


text:
    No. 81-6227.
    Burrell v. Union Correctional Institute, Raiford, Florida.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 81-6230.
    Saunders v. Weiner.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 81-6231.
    Tubbs v. Maggio, Warden.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 81-6236.
    Payne v. Smith et al.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 81-6238.
    Douglas v. Long et al.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 81-6241.
    Butcher v. California.
   Ct. App. Cal., 2d App. Dist. Certiorari denied.


text:
    No. 81-6242.
    Hall v. New York City Transit Authority.
   Ct. App. N. Y. Certiorari denied.


text:
    No. 81-6244.
    Glass, aka Haberland v. Pennsylvania.
   Sup. Ct. Pa. Certiorari denied.


text:
    No. 81-6246.
    Streeter v. Alabama.
   Ct. Crim. App. Ala. Certiorari denied.


text:
    No. 81-6247.
    Nash v. Morris, Warden, Utah State Prison, et al.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 81-6248.
    Williams v. Estelle, Director, Texas Department of Corrections.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 81-6252.
    Williams v. North Carolina.
   Sup. Ct. N. C. Certiorari denied.


text:
    No. 81-6253.
    Tarver v. Howard et al.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 81-6254.
    Stedman v. Parsons, Director of Classification, et al.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 81-6260.
    Bobo v. ITT, Continental Baking Co.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 81-6261.
    Chaka v. Leighton et al.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 81-6264.
    Thomas v. Estelle, Director, Texas Department of Corrections, et al.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 81-6265.
    Nzongola v. Nzongola.
   Ct. App. D. C. Certiorari denied.


text:
    No. 81-6266.
    Nzongola v. Nzongola.
   Super. Ct. Ga., Fulton County. Certiorari denied.


text:
    No. 81-6268.
    Mechler v. Texas.
   Ct. Crim. App. Tex. Certiorari denied.


text:
    No. 81-6269.
    Pouncy v. Hutto.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 81-6270.
    Stinnett v. Kentucky.
   Sup. Ct. Ky. Certiorari denied.


text:
    No. 81-6274.
    Lackey, aka Jernigan v. Rose, Warden.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 81-6275.
    Omernick v. Carow et al.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 81-6276.
    Jackson v. O’Lone et al.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 81-6278.
    Hartford v. Arizona.
   Sup. Ct. Ariz. Certiorari denied.


text:
    No. 81-6281.
    Appleby v. WTIC-FM Radio Station et al.
   C. A. 1st Cir. Certiorari denied.


text:
    No. 81-6282.
    Hejl v. Texas et al.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 81-6283.
    Valenzano v. California.
   Ct. App. Cal., 1st App. Dist. Certiorari denied.


text:
    No. 81-6284.
    Widner v. Ohio.
   Sup. Ct. Ohio. Certiorari denied.


text:
    No. 81-6286.
    Walker v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 81-6287.
    Beasley v. Oklahoma.
   Ct. Crim. App. Okla. Certiorari denied.


text:
    No. 81-6298.
    Harrison v. California.
   Ct. App. Cal., 4th App. Dist. Certiorari denied.


text:
    No. 81-6332.
    Grant v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 81-6354.
    Berry v. Alabama.
   Ct. Crim. App. Ala. Certiorari denied.


text:
    No. 81-6359.
    Martin-Trigona v. Illinois.
   App. Ct. Ill., 4th Dist. Certiorari denied.


text:
    No. 81-6371.
    Wade v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 81-6378.
    Halbert v. United States.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 81-6384.
    Bledsoe v. United States.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 81-6389.
    McCollom v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 81-6394.
    Green v. Warden, U. S. Penitentiary, El Reno, Oklahoma, et al.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 81-6395.
    Goldblatt v. Vogel et al.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 81-6400.
    Carapella et al. v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 81-6401.
    Green v. Wilkerson, Warden, et al.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 81-6405.
    Brown v. United States.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 81-6406.
    Hayward v. United States Parole Commission et al.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 81-6409.
    Linton v. Estelle, Director, Texas Department of Corrections.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 81-6410.
    Tolliver v. United States.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 81-6411.
    Thompson v. United States.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 81-6416.
    Webster v. United States.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 81-6426.
    Veteto v. Director, United States Bureau of Prisons, Southeast Regional Office.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 81-6431.
    Britt et al. v. United States.
   Ct. App. D. C. Certiorari denied.


text:
    No. 80-6863.
    Tyler v. Phelps, Corrections Director, et al.
   C. A. 5th Cir. Certiorari denied.

Justice Marshall would grant certiorari.


text:
    No. 81-989.
    Dallas County, Texas, et al. v. Barrett et al.
   C. A. 5th Cir. Motion of County Judges and Commissioners Association of Texas for leave to file a brief as amicus curiae granted. Certiorari denied.


text:
    No. 81-990.
    Dallas County, Texas, et al. v. Collins et al.
   C. A. 5th Cir. Motion of County Judges and Commissioners Association of Texas for leave to file a brief as amicus curiae granted. Certiorari denied.


text:
    No. 81-1359.
    Cotton Petroleum Corp. v. Edwards, Secretary of Energy, et al.
   Temp. Emerg. Ct. App. Certiorari denied.

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


text:
    No. 81-1380.
    No. 81-1405.
    Northside Realty Associates, Inc., et al. v. United States; and Browning-Ferris Industries of Georgia, Inc., et al. v. United States.
   C. A. 11th Cir. Motion of American Civil Liberties Union of Georgia for leave to file a brief as amicus curiae granted. Certiorari denied. Reported below: 659 F. 2d 590.


text:
    No. 81-1385.
    Pepsi-Cola Distributing Company of Knoxville, Tennessee, Inc. v. National Labor Relations Board.
   C. A. 6th Cir. Certiorari denied.

Justice Blackmun and Justice O’Connor would grant certiorari.