source: Caselaw Access Project

author: Justice Marshall Chief Justice Rehnquist, Justice Scalia,

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text:
    UNITED STATES v. MENDOZA-LOPEZ et al.
    No. 85-2067.
    Argued March 3, 1987
    Decided May 26, 1987

      MARSHALL, J., delivered the opinion of the Court, in which BRENNAN, Blackmun, Powell, and Stevens, JJ., joined. Rehnquist, C. J., filed a dissenting opinion, in which White and O’CONNOR, JJ., joined, post, p. 842. Sc alia, J., filed a dissenting opinion, post, p. 846.

      Christopher J. Wright argued the cause for the United States. With him on the briefs were Solicitor General Fried, Assistant Attorney General Weld, and Deputy Solicitor General Bryson.

      Kathy Goudy, by appointment of the Court, 479 U. S. 981, argued the cause and filed a brief for respondents.

      Briefs of amici curiae urging affirmance were filed for the American Civil Liberties Union et al. by Richard F. Ziegler, Lucas Guttentag, Alvin J. Bronstein, and Kip Steinberg; and for the American Immigration Lawyers Association by Susan M. Lydon and Bill Ong Hing.

   Justice Marshall

delivered the opinion of the Court.

In this case, we must determine whether an alien who is prosecuted under 8 U. S. C. § 1326 for illegal entry following deportation may assert in that criminal proceeding the invalidity of the underlying deportation order.

I-H

Respondents, Jose Mendoza-Lopez and Angel Landeros-Quinones, were arrested at separate locations in Lincoln, Nebraska, on October 23, 1984, by agents of the Immigration and Naturalization Service. On October 30, 1984, they were transported to Denver, Colorado, where a group deportation hearing was held for respondents along with 11 other persons, all of whom were, like respondents, Mexican nationals. After the hearing, respondents were ordered deported and were bused to El Paso, Texas. They were deported from El Paso on November 1,1984. Each received, at the time of his deportation, a copy of Form 1-294, which advised, in both Spanish and English, that a return to the United States without permission following deportation would constitute a felony.

On December 12, 1984, both respondents were once again separately arrested in Lincoln, Nebraska. They were subsequently indicted by a grand jury in the District of Nebraska on charges of violating 8 U. S. C. §1326, which provides:

“Any alien who—
“(1) has been arrested and deported or excluded and deported, and thereafter
“(2) enters, attempts to enter, or is at any time found in the United States . . .
“shall be guilty of a felony, and upon conviction thereof, be punished by imprisonment of not more than two years, or by a fine of not more than $1,000, or both.”

Respondents moved in the District Court to dismiss their indictments, on the ground that they were denied fundamentally fair deportation hearings. They contended that the Immigration Law Judge inadequately informed them of their right to counsel at the hearing, and accepted their unknowing waivers of the right to apply for suspension of deportation.

The District Court ruled that respondents could collaterally attack their previous deportation orders. United States v. Landeros-Quinones, CR 85-L-06 (Feb. 28, 1985). It rejected their claims that they were not adequately informed of their right to counsel. It found, however, that respondents had apparently failed to understand the Immigration Judge’s explanation of suspension of deportation. The District Court concluded that respondents had not made knowing and intelligent waivers of their rights to apply for suspension of deportation or their rights to appeal, finding it “inconceivable that they would so lightly waive their rights to appeal, and thus to the relief they now claim entitlement, [sic] if they had been fully apprised of the ramifications of such a choice.” App. to Pet. for Cert. 28a. Holding that the “failure to overcome these defendants’ lack of understanding about the proceedings, which is apparent from listening to the tape recording, totally undermined the reliability of the proceedings” and that “substantial justice was not done,” the District Court dismissed the indictments in both cases. Id., at 26a.

The Court of Appeals for the Eighth Circuit affirmed. 781 F. 2d 111 (1985). Noting a conflict among the Circuits regarding whether a defendant prosecuted under § 1326 may collaterally attack a deportation order, the court agreed with those Courts of Appeals that had concluded that a material element of the offense prohibited by § 1326 was a “lawful” deportation. Id., at 112. It went on to state that principles of fundamental fairness required a pretrial review of the underlying deportation to examine whether the alien received due process of law. The Court of Appeals affirmed the District Court’s conclusion that there was a due process violation in this case, holding that, “[bjecause the defendants did not fully understand the proceedings, the hearing was fundamentally unfair, and the deportation order was obtained unlawfully. Thus, it cannot stand as a material element forming the basis of the charges against the defendants.” Id., at 113.

To resolve the conflict among the Circuits, we granted certiorari. 479 U. S. 811 (1986). We affirm.

I-H 1 — I

In United, States v. Spector, 343 U. S. 169 (1952), we left open whether the validity of an underlying order of deportation may be challenged in a criminal prosecution in which that prior deportation is an element of the crime. Today, we squarely confront this question in the context of § 1326, which imposes a criminal penalty on any alien who has been deported and subsequently enters, attempts to enter, or is found in, the United States. The issue before us is whether a federal court must always accept as conclusive the fact of the deportation order, even if the deportation proceeding was not conducted in conformity with due process.

The first question we must address is whether the statute itself provides for a challenge to the validity of the deportation order in a proceeding under § 1326. Some of the Courts of Appeals considering the question have held that a deportation is an element of the offense defined by § 1326 only if it is “lawful,” and that §1326 therefore permits collateral challenge to the legality of an underlying deportation order. The language of the statute, however, suggests no such limitation, stating simply that “[a]ny alien who has been arrested and deported or excluded and deported,” 8 U. S. C. § 1826 (1), will be guilty of a felony if the alien thereafter enters, attempts to enter, or is at any time found in, the United States, 8 U. S. C. § 1326(2).

Nor does the sparse legislative history contain any evidence that Congress intended to permit challenge to the validity of the deportation in the § 1326 proceeding. Before § 1326 was enacted, three statutory sections imposed criminal penalties upon aliens who reentered the country after deportation: 8 U. S. C. § 180(a) (1946 ed.) (repealed 1952), which provided that any alien who had been “deported in pursuance of law” and subsequently entered the United States would be guilty of a felony; 8 U. S. C. § 138 (1946 ed.) (repealed 1952), which provided that an alien deported for prostitution, procuring, or similar immoral activity, and who thereafter reentered the United States, would be guilty of a misdemeanor and subject to a different penalty; and 8 U. S. C. § 137-7(b) (1946 ed., Supp. V) (repealed 1952), which stated that any alien who reentered the country after being deported for subversive activity would be guilty of a felony and subject to yet a third, more severe penalty. See H. R. Rep. No. 1365, 82d Cong., 2d Sess., 219-220 (1952).

Congress thus had available to it in at least one of the predecessor sections — § 180(a) — express language that would have permitted collateral challenges to the validity of deportation proceedings in a criminal prosecution for reentry after deportation. It nonetheless failed to include in § 1326 the “in pursuance of law” language of § 180(a). And while there was, at the time of the enactment of § 1326, some case law suggesting that a collateral attack on a deportation proceeding might under certain circumstances be permitted, that principle was not so unequivocally established as to persuade us that Congress must have intended to incorporate that prior law into § 1326.

The Immigration and Nationality Act does include sections that limit judicial review of deportation orders. 8 U. S. C. § 1105a provides that, outside of enumerated exceptions, the procedures prescribed by Title 28 of the United States Code for review of federal agency orders “shall be the sole and exclusive procedure for, the judicial review of all final orders of deportation.” The enumerated exceptions permit an alien to challenge a deportation order, the validity of which has not previously been judicially determined, in a criminal proceeding against the alien for violation of 8 U. S. C. §§ 1252(d) or (e), 8 U. S. C. § 1105a(a)(6), and any alien held in custody pursuant to an order of deportation may obtain judicial review of that order in a habeas corpus proceeding, 8 U. S. C. § 1105a(a)(9). These sections are not directly applicable to this case, since respondents did not ask the District Court to vacate their deportation orders and the court did not do so. It ruled only that the orders could not properly be used as the predicate for a § 1326 conviction. Yet the text of § 1105a indicates that Congress considered and addressed some of the various circumstances in which challenges to deportation orders might arise and did not mention § 1326. See also 8 U. S. C. § 1101(g) (“For the purposes of this chapter any alien ordered deported . . . who has left the United States, shall be considered to have been deported in pursuance of law . . .”); but see Mendez v. INS, 563 F. 2d 956, 959 (CA9 1977).

The text and background of § 1326 thus indicate no congressional intent to sanction challenges to deportation orders in proceedings under § 1326.

HH HH h-1

That Congress did not intend the validity of the deportation order to be contestable in a § 1326 prosecution does not end our inquiry. If the statute envisions that a court may impose a criminal penalty for reentry after any deportation, regardless of how violative of the rights of the alien the deportation proceeding may have been, the statute does not comport with the constitutional requirement of due process.

Our cases establish that where a determination made in an administrative proceeding is to play a critical role in the subsequent imposition of a criminal sanction, there must be some meaningful review of the administrative proceeding. See Estep v. United States, 327 U. S. 114, 121-122 (1946); Yakus v. United States, 321 U. S. 414, 444 (1944); cf. McKart v. United States, 395 U. S. 185, 196-197 (1969). This principle means at the very least that where the defects in an administrative proceeding foreclose judicial review of that proceeding, an alternative means of obtaining judicial review must be made available before the administrative order may be used to establish conclusively an element of a criminal offense. The result of those proceedings may subsequently be used to convert the misdemeanor of unlawful entry into the felony of unlawful entry after a deportation. Depriving an alien of the right to have the disposition in a deportation hearing reviewed in a judicial forum requires, at a minimum, that review be made available in any subsequent proceeding in which the result of the deportation proceeding is used to establish an element of a criminal offense.

B

Having established that a collateral challenge to the use of a deportation proceeding as an element of a criminal offense must be permitted where the deportation proceeding effectively eliminates the right of the alien to obtain judicial review, the question remains whether that occurred in this case. The United States did not seek this Court’s review of the determination of the courts below that respondents’ rights to due process were violated by the failure of the Immigration Judge to explain adequately their right to suspension of deportation or their right to appeal. Pet. for Cert. 7. The United States has asked this Court to assume that respondents’ deportation hearing was fundamentally unfair in considering whether collateral attack on the hearing may be permitted. Tr. of Oral Arg. 6-7. We consequently accept the legal conclusions of the court below that the deportation hearing violated due process. If the violation of respondents’ rights that took place in this case amounted to a complete deprivation of judicial review of the determination, that determination may not be used to enhance the penalty for an unlawful entry under § 1826. We think that it did. The Immigration Judge permitted waivers of the right to appeal that were not the result of considered judgments by respondents, and failed to advise respondents properly of their eligibility to apply for suspension of deportation. Because the waivers of their rights to appeal were not considered or intelligent, respondents were deprived of judicial review of their deportation proceeding. The Government may not, therefore, rely on those orders as reliable proof of an element of a criminal offense.

C

The United States asserts that our decision in Lewis v. United States, 445 U. S. 55 (1980), answered any constitutional objections to the scheme employed in §1326. In Lewis, the Court held that a state-court conviction, even though it was uncounseled and therefore obtained in violation of the Sixth and Fourteenth Amendment rights of the defendant under Gideon v. Wainwright, 372 U. S. 335 (1963), could be used as a predicate for a subsequent conviction under § 1202(a)(1) of Title VII of the Omnibus Crime Control and Safe Streets Act of 1968, as amended, 18 U. S. C. App. § 1202(a)(1), which forbade any person convicted of a felony from receiving, possessing, or transporting a firearm. We do not consider Lewis to control the issues raised by this case. The question in Lewis was whether Congress could define that “class of persons who should be disabled from dealing in or possessing firearms,” 445 U. S., at 67, by reference to prior state felony convictions, even if those convictions had resulted from procedures, such as the denial of counsel, subsequently condemned as unconstitutional. The Court there rejected Lewis’ statutory challenge, holding that Congress had manifested no intent to permit collateral attacks upon the prior state convictions in federal criminal proceedings, and further held that this use of uncounseled prior convictions did not violate the equal protection component of the Due Process Clause of the Fifth Amendment. In rejecting the notion that the statute permitted, or the Constitution required, this “new form of collateral attack” on prior convictions, the Court pointed to the availability of alternative means to secure judicial review of the conviction: “[I]t is important to note that a convicted felon may challenge the validity of a prior conviction, or otherwise remove his disability, before obtaining a firearm.” Ibid.

It is precisely the unavailability of effective judicial review of the administrative determination at issue here that sets this case apart from Lewis. The fundamental procedural defects of the deportation hearing in this case rendered direct review of the Immigration Judge’s determination unavailable to respondents. What was assumed in Lewis, namely the opportunity to challenge the predicate conviction in a judicial forum, was precisely that which was denied to respondents here. Persons charged with crime are entitled to have the factual and legal determinations upon which convictions are based subjected to the scrutiny of an impartial judicial officer. Lewis does not reject that basic principle, and our decision today merely reaffirms it.

Because respondents were deprived of their rights to appeal, and of any basis to appeal since the only relief for which they would have been eligible was not adequately explained to them, the deportation proceeding in which these events occurred may not be used to support a criminal conviction, and the dismissal of the indictments against them was therefore proper. The judgment of the Court of Appeals is

Affirmed.

Chief Justice Rehnquist,

with whom Justice White and Justice O’Connor join, dissenting.

I agree with the Court’s ruling that the language of 8 U. S. C. § 1326, its history, and other provisions of the Immigration and Nationality Act suggest that Congress did not intend to allow challenges to the validity of a deportation order in a § 1326 proceeding. I also agree with the view that there may be exceptional circumstances where the Due Process Clause prohibits the Government from using an alien’s prior deportation as a basis for imposing criminal liability under § 1326. In my view, however, respondents have fallen far short of establishing such exceptional circumstances here. The Court, in reaching a contrary conclusion, misreads the decision of the District Court.

As the Court acknowledges, respondents, in the District Court, claimed only that “the Immigration Law Judge inadequately informed them of their right to counsel at the [deportation] hearing, and accepted their unknowing waivers of the right to apply for suspension of deportation.” Ante, at 831; see also United States v. Landeros-Quinones, No. CR85-L-06, p. 8 (Neb., Feb. 28, 1985). Respondents did not claim that the judge failed to explain adequately their rights to appeal or that their waivers of these rights were, as we are told today, “not considered or intelligent.” Ante, at 840.

It is true that the District Court, sua sponte, raised the issue whether respondents knowingly waived their rights to appeal the deportation orders. The court, however, treated the issue as subsidiary to its determination that the Immigration Judge did not fully apprise respondents of their rights to apply for suspension of deportation. In ultimately disposing of the issue, the court stated:

“In light of their claimed eligibility for suspension of deportation, ... I find it inconceivable that they would so lightly waive their rights to appeal, and thus to the relief they now claim entitlement, [sic] if they had been fully apprised of the ramifications of such a choice.” United States v. Landeros-Quinones, supra, at 12.

The narrow scope of the District Court’s resolution of the question whether respondents had effectively waived their appeal rights is further demonstrated by the District Court’s examination of the prejudice resulting from the manner in which the deportation hearing was conducted. Determining that a showing of prejudice was a necessary predicate to a successful collateral attack to a prior deportation order, the court concluded that there was a substantial likelihood that respondents were harmed by “the failure of the Immigration Law Judge to fully comply with the provisions of 8 C.F.R. §242.17,” the regulation governing notification of apparent eligibility for suspension of deportation. Id., at 14. Yet, aside from possible harm to respondents resulting from their failure to pursue suspension of deportation relief, the District Court did not identify any prejudice from respondents’ failure to appeal. From these findings of the District Court, the most that can be said with certainty is that the court determined that respondents did not understand that they could pursue their claimed eligibility for suspension of deportation in further proceedings.

In affirming the District Court’s decision in this case, the Court of Appeals did not at all address the question whether respondents knowingly waived their rights to appeal, but instead limited its discussion to respondents’ failure to understand that they could seek suspension of deportation. The Court of Appeals decision thus also does not support this Court’s sweeping assertion that “[t]he fundamental procedural defects of the deportation hearing in this case rendered direct review of the Immigration Judge’s determination unavailable to respondents.” Ante, at 841.

The Court’s desire to inject into this case a finding that respondents suffered from a denial of their rights to appeal for all purposes is understandable. Without such a finding, the only articulated basis for the Court’s due process holding is respondents’ claim that their deportation orders were invalid because they were not adequately informed that they could apply for suspension of deportation. The Court’s acceptance of this latter claim provides little foundation for its decision.

Recognizing that Congress intended to limit the number of aliens qualifying for suspension of deportation, we have interpreted the statutory section providing for such relief, 8 U. S. C. § 1254(a)(1), as establishing strict threshold criteria that must be met before the Attorney General may grant the relief. See INS v. Rios-Pineda, 471 U. S. 444 (1985); INS v. Phinpathya, 464 U. S. 183 (1984); INS v. Jong Ha Wang, 450 U. S. 139 (1981). Even if all of the requirements of § 1254(a)(1) are satisfied, we have recognized that “it remains in the discretion of the Attorney General to. . . refuse to suspend deportation.” INS v. Rios-Pineda, 471 U. S., at 446. Moreover, if the Attorney General decides that relief should be denied as a matter of discretion, he need not even inquire whether an alien meets the threshold statutory requirements. Id., at 449.

The District Court, in deciding whether respondents were adequately apprised of their ability to apply for suspension of their deportations, concluded that the Immigration Judge complied with the technical notice requirements of 8 CFR § 242.17 (1987); Given that suspension of deportation is provided only as a matter of legislative grace and entrusted to the broad discretion of the Attorney General, the Immigration Judge’s failure to undertake further efforts to make certain that respondents were fully knowledgeable of this privilege hardly compares to the procedural defects this Court has previously identified as fundamentally unfair. See Rose v. Clark, 478 U. S. 570, 577 (1986) (use of a coerced confession, adjudication by a biased judge), cited ante, at 839, n. 17. The judge’s failure to engage respondents in an extended colloquy concerning suspension of their deportations neither “aborted the basic trial process” nor rendered it presumptively prejudicial. 478 U. S., at 578, n. 6.

Conspicuously absent from respondents’ arguments to this Court is any suggestion that the Immigration Law Judge employed improper procedures or erroneously applied the law in determining that respondents were deportable. In fact, several factual findings by the District Court below, not mentioned by the Court, suggest that the Immigration Judge expended considerable effort to ensure the fairness of the hearing. For example, the District Court noted that the Immigration Judge commenced the hearing by instructing respondents “that if any of them did not understand any of the proceedings, to raise their hands and their misunderstandings would be addressed so as to eliminate any confusion.” United States v. Landeros-Quinones, No. CR85-L-06, p. 9 (Neb., Feb. 28, 1985). Respondents indicated their understanding of this arrangement. Moreover, the Immigration Judge informed respondents that they were entitled to be represented by counsel, and made certain that they received a list of the free legal services available to them. At the conclusion of the hearing, the judge asked respondents whether they wished to accept his ruling that they were de-portable, appeal the ruling, or reserve decision, and respondents each stated that they accepted the judge’s ruling. Under these circumstances, I cannot say that respondents’ deportation proceedings violated the dictates of the Due Process Clause. I would therefore hold that the courts below erred in concluding that respondents’ prior deportation orders may not be used in the § 1326 proceedings brought against them.

Justice Scalia,

dissenting.

When respondents were deported from the United States in October 1984, they were specifically warned that 8 U. S. C. § 1326 made it a felony for them to reenter the United States illegally. Two months later, they were apprehended in the United States and charged with violating § 1326. Respondents assert that even if their reentry was illegal, they cannot lawfully be punished for violating § 1326, because the proceedings in which they were originally deported violated the Due Process Clause. I agree with the Court that the lawfulness of respondents’ original deportation proceedings is irrelevant to the question whether respondents violated § 1326. I dissent, however, because I do not share the Court’s view that the lawfulness of those proceedings is relevant to the question whether respondents may constitutionally be punished if they violated § 1326.

I think it clear that Congress may constitutionally make it a felony for deportees — irrespective of the legality of their deportations — to reenter the United States illegally. See Lewis v. United States, 445 U. S. 55 (1980) (Congress may constitutionally make it a felony for convicted felons — irrespective of the legality of their convictions — to deal in or possess firearms). The sole ground upon which the Court attempts to distinguish Lewis is that in this case respondents were completely foreclosed from obtaining “effective judicial review” of their deportations, while in Lewis the felons could have obtained collateral review of their convictions before obtaining firearms. Ante, at 837-840, 841. It is true that the Court in Lewis relied on the availability of collateral review. 445 U. S., at 64, 67. But, contrary to the Court’s implication, ante, at 837, neither Lewis nor any of the other cases relied upon by the Court squarely holds that the Due Process Clause invariably forbids reliance upon the outcome of unreviewable administrative determinations in subsequent criminal proceedings. See McKart v. United States, 395 U. S. 185 (1969) (interpreting a statute to permit collateral attack of prior administrative orders); Estep v. United States, 327 U. S. 114 (1946) (same); Yakus v. United States, 321 U. S. 414 (1944) (interpreting a statute to forbid collateral attack of earlier administrative orders).

The Court’s apparent adoption of . that conclusion today seems to me wrong. To illustrate that point by one out of many possible examples, imagine that a State establishes an administrative agency that (after investigation and full judicial-type administrative hearings) periodically publishes a list of unethical businesses. Further imagine that the State, having discovered that a number of previously listed businesses are bribing the agency’s investigators to avoid future listing, passes a law making it a felony for a business that has been listed to bribe agency investigators. It cannot be that the Due Process Clause forbids the State to punish violations of that law unless it either makes the agency’s listing decisions judicially reviewable or permits those charged with violating the law to defend themselves on the ground that the original listing decisions were in some way unlawful.

Even if I believed the availability of “effective judicial review” to be relevant, I would still dissent, because review was available here. It is true, as the Court notes, that the District Court found that respondents’ waivers of any appeal from the Immigration Judge’s deportation order were “not the result of considered judgments,” App. to Pet. for Cert. 23a, because they were affected by the Immigration Judge’s failure adequately to explain to respondents that they could apply for suspension of deportation, ante, at 839. There is a world of difference, however, between denial of a right to appeal and failure to assure that parties understand the available grounds for appeal and forgo them in a “considered” fashion. Since to my knowledge administrative agencies rarely undertake such assurance, the Court’s unbounded and unexplained conception of “effective” denial of a right of appeal, see ante, at 839, n. 17, apparently leads to the peculiar conclusion that administrative proceedings are almost always without judicial review. I reject this conclusion.

Moreover, in concluding that the Immigration Judge’s acceptance of respondents’ unconsidered waivers effectively denied respondents their rights to appeal, the Court completely ignores the possibility that, notwithstanding their waivers and the fact that they had been deported, respondents could still have appealed their deportations on the ground that the deportations were unlawful and the waivers were unlawfully secured, cf., e. g., Mendez v. INS, 563 F. 2d 956, 959 (CA9 1977), or could have brought other collateral challenges to their deportations. I express no view on the question whether such suits would have been permissible under the applicable statutes, see, e. g., 8 U. S. C. § 1101(g), but merely note that a negative answer to that question is a necessary, and entirely unexplained, component of the Court’s holding.

For these reasons, I think that if respondents’ reentry into the United States was unlawful, respondents may constitutionally be punished for violating § 1326. I would reverse the contrary judgment of the Court of Appeals.

       Respondents have at no point raised, and we do not express any opinion regarding, the propriety of the group deportation procedure used in this ease. Compare United States v. Barraza-Leon, 575 F. 2d 218, 219-220 (CA9 1978), with United States v. Calles-Pineda, 627 F. 2d 976, 977 (CA9 1980).

       The statute excepts those aliens who have either received the express consent of the Attorney General to reapply for admission or who otherwise establish that they were not required to obtain such consent. 8 U. S. C. §§ 1326 (2)(A), (B). Respondents do not contend that either exception applies to them.

       Suspension of deportation is a discretionary remedy providing relief from deportation. The statutory section applicable to respondents makes the remedy available to a deportable alien who has been physically present in the United States for at least seven years, who was during that time a person of good moral character, and whose deportation would, in the opinion of the Attorney General, result in extreme hardship to the alien or his spouse, parent, or child, who is a United States citizen or an alien lawfully admitted to the United States for permanent residence. 8 U. S. C. § 1254(a). Suspension of deportation not only provides relief from deportation, but enables the alien to adjust his status to that of an alien lawfully admitted for permanent residence. Ibid.

       The District Court found that the Immigration Judge did not answer a question from one of the respondents regarding application for suspension of deportation; that the Immigration Judge addressed the wrong respondent while discussing eligibility for the remedy; that the Immigration Judge did not make clear how much time he would allow respondents to apply for suspension; and that Landeros-Quinones asked a question which demonstrated that he did not understand the concept of suspension of deportation, but that the Immigration Judge failed to explain further. The District Court contrasted this cursory and confusing treatment of the issue of suspension of deportation with the extensive inquiry that took place when two of the other aliens sought voluntary departure in lieu of deportation, one of whom was ultimately granted voluntary departure. App. to Pet. for Cert. 20a-22a.

       One judge dissented on the ground that a challenge to the propriety of a previous deportation order may never be asserted in a criminal proceeding under § 1326. 781 F. 2d, at 113-114.

       Compare, e. g., United States v. Nicholas-Armenta, 763 F. 2d 1089, 1090 (CA9 1985), and United States v. Bowles, 331 F. 2d 742, 749-750 (CA3 1964) (collateral attack on legality of deportation permitted in § 1326 proceeding), with United States v. Petrella, 707 F. 2d 64, 66 (CA2), cert. denied, 464 U. S. 921 (1983), United States v. Gonzalez-Parra, 438 F. 2d 694, 697 (CA5), cert. denied, 402 U. S. 1010 (1971), and Arriaga-Ramirez v. United States, 325 F. 2d 857, 859 (CA10 1963) (collateral attacks barred in prosecutions under § 1326); see also United States v. Rosal-Aguilar, 652 F. 2d 721, 723 (CA7 1981) (trial de novo on the factual basis of the underlying deportation is not a constitutional prerequisite to conviction under § 1326, but “the Government must prove the underlying deportation to have been based on a valid legal predicate and obtained according to law”); Petrella v. United States, 464 U. S. 921, 922 (1983) (White, J., dissenting from denial of certiorari) (internal quotation omitted).

       In Spector, an alien against whom an order of deportation was outstanding was prosecuted for failure to make timely application for documents necessary to his departure. He challenged the statute on vagueness grounds and prevailed in the District Court. The case was appealed directly to this Court, which ruled that the statute was not void for vagueness. 343 U. S., at 171-172. The Court noted the argument that the statute was unconstitutional because it afforded no opportunity for the court trying the criminal charge to pass on the validity of the order of deportation, but declined to address the issue because it “was neither raised by the appellee nor briefed nor argued here.” Id., at 172. “It will be time to consider whether the validity of the order of deportation may be tried in the criminal trial. . . when and if the appellee seeks to have it tried. That question is not foreclosed by this opinion. We reserve decision on it.” Id., at 172-173.
      Justice Jackson, with whom Justice Frankfurter joined, dissented on the ground that the statute at issue impermissibly allowed the use of an administrative determination as conclusive evidence of a fact in a criminal prosecution. “Having thus dispensed with important constitutional safeguards in obtaining an administrative adjudication that the alien is guilty of conduct making him deportable on the ground it is only a civil proceeding, the Government seeks to turn around and use the result as a conclusive determination of that fact in a criminal proceeding. We think it cannot make that use of such an order.” Id., at 179.
      Congress resolved the potential problem in Spector when, in 1961, it enacted 8 U. S. C. § 1105a(a)(6), which provides explicitly that, if the validity of a deportation order has not been judicially determined, it may be challenged in a criminal proceeding against the alien under 8 U. S. C. § 1252(e) for willfully failing or refusing to make timely application in good faith for travel or other documents necessary to his departure. Section 1105a does not explicitly address the availability of collateral attack under § 1326.

       In its petition for certiorari, the United States did not seek review of the Court of Appeals’ holding that the deportation proceeding in this case was fundamentally unfair and that the deportation order was therefore unlawful. Pet. for Cert. 7.

       See, e. g., United States v. Gasca-Kraft, 522 F. 2d 149, 152 (CA9 1975) (“A material element of the offense defined by 8 U. S. C. § 1326 is a lawful deportation”); United States v. Bowles, supra, at 749 (“When Congress made use of the word ‘deported’ in the statute, it meant ‘deported according to law’ ”). The Court of Appeals for the Eighth Circuit, in deciding this case, noted that other courts had permitted collateral attack on the ground that “a material element of the offense prohibited by 8 U. S. C. § 1326 is a ‘lawful’ deportation” and stated that it “agree[d] with this rationale.” 781 F. 2d, at 112. The court does not appear to have relied entirely on the statute in ruling that the propriety of the deportation could be reviewed in the § 1326 proceeding, since it then continued: “Allowing a pretrial review of the underlying deportation to examine whether due process was provided insures fundamental fairness to the rights of the criminal defendant. Accordingly, we conclude that defendants in section 1326 prosecutions may collaterally attack their previous deportation orders on the ground that they were not accorded due process at the deportation hearing.” Id., at 112-113.

       Section 180(a) provided for punishment by imprisonment of not more than two years or a fine of not more than $1,000, or both; § 138 provided solely for imprisonment for up to two years; § 137-7(b) provided for imprisonment for up to five years. The purpose of § 1326 was to impose the same penalty on any person who returned to the United States without permission after deportation, regardless of the basis of the original deportation. See S. Rep. No. 1515, 81st Cong., 2d Sess., 655, 656 (1950).

       That Congress had before it the text of all three sections was clear— their text was in all pertinent respects reproduced as “existing law” in the House Report on the statute that included § 1326. H. R. Rep. No. 1365, 82d Cong., 2d Sess., 219-220 (1952).

       See, e. g., United States ex rel. Beck v. Neelly, 202 F. 2d 221, 222, 224 (CA7) (declining to decide whether deported alien may challenge prior deportation in habeas corpus proceeding), cert. denied, 345 U. S. 997 (1953); United States ex rel. Steffner v. Carmichael, 183 F. 2d 19, 20 (CA5) (collateral attack on deportation proceeding in later deportation proceeding impermissible unless there was “gross miscarriage of justice” in the former proceeding; prior order here was valid), cert. denied, 340 U. S. 829 (1950); Daskaloff v. Zurbrick, 103 F. 2d 579, 580-581 (CA6 1939) (alien deported as a prostitute who reentered country and was detained on warrant of deportation under 8 U. S. C. § 155 (1946 ed.) (repealed 1952) could not collaterally attack validity of earlier deportation through habeas corpus).

       Contrary to Justice Scalia’s suggestion, post, at 849, our opinion today does not reject the holding in Mendez, as to which we express no view. '

       The Government stated at oral argument that it was the position of the United States that there were “absolutely no due process limitations to the enforcement of Section 1326.” Tr. of Oral Arg. 10.

       Even with this safeguard, the use of the result of an administrative proceeding to establish an element of a criminal offense is troubling. See United States v. Spector, 343 U. S. 169, 179 (1952) (Jackson, J., dissenting). While the Court has permitted criminal conviction for violation of an administrative regulation where the validity of the regulation could not be challenged in the criminal proceeding, Yakus v. United States, 321 U. S. 414 (1944), the decision in that case was motivated by the exigencies of wartime, dealt with the propriety of regulations rather than the legitimacy of an adjudicative procedure, and, most significantly, turned on the fact that adequate judicial review of the validity of the regulation was available in another forum. Under different circumstances, the propriety of using an administrative ruling in such a way remains open to question. We do not reach this issue here, however, holding that, at a minimum, the result of an administrative proceeding may not be used as a conclusive element of a criminal offense where the judicial review that legitimated such a practice in the first instance has effectively been denied.

       A number of commentators have expressed the notion that, where the deportation proceeding violated fundamental fairness, its validity may be challenged in a criminal proceeding under § 1326. See, e. g., Comment, Collateral Attacks on Deportation Orders in Prosecutions for Illegal Reentry, 48 U. Chi. L. Rev. 83, 90-91, 102-103 (1981) (where alien was denied fundamental fairness at the deportation hearing, collateral attacks in § 1326 proceedings would be proper); Note, Collaterally Attacking Deportation Orders in Criminal Prosecutions for Illegal Reentry Under Section 276 of the Immigration and Nationality Act of 1952, 56 Notre Dame Law. 677, 686-688 (1981) (fundamental fairness requires some form of collateral review of civil deportation proceedings which have criminal consequences).

       We decline at this stage to enumerate which procedural errors are so fundamental that they may functionally deprive the alien of judicial review, requiring that the result of the hearing in which they took place not be used to support a criminal conviction. We have previously recognized, however, in the context of criminal proceedings, that “some errors necessarily render a trial fundamentally unfair,” Rose v. Clark, 478 U. S. 570, 577 (1986) (use of coerced confession, adjudication by a biased judge); see also Rose v. Lundy, 455 U. S. 509, 543-544 (1982) (Stevens, J., dissenting) (mob violence, knowing use of perjured testimony). While the procedures required in an administrative proceeding are less stringent than those demanded in a criminal trial, analogous abuses could operate, under some circumstances, to deny effective judicial review of administrative determinations.
      We note parenthetically that permitting collateral challenge to the validity of deportation orders in proceedings under § 1326 does not create an opportunity for aliens to delay deportation, since the collateral challenge we recognize today is available only in criminal proceedings instituted after reentry.

       Cf. Burgett v. Texas, 389 U. S. 109, 115 (1967); see also Baldasar v. Illinois, 446 U. S. 222, 226-227 (1980) (MARSHALL, J., concurring) (court may not constitutionally use prior uncounseled misdemeanor conviction collaterally to enhance a subsequent misdemeanor to a felony with an increased term of imprisonment); United States v. Tucker, 404 U. S. 443 (1972) (court may not consider constitutionally invalid prior convictions in imposing sentence on unrelated offense); see also 8 U. S. C. § 1325, which provides that an unlawful entry into the United States constitutes a misdemeanor. Section 1326 serves to enhance the penalty for unlawful entry, imposing a steeper punishment on individuals who violate § 1325 and who have previously been deported.

      Because the Government took the position before this Court that deportation orders may never be collaterally attacked in a § 1326 proceeding, it did not request the Court to pass on the question whether respondents’ deportation proceedings violated their due process rights. The Government, however, has not conceded that the deportation proceedings were fundamentally unfair. See, e. g., Tr. of Oral Arg. 13-14. Because the fairness of these proceedings was litigated in the courts below and is a matter subsumed in the precise question presented for this Court’s review, it cannot be seriously argued that the issue is not properly before this Court. Indeed, the Court itself has chosen to decide the issue, albeit in a manner different from that suggested here.

       The District Court and the Court of Appeals both held that the proceedings in question violated the Due Process Clause. I agree with the Court that, because the Government did not ask us to review those holdings, see Pet. for Cert. 7, n. 6; Brief for United States 5-6, n. 5; Tr. of Oral Arg. 6-7, it is not appropriate to do so. See this Court’s Rule 21.1(a) (“Only the questions set forth in the petition or fairly included therein will be considered by the Court”). See also, e. g., INS v. Cardoza-Fonseca, 480 U. S. 421, 448-449, n. 32 (1987). In arguing to the contrary, The Chief Justice first observes that the lawfulness of respondents’ deportation proceedings was litigated in the Court of Appeals, and that the Government has not conceded the point. Ante, this page, n. While these observations dispose of other possible objections to consideration of the unchallenged holdings, they in no way displace the application of Rule 21.1(a). The Chief Justice also suggests that the dissent is free to consider the due process holdings because the Court itself does. Ibid. But I understand the Court to accept rather than review the holdings. See ante, at 840. Finally, The Chief Justice asserts that the question of the correctness of the holdings is “subsumed in the precise question presented for this Court’s review.” Ante, at 846, n. I disagree. As formulated by the Government, the question presented is “Whether a defendant prosecuted under 8 U. S. C. § 1326 for reentering the United States after having been deported may collaterally attack the validity of his deportation proceeding?” Pet. for Cert. I. I fail to see how there is subsumed within this the question whether a collateral attack in the present case would be success-fill. But for these points, I would agree with The Chief Justice that no due process violation occurred.

        Lewis involved a statute that relied upon the fact of a prior criminal conviction, rather than, as in this ease, the fact of a prior civil deportation. As the Court notes, ante, at 838, n. 15, it has been suggested that the Constitution may in some circumstances forbid use of the outcomes of administrative proceedings — even those lawfully conducted and subject to judicial review — in subsequent criminal proceedings. Whether or not that is so, I do not believe this case presents such circumstances. In any event, respondents have not claimed that it does, instead arguing only that they must be permitted to show that their deportation proceedings were not lawfully conducted. The validity of that argument can have nothing to do with whether the proceedings were administrative or criminal.

       Nor could it be argued that, although avenues of judicial review were theoretically available, respondents — not having been informed of the grounds upon which they should seek relief — could not reasonably have been expected to pursue them. That argument plainly is foreclosed by Lewis v. United States, 445 U. S. 55 (1980), in which the Court rejected the analogous argument, advanced by the dissent, that it was unreasonable to rely on the availability of collateral relief where the defect in the original proceeding was that the felon lacked the assistance of counsel. See id., at 73 (Brennan, J., dissenting).


author: Justice Blackmun Justice Stevens,

text:
    INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, AFL-CIO, et al. v. HECHLER
    No. 85-1360.
    Argued January 20, 1987
    Decided May 26, 1987

      Blackmun, J., delivered the opinion of the Court, in which Rehnquist, C. J., and Brennan, White, Marshall, Powell, O’Connor, and Scalia, JJ., joined. Stevens, J., filed an opinion concurring in part and dissenting in part, post, p. 865.

      Laurence Gold argued the cause for petitioners. With him on the briefs were David M. Silberman, Laurence J. Cohen, Elihu I. Leifer, and Richard M. Resnick. .

      Joel S. Perwin argued the cause for respondent. With him on the brief was Sheldon J. Schlesinger.

   Justice Blackmun

delivered the opinion of the Court.

In Allis-Chalmers Corp. v. Lueck, 471 U. S. 202 (1985), this Court held that “when resolution of a state-law claim is substantially dependent upon analysis of the terms of an agreement made between the parties in a labor contract,” the plaintiff’s claim is pre-empted by §301 of the Labor Management Relations Act, 1947 (LMRA), 61 Stat. 156, 29 U. S. C. §185. 471 U. S., at 220. The question presented by this case is whether a state-law tort claim that a union has breached its duty of care to provide a union member with a safe workplace is sufficiently independent of the collective-bargaining agreement to withstand the pre-emptive force of §301.

I

At all times relevant to this case, plaintiff-respondent Sally Hechler was employed by Florida Power and Light Company (Florida Power) as an electrical apprentice. Petitioners, the International Brotherhood of Electrical Workers and its Local 759 (collectively referred to as the Union), are the exclusive bargaining representatives for the bargaining unit in which respondent was employed. On January 11, 1982, Florida Power assigned respondent to a job in an electrical substation that required her to perform tasks she alleges were beyond the scope of her training and experience. Shortly after commencing her new assignment, respondent was injured when she came into contact with highly energized components at the substation.

Two years later, respondent sued the Union in state court in Broward County, Fla. In her complaint, she alleged that “pursuant to contracts and agreements entered into by and between” the Union and Florida Power, and “pursuant to the relationship by and between” the Union and respondent, the Union had a duty to ensure that respondent “was provided safety in her work place and a safe work place,” and to ensure that respondent “would not be required or allowed to take undue risks in the performance of her duties which were not commensurate with her training and experience.” App. 4. The Union, pursuant to 28 U. S. C. § 1441, removed the lawsuit to the United States District Court for the Southern District of Florida on the grounds that the “alleged duty arises solely from the alleged collective bargaining agreement between [the Union] and Florida Power,” and therefore that any breach of this duty was actionable under §301. 1 Record 3. Respondent at that time raised no objection to the removal.

In federal court, the Union moved to dismiss the complaint. It argued that respondent’s claim arose solely under federal labor law and was untimely under the applicable federal statute of limitations. Id., at 66-70. Respondent conceded: “The nature and scope of the duty of care owed [her] is determined by reference to the collective bargaining agreement.” Id., at 98. She argued, however, that the basic nature of her action was a state common-law “suit in tort” for the Union’s negligence in failing to provide her á safe workplace. Id., at 100-102. Respondent prayed that the case be remanded to the state court.

The District Court granted the Union’s motion to dismiss. The court observed that the gravamen of the complaint was that the Union had breached a duty of care to respondent to provide her a safe workplace. “Significantly, the duty allegedly owed to [Hechler] flows from the collective bargaining agreement, which imposes a duty on the [Union] to monitor the safety and training of its members.” App. to Pet. for Cert. 3a. The court concluded that because respondent had failed “to demonstrate that the [Union’s] allegedly negligent activity was unrelated to the collective bargaining agreement or beyond the scope of the employee-union fiduciary relationship,” her claim was pre-empted by federal labor law. Id., at 4a. Having found that respondent’s suit was governed by federal law, the court then held that the 6-month statute of limitations adopted in DelCostello v. Teamsters, 462 U. S. 151 (1983), applied to Hechler’s case, and dismissed the suit as untimely.

The Court of Appeals for the Eleventh Circuit reversed. 772 F. 2d 788 (1985). It ruled that the complaint “on its face states a common law negligence claim that may be cognizable in state court and is not preempted by the federal labor laws.” Id., at 790-791. The court concluded: “Though the [collective-bargaining] contract may be of use in defining the scope of the duty owed, liability will turn on basic negligence principles as developed by state law.” Id., at 794. Finding that “federal labor law was not invoked in plaintiff’s complaint,” id., at 799, the court directed that the District Court remand the case to the state court for adjudication on the merits.

Because the Eleventh Circuit’s decision appeared to conflict with the decision of the Sixth Circuit in Michigan Mutual Ins. Co. v. Steelworkers, 774 F. 2d 104 (1985), we granted certiorari. 476 U. S. 1113 (1986).

1 H-i

A

In Allis-Chalmers Corp. v. Lueck, 471 U. S. 202 (1985), we reviewed the pre-emptive scope of §301. We think it useful, at the outset, to repeat briefly the background outlined in the opinion in Allis-Chalmers. In Textile Workers v. Lincoln Mills, 353 U. S. 448 (1957), the Court held that § 301 does more than simply confer jurisdiction on federal courts to hear suits charging violations of collective-bargaining agreements. Id., at 450-451. The Court concluded that Congress, through § 301, had authorized federal courts to create a body of federal law for the enforcement of collective-bargaining agreements — law “which the courts must fashion from the policy of our national labor laws. ” Id., at 456. It was explained in Allis-Chalmers, 471 U. S., at 209, that the Court in Lincoln Mills “understood § 301 as a congressional mandate to the federal courts to fashion a body of federal common law to be used to address disputes arising out of labor contracts.”

Not long after Lincoln Mills was decided, the Court held that state courts have concurrent jurisdiction over §301 claims. Charles Dowd, Box Co. v. Courtney, 368 U. S. 502 (1962). Although the Court in Dowd proceeded upon the hypothesis that state courts would apply federal law when they exercised jurisdiction over §301 claims, it was in another case that same Term, Teamsters v. Lucas Flour Co., 369 U. S. 95 (1962), that the Court expressly held that federal law, and not state law, must be used in adjudicating §301 claims. There the Court observed: “The dimensions of § 301 require the conclusion that substantive principles of federal labor law must be paramount in the area covered by the statute.” 369 U. S., at 103. The need for this uniformity was clearly explained:

“The possibility that individual contract terms might have different meanings under state and federal law would inevitably exert a disruptive influence upon both the negotiation and administration of collective agreements. Because neither party could be certain of the rights which it had obtained or conceded, the process of negotiating an agreement would be made immeasurably more difficult by the necessity of trying to formulate contract provisions in such a way as to contain the same meaning under two or more systems of law which might someday be invoked in enforcing the contract. Once the collective bargain was made, the possibility of conflicting substantive interpretation under competing legal sys-terns would tend to stimulate and prolong disputes as to its interpretation.” Id., at 103-104.

The Court thus concluded that “in enacting § 301 Congress intended doctrines of federal labor law uniformly to prevail over inconsistent local rules.” Id., at 104.

While the Court in Lucas Flour observed that federal law was paramount in “the area covered by” §301, 369 U. S., at 103, in Allis-Chalmers the Court defined the range of claims that should be considered as coming within that coverage. The ordinary § 301 case is a contract claim in which a party to the collective-bargaining agreement expressly asserts that a provision of the agreement has been violated. See, e. g., Lucas Flour, 369 U. S., at 104 (claim by employer that strike by union violated provision of collective-bargaining agreement). In Allis-Chalmers, however, the Court considered an employee’s state-law tort action against his employer for bad-faith handling of disability-benefit payments due under a collective-bargaining agreement, and concluded that the interests supporting the uniform interpretation of collective-bargaining agreements under federal common law apply equally in the context of certain state-law tort claims. The Court set forth this basic principle:

“The interests in interpretive uniformity and predictability that require that labor-contract disputes be resolved by reference to federal law also require that the meaning given a contract phrase or term be subject to uniform federal interpretation. Thus, questions relating to what the parties to a labor agreement agreed, and what legal consequences were intended to flow from breaches of that agreement, must be resolved by reference to uniform federal law, whether such questions arise in the context of a suit for breach of contract or in a suit alleging liability in tort. Any other result would elevate form over substance and allow parties to evade the requirements of § 301 by relabeling their contract claims as claims for tortious breach of contract.” 471 U. S., at 211.

The Court pointed out that if state law, in the context of a tort action, were allowed to determine the meaning of particular contract phrases or terms in a collective-bargaining agreement, “all the evils addressed in Lucas Flour would recur”; the “parties would be uncertain as to what they were binding themselves to” in a collective-bargaining agreement, and, as a result, “it would be more difficult to reach agreement, and disputes as to the nature of the agreement would proliferate.” Ibid.

In Allis-Chalmers, the Court applied the rule that a tort claim “inextricably intertwined with consideration of the terms of the labor contract” is pre-empted under §301, 471 U. S., at 213, and concluded that the claim in Allis-Chalmers fell within that category. The employee’s allegation there was that his employer and its insurance company intentionally had failed to make required disability payments under a plan negotiated in a collective-bargaining agreement, and that, in so doing, they had breached a state-law insurance duty to act “in good faith” in’paying disability benefits. Id., at 206. The Court observed that any attempt to assess liability on the part of the employer would inevitably involve interpretation of the underlying collective-bargaining contract. First, the disability plan adopted in the collective-bargaining agreement might itself have included an implied requirement of good faith that the employer breached by its conduct. The Court explained: “[I]t is a question of federal contract interpretation whether there was an obligation under this labor contract to provide the payments in a timely manner, and, if so, whether Allis-Chalmers’ conduct breached that implied contract provision. ” Id., at 215. Second, under the relevant state law, the duty of “good faith” on which the plaintiff relied “intrinsically relate[d] to the nature and existence of the contract.” Id., at 216. The concept of “good faith” meant ‘“being faithful to one’s duty or obligation/” ibid., quoting Hilker v. Western Automobile Ins. Co., 204 Wis. 1, 13, 235 N. W. 413, 414 (1931), and, under state law, that duty was determined primarily by analyzing the responsibilities agreed to by the insurer in the written contract. The Court reasoned: “Because the right asserted not only derives from the contract, but is defined by the contractual obligation of good faith, any attempt to assess liability here inevitably will involve contract interpretation.” 471 U. S., at 218. Inasmuch as federal law must control the uniform meaning given to contract terms in a collective-bargaining agreement, however, an employee’s state-law tort action that necessarily rests on an interpretation of those terms is pre-empted by § 301. Id., at 218-219.

B

Under the principle set forth in Allis-Chalmers, we must determine if respondent’s claim is sufficiently independent of the collective-bargaining agreement to withstand the preemptive force of § 301. Respondent’s state-law tort claim is based on her allegation that the Union owed a duty of care to provide her with a safe workplace and to monitor her work assignments to ensure that they were commensurate with her skills and experience. Under the common law, however, it is the employer, not a labor union, that owes employees a duty to exercise reasonable care in providing a safe workplace. See, e. g., W. Keeton, D. Dobbs, R. Keeton, & D. Owen, Prosser and Keeton on The Law of Torts 569 (5th ed. 1984); White v. Consolidated Freight Lines, 192 Wash. 146, 148, 73 P. 2d 358, 359 (1937). Under Florida case law, as under the general common law, the employer “owes a duty to his employees to furnish a reasonably safe place to work, and must use ordinary care and diligence to keep it safe.” 2 Fla. Jur. 2d, Agency and Employment § 154, p. 343 (1977) (footnote omitted); see, e. g., Putnam Lumber Co. v. Berry, 146 Fla. 595, 604-607, 2 So. 2d 133, 137-138 (1941). See also Fla. Stat. §440.56(1) (1981) (“Every employer . . . shall furnish employment which shall be safe for the employees therein, furnish and use safety devices and safeguards . . . and do every other thing reasonably necessary to protect the life, health, and safety of such employees”).

Another party, such as a labor union, of course, may assume a responsibility towards employees by accepting a duty of care through a contractual arrangement. If a party breaches a contractual duty, the settled rule under Florida law is that the aggrieved party may bring either an action for breach of contract or a tort action for the injuries suffered as a result of the contractual breach. See, e. g., Banfield v. Addington, 104 Fla. 661, 669-670, 140 So. 893, 897 (1932); Parrish v. Clark, 107 Fla. 598, 603, 145 So. 848, 850 (1933) (“[A]n action may arise for the breach of the contract, or for the positive tort committed by the violation of a duty arising out of the assumption of the contractual relation”); Safeco Title Ins. Co. v. Reynolds, 452 So. 2d 45, 48 (Fla. App. 1984) (it is a “long-established general principle that injuries caused by the allegedly negligent performance of a contractual duty may be redressed through a tort action”). The threshold inquiry for determining if a cause of action exists is an examination of the contract to ascertain what duties were accepted by each of the parties and the scope of those duties. See 38 Fla. Jur. 2d, Negligence § 17, p. 29 (1982); Vorndran v. Wright, 367 So. 2d 1070 (Fla. App. 1979) (architect’s contract did not include a duty to ensure compliance with safety regulations and thus employee injured on the job had no cause of action against the architect); Schauer v. Blair Construction Co., 374 So. 2d 1160, 1161 (Fla. App. 1979) (summary judgment in favor of architect improperly granted when genuine issue of material fact existed regarding architect’s alleged contractual obligation to supervise construction).

In her complaint, respondent alleges precisely this type of tortious breach-of-contract claim. She asserts that “pursuant to contracts and agreements” between the Union and Florida Power, “to which contracts and agreements the Plaintiff was a third-party beneficiary,” the Union owed respondent a duty of care to ensure her a safe working environment. App. 4. Having assumed this duty under the collective-bargaining agreement, the Union — according to the complaint — was then negligent “by allowing [Hechler] to be assigned to work in ... a dangerous location and environment and by failing to provide her with or ascertaining that she had the necessary training, experience, background, and education to work in such a dangerous environment,” and was further negligent in failing to “provid[e] and/or enforc[e] safety rules, regulations and requirements which would preclude such persons with inadequate and insufficient background, training, education, and experience, such as the Plaintiff,. . . from being placed in such an inherently dangerous working environment.” Id., at 5.

Respondent’s allegations of negligence assume significance if — and only if — the Union, in fact, had assumed the duty of care that the complaint alleges the Union breached. The collective-bargaining agreement between the Union and Florida Power, and ancillary agreements between those parties, contain provisions on safety and working requirements for electrical apprentices on which Hechler could try to base an argument that the Union assumed an implied duty of care. In order to determine the Union’s tort liability, however, a court would have to ascertain, first, whether the collective-bargaining agreement in fact placed an implied duty of care on the Union to ensure that Hechler was provided a safe workplace, and, second, the nature and scope of that duty, that is, whether, and to what extent, the Union’s duty extended to the particular responsibilities alleged by respondent in her complaint. Thus, in this case, as in Allis-Chalmers, it is clear that “questions of contract interpretation . . . underlie any finding of tort liability.” 471 U. S., at 218. The need for federal uniformity in the interpretation of contract terms therefore mandates that here, as in AUis-Chalmers, respondent is precluded from evading the preemptive force of § 301 by casting her claim as a state-law tort action.

l — I HH y — i

If respondent’s suit is treated as a § SOI claim, a court must determine whether her claim is time barred by the applicable statute of limitations under federal law. The Union argues that respondent’s claim can be characterized only as a “duty of fair representation” claim against the Union for failing properly to represent Hechler’s interests before the employer, and that her claim must therefore be governed by the 6-month period of limitations prescribed by DelCostello v. Teamsters, 462 U. S. 151 (1983). Respondent argues, however, that her suit is not a “duty of fair representation” claim, but is simply a § 301 claim, on the basis of her status as a third-party beneficiary of the collective-bargaining agreement and the Union’s breach of duties assumed under that agreement.

The Court of Appeals did not review the District Court’s holding that the 6-month period of limitations adopted in DelCostello governs Hechler’s suit, because it concluded that respondent’s claim was not pre-empted under federal labor law. We believe it appropriate for the Court of Appeals to consider, in the first instance, whether the period of limitations adopted in DelCostello is applicable to Hechler’s claim.

The judgment of the Court of Appeals for the Eleventh Circuit therefore is vacated, and the case is remanded to that court for further proceedings consistent with this opinion.

It is so ordered.

Justice Stevens,

concurring in part and dissenting in part.

Respondent has alleged nothing more than a breach of the Union’s federal duty of fair representation. She has not alleged that the Union breached any specific promise made to her, and her argument that Florida law has augmented the Union’s representational duties is plainly pre-empted by federal law. The suggestion that she is a “third-party beneficiary” of the collective-bargaining agreement that the Union negotiated and executed on her behalf is a concept I simply do not understand. Whatever rights she has under that contract are rights against her employer, not against the party that represented her in its negotiation. Since her claim against the Union is a duty-of-fair-representation claim, her complaint is barred by the 6-month period of limitations prescribed by this Court’s decision in DelCostello v. Teamsters, 462 U. S. 151 (1983). Remanding the case to the Court of Appeals is therefore unnecessary. I would simply reverse the judgment of the Court of Appeals and reinstate the District Court’s order dismissing the complaint.

       Section 301 of the Labor Management Relations Act, 1947 (LMRA) states:
      “Suits for violation of contracts between an employer and a labor organization representing employees in an industry affecting commerce as defined in this chapter, or between any such labor organizations, may be brought in any district court of the United States having jurisdiction of the parties, without respect to the amount in controversy or without regard to the citizenship of the parties.” 29 U. S. C. § 185(a).

       See Teamsters v. Lucas Flour Co., 369 U. S. 95, 102 (1962), discussing Charles Dowd Box Co. v. Courtney, 368 U. S. 502 (1962). In Dowd, the Court impliedly referred to state courts as working with the federal courts “as there evolves in this field of labor management relations that body of federal common law of which Lincoln Mills spoke.” Id., at 514.

       The Court took care in Allis-Chalmers to define the precise limits of its holding. The rule there set forth is that, when a state-law claim is substantially dependent on analysis of a collective-bargaining agreement, a plaintiff may not evade the pre-emptive force of § 301 of the LMRA by casting the suit as a state-law claim. 471 U. S., at 220. The Court emphasized, however: “In extending the pre-emptive effect of § 301 beyond suits for breach of contract, it would be inconsistent with congressional intent under that section to pre-empt state rules that proscribe conduct, or establish rights and obligations, independent of a labor contract.” Id., at 212.

       The provision on “Safety” in the collective-bargaining agreement reads:
      “The safety of the employees is a matter of paramount importance, shall receive first consideration, and no employee shall be allowed or required to take any undue risk in the performance of his duties which he or his Foreman or Supervisor consider unsafe to himself or to his fellow workers. Supervisors and Foreman will be held strictly responsible for the enforcement of safe working rules.” App. 13-14.
      The provision also establishes a labor-management “Joint Safety Committee” which is “responsible for developing and recommending an effective safety program for all employees covered by this Agreement, including changes or additions to present safety rules, conducting investigations of accidents when deemed necessary.” Id., at 14.
      A second provision, present in a side agreement entitled “The Manner An Electrical Apprentice Will Work” states:
      “It is recognized that an Electrical Apprentice is in training under Journeymen to become a qualified Journeyman. It is also recognized that as he progresses in his apprenticeship, he becomes qualified to perform productive work, and will be expected to perform all the duties of a Journeyman which he has become qualified to do. It is not the intention of the Company to use an Apprentice on any type of work which the Apprentice has not become qualified to perform through experience and training. In this regard, the Company will not require an Apprentice to work on, climb through or work above energized conductors carrying more than 500 volts during his first year of apprenticeship.” Id., at 17.

       In her brief to this Court, respondent argues, for the first time, that her claim is not dependent on an interpretation of the collective-bargaining agreement, because the Union’s duty of care to her may arise through independent state-law responsibilities placed upon the Union simply by virtue of its relationship with its members, rather than as a result of the collective-bargaining agreement. Brief for Respondent 15-19. Respondent points out that she alleged that the Union owed her a duty of care “pursuant to contracts and agreements” entered into between the Union and Florida Power “and pursuant to the relationship by and between” the Union and Hechler. App. 4 (emphasis added).
      Even assuming that respondent’s pleadings may be construed liberally as stating that various, unenumerated Florida laws place a duty of care on a union to provide a safe workplace for its members, respondent effectively abandoned that theory in the lower courts and we decline to consider the argument here. Hechler argued below simply that, the Union’s duty of care arose from and was determined by the collective-bargaining agreement to which she was a third-party beneficiary. In opposing the Union’s motion to dismiss in the District Court, Hechler conceded: “The nature and scope of the duty of care owed Plaintiff is determined by reference to the collective bargaining agreement.” 1 Record 98. She made no reference to an alternative theory that the “nature and scope” of the Union’s duty of care also may be determined by reference to state law operating independently of the collective-bargaining agreement. Although she repeated her statement that the duty of care owed her by the Union arose “by virtue of the parties [sic] relationship and the collective bargaining agreement,” ibid., she never suggested that the “relationship” between the parties gave rise to a duty of care distinct from the duty created by the collective-bargaining agreement. Not surprisingly, the District Court, relying on Hechler’s formulation of her claim, observed: “Significantly, the duty allegedly owed to plaintiff flows from the collective bargaining agreement.” App. to Pet. for Cert. 3a.
      On appeal to the Court of Appeals, Hechler continued to characterize the Union’s duty of care as grounded in the collective-bargaining agreement. She described the issue presented as “whether the federal labor laws preempt a worker’s state common-law action against her union for negligence in breaching its duty — created by the union's contract with the employer— to insure that the plaintiff was properly trained for her work assignment.” Brief for Appellant in No. 84-5799 (CA11), p. ii (emphasis added).' See also id., at 1, 45, n. 47. Again, there was no mention by Hechler of the existence of other state law that might form an alternative source of the Union’s duty. The Court of Appeals accepted the proposition that the Union’s duty of care would arise from the collective-bargaining agreement, but agreed with Heehler that, “[t]hough the contract may be of use in defining the scope of the duty owed,” the suit essentially remained a state-law claim of negligence. 772 F. 2d 788, 794 (1985).
      Respondent repeated the theory adopted by the Court of Appeals in her opposition to the Union’s certiorari petition in this Court. Brief in Opposition 4, 8-9. In her brief on the merits to this Court, she argued for the first time that the Union possibly was subject to an independent state-law duty of care, unconnected to the collective-bargaining agreement, and arising simply from the relationship of a union to its members. Even if such a state-law obligation, which would directly regulate the responsibility of a union in a workplace, could survive the pre-emptive power of federal labor law, we conclude that it is too late in the day for respondent to present to the Court this newfound legal theory. We decline to rule on the impact of hypothetical state law when the relevance of such law was neither presented to or passed on by the courts below, nor presented to us in the response to the petition for certiorari.

       In DelCostello, the Court concluded that a hybrid suit, consisting of a §301 claim against an employer and a duty-of-fair-representation claim against a union, is similar to an unfair labor practices charge, and that federal courts should therefore borrow the 6-month limitations period established in § 10(b) of the National Labor Relations Act, 29 U. S. C. § 160(b), for such charges. A duty-of-fair-representation claim arises when a union that represents an employee in a grievance or arbitration procedure acts in a “discriminatory, dishonest, arbitrary, or perfunctory” fashion. 462 U. S., at 164. See Vaca v. Sipes, 386 U. S. 171 (1967); Hines v. Anchor Motor Freight, Inc., 424 U. S. 554 (1976). The Court in DelCostello expressly distinguished the hybrid § 301/duty-of-fair-representation claim before it from “a straightforward breach-of-contract suit under §301.” 462 U. S., at 165.

       An individual employee may bring a §801 claim against an employer for violation of the collective-bargaining agreement between the union and the employer. Smith v. Evening News Assn., 371 U. S. 195 (1962). Although employees usually bring duty-of-fair-representation claims against their union rather than § 301 claims, see, e. g., Vaca v. Sipes, supra, third-party beneficiaries to a contract ordinarily have the right to bring a claim based on the contract. The Union has not contested respondent’s right to bring a § 301 claim against it based on her status as a third-party beneficiary to the collective-bargaining agreement, although it has attempted to recast her suit as a duty-of-fair-representation claim.

      The District Court found that respondent had sued the union “over two years after she sustained her injury.” App. to Pet. for Cert. 5a.


text:
    April 6, 1987
    No. 86-843.
    No. 86-879.
    Continental Trailways, Inc. v. Director, New Jersey Division of Motor Vehicles; and Director, New Jersey Division of Motor Vehicles v. Continental Trailways, Inc.
   Sup. Ct. N. J. Cer-tiorari dismissed under this Court’s Rule 53. Reported below: 102 N. J. 526, 509 A. 2d 769.


text:
    No. 86-5656.
    Bairnsfather v. Louisiana.
   Appeal from Ct. App. La., 2d Cir., dismissed for want of substantial federal question.

Justice Brennan, Justice Powell, and Justice Sc alia would note probable jurisdiction and set case for oral argument. Justice Stevens would dismiss the appeal for want of jurisdiction.


text:
    No. 84-1936.
    Corporate City of South Bend et al. v. Janowiak.
   C. A. 7th Cir. Certiorari granted, judgment vacated, and case remanded for further consideration in light of Johnson v. Transportation Agency, 480 U. S. 616 (1987), and Wygant v. Jackson Board of Education, 476 U. S. 267 (1986).


text:
    No. 86-468.
    Tisch, Postmaster General of the United States v. Shidaker.
   C. A. 7th Cir. Certiorari granted, judgment vacated, and case remanded for further consideration in light of Johnson v. Transportation Agency, 480 U. S. 616 (1987).


text:
    No. 86-1351.
    Utica Mutual Insurance Co. v. Talley et al.
   C. A. 11th Cir. Certiorari granted, judgment vacated, and case remanded for further consideration in light of Burlington Northern R. Co. v. Woods, 480 U. S. 1 (1987).


text:
    No. A-674.
    Knowles v. United States.
   Application for bail, addressed to Justice Brennan and referred to the Court, denied.


text:
    No. A-693.
    Linne v. United States.
   Application for bail, addressed to Justice Brennan and referred to the Court, denied.


text:
    No. A-716.
    Western Airlines, Inc., et al. v. International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, Airline Division, et al.
   Motions of Air Transport Employees and International Brotherhood of Teamsters, Airline Division, et al. to vacate the stay orders entered by Justice O’Connor on April 1, 1987, and April 2, 1987, pending the timely filing and disposition of a petition for writ of certiorari, denied.

Justice Stevens took no part in the consideration or decision of these motions.


text:
    No. D-624.
    In re Disbarment of Hallows.
   It is ordered that Joseph H. Hallows, of Milwaukee, Wis., be suspended from the practice of law in this Court and that a rule issue, returnable within 40 days, requiring him to show cause why he should not be disbarred from the practice of law in this Court.


text:
    No. D-625.
    In re Disbarment of Ernst.
   It is ordered that Thomas J. Ernst, of Clayton, Mo., 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-626.
    In re Disbarment of Mazelis.
   It is ordered that Morris Mazelis, of Baltimore, Md., 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-627.
    In re Disbarment of Gerns.
   It is ordered that Peter H. Gerns, of Charlotte, N. C., be suspended from the practice of law in this Court and that a rule issue, returnable within 40 days, requiring him to show cause why he should not be disbarred from the practice of law in this Court.


text:
    No. 86-246.
    Sumner, Director, Nevada Department of Prisons, et al. v. Shuman.
   C. A. 9th Cir. [Certiorari granted, 479 U. S. 948.] Out-of-time motion of Johnny Harris et al. for leave to participate in oral argument as amici curiae and for divided argument denied. The order, heretofore entered on December 8, 1986 [479 U. S. 1004], appointing N. Patrick Flanagan III, Esquire, is vacated and it is ordered that M. Daniel Mar-koff, Esquire, of Las Vegas, Nev., be appointed to serve as counsel for respondent in this case.


text:
    No. 86-344.
    Ohio et al. v. Fleet Aerospace Corp. et al.
   Appeal from C. A. 6th Cir. Motion of appellants to defer consideration in No. 86-71, CTS Corp. v. Dynamics Corporation of America [probable jurisdiction noted, 479 U. S. 810], and No. 86-97, Indiana v. Dynamics Corporation of America [probable jurisdiction noted, 479 U. S. 811], and to note probable jurisdiction in this case denied.


text:
    No. 86-870.
    Phillips Petroleum Co. et al. v. Mississippi et al.
   Sup. Ct. Miss. [Certiorari granted, 479 U. S. 1084.] Motion of respondent Mississippi to dismiss the writ of certiorari as improvidently granted is denied.


text:
    No. 86-1172.
    No. 86-1387.
    Goodyear Atomic Corp. v. Miller et al. Mackey et al. v. Lanier Collection Agency & Service, Inc.
   Appeal from Sup. Ct. Ohio; and

Sup. Ct. Ga. The Solicitor General is invited to file briefs in these cases expressing the views of the United States.


text:
    No. 86-6367.
    In re Gray.
   Petition for writ of mandamus denied.


text:
    No. 86-1408.
    Haynie et al. v. Ross Gear Division of TRW, Inc., et al.
   C. A. 6th Cir. Certiorari granted. Justice Marshall took no part in the consideration or decision of this petition.


text:
    No. 86-1030.
    County of Santa Clara v. Ramirez.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 86-1059.
    Bell v. Bell.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 86-1155.
    International Primate Protection League et al. v. Institute for Behavioral Research, Inc., et al.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 86-1158.
    Schellong v. Immigration and Naturalization Service.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 86-1316.
    Harris, as Trustee Under the Trust Agreement Dated March 1, 1973, et al. v. Sentry Corp. et al.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 86-1331.
    Yuri Fashions Co., Ltd. v. United States.
   C. A. Fed. Cir. Certiorari denied.


text:
    No. 86-1332.
    McCarty v. Pennsylvania.
   Super. Ct. Pa. Certiorari denied.


text:
    No. 86-1411.
    Miller v. Federal Deposit Insurance Corporation.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 86-1422.
    Ratcliff v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 86-1441.
    Solties et ux. v. Massey-Ferguson, Inc.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 86-1444.
    Bigley et al. v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 86-1465.
    Desha v. United States.
   Ct. Mil. App. Certiorari denied.


text:
    No. 86-5888.
    Dale v. Kentucky.
   Sup. Ct. Ky. Certiorari denied.


text:
    No. 86-5999.
    Turner v. Pansophic Systems, Inc.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 86-6001.
    Wilmer v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 86-6031.
    Rodriguez v. Wisconsin.
   Ct. App. Wis. Certiorari denied.


text:
    No. 86-6054.
    Williams v. Rone et al.
   C. A. 6th Cir. Cer-tiorari denied.


text:
    No. 86-6130.
    Lockett v. South Carolina.
   Sup. Ct. S. C. Certiorari denied.


text:
    No. 86-6148.
    Reed v. Maryland.
   Ct. Sp. App. Md. Cer-tiorari denied.


text:
    No. 86-6159.
    Wanzer v. Texas.
   Ct. App. Tex., 2d Dist. Certiorari denied.


text:
    No. 86-6191.
    Hoffman v. United States.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 86-6202.
    Clark v. Lynaugh, Interim Director, Texas Department of Corrections.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 86-6213.
    Doubleday v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 86-6220.
    Adams v. Pennsylvania.
   Sup. Ct. Pa. Cer-tiorari denied.


text:
    No. 86-6269.
    Talbott v. United States.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 86-6275.
    Kimbrough v. American Telephone & Telegraph Co. et al.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 86-6337.
    Clemente v. Office of Personnel Management.
   C. A. Fed. Cir. Certiorari denied.


text:
    No. 86-6356.
    Pehringer, aka Whittlesey v. Dugger, Secretary, Florida Department of Corrections, et al.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 86-6357.
    Price et al. v. Baltimore Police Department et al.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 86-6358.
    Frappier v. United States.
   C. A. 1st Cir. Certiorari denied.


text:
    No. 86-6359.
    Leal v. WRQN et al.
   C. A. 6th Cir. Certio-rari denied.


text:
    No. 86-6363.
    Taylor v. Davis, Warden.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 86-6366.
    Jackson v. County of Armstrong Children and Youth Service et al.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 86-6395.
    Humphrey v. United States.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 86-6396.
    Grant v. Georgia.
   Ct. App. Ga. Certiorari denied.


text:
    No. 86-6407.
    Diggs v. Zimmerman, Superintendent, State Correctional Institution and Correctional Diagnostic and Classification Center at Graterford, et al.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 86-6430.
    Cook et al. v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 86-6440.
    Reynoso-Barrios v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 86-6455.
    Ridge v. United States.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 86-6456.
    Cruz v. United States.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 86-6463.
    White v. United States.
   Ct. App. D. C. Certiorari denied.


text:
    No. 86-6465.
    Gates v. United States.
   C. A. D. C. Cir. Certiorari denied.


text:
    No. 86-6467.
    Coleman v. United States.
   Ct. App. D. C. Certiorari denied.


text:
    No. 86-6477.
    Bonner et al. v. United States.
   C. A. 1st Cir. Certiorari denied.


text:
    No. 86-6480.
    Hampton v. Alaska.
   Sup. Ct. Alaska. Cer-tiorari denied.


text:
    No. 86-6499.
    Hogan v. United States.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 85-958.
    Illinois v. Eyler.
   App. Ct. Ill., 2d Dist. Motion of respondent for leave to proceed in forma pauperis granted. Certiorari denied.


text:
    No. 86-291.
    Sumner, Director, Nevada Department of Prisons v. Phelps.
   C. A. 9th Cir. Motion of respondent for leave to proceed in forma pauperis granted. Certiorari denied.


text:
    No. 86-1311.
    A. L. Laboratories, Inc., et al. v. North American Philips Corp.
   C. A. 8th Cir. Certiorari denied.

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


text:
    No. 86-1338.
    Deya v. Board of Supervisors of Louisiana State University et al.
   C. A. 5th Cir. Certiorari denied.

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


text:
    No. 86-6197.
    Gipson v. Rosenberg et al.
   C. A. 5th Cir. Motion of respondents for damages denied. Certiorari denied.


author: Justice Brennan and Justice Marshall,

text:
    No. 86-6208.
    No. 86-6334.
    No. 86-6355.
    No. 86-6372.
    No. 86-6470.
    Frey v. Pennsylvania. Mann v. Texas. Kubat v. Illinois. Zettlemoyer v. Pennsylvania. Morrison v. Alabama.
   Sup. Ct. Pa.;

Ct. Crim. App. Tex.;

Sup. Ct. Ill.;

Super. Ct. Pa.; and

Sup. Ct. Ala. Certiorari denied. Reported below: No. 86-6208, 512 Pa. 557, 517 A. 2d 1265; No. 86-6334, 718 S. W. 2d 741; No. 86-6355, 114 Ill. 2d 424, 501 N. E. 2d 111; No. 86-6372, 359 Pa. Super. 631, 515 A. 2d 620; No. 86-6470, 500 So. 2d 57.

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. 86-6600 (A-697).
    Williams v. Lynaugh, Interim Director, Texas Department of Corrections.
   C. A. 5th Cir. Application for stay of execution of sentence of death, presented to Justice White, and by him referred to the Court, denied. Certiorari denied.

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 the application for stay of execution and the petition for writ of certiorari and would vacate the death sentence in this case.


text:
    No. 86-1025.
    No. 86-6006.
    No. 86-6077.
    In re Polyak, Lyda et al. v. John K. et al., Kucher v. Maderios et al.,
   479 U. S. 1082;

479 U. S. 1095; and

479 U. S. 1097. Petitions for rehearing denied.


text:
    No. 85-703.
    Schoenborn et al. v. Boeing Co.,
   474 U. S. 1082. Motion for leave to file petition for rehearing denied.


text:
    April 7, 1987
    No. 85-673.
    Hartigan, Attorney General of the State of Illinois, et al. v. Zbaraz et al.
   C. A. 7th Cir. [Probable jurisdiction postponed, 479 U. S. 881.] The parties are directed to file supplemental briefs addressing the merits of the second question presented in appellants’ jurisdictional statement, as well as the question whether the Court of Appeals’ decision is sufficiently final to permit this Court to take jurisdiction over the case under 28 U. S. C. § 1254(2) to review both questions presented. Rule 35 of the Rules of this Court prescribes the time for filing these supplemental briefs.


text:
    April 20, 1987
    No. 86-1350.
    423 South Salina Street, Inc. v. City of Syracuse 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. 86-1363.
    Wangrud v. Oregon.
   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. 86-1403.
    Konig v. Picking.
   Appeal from Ct. App. Cal., 2d App. Dist., dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for writ of cer-tiorari, certiorari denied.


text:
    No. 86-6427.
    Stevenson v. Department of Labor and Industrial Relations.
   Appeal from Int. Ct. App. Haw. dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for writ of certiorari, certiorari denied.


text:
    No. 86-1370.
    Automatic Music & Vending Corp. et al. v. Michigan Liquor Control Commission.
   Appeal from Sup. Ct. Mich, dismissed for want of substantial federal question.


text:
    No. 86-1396.
    Baty v. Oregon.
   Appeal from Ct. App. Ore. dismissed for want of substantial federal question.


text:
    No. 86-6008.
    James v. Iowa.
   Appeal from Sup. Ct. Iowa dismissed for want of properly presented federal question.


text:
    No. 85-1839.
    Gallon v. Levin Metals Corp. et al.
   C. A. 9th Cir. Certiorari granted, judgment vacated, and case remanded for further consideration in light of West v. Conrail, ante, p. 35.


text:
    No. 86-1207.
    Immigration and Naturalization Service et al. v. National Center for Immigrants’ Rights et al.
   C. A. 9th Cir. Certiorari granted, judgment vacated, and case remanded for further consideration in light of the Immigration Reform and Control Act of 1986, Pub. L. 99-603.


text:
    No.-.
    James v. City of Troy et al.
   Motion to direct the Clerk to file a petition for writ of certiorari out of time denied.


text:
    No.-.
    Hansen v. City of San Buenaventura.
   Motion of appellant to dispense with printing portions, of the appendix to the jurisdictional statement denied.


text:
    No. A-615 (86-6562).
    McDonald v. Metropolitan Government of Nashville and Davidson County, Tennessee.
   Chan. Ct. Tenn., Davidson County. Application for temporary injunction and other relief, addressed to Justice O’Connor and referred to the Court, denied.


text:
    No. A-732.
    Linnas v. Immigration and Naturalization Service.
   Application for stay of deportation, presented to Justice Marshall, and by him referred to the Court, denied.

The order heretofore entered by Justice Marshall on April 6, 1987, is vacated. Justice Brennan, Justice Blackmun, and Justice O’Connor would grant the application for stay.


text:
    No. D-588.
    In re Disbarment of Speert.
    [For earlier order herein, see 479 U. S. 958.]
   Disbarment entered.


text:
    No. D-599.
    In re Disbarment of Henry.
    [For earlier order herein, see 479 U. S. 1026.]
   Disbarment entered.


text:
    No. D-601.
    In re Disbarment of Intini.
    [For earlier order herein, see 479 U. S. 1026.]
   Disbarment entered.


text:
    No. D-607.
    In re Disbarment of Eimers.
    [For earlier order herein, see 479 U. S. 1078.]
   Disbarment entered.


text:
    No. D-610.
    In re Disbarment of Lopez.
   Vincent Cabrera Lopez, of Chicago, Ill., having requested to resign as a member of the Bar of this Court, it is ordered that his name be stricken from the roll of attorneys admitted to practice before the Bar of this Court. The rule to show cause, heretofore issued on March 2, 1987 [480 U. S. 902], is hereby discharged.


text:
    No. D-628.
    In re Disbarment of Brumfield.
   It is or- - dered that H. Alva Brumfield III, of Baton Rouge, La., 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-629.
    In re Disbarment of Mirto.
   It is ordered that Peter G. Mirto, of Brooklyn, N. Y., be suspended from the practice of law in this Court and that a rule issue, returnable within 40 days, requiring him to show cause why he should not be disbarred from the practice of law in this Court.


text:
    No. 9,
    Orig.
    United States v. Louisiana et al.
    [For earlier decision herein, see, e. g., 470 U. S. 93.]
   Supplemental Report of the Special Master on the Alabama and Mississippi boundary cases is received and ordered filed. Exceptions to the Report, with supporting briefs, may be filed by the parties within 45 days. Replies thereto, if any, with supporting briefs, may be filed within 30 days.

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


text:
    No. 108,
    Orig.
    Nebraska v. Wyoming et al.
    [For earlier order herein, see 479 U. S. 1051.]
   Motion of Wyoming for leave to file a counterclaim granted. Answers to the counterclaim may be filed within 60 days.


text:
    No. 85-1409.
    Bowen, Secretary of Health and Human Services v. Yuckert.
   C. A. 9th Cir. [Certiorari granted, 476 U. S. 1114.] Motion of respondent for leave to file a supplemental brief after argument granted. Motion of the Solicitor General for leave to file a supplemental brief after argument granted.


text:
    No. 86-337.
    Burlington Northern Railroad Co. v. Oklahoma Tax Commission et al.
   C. A. 10th Cir. [Certiorari granted, 479 U. S. 913.] Motion of respondents for leave to file a supplemental brief after argument granted.


text:
    No. 86-594.
    National Labor Relations Board et al. v. United Food & Commercial Workers Union, Local 23, AFL-CIO.
   C. A. 3d Cir. [Certiorari granted, 479 U. S. 1029.] Motion of the Solicitor General to dispense with printing the joint appendix granted.


text:
    No. 86-836.
    Hazelwood School District et al. v. Kuhlmeier et al.
   C. A. 8th Cir. [Certiorari granted, 479 U. S. 1053.] Motions of National School Boards Association et al. and School Board of Dade County, Florida, for leave to file briefs as amici curiae granted.


text:
    No. 86-863.
    Bowen, Secretary of Health and Human Services v. Kizer, Director of California Department of Health Services, et al.
   C. A. 9th Cir. [Certiorari granted, 479 U. S. 1083.] Motion of respondents for divided argument denied.


text:
    No. 86-1108.
    Vermont v. Cox.
   Sup. Ct. Vt. [Certiorari granted, 479 U. S. 1083.] Motion of respondent for leave to proceed further herein in forma pauperis denied. Henry Hinton, Esquire, of Montpelier, Vt., a member of the Bar of this Court, is invited to brief and argue this case in support of the judgment below as amicus curiae.


text:
    No. 86-6060.
    Yates v. Aiken, Warden, et al.
   Sup. Ct. S. C. [Certiorari granted, 480 U. S. 945.] Motion for appointment of counsel granted, and it is ordered that David I. Bruck, Esquire, of Columbia, S. C., be appointed to serve as counsel for petitioner in this case.


text:
    No. 86-6139.
    Watson v. Fort Worth Bank & Trust.
   C. A. 5th Cir. The Solicitor General is invited to file a brief in this case expressing the views of the United States limited to Question 1 presented by the petition.


text:
    No. 86-1545.
    No. 86-6559.
    No. 86-6607.
    In re Kowalik; In re Troche; and In re Fixel.
   Petitions for writs of habeas cor-

pus denied.


text:
    No. 86-805.
    Pinter et al. v. Dahl et al.
   C. A. 5th Cir. Certiorari granted.


text:
    No. 86-1217.
    Russoniello et al. v. Olagues et al.
   C. A. 9th Cir. Certiorari granted. In addition to the questions presented by the petition for writ of certiorari, the parties are invited to brief and argue the question of possible mootness.


text:
    No. 85-1400.
    Continental Baking Co. v. Macon.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 86-340.
    Local 710, International Brotherhood of Teamsters v. Thomsen.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 86-672.
    Trans World Airlines, Inc. v. Elisalde.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 86-715.
    Subclass IV (Unitholders) v. Fox & Co. et al.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 86-765.
    Missouri Pacific Railroad Co. et al. v. Evans.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 86-1022.
    Government Development Bank for Puerto Rico et al. v. Lydia de Choudens.
   C. A. 1st Cir. Certiorari denied.


text:
    No. 86-1024.
    Conference of State Bank Supervisors et al. v. Board of Governors of the Federal Reserve System et al.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 86-1080.
    Washington Metropolitan Area Transit Authority v. Brock, Secretary of Labor.
   C. A. D. C. Cir. Certiorari denied.


text:
    No. 86-1118.
    Cinnante v. United States.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 86-1127.
    Wright et al. v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 86-1143.
    Ortega et al. v. Rowe et al.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 86-1163.
    Jones et al. v. United States.
   C. A. Fed. Cir. Certiorari denied.


text:
    No. 86-1187.
    Canisius College v. United States.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 86-1188.
    Burford v. Commissioner of Internal Revenue.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 86-1199.
    Kington et al. v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 86-1200.
    Roth Steel Tube Co. v. Commissioner of Internal Revenue.
   C. A. 6th Cir. Certiorari denied.