author: Justice Rehnquist,

text:
    No. 80-382.
    General Public Utilities Corp. et al. v. Susquehanna Valley Alliance et al.
   C. A. 3d Cir. Certiorari denied.

Justice Rehnquist,

with whom The Chief Justice and Justice Powell join,

dissenting.

In this case the Court of Appeals for the Third Circuit held that a private party seeking to compel agency compliance with the National Environmental Policy Act of 1969 (NEPA), 83 Stat. 852, 42 U. S. C. § 4321 et seq., need not exhaust administrative remedies prior to filing suit in Federal District Court. Because I believe that a long series of our cases heretofore regarded as settled law require such exhaustion, e. g., Myers v. Bethlehem Shipbuilding Corp., 303 U. S. 41 (1938), I dissent from the denial of the petition for certiorari and would set the case for argument.

The case arises out of the effort of the Nuclear Regulatory Commission and petitioners, the owners and operators of Three Mile Island Nuclear Station, to treat and eventually dispose of radioactive wastewater resulting from the accident occurring at Three Mile Island in March 1979. In May 1979, respondents commenced this action against the Commission and petitioners, alleging that the Commission had approved petitioners’ construction and operation of a facility to decontaminate the radioactive wastewater, known as EPICOR II, and planned to allow the processed water to be discharged in the Susquehanna River. Specifically, respondents alleged that the Commission had failed to prepare an environmental impact statement for the EPICOR II system, in violation of NEPA, 42 U. S. C. § 4332, and had failed to require petitioners to secure a license or construction permit for the system, in violation of the Atomic Energy Act of 1954, 68 Stat. 919, as amended, 42 U. S. C. § 2011 et seq. The complaint also charged that the possible discharge of “high-level radioactive” water into the river would violate both the Federal Water Pollution Control Act (FWPCA), § 301 (f), 86 Stat. 846, 33 U. S. C. § 1311 (f), and a federal constitutional right to “be born and to live mentally and physically unimpaired.”

The District Court found that respondents had failed to exhaust their administrative remedies under the Atomic Energy Act and dismissed the complaint for lack of subject-matter jurisdiction. It noted that the administrative remedy available under the Act, 10 CFR §2.206 (1980), “allows plaintiffs to ask the [Commission] for all the relief sought in this court.” It further noted that the Act makes any final decision of the Commission reviewable exclusively in the courts of appeals. 42 U. S. C. § 2239 (b) and 28 U. S. C. § 2342.

The Court of Appeals affirmed in part and reversed in part. Although it affirmed the District Court’s dismissal of claims arising under the Atomic Energy Act on the grounds that the Commission has exclusive jurisdiction over licensing actions, 42 U. S. C. § 2239 (b), and that private parties may not judicially enforce the Act, 42 U. S. C. § 2271 (c), it nonetheless found that the District Court had jurisdiction to compel Commission compliance with NEPA. It reasoned that where the Commission “fragments” its environmental review of projects, as is allegedly the case here, the district courts could prohibit such fragmentation. The court went on to hold that the District Court had jurisdiction over respondents’ FWPCA and constitutional claims, reasoning that respondents had satisfied the conditions of the FWPCA’s citizen-suit provision, 33 U. S. C. § 1365 (a), and that the District Court was the “appropriate” forum to consider the constitutional claims.

Petitioners contend, correctly in my view, that the decision below ignored the “long settled rule of judicial administration that no one is entitled to judicial relief for a supposed or threatened injury until the prescribed administrative remedy has been exhausted.” Myers v. Bethlehem Shipbuilding Corp., supra, at 50-51; McKart v. United States, 395 U. S. 185, 193, 195 (1969). Even the Solicitor General, who does not seek certiorari in this case, “agrees with petitioners that the [C]ourt of [A]ppeals erred in a number of its rulings and that its decision is contrary to the prior decisions of this Court.” Memorandum for United States Nuclear Regulatory Commission 1.

The gist of petitioners’ argument is that Congress has placed with the Commission the authority to regulate its licensees’ handling of radioactive materials and has limited judicial review of the Commission’s decisions to the courts of appeals. This Court has recognized that the adequacy of Commission compliance with NEPA, not just with the Atomic Energy Act, is reviewable solely in the courts of appeals pursuant to 42 U. S. C. § 2239 (b) and 28 U. S. C. § 2342. See Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U. S. 519, 526-527 (1978). Indeed, the decision below is in direct conflict with a decision of the Court of Appeals for the District of Columbia Circuit which held that where a statutory review procedure assigns to the courts of appeals exclusive review responsibility over agency action — as does the Atomic Energy Act — a district court may not exercise concurrent jurisdiction to resolve allegations of agency noncompliance with NEPA. City of Rochester v. Bond, 195 U. S. App. D. C. 345, 354-355, 603 F. 2d 927, 936-937 (1979).

The “fragmentation” of judicial review in this case results not from the action of the Commission, but from the decision below which splinters judicial review of claims that arise essentially out of the same factual setting. It is anomalous to hold, as did the court below, that the Atomic Energy Act claims are reviewable exclusively in the Court of Appeals, while claims arising under NEPA, FWPCA, and the Constitution are reviewable originally in the District Court. The decision below means that the District Court, the Court of Appeals, and the Commission will all exercise concurrent jurisdiction over the same claims at the same time. Such a trifurcated review procedure is not only inefficient, duplicating judicial and administrative effort, but more importantly, it leads to premature interference with agency processes, contrary to the policy underlying direct review statutes.

Although the Solicitor General concedes that the decision below was wrong, he asserts that the case is not worthy of this Court’s attention because the decision will be regarded merely as an “anomaly that cannot be reconciled with this Court’s settled teaching on exhaustion of administrative remedies.” Memorandum for United States Nuclear Regulatory Commission 5. I am not so sanguine. I fear that unless accorded plenary review here the decision below will spawn others like it allowing circumvention of agency review and pursuit of NEPA claims directly in the district courts. Accordingly, I dissent from the denial of the petition for certiorari.

       Title 10 CFR §2.206 (1980) provides in relevant part:
      “(a) Any person may file a request for the Director of Nuclear Reactor Regulation ... to institute a proceeding ... to modify, suspend or revoke a license, or for such other action as may be proper. . . .
      “(b) Within a reasonable time after a request pursuant to paragraph (a) of this section has been received, the Director . . . shall either institute the requested proceeding in accordance with the subpart or shall advise the person who made the request in writing that no proceeding will be instituted in whole or in part, with respect to his request, and the reasons therefor.”

       Although it is clear that the court below erred with respect to the NEPA claim, I suggest that it is on no firmer footing with respect to the FWPCA and constitutional claims. It appears, for example, that the Commission has exclusive jurisdiction to regulate the discharge of the type of radioactive water involved in this case, see Train v. Colorado Public Interest Research Group, 426 U. S. 1, 16-17 (1976). In any event, all of the claimed violations arise out of the very activities which are subject to Commission regulatory control, and considerations of judicial economy require that all of the claims be resolved in the first instance by the Commission.

       The problems of segregated review are amply illustrated by the facts of this case. On May 25, 1979, the same day suit was filed in this case, the Commission issued a statement prohibiting the treatment or discharge of contaminated water until it had completed an environmental assessment. During the next several months, the Commission staff prepared an environmental assessment on the proposed operation of EPICOR II. The Commission eventually published a draft Environmental Impact Statement, 45 Fed. Reg. 54495 (1980), and issued an opinion on October 16, 1980, permitting the processing of radioactive wastewater by EPICOR II, but specifically prohibiting any discharge of the processed water pending further study. Respondents subsequently filed a petition for review of that order in the Court of Appeals for the Third Circuit pursuant to 42 U. S. C. §2239. That case raises the same NEPA issues presented in this ease. Thus, the District Court, the Court of the Appeals for the Third Circuit, and the Commission are presently exercising concurrent jurisdiction over the same issues. This sort of procedural chaos is invited by the decision of the Court of Appeals in this case.
      What may well be the better course both legally and practically is suggested by a recent case in the District Court for the District of Columbia which raised virtually the same issues presented here. City of Lancaster v. NRC, No. 79-1368. There the court dismissed with prejudice plaintiffs’ suit on the basis, inter alia, of the Commission’s adherence to its May 25, 1979, statement.


source: Caselaw Access Project

license: Public Domain

text:
    No. 80-410.
    Wasserman, Trustee v. Washington.
   C. A. 6th Cir. Motion of respondent for leave to proceed in forma pauperis granted. Certiorari denied.


text:
    No. 80-747.
    Michigan v. Anderson.
   Sup. Ct. Mich. Motion of respondent for leave to proceed in forma pauperis granted. Certiorari denied.


text:
    No. 80-872.
    Illinois v. Savory.
   App. Ct. Ill., 3d Dist. Motion of respondent for leave to proceed in forma pauperis granted. Certiorari denied.


text:
    No. 80-293.
    Unitex Ltd. et al. v. Dan River, Inc.
   C. A. 4th Cir. Certiorari denied.

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


text:
    No. 80-499.
    Williams et al. v. Pacific Maritime Assn, et al.
   C. A. 9th Cir. Motion of Teamsters for a Democratic Union et al. for leave to file a brief as amici curiae granted. Certiorari denied.


text:
    No. 80-529.
    Calgon Corp. v. Davis.
   C. A. 3d Cir. Certeriorari denied.

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


text:
    No. 80-730.
    Heleringer v. Kentucky Bar Assn.
   Sup. Ct. Ky. Certiorari denied.

Justice Brennan would grant certiorari.


text:
    No. 80-628.
    Cowles Communications, Inc. v. Alioto.
   C, A. 9th Cir. Certiorari denied.

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


text:
    No. 80-521.
    Loudoun Times-Mirror et al. v. Arctic Co., Ltd., t/a Iroquois Research Institute.
   C. A. 4th Cir. Motion of Reporters' Committee for Freedom of the Press et al. for leave to file a brief as amici curiae granted. Certiorari denied.


text:
    No. 80-788.
    Adams Extract Co. et al. v. Franey et al.
   C. A. 5th Cir. Certiorari denied.

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


text:
    No. 80-620.
    Ayoob et al. v. Morrison et al.
   C. A. 3d Cir. Motions of Pennsylvania Bar Association, Pennsylvania Conference of Trial Judges, and Alexander F. Barbieri for leave to file briefs as amici curiae granted. Certiorari denied.

Justice Blackmun would grant certiorari.


text:
    No. 80-791.
    Blitstein v. United States.
   C. A. 10th Cir. Motion of National Association of Criminal Defense Lawyers, Inc., for leave to file a brief as amicus curiae granted. Certiorari denied.


text:
    No. 80-5098.
    Green v. Oklahoma.
   Ct. Crim. App. Okla. Certiorari denied.

Justice Brennan, Justice Marshall, and Justice Blackmun would grant certiorari.


text:
    No. 80-5307.
    Livingston v. Oklahoma et al.
   Ct. Crim. App. Okla. Certiorari denied.

Justice Brennan, Justice Marshall, and Justice Blackmun would grant certiorari.


author: Justice Brennan and Justice Marshall,

text:
    No. 80-5520.
    No. 80-5565.
    No. 80-5605.
    No. 80-5644.
    No. 80-5672.
    No. 80-5674.
    No. 80-5715.
    No. 80-5751.
    No. 80-5778.
    Massie v. Sumner, Warden. Williams v. Louisiana. Shriner v. Florida. Peek v. Zant, Warden. Collins v. Georgia. Hamilton v. Georgia. Clark v. Louisiana. Baldwin v. Louisiana. Wilson v. Georgia.
   C. A. 9th Cir.;

Sup. Ct. La.;

Sup. Ct. Fla.;

Sup. Ct. Ga.;

Sup. Ct. Ga.;

Sup. Ct. Ga.;

Sup. Ct. La.;

Sup. Ct. La.; and

Sup. Ct. Ga. Certiorari denied. No. 80-5565 Reported below: No. 80-5520, 624 F. 2d 72; 383 So. 2d 369; No. 80-5605, 386 So. 2d 525; No. 80-5672, 246 Ga. 261, 271 S. E. 2d 352; No. 80-5674, 246 Ga. 264, 271 S. E. 2d 173; No. 80-5715, 387 So. 2d 1124 and 389 So. 2d 1335; No. 80-5751, 388 So. 2d 664; No. 80-5778, 246 Ga. 62, 268 S. E. 2d 895.

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. 79-1820.
    No. 79-1857.
    No. 79-2047.
    No. 79-6704.
    No. 79-6715.
    No. 79-6872.
    No. 79-6873.
    Badger v. United States et al., Alcoa Steamship Co., Inc. v. M/V Nordic Regent et al., Simmons v. Iowa et al., Westbrook v. Balkcom, Warden, Culberson v. Mississippi, Thomas v. Muskie, Secretary of State, et al., Thomas v. Muskie, Secretary of State, et al.,
   ante, p. 889;

ante, p. 890;

ante, p. 842;

ante, p. 999;

ante, p. 986;

ante, p. 982; and

ante, p. 982. Petitions for rehearing denied.


text:
    No. 79-6884.
    No. 80-137.
    No. 80-166.
    No. 80-296.
    No. 80-313.
    No. 80-321.
    No. 80-322.
    No. 80-334.
    No. 80-344.
    No. 80-345.
    No. 80-438.
    No. 80-556.
    No. 80-5061.
    No. 80-5151.
    No. 80-5256.
    No. 80-5308.
    No. 80-5356.
    No. 80-5357.
    No. 80-5384.
    Fair v. Georgia, Department of Transportation and Development of Louisiana v. Beaird-Poulan, Inc., Colby v. Harris, Secretary of Health and Human Services, Empresas Electronicas Walser, Inc., et al. v. United States, Sutton v. Joint Bar Association Grievance Committee for the Second and Eleventh Judicial Districts, Stone et al. v. Graham, Superintendent of Public Instruction of Kentucky, Korn v. Ohio, Silverman v. United States, Quinault Pacific Corp. et al. v. Aetna Business Credit, Inc., et al., Quinault Pacific Corp. et al. v. Aetna Business Credit, Inc., et al., Graydon v. Pasadena Redevelopment Agency et al. (Hahn, Inc., Real Party in Interest), Central Liquor Co. et al. v. United States, O’Connor et ux. v. Palludan Corp., Baun v. Civiletti, Attorney General, et al., Sanders et al. v. Hankins, Becker v. Evans, Blakney v. School District of Philadelphia, Blakney v. School District of Philadelphia, Woodard v. Wachovia Bank & Trust Co. et al.,
   ante, p. 986;

ante, p. 971;

ante, p. 900;

ante, p. 953;

ante, p. 944;

ante, p. 39;

ante, p. 944;

ante, p. 954;

ante, p. 954;

ante, p. 954;

ante, p. 983;

ante, p. 1022;

ante, p. 944;

ante, p. 957;

ante, p. 959;

ante, p. 944;

ante, p. 985;

ante, p. 985; and

ante, p. 996. Petitions for rehearing denied.


text:
    No. 80-5404.
    No. 80-5406.
    No. 80-5407.
    No. 80-5408.
    No. 80-5427.
    No. 80-5440.
    No. 80-5528.
    No. 80-5529.
    No. 80-5532.
    Pana v. Cuyler et al., Johl v. Perkins, Patterson v. Mercer et al., Peters v. Bank of America National Trust & Savings Assn. et al., Roberts v. McCoy et al., Shao Fen Chin, Administrator v. St. Luke’s Hospital Center et al., Conrad v. Rodino, Member of Congress, et al., Conrad v. Carter, President of the United States, et al., Mahl v. Board of Trustees of Fire Fighters Pension and Relief Fund for the City of New Orleans,
   ante, p. 961;

ante, p. 996;

ante, p. 996;

ante, p. 996;

ante, p. 977;

ante, p. 988;

ante, p. 977;

ante, p. 977; and

ante, p. 1019. Petitions for rehearing denied.


text:
    No. 80-337.
    Roberts v. Sears, Roebuck & Co.,
   ante, p. 975. Petition for rehearing denied.

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


text:
    No. 79-1750.
    No. 80-297.
    Fingar v. Seaboard Coast Line Railroad Co., Holding v. BVA Credit Corp. et al.,
   ante, p. 887; and

ante, p. 975. Petitions for rehearing denied.

Justice Powell took no part in the consideration or decision of these petitions.


text:
    No. 79-6562.
    No. 79-6727.
    Kulwiec v. Air Line Pilots Assn., Kulwiec v. United Air Lines, Inc.,
   ante, p. 850; and

ante, p. 858. Motion for leave to file petition for rehearing denied.


text:
    January 19, 1981

      No. 80-806.
    Drociak v. Supreme Court of New Hampshire.
   Appeal from Sup. Ct. N. H. dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for writ of certiorari, certiorari denied.


text:
    No. 80-431.
    McAlpin et al. v. Armstrong, Receiver, et al.
   C. A. 2d Cir. Certiorari granted, judgment vacated, and case remanded with instructions that the appeal be dismissed. Firestone Tire & Rubber Co. v. Risjord, ante, p. 368.


text:
    No. A-576.
    O’Hair et al. v. Cooke et al.
   C. A. 5th Cir. Application for a temporary injunction, addressed to Justice Brennan and referred to the Court, denied.


text:
    No. D-199.
    In re Disbarment of Fischer.
   Disbarment entered. [For earlier order herein, see ante, p. 989.]


text:
    No. D-204.
    In re Disbarment of Schlater.
   Disbarment entered. [For earlier order herein, see ante, p. 989.]


text:
    No. D-214.
    In re Disbarment of Toomey.
   It is ordered that Regis Lee Toomey of Houston, Tex., be suspended from the practice of law in this Court and that a rule issue, returnable within 40 days, requiring him to show cause why he should not be disbarred from the practice of law in this Court.


text:
    No. D-210.
    In re Disbarment of Burka.
   Disbarment entered. [For earlier order herein, see ante, p. 990.]


text:
    No. D-215.
    In re Disbarment of Long.
   It is ordered that George Wayne Long of San Antonio, Tex., be suspended from the practice of law in this Court and that a rule issue, returnable within 40 days, requiring him to show cause why he should not be disbarred from the practice of law in this Court.


text:
    No. D-216.
    In re Disbarment of Mehta.
   It is ordered that Mahendra R. Mehta of Chicago, Ill., 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-217.
    In re Disbarment of Douglas.
   It is ordered that George R. Douglas, Jr., of Bethesda, 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. 83,
    Orig.
    Maryland et al. v. Louisiana.
   Motion of Columbia Gas Transmission Corp. et al. for leave to file a response to Louisiana’s reply granted.

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

[For earlier order herein, see, e. g., ante, p. 1058.]


text:
    No. 79-1144.
    Texas Industries, Inc. v. Radcliff Materials, Inc., et al.
   C. A. 5th Cir. [Certiorari granted, ante, p. 949.] Motion of the Solicitor General for leave to participate in oral argument as amicus curiae and for additional time for oral argument granted, and 10 additional minutes allotted for that purpose. Petitioner also allotted an additional 10 minutes for oral argument. Motion of Mead Corp. for leave to participate in oral argument as amicus curiae denied.


text:
    No. 79-1711.
    No. 79-1754.
    No. 79-1760.
    No. 80-12.
    Middlesex County Sewerage Authority et al. v. National Sea Clammers Assn. et al.; Joint Meeting of Essex and Union Counties v. National Sea Clammers Assn. et al; City of New York et al. v. National Sea Clammers Assn. et al.; and Environmental Protection Agency et al. v. National Sea Clammers Assn. et al.
   C. A. 3d Cir. [Cer-tiorari granted, ante, p. 917.] Motion of petitioners in No. 79-1754 for additional time for oral argument and for designation of counsel to argue on behalf of the nonfederal parties denied. Motion of petitioners in No. 79-1711 for designation of counsel to argue on behalf of the nonfederal parties denied.


text:
    No. 79-1777.
    Complete Auto Transit, Inc., et al. v. Reis et al.
   C. A. 6th Cir. [Certiorari granted, ante, p. 898.] Motion of American Federation of Labor and Congress of Industrial Organizations for leave to file a brief as amicus curiae granted.


text:
    No. 79-1944.
    J. Truett Payne Co., Inc. v. Chrysler Motors Corp.
   C. A. 5th Cir. [Certiorari granted, ante, p. 819.] Motion of Cessna Aircraft Co. for leave to file a brief as amicus curiae granted.


text:
    No. 80-180.
    McDaniel et al. v. Sanchez et al.
   C. A. 5th Cir. [Certiorari granted, ante, p. 898.] Motions of Lawyers’ Committee for Civil Rights Under Law and American Civil Liberties Union for leave to file briefs as amici curiae granted. Motion of the Solicitor General for divided argument granted.


text:
    No. 80-429.
    County of Washington, Oregon, et al. v. Gunther et al.
   C. A. 9th Cir. [Certiorari granted, ante, p. 950.] Motion of American Society for Personnel Administration for leave to file a brief as amicus curiae granted.


text:
    No. 80-827.
    Scanlon, Secretary of Education of Pennsylvania v. Battle et al.
   C. A. 3d Cir. The Solicitor General is invited to file a brief in this case expressing the views of the United States.


text:
    No. 80-5116.
    Jenkins v. Brewer.
   C. A. 7th Cir. [Cer-tiorari granted, ante, p. 981.] Motions of John Howard Association and National Prison Project et al. for leave to file briefs as amici curiae granted.


text:
    No. 80-5782.
    No. 80-5805.
    In re Lohmann; and In re Watkins.
   Petitions for writs of mandamus denied.


text:
    No. 78-1789.
    Arkansas Louisiana Gas Co. v. Hall et al.
   Sup. Ct. La. Certiorari granted.

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


text:
    No. 80-148.
    Robbins v. California.
   Ct. App. Cal., 1st App. Dist. Certiorari granted.


text:
    No. 80-780.
    Rowan Cos., Inc. v. United States.
   C. A. 5th Cir. Certiorari granted.


text:
    No. 80-795.
    Heffron, Secretary and Manager of the Minnesota State Agricultural Society Board of Managers, et al. v. International Society for Krishna Consciousness, Inc., et al.
   Sup. Ct. Minn. Certiorari granted.


text:
    No. 80-328.
    New York v. Belton.
   Ct. App. N. Y. Motion of respondent for leave to proceed in forma pauperis and certiorari granted.


text:
    No. 80-289.
    No. 80-692.
    United Mine Workers of America, Local No. 1854, et al. v. National Labor Relations Board et al.; and National Labor Relations Board v. Amax Coal Co., a division of Amax, Inc., et al.
   C. A. 3d Cir. Certiorari in No. 80-289 granted limited to Question 1 presented by the petition. Certiorari in No. 80-692 granted. Cases consolidated and a total of one hour allotted for oral argument. Reported below: 6.14 F. 2d 872.


text:
    No. 80-315.
    No. 80-392.
    South Pacific Co. (Pacific Lines) v. Richins et al.; and Brotherhood of Railway Carmen of the United States and Canada et al. v. Richins et al.
   C. A. 10th Cir. Certiorari denied. Reported below: 620 F. 2d 761.


text:
    No. 80-386.
    American Jewish Congress et al. v. New York State Human Rights Appeal Board et al.
   App. Div., Sup. Ct. N. Y., 1st Jud. Dept. Certiorari denied.


text:
    No. 80-446.
    Union Pacific Railroad Co. v. Fletcher.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 80-470.
    No. 80-478.
    No. 80-480.
    Air Line Pilots Assn., International, AFL-CIO v. Trans International Airlines, Inc.; International Brotherhood of Teamsters, Airline Division, et al. v. Trans International Airlines, Inc.; and Trans International Airlines, Inc. v. International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, Airline Division, et al.
   C. A. 9th Cir. Certiorari denied. Reported below: 650 F. 2d 949.


text:
    No. 80-516.
    Air Line Pilots Assn., International v. Stevens et al.
   Ct. App. D. C. Certiorari denied.


text:
    No. 80-547.
    Wallin et ux. v. City of Port Townsend et al.
   Ct. App. Wash. Certiorari denied.


text:
    No. 80-557.
    Rich v. Florida; and Roth v. Florida.
   Dist. Ct. App. Fla., 2d Dist. Certiorari denied.


text:
    No. 80-577.
    Hogan & Hartson et al. v. International Controls Corp.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 80-603.
    No. 80-677.
    No. 80-678.
    Baker v. United States; Turnipseed et al. v. United States; and Farris et al. v. United States.
   C. A. 9th Cir. Certiorari denied. Reported below: 624 F. 2d 890.


text:
    No. 80-622.
    Ajlouny v. United States.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 80-633.
    Hackenberger, dba Ron’s Trucking Service v. National Labor Relations Board.
   C. A: 6th Cir. Certiorari denied.


text:
    No. 80-676.
    Shargel, Attorney on behalf of Aloi v. Fenton, Warden, et al.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 80-699.
    Wells v. Commissioner of Internal Revenue.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 80-717.
    Kiss v. Monmouth County Welfare Board.
   Super. Ct. N. J., App. Div. Certiorari denied.


text:
    No. 80-719.
    Hanshaw v. California.
   Ct. App. Cal., 4th App. Dist. Certiorari denied.


text:
    No. 80-727.
    Greaves et ux. v. Department of Revenue of Oregon.
   Sup. Ct. Ore. Certiorari denied.


text:
    No. 80-731.
    Upjohn Co. v. Timm et vir.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 80-732.
    Rucker Co. v. Shell Oil Co. et al.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 80-750.
    Wardle v. Central States, Southeast and Southwest Areas Pension Fund.
   C. A. 7th Cir. Certio-rari denied.


text:
    No. 80-752.
    Carney v. California et al.
   Ct. App. Cal., 2d App. Dist. Certiorari denied.


text:
    No. 80-753.
    Moeller v. Browne et al.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 80-761.
    Frito-Lay, Inc. v. Local Union No. 137, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, et al.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 80-762.
    Williams v. United States.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 80-772.
    Environmental Defense Fund, Inc. v. Costle, Administrator, Environmental Protection Agency.
   C. A. D. C. Cir. Certiorari denied.


text:
    No. 80-783.
    Park County, Montana, et al. v. United States et al.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 80-789.
    Hayden v. Florida.
   Dist. Ct. App. Fla., 2d Dist. Certiorari denied.


text:
    No. 80-793.
    Dixilyn Corp. v. Rodrigue.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 80-797.
    Hart v. Mayor of Baltimore et al.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 80-810.
    Garcia v. Gloor et al.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 80-915.
    Schaffer v. United States et al.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 80-923.
    Moore et al. v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 80-925.
    Rosenthal v. United States.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 80-5428.
    Bowleg v. United States.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 80-5433.
    Miller v. Pennsylvania.
   Sup. Ct. Pa. Certiorari denied.


text:
    No. 80-5475.
    Passaro v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 80-5555.
    Kramer v. Hopper, Warden, et al.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 80-5569.
    England v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 80-5591.
    Palmer v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 80-5659.
    Berry v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 80-5661.
    Johnson v. United States.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 80-5717.
    Wagner v. Ohio.
   Sup. Ct. Ohio. Certiorari denied.


text:
    No. 80-5741.
    Gamble v. Hess, Warden, et al.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 80-5746.
    White v. United States.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 80-5747.
    Stiehl v. Texas.
   Ct. Crim. App. Tex. Certiorari denied.


text:
    No. 80-5748.
    Couch v. Kentucky.
   Sup. Ct. Ky. Certiorari denied.


text:
    No. 80-5750.
    Murtaugh v. Smith, Warden.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 80-5762.
    London v. California.
   Ct. App. Cal., 1st App. Dist. Certiorari denied.


text:
    No. 80-5765.
    Jacox v. Memphis City Board of Education et al.
   Ct. App. Tenn. Certiorari denied.


text:
    No. 80-5767.
    White v. Wyrick, Warden, et al.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 80-5773.
    Mason v. Edmisten, Attorney General of North Carolina.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 80-5777.
    Hobson v. Western Airlines et al.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 80-5798.
    Wallace v. City of Rocky River et al.
   Ct. App. Ohio, Cuyahoga County. Certiorari denied.


text:
    No. 80-5812.
    Cosey et al. v. Illinois.
   App. Ct. Ill., 1st Dist. Certiorari denied.


text:
    No. 80-5853.
    Wallace v. McCrone et al.
   Ct. App. Ohio, Cuyahoga County. Certiorari denied.


text:
    No. 80-5877.
    Shores v. Director, United States Parole Commission.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 80-5882.
    Hall v. United States.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 80-5885.
    Jones v. Maryland.
   Ct. App. Md. Certiorari denied.


text:
    No. 80-474.
    Procter & Gamble Manufacturing Co. v. Fisher.
   C. A. 5th Cir. Certiorari denied.

The Chief Justice would grant certiorari.

Justice Rehnquist,

dissenting.

The decision by the Court of Appeals for the Fifth Circuit in this case seriously undermines our recent decision in Teamsters v. United States, 431 U. S. 324 (1977), and accordingly I would grant certiorari.

Respondent, a black employee of petitioner, filed this Title VII action on July 15, 1974, alleging that petitioner discriminated against black employees in promotion decisions at its Dallas, Tex., plant. Pursuant to the provisions of a collective-bargaining agreement, promotions at the plant are based on seniority when the ability and merit of competing employees are approximately equal. For most jobs at the plant, ability and merit are determined by evaluating work performance, absentee record, disciplinary history, and medical condition. Promotion to certain “critical” jobs is governed by the results of an evaluation system known as the “total assessment process,” involving examinations, interviews, and questionnaires. Employees bidding for promotion to one of the critical jobs are ranked, pursuant to this process, as “strong,” “acceptable,” “borderline,” or “weak.” The promotion is awarded to the most senior bidder receiving an “acceptable” rating.

In an opinion filed one month prior to our decision in Teamsters, the District Court concluded that petitioner’s seniority system was not bona fide under § 703 (h) of Title VII, 42 U. S. C. § 2000e-2 (h), and that petitioner had discriminated against respondent and the class he represented. In Teamsters, however, we held that an otherwise valid seniority system did not lose its bona fide character simply because its operation may perpetuate past discrimination. On appeal after Teamsters, the Court of Appeals acknowledged that the District Court had erred and that petitioner’s seniority system was' bona fide and legally valid under § 703 (h). 613 F. 2d 527, 542. The court nonetheless “saved” the District Court decision on the ground that it was based not only on the existence of a seniority system which perpetuated past acts of discrimination but also on a finding of active, current discrimination. The support for this finding consisted of statistical evidence demonstrating that black employees “are marked by their conspicuous presence in the 'lower echelons’ of the employee hierarchy.” Id., at 543.

The difficulty with the lower court’s reliance on this statistical evidence of disparate impact to support the ultimately required finding of discriminatory intent is that the court completely failed to consider the effect of the bona fide seniority system on the significance of the statistics. All of the nonmanagement employees with seniority dates predating July 1, 1966, are white. As of January 1, 1977, there were 239 white employees at the plant with more seniority than the most senior black employee. App. to Pet. for Cert. 40a. Thus, despite the highly successful efforts of petitioner to hire blacks the normal operation of the seniority system for promotion results, at least for the present, in the statistical evidence of disparate impact relied upon by the Court of Appeals.

In Teamsters we stressed that “the unmistakable purpose of § 703 (h) was to make clear that the routine application of a bona fide seniority system would not be unlawful under Title VII . . . even where the employer’s pre-Act discrimination resulted in whites having greater existing seniority rights than Negroes.” 431 U. S., at 352. See also California Brewers Assn. v. Bryant, 444 U. S. 598, 600 (1980). Here, however, the Court of Appeals has premised a Title VII violation on just such a routine application. Surely little is left of Teamsters or indeed § 703 (h) if the results of the normal operation of a concededly bona fide seniority system may be used as proof of discrimination. In such a case the employer is found liable not for present racial discrimination but for complying with a seniority system. This is directly contrary to the intent of Congress, embodied in § 703 (h), and the opinion of this Court interpreting that provision in Teamsters.

Although statistical evidence of disparate impact in promotions may be a sign of intentional discrimination in some cases, it is not when the statistics are based on the operation of a bona fide seniority system or reflect other nondiscriminatory factors. This has been recognized by other courts employing a more sensitive approach to statistical evidence than that used by the court below. For example, in an opinion remanding a District Court decision for reconsideration in light of Teamsters, the Court of Appeals for the Sixth Circuit recognized that “[wjhile the plantiffs introduced into evidence . . . statistical exhibits . . . that indicated blacks were underrepresented in the better-paying jobs, . . . the statistical differences must be discounted to the extent they are simply a reflection of the impact of the bona fide seniority system . . . Alexander v. Aero Lodge No. 735, 565 F. 2d 1364, 1382 (1977), cert. denied, 436 U. S. 946 (1978). See also Movement for Opportunity and Equality v. General Motors Corp., 622 F. 2d 1235, 1244-1245 (CA7 1980).

This Court has recognized that “[statistical analyses have served and will continue to serve an important role as one indirect indicator of racial discrimination . . . Mayor of Philadelphia v. Educational Equality League, 415 U. S. 605, 620 (1974). The blind use of statistics, however, cannot be permitted to undermine the policies of Congress or erode our decisions on substantive law. Disraeli’s familiar statement that “there are three kinds of lies: lies, damned lies and statistics,” rings true in this case. Because of the growing importance of statistical evidence and the apparent misuse of it below, I would grant certiorari.

       This provides, in pertinent part:
      “[I]t shall not be an unlawful employment practice for an employer to apply different standards of compensation, or different terms, conditions, or privileges of employment pursuant to a bona fide seniority . . . system, . . . provided that such differences are not the result of an intention to discriminate because of race . . . .”

       In 1966, 0.5% of petitioner’s employees at the Dallas plant were black. As of 1977 this figure had risen to 14.7%, surpassing the percentage of blacks in the area’s total work force (12.8%). App. to Pet. for Cert. 40a.


text:
    No. 80-613.
    Shoshone Tribe et al. v. Dry Creek Lodge, Inc., et al.
   C. A. 10th Cir. Motion of Pueblo of Cochiti et al. for leave to file a brief as amici curiae granted. Cer-tiorari denied.

Justice Brennan, Justice Marshall, and Justice Blackmun would grant certiorari.


text:
    No. 80-5708.
    Brown v. Florida.
   Sup. Ct. Fla. 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 certiorari and vacate the death sentence in this case.


text:
    No. 79-6341.
    No. 79-6436.
    No. 79-6615.
    No. 80-421.
    No. 80-5103.
    No. 80-5172.
    No. 80-5215.
    No. 80-5264.
    Martin v. Louisiana, Ray v. Sowders, Reformatory Superintendent, Drake v. Zant, Warden, Foxman et ux. v. Renison, Downs v. Florida, Cole v. Stevenson, Correctional Superintendent, et al., Dampier v. Georgia, Montgomery v. National Multiple Sclerosis Society,
   ante, p. 998;

446 U. S. 969;

ante, p. 999;

ante, p. 993;

ante, p. 976;

ante, p. 1004;

ante, p. 938; and

ante, p. 922. Petitions for rehearing denied.


text:
    January 26, 1981
    No. 80-669.
    Benson Reality Corp. et al. v. Koch, Mayor of New York City, et al.
   Appeal from Ct. App. N. Y. dismissed for want of substantial federal question.


text:
    No. 80-897.
    Young v. Park et al.
   Appeal from Sup. Ct. R. I. 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. 78-1577.
    Sears, Roebuck & Co. v. County of Los Angeles et al.
   Ct. App. Cal., 2d App. Dist. [Certiorari granted, 444 U. S. 823. ] Judgment affirmed by an equally divided Court.

Justice Stewart took no part in the consideration or decision of this case.


text:
    No. A-600.
    Rhoades et al. v. Arkansas.
   Ct. App. Ark. Application for stay, addressed to Justice Brennan and referred to the Court, denied.


text:
    No. A-601.
    Partido Nuevo Progresista et al. v. Perez, Administrator, Puerto Rico Elections Commission, et al.
   Application for recall and stay of the mandate of the United States Court of Appeals for the First Circuit, presented to Justice Brennan, and by him referred to the Court, denied.


text:
    No. A-622 (80-1058).
    Hampton Roads Shipping Assn. et al. v. International Longshoremen’s Assn. et al.
   C. A. 4th Cir. Application for stay, presented to The Chief Justice, and by him referred to the Court, denied.


text:
    No. D-218.
    In re Disbarment of Kaufman.
   It is ordered that Sidney B. Kaufman of Westfield, N. J., be suspended from the practice of law in this Court and that a rule issue, returnable within 40 days, requiring him to show cause why he should not be disbarred from the practice of law in this Court.


text:
    No. 79-1144.
    Texas Industries, Inc. v. Radcliff Materials, Inc., et al.
   C. A. 5th Cir. [Certiorari granted, ante, p. 949.] Motion of River Cement Co. for leave to file a brief as amicus curiae granted.


text:
    No. 79-1711.
    No. 79-1754.
    No. 79-1760.
    No. 80-12.
    Middlesex County Sewerage Authority et al. v. National Sea Clammers Assn. et al.; Joint Meeting of Essex and Union Counties v. National Sea Clammers Assn. et al.; City of New York et al. v. National Sea Clammers Assn. et al.; and Environmental Protection Agency et al. v. National Sea Clammers Assn. et al.
   C. A. 3d Cir. [Certiorari granted, ante, p. 917.] Motion of respondents National Sea Clammers Association and Gosta Lovgren for divided argument denied.


text:
    No. 80-120.
    St. Martin Evangelical Lutheran Church et al. v. South Dakota.
   Sup. Ct. S. D. [Certiorari granted, ante, p. 950.] Motion of the Solicitor General for leave to participate in oral argument as amicus curiae and for additional time for oral argument granted, and 10 additional minutes allotted for that purpose. Motion of Alabama and Nevada for leave to participate in oral argument as amici curiae granted, and 10 additional minutes allotted for that purpose.


text:
    No. 80-207.
    No. 80-213.
    No. 80-214.
    CBS, Inc. v. Federal Communications Commission et al.; American Broadcasting Cos., Inc. v. Federal Communications Commission et al.; and National Broadcasting Co., Inc. v. Federal Communications Commission et al.
   C. A. D. C. Cir. [Certiorari granted, ante, p. 950.] Motion of petitioner CBS, Inc., for divided argument granted.


text:
    No. 80-5.
    McCarty v. McCarty.
   Ct. App. Cal., 1st App. Dist. [Probable jurisdiction postponed, ante, p. 917.] Motion of National Organization for Women Legal Defense and Education Fund et al. for leave to file a brief as amici curiae granted.


text:
    No. 80-332.
    Rhodes, Governor of Ohio, et al. v. Chapman et al.
   C. A. 6th Cir. [Certiorari granted, ante, p. 951.] Motion of American Medical Association et al. for leave to file a brief as amici curiae granted.


text:
    No. 80-495.
    Lester et ux. v. Anderson, Executrix.
   Ct. App. La., 3d Cir. The Solicitor General is invited to file a brief in this case expressing the views of the United States.


text:
    No. 80-5303.
    Beltran v. Myers, Director, California State Department of Health, et al.
   C. A. 9th Cir. [Certiorari granted, ante, p. 951.] Motion of petitioner for summary reversal and remand in part, and for vacation and remand in part due to intervening legislation, denied.


text:
    No. 80-5981.
    In re Wood.
   Petition for writ of habeas corpus denied.


text:
    No. 80-5820.
    No. 80-5839.
    No. 80-5847.
    In re McDonald; In re McCallum; and In re Huskey.
   Petitions for writs of mandamus denied.


text:
    No. 80-850.
    Jones, Warden v. Helms.
   Appeal from C. A. 5th Cir. Motion of appellee for leave to proceed in forma pauperis granted. Probable jurisdiction noted.


text:
    No. 80-901.
    Marshall, Secretary of Labor v. Dewey et al.
   Appeal from D. C. E. D. Wis. Probable jurisdiction noted.


text:
    No. 80-710.
    United Association of Journeymen & Apprentices of the Plumbing & Pipefitting Industry of the United States and Canada, AFL-CIO, et al. v. Local 334, United Association of Journeymen & Apprentices of the Plumbing & Pipefitting Industry of the United States and Canada, et al.
   C. A. 3d Cir. Certiorari granted.


text:
    No. 80-756.
    Harris, Secretary of Health and Human Services, et al. v. Gray Panthers.
   C. A. D. C. Cir. Certiorari granted.


text:
    No. 80-802.
    National Gerimedical Hospital and Gerontology Center v. Blue Cross of Kansas City et al.
   C. A. 8th Cir. Certiorari granted.


text:
    No. 80-808.
    United States v. Turkette.
   C. A. 1st Cir. Certiorari granted.


text:
    No. 80-5392.
    Howe v. Civiletti, Attorney General, et al.
   C. A. 2d Cir. Motion of petitioner for leave to proceed in forma pauperis and certiorari granted.


text:
    No. 79-1426.
    Bankers Trust Co. v. Mallis et al.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 79-5515.
    Brown v. Mitchell, Penitentiary Superintendent.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 80-146.
    Shiffrin et al. v. Bratton et al.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 80-542.
    Schneider v. Arkansas.
   Sup. Ct. Ark. Certiorari denied.


text:
    No. 80-580.
    O’Hara et al., Guardians v. Kovens et al.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 80-584.
    Walsh, Administratrix v. Louisiana High School Athletic Assn. et al.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 80-586.
    Chevron Shipping Co. (Standard Oil Company of California) v. Baptiste.
   Ct. App. Cal., 2d App. Dist. Certiorari denied.


text:
    No. 80-596.
    O’Donnell v. Florida.
   Dist. Ct. App. Fla., 4th Dist. Certiorari denied.


text:
    No. 80-624.
    Hufstedler, Secretary of Education, et al. v. Board of Education of the City School District of the City of New York et al.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 80-667.
    Wittenberg et al. v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 80-685.
    Thrif-Tee, Inc. v. United States.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 80-709.
    Badwan et al. v. United States.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 80-720.
    Assure Competitive Transportation, Inc. v. United States et al.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 80-726.
    In re Yengo.
   Sup. Ct. N. J. Certiorari denied.


text:
    No. 80-735.
    Bellingham Frozen Foods, Inc. v. National Labor Relations Board.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 80-821.
    Johnston et al. v. Silva et al.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 80-831.
    Bronner v. Fulton et al.
   Sup. Ct. Ala. Certiorari denied.


text:
    No. 80-834.
    Highlanders, Inc., et al. v. Rothman, Trustee.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 80-836.
    Simmons v. Georgia.
   Sup. Ct. Ga. Certiorari denied.


text:
    No. 80-838.
    Evans et al. v. Central Piedmont Community College.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 80-842.
    Kelly v. Virginia.
   Sup. Ct. Va. Certiorari denied.


text:
    No. 80-849.
    Jefferson Trucking Co., Inc. v. Chauffeurs, Teamsters, Warehousemen & Helpers, Local Union No. 135.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 80-857.
    McQueeney v. Glenn et al.
   Ct. App. Ind. Certiorari denied.


text:
    No. 80-861.
    No. 80-886.
    Bagnall et al. v. Air Line Pilots Assn., International, et al.; and Air Line Pilots Assn., International v. Bagnall et al.
   C. A. 4th Cir. Certiorari denied. Reported below: 626 F. 2d 336.


text:
    No. 80-896.
    Avnet v. Avnet
   Ct. Sp. App. Md. Certiorari denied.


text:
    No. 80-908.
    Village of Hoffman Estates v. Village of Barrington Hills et al.
   Sup. Ct. Ill. Certiorari denied.


text:
    No. 80-5445.
    Marshall v. Oklahoma.
   Ct. Crim. App. Okla. Certiorari denied.


text:
    No. 80-5452.
    Lacy v. Local 287, United Automobile, Aerospace & Agricultural Implement Workers of America, et al.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 80-5467.
    Cornell v. Iowa.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 80-5468.
    Gentry v. Utah.
   Sup. Ct. Utah. Certiorari denied.


text:
    No. 80-5472.
    Collins v. Blackburn, Warden.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 80-5490.
    Flemister v. Johnson et al.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 80-5525.
    Mazus v. Department of Transportation of Pennsylvania et al.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 80-5548.
    Galvez-Diaz v. McCarthy, Warden.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 80-5573.
    Cuthbertson et al. v. CBS, Inc.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 80-5578.
    Peister v. United States.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 80-5581.
    Steele v. United States.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 80-5586.
    Hill v. United States.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 80-5600.
    Farber v. United States.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 80-5608.
    Sanders v. United States.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 80-5613.
    Williams v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 80-5615.
    Farmer v. Bordenkircher, Warden.
   Sup. Ct. App. W. Ya. Certiorari denied.


text:
    No. 80-5638.
    Anyamele v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 80-5707.
    Poarch v. Virginia.
   Sup. Ct. Va. Certiorari denied.


text:
    No. 80-5764.
    Pope v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 80-5779.
    Ciraolo v. United States.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 80-5783.
    Watkins v. Oklahoma.
   Ct. Crim. App. Okla. Certiorari denied.


text:
    No. 80-5785.
    Wood v. Wainwright.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 80-5787.
    Wilson v. United States District Court for the Eastern District of Kentucky.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 80-5789.
    Schlemm v. Illinois.
   App. Ct. Ill., 4th Dist. Certiorari denied.


text:
    No. 80-5794.
    Meier v. Pearlman et al.
   Ct. App. Ind. Certiorari denied.


text:
    No. 80-5808.
    Oliver v. Marks, Corrections Commissioner, et al.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 80-5809.
    Bonds-El v. Anderson, Warden.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 80-5819.
    McCrary v. United States.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 80-5830.
    Dunk et ux. v. Manufacturers Light & Heat Co.
   Sup. Ct. Pa. Certiorari denied.


text:
    No. 80-5841.
    Shaffner v. Sowders, Penitentiary Superintendent.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 80-5870.
    Clark v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 80-5876.
    Alexander v. Bordenkircher, Warden.
   Sup. Ct. App. W. Va. Certiorari denied.


text:
    No. 80-5893.
    Harrison v. LeFevre, Warden.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 80-5906.
    Yin-Ho Wong v. Civiletti, Attorney General, et al.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 80-5907.
    Vander Pauwert v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 80-5927.
    Hampton v. United States.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 80-5928.
    Sanders v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 80-5929.
    Sandoval-Castano v. United States.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 80-5931.
    Flood v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 80-5940.
    Walton v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 80-5943.
    Willis et al. v. United States.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 80-5946.
    Goodman v. United States.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 80-5947.
    Ali v. Gibson, Commissioner of Public Safety, et al.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 80-270.
    No. 80-451.
    No. 80-452.
    Paxman et al. v. Henrico County School Board et al.; Albemarle County School Board v. Paxman; and Henrico County School Board v. Paxman et al.
   C. A. 4th Cir. Certiorari denied.

Justice Powell took no part in the consideration or decision of these petitions.

Reported below: 612 F. 2d 848.


author: Justice Brennan,

text:
    No. 80-341.
    Werneth v. Idaho.
   Sup. Ct. Idaho. Certiorari denied.

Justice Brennan,

with whom Justice Marshall joins,

dissenting.

Petitioner seeks review on double jeopardy grounds of his conviction of embezzlement by corporate officer. I would grant the petition for certiorari and reverse the judgment of the Supreme Court of Idaho.

Petitioner was initially charged with the crime of embezzlement by bailee. Idaho Code § 18-2407 (1979). At the start of the trial a jury was empaneled, witnesses were sworn, and testimony by a state witness was taken. 101 Idaho 241, 242, 611 P. 2d 1026, 1027 (1980). Jeopardy had clearly attached. Crist v. Bretz, 437 U. S. 28, 38 (1978).

The State then moved to amend the information to charge the additional crime of embezzlement by corporate officer. Idaho Code § 18-2402 (1948). Defense counsel opposed the motion and the trial judge sustained the objection. The State then moved to dismiss the original charge, embezzlement by bailee, and after defense counsel stated and then withdrew his objection, the trial judge dismissed that charge.

Four days later, petitioner was charged with the crime of embezzlement by corporate officer. The charge was based on the same transaction which had given rise to the dismissed charge. Petitioner moved to dismiss on the ground that a new trial would violate his right against double jeopardy, but that motion was denied and petitioner was convicted. Petitioner then appealed to the Idaho Supreme Court, which affirmed the conviction. The Idaho Supreme Court did, however, reject the trial court’s finding that petitioner had consented to dismissal of the initial charge of embezzlement by bailee.

I adhere to the view that the Double Jeopardy Clause of the Fifth Amendment, applied to the States through the Fourteenth Amendment, requires the prosecution in one proceeding, except in extremely limited circumstances not present here, of “all the charges against a defendant that grow out of a single criminal act, occurrence, episode, or transaction.” Ashe v. Swenson, 397 U. S. 436, 453-454 (1970) (Brennan, J., concurring). See Clift v. Alabama, 435 U. S. 909 (1978) (Brennan, J., dissenting); Thompson v. Oklahoma, 429 U. S. 1053 (1977) (Brennan, J., dissenting), and cases collected therein. Accordingly, I would grant the petition for certiorari and reverse the judgment of the Supreme Court of Idaho.


text:
    No. 80-384.
    Marin County Democratic Central Committee v. Unger.
   Ct. App. Cal., 1st App. Dist. Certiorari denied.

Justice White would grant certiorari.


text:
    No. 80-571.
    Missouri v. Sours.
   Sup. Ct. Mo. Motion of respondent for leave to proceed in forma pauperis granted. Certiorari denied.

Justice Blackmun and Justice Rehnquist would dismiss the petition for writ of certiorari as moot.


text:
    No. 80-639.
    No. 80-651.
    Sullivan v. Perini North River Associates et al.; and Fusco v. Perini North River Associates et al.
   C. A. 2d Cir. Certiorari denied.

Justice Blackmun would grant certiorari.

Reported below: 622 F. 2d 1111.


text:
    No. 80-649.
    Edison Electric Institute et al. v. Costle, Administrator, Environmental Protection Agency.
   C. A. D. C. Cir. Certiorari denied.

Justice Stewart and Justice Powell took no part in the consideration or decision of this petition.


text:
    No. 80-675.
    Moore et al. v. Protestant Episcopal Church in the Diocese of New Jersey et al.
   Sup. Ct. N. J. Certiorari denied.

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


text:
    No. 80-887.
    Burns et al. v. Diocese of Newark et al.
   Sup. Ct. N. J. Certiorari denied.

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


text:
    No. 80-830.
    Advertiser Co. v. Fulton et al.
   Sup. Ct. Ala. Motion of South Carolina Press Association et al. for leave to file a brief as amici curiae granted. Certiorari denied.


text:
    No. 80-869.
    Hott v. Indiana.
   Ct. App. Ind. Certiorari denied.

Justice Brennan and Justice Marshall would grant certiorari.


text:
    No. 80-878.
    Olkon v. Minnesota.
   Sup. Ct. Minn. Motion of Minnesota Civil Liberties Union for leave to file a brief as amicus curiae granted. Certiorari denied.


text:
    No. 80-5161.
    Johnson v. Oklahoma.
   Ct. Crim. App. Okla. Certiorari denied.

Justice Brennan,

with whom Justice Marshall joins,

dissenting.

Petitioner was charged by information on April 1, 1975, in the District Court of Tulsa County, Okla., with the crime of kidnaping for the purpose of extortion. On April 16, 1975, he was charged in the District Court of Osage County, Okla., with the crime of murder in the first degree arising out of the same criminal episode. Following preliminary hearings in both courts, petitioner was bound over for trial. He subsequently moved for and was granted a continuance of the murder trial pending completion of his kidnaping trial.

Petitioner was found guilty of kidnaping and sentenced to 60 years in prison. Petitioner then filed a pleading in the Osage County District Court, entitled “Petition for Writ of Habeas Corpus or Petition for Writ of Prohibition or Petition for Writ of Mandamus/’ alleging, inter alia, that a trial on the first-degree murder charge would violate his federal constitutional right against multiple trials and multiple punishments embodied in the Double Jeopardy Clause of the Fifth Amendment. Before the District Court acted on his pleading, petitioner sought similar relief from the Oklahoma Court of Criminal Appeals, which was denied. The District Court later denied the requested relief.

Petitioner next filed in Osage County District Court a “Plea of Former Jeopardy,” urging that his kidnaping conviction barred the murder trial on the ground that the two crimes were not separate and distinct offenses. He also moved to strike all references to the kidnaping in the Osage County information. Although the plea and the motion were denied by the District Court, the Court of Criminal Appeals, upon application by petitioner for a writ of mandamus, vacated the trial court’s ruling, holding that the plea and motion should have been granted. The court noted, however, that the kid-naping conviction would not prohibit a subsequent prosecution for second-degree murder. Contending that a second-degree murder trial was also barred, petitioner sought a rehearing and a writ of prohibition. The Court of Criminal Appeals, after vacating its previous opinion prohibiting a trial on first-degree murder but allowing a trial on second-degree murder, denied all of petitioner’s requests for relief. Johnson v. Hampton, 572 P. 2d 1301 (1978).

On petition for certiorari, this Court granted certiorari, vacated the Court of Criminal Appeals decision, and remanded the case for further consideration in light of Brown v. Ohio, 432 U. S. 161 (1977), and Harris v. Oklahoma, 433 U. S. 682 (1977). Johnson v. Hampton, 434 U. S. 947 (1977). On remand, the Court of Criminal Appeals granted a writ of prohibition against a trial for first-degree murder. The information was subsequently amended to charge second-degree murder, and to strike all references to the kidnaping. Petitioner again sought a writ of prohibition from the Court of Criminal Appeals, alleging, inter alia, that the trial would violate the Double Jeopardy Clause. The court declined to assume jurisdiction and dismissed the writ. Petitioner then was tried and convicted of second-degree murder, and sentenced to 10 years to life. On appeal, the Court of Criminal Appeals affirmed. 611 P. 2d 1137 (1980).

I would grant the petition for certiorari and reverse the judgment of the Oklahoma Court of Criminal Appeals. I adhere to the view that the Double Jeopardy Clause of the Fifth Amendment, applied to the States through the Fourteenth Amendment, requires the prosecution in one proceeding, except in extremely limited circumstances not present here, of “all the charges against a defendant that grow out of a single criminal act, occurrence, episode, or transaction.” Ashe v. Swenson, 397 U. S. 436, 453-454 (1970) (Brennan, J., concurring). See Thompson v. Oklahoma, 429 U. S. 1053 (1977) (Brennan, J., dissenting), and cases collected therein.

      Respondent argues that petitioner waived his double jeopardy claim in the proceedings below. Respondent’s arguments are meritless.


text:
    No. 80-5514.
    Seay v. Alabama.
   Sup. Ct. Ala. Certiorari denied.

Justice Stewart would grant certiorari.


text:
    No. 80-5823.
    Dildine v. Dildine et al.
   Sup. Ct. S. C. Certiorari denied.

Justice Marshall would grant certiorari.


text:
    No. 80-5854.
    Cape v. Georgia.
   Sup. Ct. Ga. 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 certiorari and vacate the death sentence in this case.


text:
    No. 80-320.
    No. 80-391.
    No. 80-555.
    No. 80-5493.
    Costello v. Board of Appeals of the Town of Concord, Akers v. Commissioner of Internal Revenue, Cota v. County of Los Angeles et al., LeVasseur v. Hawaii,
   ante, p. 1011;

ante, p. 993;

ante, p. 1014; and

ante, p. 1018. Petitions for rehearing denied.


text:
    No. 80-5537.
    No. 80-5539.
    No. 80-5561.
    Jones v. Civiletti, Attorney General, et al., Grinan v. Giegold, Hance v. Georgia,
   ante, p. 1019;

ante, p. 1019; and

ante, p. 1067. Petitions for rehearing denied.


text:
    No. 79-6542.
    O’Hern v. Chicago Typographical Union No. 16 et al.,
   ante, p. 849. Motion for leave to file petition for rehearing denied.


text:
    February 10, 1981
    No. 79-1587.
    A/S Ivarans Rederi v. Johnson.
   C. A. 1st Cir. Certiorari dismissed under this Court’s Rule 53.


author: Justice Stevens, Circuit Justice.

text:
    O’CONNOR, BY HER PARENTS AND NEXT FRIENDS, O’CONNOR et ux. v. BOARD OF EDUCATION OF SCHOOL DISTRICT 23 et al.
    No. A-384.
    Decided November 4, 1980
   Justice Stevens, Circuit Justice.

On October 27, 1980, a panel of the United States Court of Appeals for the Seventh Circuit granted a stay pending appeal of a preliminary injunction entered by the District Court in favor of the plaintiff. Two days later, the Court of Appeals sitting en banc entered an order continuing the stay. The plaintiff has submitted to me, in my capacity as Circuit Justice, an application to vacate this stay. For the reasons explained below, I have decided not to vacate the stay entered by the Court of Appeals.

I

On October 22, 1980, plaintiff Karen O’Connor, represented by her father and her mother, filed a verified complaint and a motion for a temporary restraining order and preliminary injunction, supported by appropriate affidavits, in the United States District Court for the Northern District of Illinois. Her papers allege the following facts which, since they have not yet been denied or contradicted by countervailing affidavits or evidence, must be accepted as true.

Karen is an 11-year-old sixth-grade student at MacArthur Junior High School; she is 4'11" tall and weighs 103 pounds. For at least four years she has successfully competed with boys in various organized basketball programs. A professional basketball coach who witnessed her play with boys and girls aged 10 to 13 during the summer of 1980 rates her ability as equal to or better than a female high school sophomore player and equal to that of a male eighth-grade player.

MacArthur Junior High School is a member of the Mid-Suburban Junior High School Conference, an association of six junior high schools engaged in interscholastic athletics. MacArthur has programs for seventh-grade and for eighth-grade teams; sixth-grade students are eligible to try out for both the seventh-grade and the eighth-grade teams. Students of either sex may compete on the same teams in some noncontact sports, but Conference rules require separate teams for boys and girls for contact sports. Contact sports include “boxing, wrestling, rugby, ice hockey, football, basketball and other sports the purpose of major activity of which involves bodily contact.” See Complaint ¶ 35.

On August 27, 1980, Karen’s father requested that she be permitted to try out for the boys’ basketball teams. After a series of requests and refusals, Karen and her parents commenced this litigation, seeking both a temporary order requiring defendants to allow her to participate in the tryouts which were originally scheduled to commence on October 27, 1980, and permanent relief allowing her to play in interscholastic competition if she made either the seventh-grade or the eighth-grade team.

After an adversary hearing, on October 23, 1980, the District Court rendered an oral opinion and granted temporary relief to the plaintiff. The court held that the plaintiff had established a likelihood of success on the merits and that she would suffer irreparable injury if temporary relief was denied. The court concluded that she had a constitutionally protected interest in equal access to training and competition that would develop her athletic talents. The court rejected the two justifications presented by the defendants at the hearing.

First, without deciding whether the provision of separate but equal facilities to male and female students would avoid any constitutional objection, the District Court found that the separate programs offered by the defendants were not in fact equal because Karen’s opportunity to compete with persons of substantially lesser skill in the girls’ program was not as valuable as the opportunity to compete with those who are equal or superior to her in ability in the boys’ program.

Second, the defendants argued that if they allowed Karen to try out for the boys’ teams, they would have to allow boys to try out for the girls’ teams, and since boys generally have superior athletic ability, the boys would dominate the girls’ programs and ultimately deprive girls of a fair opportunity to engage in competitive athletics. The District Court rejected this argument, stating merely that the defendants had not persuaded it that there were no less restrictive alternatives available, other than completely separate programs classified entirely on the basis of sex.

The District Court refused to grant a stay pending appeal. As I understand the facts, defendants thereafter (1) postponed the tryouts; (2) filed an appeal from the preliminary injunction requiring them to allow Karen to try out for the boys’ teams; and (3) applied to the Court of Appeals for a stay of the District Court’s injunction. On October 27, by a vote of 2 to 1, a three-judge panel granted a stay, without opinion. On October 29, 1980, the Court of Appeals, sitting en banc, voted 5 to 3 to continue the stay pending the appeal. On October 31, 1980, the plaintiff filed her petition to vacate the stay entered by the Court of Appeals, supported by various papers filed in the District Court and the Court of Appeals. Defendants filed their response on November 3, 1980.

II

Although I have the power, acting as Circuit Justice, to dissolve the stay entered by the Court of Appeals, Holtzman v. Schlesinger, 414 U. S. 1304, 1308 (1973) (Marshall, J., in chambers), this power is to be exercised “with the greatest of caution and should be reserved for exceptional circumstances.” Ibid. A Court of Appeals’ decision to enter a stay is entitled to great deference, Commodity Futures Trading Comm’n v. British American Commodity Options Corp., 434 U. S. 1316, 1319 (1977) (Marshall, J., in chambers); such deference is especially appropriate when the Court of Appeals has acted en banc. Nevertheless, the question presented by the application is sufficiently difficult to justify careful consideration. In answering that question, I shall first identify certain propositions that seem to be adequately established.

First, there is no dispute about the fact that the defendants have acted under color of state law and that their refusal to allow Karen to try out for the boys’ teams is based solely on the fact that she is a girl. Whether or not Karen’s interest in improving her athletic skills is characterized as “fundamental” or something less, I think it is clear that the defendants have the burden of justifying a discrimination of this kind.

Second, since the burden of justification was on the defendants, at this stage of the proceeding the stay entered by the Court of Appeals cannot be upheld on grounds not yet supported by the record, even though it may remain open to the defendants to offer additional evidence at a full trial. Thus, for example, the defendants have preserved the right to offer evidence to support the proposition that the exclusion of girls from the boys’ teams is necessary to protect female athletes from harm. They were unable to present evidence supporting such a justification at the preliminary hearing, however, and therefore this justification is not available to them at this stage of this proceeding. Defendants have also made no claim that the boys’ athletic program would be harmed in any way by allowing Karen to participate. Nor have they suggested that the exclusion of Karen is necessary in order to protect Karen from harm.

Third, although the record is incomplete, plaintiff does not appear to dispute defendants’ representation that the separate athletic programs for the girls are equal to the boys’ programs in the sense that the time, money, personnel, and facilities devoted to each are equal. Defendants are therefore correct in putting to one side the cases in which a number of courts have ordered schools to allow girls to participate on boys’ teams following a showing that the girls’ programs were inferior.

Fourth, in deciding whether to vacate the stay, I have a duty to consider the potential of irreparable harm to the respective parties. Although defendants have argued to the contrary, I am persuaded that the District Court was correct in concluding that, if Karen will probably succeed on the merits, she would suffer greater harm than would the defendants by allowing her to try out for the boys’ teams. I am therefore persuaded that the stay can only be supported by the sufficiency of the defendants’ showing that there is an adequate reason for discriminating against Karen because of her sex.

In my opinion, the question whether the discrimination is justified cannot depend entirely on whether the girls’ program will offer Karen opportunities that are equal in all respects to the advantages she would gain from the higher level of competition in the boys’ program. The answer must depend on whether it is permissible for the defendants to structure their athletic programs by using sex as one criterion for eligibility. If the classification is reasonable in substantially all of its applications, I do not believe that the general rule can be said to be unconstitutional simply because it appears arbitrary in an individual case.

It seems to me that there can be little question about the validity of the classification in most of its normal applications. Without a gender-based classification in competitive contact sports, there would be a substantial risk that boys would dominate the girls’ programs and deny them an equal opportunity to compete in interscholastic events. The defendants’ program appears to have been adopted in full compliance with the regulations promulgated by the Department of Health, Education, and Welfare. Although such compliance certainly does not confer immunity on the defendants, it does indicate a strong probability that the gender-based classification can be adequately justified. At least that probability is sufficient to persuade me that I should adhere to the practice of according deference to the judgment of the majority of my colleagues on the Court of Appeals.

The application to vacate the stay is denied.

       The papers filed on behalf of Karen in this Court suggest that the defendants rescheduled the tryouts in order to deprive Karen of the opportunity to try out for the boys’ teams while the defendants sought a stay from the Court of Appeals. The defendants assert that the rescheduling was required because of the postponement, due to inclement weather, of another athletic event. Because the motive underlying the rescheduling is not relevant to the question presented here, resolution of this factual conflict is unnecessary.

       The difficulty of the question presented by the defendants’ request for a stay is illustrated by the fact that Judge Cudahy, a member of the majority of the panel which granted the stay on-October 27, dissented from the Court of Appeals’ en banc decision to continue the stay on October 29.

       In their response filed in this Court, the defendants have suggested that the girls’ basketball program will be injured if Karen is allowed to participate in the boys’ program, because the girls’ program will then be deprived of its best athlete. This justification, like the need to protect female athletes from physical or psychological harm, while plausible, is not supported by the present record. It cannot, therefore, be used as a basis for upholding the stay entered by the Court of Appeals. The fact that defendants advance this argument indicates that they regard Karen as still eligible to participate in the girls’ program even though she declined to participate in the girls’ tryouts while this matter has been pending.

       I share District Judge Marshall’s view that if attention is confined to the application of the rule to Karen — rather than to the general validity of the rule — the discrimination does appear arbitrary. In some respects, Karen’s claim is no different from that of any other sixth or seventh grader. The younger children are permitted to try out for the eighth-grade teams, but the eighth graders are excluded from the seventh-grade teams because their participation would be unfair to the younger students. The fact that an eighth grader must face competition from talented seventh graders without reciprocal rights indicates that there is no necessary reason why boys may not be required to compete with talented girls without reciprocal rights. I would also note that Karen’s claim is supported by the Court’s equal protection analysis in Caban v. Mohammed, 441 U. S. 380, 391-394 (1979); see id., at 409-412 (Stevens, J., dissenting).

       The Department of Health, Education, and Welfare, pursuant to Title IX of the Education Amendments of 1972, 20 U. S. C. § 1681, promulgated regulations designed to eliminate discrimination on the basis of sex in education programs and activities receiving federal financial assistance. One of these regulations, specifically addressing gender-based discrimination in athletic programs, provides in part:
      “[A] recipient may operate or sponsor separate teams for members of each sex where selection for such teams is based upon competitive skill or the activity involved is a contact sport. However, where a recipient operates or sponsors a team in a particular sport for members of one sex but operates or sponsors no such team for members of the other sex, and athletic opportunities for members of that sex have previously been limited, members of the excluded sex must be allowed to try-out for the team offered unless the sport involved is a contact sport. For the purposes of this part, contact sports include boxing, wrestling, rugby, ice hockey, football, basketball and other sports the purpose of major activity of which involves bodily contact.” 45 CFR §86.41 (b) (1979).


author: Justice Rehnquist, Circuit Justice.

text:
    McCARTHY, SUPERINTENDENT v. HARPER
    No. A-631.
    Decided February 3, 1981
   Justice Rehnquist, Circuit Justice.

Applicant McCarthy has requested me to stay the issuance of the mandáte of the Court of Appeals for the Ninth Circuit in this case pending his petition for certiorari on the grounds that the Court of Appeals failed to require respondent to exhaust all of his state remedies before seeking federal habeas to challenge his conviction. The Court of Appeals reversed a judgment of the United States District Court for the Central District of California dismissing respondent’s petition for habeas corpus, and in doing so it relied on its own earlier decision in Harris v. Superior Court, 500 F. 2d 1124 (1974) (en banc), cert. denied, 420 U. S. 973 (1975). Harris in turn held that a “postcard” denial of a petition for writ of habeas corpus by the California Supreme Court, without opinion or citation, constitutes a denial on the merits and therefore satisfies the exhaustion requirement.

Because I felt there was a threshold jurisdictional problem which had not been addressed by the Court of Appeals or by the applicant, I called for a response from the respondent. This document, consisting of 16 lines of text, quite candidly states that “respondent must tell the court that according to the records of the California Bureau of Prisons, Theodore Monroe Harper is no longer in prison or on parole. Respondent’s counsel did not learn this until a few days ago, -when a status letter to Mr. Harper and copies of pleadings which he had sent to his client were returned without a forwarding address. Respondent’s counsel now is unable to locate his client. As a result of this situation, it is respondent’s belief that this case may be moot and no case or controversy may be present.” Response to Application 1.

Federal habeas corpus is a civil action, and this Court has jurisdiction to consider applicant’s petition for certiorari to the Court of Appeals for the Ninth Circuit only if the case was properly appealed from the District Court to the Court of Appeals. Title 28 U. S. C. § 2253 provides in pertinent part:

“An appeal may not be taken to the court of appeals from the final order in a habeas corpus proceeding where the detention complained of arises out of process issued by a State court, unless the justice or judge who rendered the order or a circuit justice or judge issues a certificate of probable cause.”

The District Court in this case, in a judgment rendered pursuant to Federal Rule of Civil Procedure 58, stated that “It is adjudged that the Petition for Writ of Habeas Corpus is dismissed.” There is no indication that either the judge of the District Court or a circuit justice or judge has issued a certificate of probable cause in this case. As presently advised I am therefore of the opinion, which I believe would be shared by at least four of my colleagues, that the Court of Appeals was prohibited by statute from entertaining respondent’s appeal from the order of the District Court dismissing his application for a writ of habeas corpus. “Though neither party has questioned the jurisdiction of the Court of Appeals to entertain the appeal, we are obligated to do so on our own motion if a question thereto exists.” Liberty Mutual Insurance Co. v. Wetzel, 424 U. S. 737, 740 (1976). That leads me to the further conclusion that this Court would grant applicant’s petition for certiorari, and, unless it chose to ignore the above quoted provision of 28 U. S. C. § 2253, reverse the judgment of the Court of Appeals with instructions to dismiss respondent’s appeal from the order of the District Court.

If I am correct in my reasoning, the mandate of the Court of Appeals for the Ninth Circuit should be stayed pending applicant’s petition for certiorari to this Court. Because of the jurisdictional defect in the appeal, I find it unnecessary to reach applicant’s contentions respecting the correctness of the decision of the Court of Appeals for the Ninth Circuit in Harris v. Superior Court, supra.

A stay has been entered pending the timely filing of a petition for writ of certiorari by applicant, with the usual terms as to its duration.

It is so ordered.


text:
    ATIYEH, GOVERNOR OF OREGON, et al. v. CAPPS et al.
    No. A-625.
    Decided February 4, 1981
   Justice Rehnquist, Circuit Justice.

This matter has previously come before me on the application of applicant Atiyeh, Governor of Oregon, applicant Watson, administrator of the Corrections Division of the State of Oregon, and applicant Cupp, Superintendent of the Oregon State Penitentiary, on a motion for a stay of the final injunction issued by the United States District Court for the District of Oregon pending appeal to the Court of Appeals for the Ninth Circuit. I issued a temporary stay, feeling that on the basis of the application there was merit to some of the applicants’ points, but not wanting to proceed further with even my own analysis without calling for a response. I called for that response, and it has now been received.

The tests have been stated and restated as to probability of success on the merits, the probability of four Justices voting to grant certiorari, and the like as guideposts for the exercise of the function of the Circuit Justice in granting or denying stays. Because this is not an appeal from an adverse ruling of the Court of Appeals for the Ninth Circuit, from which a similar stay was sought and denied, it is not in a posture where the so-called “stay equities” can be readily evaluated, but I am satisfied in my own mind that, although it should not be nearly as frequently done as in the case of a final judgment of the court of appeals, an application to a Circuit Justice of this Court from a district court is within the contemplation of the All Writs Act, 28 U. S. C. § 1651 (a). I do not understand the respondents to contest this proposition as a matter of law. I recognize that they are correct in their statement in their response that “[t]he normal presumption is that ‘[i]n all cases, the fact weighs heavily that the lower court refused to stay its order pending appeal.’ ” Memorandum for Respondents 2. And, because an appeal from the District Court order is presently pending before the Court of Appeals for the Ninth Circuit, the rule to be followed is that “[o]rdinarily a stay application to a Circuit Justice on a matter before a court of appeals is rarely granted . . . .” Pasadena Board of Education v. Spangler, 423 U. S. 1335, 1336 (1975) (Rehnquist, J., in chambers).

Having given such time as was possible to the consideration of the lengthy and able submissions on the part of both parties, I have decided to grant the stay pending the decision of this Court in Rhodes v. Chapman, No. 80-332, presently scheduled for argument this Term, or the decision of the Court of Appeals for the Ninth Circuit pursuant to its expedited briefing schedule (whichever may come first). My reasons for doing so follow and they rest both on procedural and substantive grounds.

I find in the carefully considered opinion, findings of fact, and conclusions of law of the District Court a set of assumptions which I do not believe the Constitution warrants, and I believe that at least three other Justices of this Court would concur in my belief. The court dealt with a “maximum security prison” located in Salem, Ore., comprising 22 acres surrounded by a re-enforced concrete wall averaging 25 feet in height. Prisoners are housed in five units. One of these cellblocks was built in 1929, two in the early 1950’s, and the newest in 1964. 495 F. Supp. 802, 808 (1980). The findings of fact and conclusions of law proceed to set forth in great detail the numbers, facilities, and conditions at this prison. Some of those findings and conclusions were based on the Standards of the American Correctional Association, id., at 809, the National Sheriffs’ Association Standards, id., at 810, and the Standards of the United States Army. Ibid.

The District Court also relied on the testimony of a professor of psychology at the University of Texas at Arlington to the effect that the housing at the Salem institution is “inadequate to avoid adverse physical and mental effects.” Ibid. It also relied on the testimony of the Dean of the University of Chicago Law School that the “overcrowding” levels that exist at the institution undermine the initiative of inmates to seek self-improvement and prevent their rehabilitation. Id., at 811.

Naturally, penal officials would like to have a larger share of the State’s budget, just as would any number of other state officials administering programs mandated by the State. But there is nothing in the Constitution that says that “rehabilitation” is the sole permissible goal of incarceration, and we have only recently stated that retribution is equally permissible. See Gregg v. Georgia, 428 U. S. 153, 184, n. 30 (1976).

The District Court concluded by stating that overcrowding “exceeds the level of applicable professional standards; has increased the health risks to which inmates are exposed; has impinged on the proper delivery of medical and mental health care; has reduced the opportunity for inmates to participate in rehabilitative programs; has resulted in idleness; has produced an atmosphere of tension and fear among inmates and staff; has reduced the ability of the institutions to protect the inmates from assaults; and is likely to produce embittered citizens with heightened antisocial attitudes and behavior.” 495 F. Supp., at 813.

I think the District Court, while it may be correct in its findings of fact, and is certainly closer to the scene than a single Circuit Justice in Washington, has missed the point of several of our cases, including Price v. Johnston, 334 U. S. 266 (1948), Procunier v. Martinez, 416 U. S. 396 (1974), and Bell v. Wolfish, 441 U. S. 520 (1979). It has chosen to rely on a plurality opinion in Trop v. Dulles, 356 U. S. 86 (1958), stating in dicta that the touchstone of the Eighth Amendment is “nothing less than the dignity of man.” Id., at 100.

I find the District Court’s efforts to distinguish Bell v. Wolfish, supra, particularly unpersuasive, although I likewise realize that there is considerable difference of opinion among the Members of this Court as to the merits of that decision. The District Court states that Bell “is not controlling here” because double-celling of pretrial detainees for no more than 60 days is quite different from institutions housing people who have been convicted of crime and are sentenced to long-term confinement. But this cuts both ways: a pretrial detainee, presumably detained on probable cause but not yet having been found guilty as charged under our constitutional procedures, cannot be “punished” at all. See Bell v. Wolfish, supra. The respondents here, however, each of whom has been tried, found guilty, and sentenced to a term which turns out to be, in terms of “mean time served,” 24 months, 495 F. Supp., at 814, are in a different boat from both their perspective and society’s perspective. So far as they are concerned, they will have to endure the overcrowded conditions for a longer period of time than the pretrial detainees had to endure them in Bell v. Wolfish, supra; but from the point of view of society, the legislature has spoken through its penal statutes and its conferring of authority on the parole authorities to seriously penalize those duly convicted of crimes which it has defined as such. In short, nobody promised them a rose garden; and I know of nothing in the Eighth Amendment which requires that they be housed in a manner most pleasing to them, or considered even by most knowledgeable penal authorities to be likely to avoid confrontations, psychological depression, and the like. They have been convicted of crime, and there is nothing in the Constitution which forbids their being penalized as a result of that conviction.

It is equally well settled that prisoners have constitutional rights, and that cadena temporal, see Weems v. United States, 217 U. S. 349, 382 (1910), and conditions such as those described in the Arkansas prison system in Hutto v. Finney, 437 U. S. 678 (1978), exceed the bounds permitted the States by the Eighth and Fourteenth Amendments to the United States Constitution. It is considerations such as these with which this Court must deal in its upcoming decision and opinion in Rhodes v. Chapman, supra, a case relied upon by the District Court in its findings and conclusions when it was simply a decision of the Court of Appeals for the Sixth Circuit. I think it best, in the exercise of my function as Circuit Justice, that the District Court have the benefit of this Court’s opinion in that case before it takes over the management of the Oregon prison system.

The actual order entered by the District Court reads as follows:

“[T]he court will require that a reduction of the total population at the three facilities by 500 persons be accomplished by December 31, 1980, together with a further reduction of at least 250 by March 31, 1981. The order will not direct the state to adopt any particular methods to achieve this goal. However, to assure that progress toward that goal is being made, defendants will be ordered to report monthly, commencing on September 1, 1980, on the number of persons housed at each facility and the steps that have been taken and remain to be taken to meet the deadlines imposed.” 495 F. Supp., at 806.

In my opinion, the above order of the District Court fails to comply with Federal Rule of Civil Procedure 65 (d), which provides in relevant part:

“Every order granting an injunction and every restraining order shall set forth the reasons for its issuance; shall be specific in terms; shall describe in reasonable detail, and not by reference to the complaint or other document, the act or acts sought to be restrained . . . .”

Several years ago we stated in Schmidt v. Lessard, 414 U. S. 473 (1974):

“As we have emphasized in the past, the specificity provisions of Rule 65 (d) are no mere technical requirements. The Rule was designed to prevent uncertainty and confusion on the part of those faced with injunctive orders, and to avoid the possible founding of a contempt citation on a decree too vague to be understood ....
“The requirement of specificity in injunction orders performs a second important function. Unless the trial court carefully frames its orders of injunctive relief, it is impossible for an appellate tribunal to know precisely what it is reviewing. Gunn [v. University Committee to End the War, 399 U. S.] 383, [388 (1970)]. We can hardly begin to assess the correctness of the judgment entered by the District Court here without knowing its precise bounds. In the absence of specific injunctive relief, informed and intelligent appellate review is greatly complicated, if not made impossible.” Id., at 476-477.

The language in the order of the District Court directing the prison officials to accomplish a further reduction of “at least 250” by March 31, 1981, falls short of this specificity requirement.

For all of the above-stated reasons, and because in the normal course of events by the close of this Court's October 1980 Term a decision should be handed down in Rhodes v. Chapman, supra, I think that the District Court's ultimate resolution of the case before it will be facilitated, not retarded, by the issuance of a stay as previously- indicated. There is no reason for courts to become the allies of prison officials in seeking to avoid unpleasant prison conditions when the executive and the legislature of the State have decided that only a certain amount of money shall be allocated to prison facilities; there is likewise no reason for the District Court to stay its hand when specific constitutional violations are called to its attention.

It is accordingly ordered that the injunction issued by the District Court be stayed, pending either the decision of the Court of Appeals for the Ninth Circuit in this case or the decision of this Court in Rhodes v. Chapman, supra, whichever may come first.


text:
    CALIFORNIA v. RIEGLER
    No. A-659.
    Decided February 5, 1981
   Justice Rehnquist, Circuit Justice.

The applicant, the State of California, has asked me to stay the execution and enforcement of the judgment of the California Court of Appeal in People v. Riegler, 111 Cal. App. 3d 580, 168 Cal. Rptr. 816 (1980), pending the filing of a petition for writ of certiorari and a final determination of the case by this Court. Review is sought of the Court of Appeal’s conclusion that the failure of law enforcement officers to obtain a search warrant in this case violated the Fourth Amendment and mandates a reversal of the respondent’s conviction for possession of marihuana for sale.

The facts are not in dispute. On November 8, 1977, United States customs officials in New York City were alerted by specially trained police dogs of the possible presence of marihuana in two packages mailed from Germany to Merced, Cal. Pursuant to customs laws, officials of the Postal Service and the Drug Enforcement Administration opened the packages and confirmed that they contained hashish. The packages were then resealed and sent to authorities in California. Postal authorities and local California officials arranged for a controlled delivery of the packages and obtained a search warrant authorizing them to enter the place of delivery and to search for and seize the packages and their contents. The packages were delivered, and in order to allow the occupants time to open the packages and exercise dominion and control over the contents, the police did not immediately execute the search warrant. Approximately 15 minutes after the packages were delivered, the respondent and two companions arrived by automobile at the residence and left almost immediately thereafter with the packages. While some police remained at the residence and executed the search warrant, others followed the respondent and his companions in the hopes that they would lead them to other suspects. Eventually, the police, fearful that they would lose the suspects in heavy traffic, stopped the automobile and arrested the respondent and his companions. The packages were in plain view in the back seat and were seized at the time of arrest. The packages were in the same condition as they were before the delivery to the home. They were transported to Merced that evening where they were photographed, opened, and inventoried. No second search warrant was obtained before the reopening of the packages. The hashish was still in the packages. The street value of the hashish was $100,000.

A majority of the California Court of Appeal held that the seizure by the police of the packages containing the hashish was valid but the subsequent reopening of the packages at the police station without a search warrant violated the Fourth Amendment. Its holding rested on this Court’s decision in United States v. Chadwick, 433 U. S. 1 (1977), and its progeny, particularly Walter v. United States, 447 U. S. 649 (1980). Judge Andreen wrote separately concurring in the result but questioning the wisdom of the majority’s opinion and its rejection of the State’s argument that the respondent had a lesser expectation of privacy because the packages had previously been subjected to a customs search and determined to contain contraband. Accordingly, the packages could move through the mail only by virtue of governmental authorization. Were it not for an earlier decision by a panel of that court which Judge Andreen considered controlling, he would hold that the packages were in the constructive possession of the law enforcement officers from the time of the opening of them in New York until the subsequent stop of the automobile. Three of the seven justices of the Supreme Court of California voted to grant a hearing at the request of the State.

There are three pertinent inquiries which are usually made in evaluating a request for stay of enforcement of an order of a state court: whether that order is predicated on federal as opposed to state grounds; whether the “balance of equities” militates in favor of the relief requested by the applicant; and whether it is likely that four Justices of this Court would vote to grant certiorari. I conclude here that each of these questions must be answered in the affirmative.

First, the decision of the California Court of Appeal is predicated on the Federal Constitution. The opinion refers specifically to the Fourth Amendment and relies for support on federal cases and state cases addressing the federal constitutional issue.

Second, the “balance of equities” favors the granting of the stay. The State argues that unless the requested stay is granted under present California law the case must either be set for retrial or dismissed. The State will therefore be denied the opportunity to have the Court of Appeal’s decision reviewed by this Court. By contrast, the prejudice to the respondent is less. The State asserts without contradiction that respondent has been free on bail since his conviction.

Finally, I conclude that it is likely that four Justices of this Court will vote to grant certiorari. The case presents important issues regarding the level of expectation of privacy a recipient of a package containing contraband sent through the international mails may have when the packages have previously been subjected to a lawful customs search and delivered under controlled conditions and constant surveillance. None of our prior cases have directly addressed this oft recurring situation and certainly none of the three opinions in Walter v. United States, supra, provides a ready answer. In my opinion, the case presents issues which are of sufficient importance that four Justices of this Court would likely vote to grant the State's petition for certiorari.

The request for a stay of the judgment of the California Court of Appeal pending consideration of a timely petition for certiorari by the applicant is granted, to remain in effect until disposition of the petition for certiorari. If the petition is granted, the stay is to remain in effect until this Court decides the case or until this Court otherwise orders.