text:
    No. 80-1797.
    Ryan Outdoor Advertising, Inc. v. City of Salinas.
   Appeal from Ct. App. Cal., 1st App. Dist. Judgment vacated and case remanded for further consideration in light of Metromedia, Inc. v. San Diego, ante, p. 490.


source: Caselaw Access Project

license: Public Domain

text:
    No. 79-1690.
    Stanton, Administrator, Indiana Department of Public Welfare v. Brown et al.
   C. A. 7th Cir. Certiorari granted, judgment vacated, and ease remanded for further consideration in light of Schweiker v. Gray Panthers, ante, p. 34.


text:
    No. 79-1896.
    Arkansas Louisiana Gas Co. v. Hall et al.
   Ct. App. La., 2d Cir. Certiorari granted, judgment vacated, and case remanded for further consideration in light of Arkansas Louisiana Gas Co. v. Hall, ante, p. 571.

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


text:
    No. 80-126.
    Outboard Marine Corp. v. Illinois et al.
   C. A. 7th Cir. Certiorari granted, judgment vacated, and case remanded for further consideration in light of Milwaukee v. Illinois, 451 U. S. 304 (1981).


text:
    No. 80-291.
    Miller v. Miller.
   Sup. Ct. Mont. Certiorari granted, judgment vacated, and case remanded for further consideration in light of McCarty v. McCarty, ante, p. 210.


text:
    No. 80-578.
    Milhan v. Milhan.
   Sup. Ct. Cal. Certiorari granted, judgment vacated, and case remanded for further consideration in light of McCarty v. McCarty, ante, p. 210.


text:
    No. 80-817.
    Jiminez v. United States.
   C. A. 7th Cir. Certiorari granted, judgment vacated, and case remanded for further consideration in light of Bobbins v. California, ante, p. 420.


text:
    No. 80-1037.
    California v. Silvey.
   Ct. App. Cal., 1st App. Dist. Motion of respondent for leave to proceed in forma pauperis and certiorari granted. Judgment vacated and case remanded to the Court of Appeal to consider whether its judgment is based upon federal or state constitutional grounds, or both. California v. Krivda, 409 U. S. 33 (1972).


text:
    No. 80-1080.
    Bible et al. v. Louisiana.
   Sup. Ct. La. Certiorari granted, judgment vacated, and case remanded for further consideration in light of Robbins v. California, ante, p. 420.


text:
    No. 80-1317.
    United States v. Benson.
   C. A. 8th Cir. Motion of respondent for leave to proceed in forma pauperis and certiorari granted. Judgment vacated and case remanded for further consideration in light of New York v. Belton, ante, p. 454.


text:
    No. 80-1469.
    Cuttitta v. Cuttitta.
   Ct. App. Cal., 4th App. Dist. Motion of respondent for leave to proceed in forma pauperis and certiorari granted. Judgment vacated and case remanded for further consideration in light of McCarty v. McCarty, ante, p. 210.


text:
    No. 80-1421.
    California v. Riegler.
   Ct. App. Cal., 5th App. Dist. Motion of respondent for leave to proceed in forma pauperis and certiorari granted. Judgment vacated and case remanded for further consideration in light of New York v. Belton, ante, p. 454.


text:
    No. 80-5677.
    Ruggles v. California.
   Ct. App. Cal., 2d App. Dist. Motion of petitioner for leave to proceed in forma pauperis and certiorari granted. Judgment vacated and case remanded for further consideration in light of Robbins v. California, ante, p. 420.


author: Justice Powell,

text:
    No. 80-2127.
    Iran National Airlines Corp. et al. v. Marschalk Co., Inc., et al.
   It is the opinion of this Court that the questions certified by the United States Court of Appeals for the Second Circuit must be answered as follows:

(1). Yes. See Dames & Moore v. Regan, ante, p. 654.

(2). Yes. See Dames & Moore v. Regan, ante, p. 654.

(3). The President’s action in nullifying the attachments did not constitute a taking of property for which compensation must be paid. We dismiss question (3) so far as it concerns whether the action of the President in suspending the claims constituted a taking of property for which compensation must be paid. See Dames & Moore v. Regan, ante, p. 654.

Justice Powell,

with whom Justice Marshall and Justice Stevens join,

dissenting.

I would dismiss the certificate, citing Dames & Moore v. Regan, ante, p. 654, announced today. The Court’s opinion in that case provides the only answers that this Court should give to the questions certified to us by the United States Court of Appeals for the Second Circuit. Having rendered an opinion on the subject of those questions, we should not answer them in monosyllables nor attempt a syllabus of a portion of the Court’s opinion. We recently have dismissed certification of questions where the Court has addressed the subject of the questions in a full opinion. Foley v. Carter, 449 U. S. 1073 (1981). See also United States v. Will, 449 U. S. 200 (1980).


text:
    No. A-1006 (80-2157).
    Anchorage Times Publishing Co. v. National Labor Relations Board.
   C. A. 9th Cir.

Application for stay, addressed to Justice Stevens and referred to the Court, denied.


text:
    No. A-1029.
    Cota et al. v. Los Angeles Unified School District et al.
   Application for injunction, addressed to Justice Marshall and referred to the Court, denied.


text:
    No. A-1051.
    Option Advisory Service, Inc. v. Board of Governors of the Federal Reserve System et al.
   Application for stay, addressed to Justice Stewart and referred to the Court, denied.


text:
    No. A-1052.
    In re McGean.
   Ct. App. D. C. Application for stay, addressed to Justice Brennan and referred to the Court, denied.


text:
    No. D-227.
    In re Disbarment of Schmidt.
    [For earlier order herein, see 450 U. S. 1037.]
   Disbarment entered.


text:
    No. D-231.
    In re Disbarment of Kelley.
    [For earlier order herein, see 451 U. S. 903.]
   Disbarment entered.


text:
    No. 80-11.
    No. 80-15.
    Merrion et al., dba Merrion & Bayless, et al. v. Jicarilla Apache Tribe et al.; and Amoco Production Co. et al. v. Jicarilla Apache Tribe et al.
   C. A. 10th Cir. [Certiorari granted, 449 U. S. 820.] Cases restored to calendar for reargument.

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


text:
    No. 80-317.
    University of Texas et al. v. Camenisch,
   451 U. S. 390. Motion of respondent to retax costs denied.


text:
    No. 80-1240.
    Lane, Corrections Director v. Williams et al.
   C. A. 7th Cir. [Certiorari granted sub nom. Franzen v. Williams, 452 U. S. 914.] Motion for appointment of counsel granted, and it is ordered that Martha A. Mills, of Chicago, Ill., be appointed to serve as counsel for respondents in this case.


text:
    No. 80-1350.
    Community Communications Co., Inc. v. City of Boulder, Colorado, et al.
   C. A. 10th Cir. [Certiorari granted, 450 U. S. 1039.] Motions of National Institute of Municipal Law Officers, Cable Television Information Center, National League of Cities, and City of Los Angeles for leave to file briefs as amici curiae granted.


text:
    No. 80-1624.
    Larsen et al. v. Van Slooten.
   Appeal from Sup. Ct. Mich. Motion of appellants to expedite consideration of the appeal denied.


text:
    No. 80-2049.
    Ralston, Warden v. Robinson.
   C. A. 7th Cir. [Certiorari granted, 452 U. S. 960.] Motion for appointment of counsel granted, and it is ordered that Jerold S. Solovy, Esquire, of Chicago, Ill., be appointed to serve as counsel for respondent in this case.


text:
    No. 80-1481.
    Bread Political Action Committee et al. v. Federal Election Commission et al.
   Appeal from C. A. 7th Cir. Further consideration of question of jurisdiction postponed to hearing of case on the merits.


text:
    No. 80-60.
    Herweg et vir v. Ray, Governor of Iowa, et al.
   C. A. 8th Cir. Certiorari granted.


text:
    No. 79-1469.
    Cose v. Cose.
   Sup. Ct. Alaska. Certiorari denied.


text:
    No. 79-1617.
    Department of Transportation of Oklahoma v. Pile.
   Sup. Ct. Okla. Certiorari denied.


text:
    No. 80-196.
    City of San Diego et al. v. Metromedia, Inc., et al.
   Sup. Ct. Cal. Certiorari denied.


text:
    No. 80-1132.
    Russell v. Russell.
   Ct. App. Ky. Cer-tiorari denied.


text:
    No. 80-1403.
    No. 80-1454.
    Seafarers International Union, Pacific District-Pacific Maritime Association Pension Plan v. Stone et al.; and Carpenters Pension Trust for Southern California v. Kronschnabel; and Carpenters Pension Trust for Southern California v. Stone et al.
   C. A. 9th Cir. Certiorari denied. Reported below: Nos. 80-1403 and 80-1454 (second case), 632 F. 2d 740; No. 80-1454 (first case), 632 F. 2d 745.


text:
    No. 80-6302.
    Castillo v. Louisiana.
   Sup. Ct. La. Certiorari denied.


text:
    No. 80-6631.
    In re John C.
   Sup. Ct. R. I. Certiorari denied.


text:
    No. 80-498.
    Schweiker, Secretary of Health and Human Services v. Norman et al.
   C. A. 5th Cir. Motion of respondents for leave to proceed in forma pauperis granted. Certiorari denied.


text:
    No. 80-792.
    Januszewski v. Connecticut.
   Sup. Ct. Conn. Certiorari denied.

Justice Brennan and Justice Marshall would grant certiorari.


text:
    No. 80-1008.
    Illinois v. Bayles.
   Sup. Ct. Ill. Motion of respondent for leave to proceed in forma pauperis granted. Certiorari denied.

Justice- Blackmun would grant certio-rari.


text:
    No. 79-1977.
    No. 80-5693.
    No. 80-6214.
    No. 80-6324.
    No. 80-6542.
    Rodriguez v. Compass Shipping Co., Ltd., et al.; Perez v. Arya National Shipping Line, Ltd.; and Barulec v. Ove Skou, R. A., Crawford v. Texas, Duffield v. United States, Milton v. Texas, Collier v. Los Angeles Southwest College,
   451 U. S. 596;

452 U. S. 931;

451 U. S. 1019 ;

451 U. S. 1031; and

452 U. S. 919. Petitions for rehearing denied.


text:
    No. 80-1313.
    Lampkin-Asam v. Florida Teaching Profession-National Education Assn.,
   451 U. S. 978. Motion of appellant to defer consideration of petition for rehearing denied. Petition for rehearing denied.


text:
    No. 80-1534.
    Ochs v. United States,
   451 U. S. 1016. Motion of petitioner for leave to proceed further herein in forma pauperis granted. Petition for rehearing denied.


text:
    July 14, 1981
    No. 80-2097.
    Potter Instrument Co., Inc. v. Storage Technology Corp. et al.
   C. A. 4th Cir. Certiorari dismissed as to Telex Computer Products, ' Inc., under this Court's Rule 53.


text:
    August 28, 1981
    No. A-789 (80-1573).
    Gluesenkamp v. Florida.
   Application for bail, addressed to Justice Brennan and referred to the Court, denied.


text:
    No. A-901.
    Valentine v. United States.
   Application for bail, addressed to The Chief Justice and referred to the Court, denied.


text:
    No. A-1064.
    Tibbs v. United States.
   Sup. Ct. Fla. Application for stay, addressed to The Chief Justice and referred to the Court, denied.


text:
    No. A-13.
    Elcan v. United States.
   Application for stay, addressed to Justice Blackmun and referred to the Court, denied.


text:
    No. A-15 (81-171).
    Oesterlen Services for Youth, Inc. v. National Labor Relations Board.
   C. A. 6th Cir. Application for stay, addressed to Justice Rehnquist and referred to the Court, denied.


text:
    No. A-32.
    Gedeon v. Gedeon, aka Rose.
   Sup. Ct. Colo. Application for stay, addressed to Justice Brennan and referred to the Court, denied.


text:
    No. A-86.
    Capitol Cities Communications, Inc., et al. v. Flynn, Justice, Supreme Court of New York.
   Sup. Ct. N. Y., Erie County. Motion for leave to file the application for stay under seal, presented to Justice Marshall, and by him referred to the Court, denied.

Justice Blackmun, Justice Powell, and Justice Stevens would grant the motion. Application for stay, presented to Justice Marshall, and by him referred to the Court, denied. Justice Brennan would grant the application.


text:
    No. 80-203.
    Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Curran et al.
   C. A. 6th Cir. [Certiorari granted, 451 U. S. 906.] Motion of the Solicitor General for leave to participate in oral argument as amicus curiae and for divided argument granted.


text:
    No. 80-644.
    G. D. Searle & Co. v. Cohn et al.
   C. A. 3d Cir. [Certiorari granted, 451 U. S. 905.] Motion of Brinco Mining Ltd. for leave to file a brief as amicus curiae granted.


text:
    No. 80-824.
    Polk County et al. v. Dodson.
   C. A. 8th Cir. [Certiorari granted, 450 U. S. 963.] Motion of the Solicitor General for leave to participate in oral argument as amicus curiae and for divided argument granted.


text:
    No. 80-848.
    No. 80-883.
    Piper Aircraft Co. v. Reyno, Personal Representative of the Estates of Fehilly et al. ; and Hartzell Propeller, Inc. v. Reyno, Personal Representative of the Estates of Fehilly et al.
   C. A. 3d Cir. [Certiorari granted, 450 U. S. 909.] Motion of Law Offices of Gerald C. Sterns for leave to file a brief as amicus curiae granted.


text:
    No. 80-931.
    Charles D. Bonanno Linen Service, Inc. v. National Labor Relations Board et al.
   C. A. 1st Cir. [Certiorari granted, 450 U. S. 979.] Motion of the Solicitor General for divided argument granted.


text:
    No. 80-951.
    Independent Federation of Flight Attendants v. Trans World Airlines, Inc., et al.
   C. A. 7th Cir. [Certiorari granted, 450 U. S. 979.] Motion of American Federation of Labor and Congress of Industrial Organizations for leave to file a brief as amicus curiae granted.

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


text:
    No. 80-986.
    North Haven Board of Education et al. v. Bell, Secretary of Education, et al.
   C. A. 2d Cir. [Certiorari granted, 450 U. S. 909.] Motion of Hillsdale College for leave to file a brief as amicus curiae granted.


text:
    No. 80-1208.
    No. 80-1471.
    No. 80-1610.
    New England Power Co. v. New Hampshire Public Utilities Commission et al.; Massachusetts et al. v. New Hampshire Legislative Utility Consumers’ Council et al.; and Roberts, Attorney General of Rhode Island, et al. v. New Hampshire Public Utilities Commission et al.
   Sup. Ct. N. H. [Probable jurisdiction noted, 451 U. S. 981.] Motion of New England Power Pool Executive Committee for leave to file a brief as amicus curiae granted.


text:
    No. 80-1430.
    Engle, Correctional Superintendent v. Isaac; Perini, Correctional Superintendent v. Bell; and Engle, Correctional Superintendent v. Hughes.
   C. A. 6th Cir. [Certiorari granted, 451 U. S. 906.] Motion of Ohio Criminal Defense Lawyers Association for leave to participate in oral argument as amicus curiae denied.


text:
    No. 80-1576.
    Princeton University et al. v. Schmid.
   Sup. Ct. N. J. [Probable jurisdiction postponed, 451 U. S. 982.] Motion of Massachusetts Institute of Technology for leave to file a brief as amicus curiae granted.

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


text:
    No. 80-1681.
    Village of Hoffman Estates et al. v. The Flipside, Hoffman Estates, Inc.
   C. A. 7th Cir. [Probable jurisdiction noted, 452 U. S. 904.] Motion of Community Action Against Drug Abuse for leave to file a brief as amicus curiae granted.

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


text:
    No. 80-1538.
    No. 80-1934.
    Plyler, Superintendent, Tyler Independent School District, et al. v. Doe, Guardian, et al. Texas et al. v. Certain Named and Unnamed Undocumented Alien Children et al.
   C. A. 5th Cir. [Probable jurisdiction, noted, 451 U. S. 968]; and

C. A. 5th Cir. [Probable jurisdiction noted, 452 U. S. 937.] Motion of Mountain States Legal Foundation for leave to file a brief as amicus curiae granted.


text:
    No. 80-1781.
    McNichols, Mayor of Denver, et al. v. Baldrige, Secretary of Commerce, et al.
   C. A. 10th Cir. [Certiorari granted, 452 U. S. 937.] Motion of National Lead Counsel and National Liaison Counsel for leave to participate in oral argument as amici curiae denied. The suggestion of the Solicitor General that this case be consolidated with No. 80-1436, Baldrige, Secretary of Commerce, et al. v. Shapiro, Essex County Executive [certiorari granted, 451 U. S. 936], is adopted. Cases consolidated and a total of one and one-half hours allotted for oral argument.


text:
    No. 79-5199.
    No. 79-6081.
    No. 79-6423.
    No. 79-6749.
    No. 80-581.
    No. 80-1010.
    No. 80-1696.
    No. 80-1805.
    Bell v. Texas, Green v. Texas, Lassiter v. Department of Social Services of Durham County, North Carolina, Parker v. Texas, Commonwealth Edison Co. et al. v. Montana et al., Currey et al., dba Currey & Currey v. Corporation Commission of Oklahoma et al., Haring v. Regan, Secretary of the Treasury, Bosworth, dba Gulf to Bay Title Co. v. Cooney, Executor,
   ante, p. 913;

ante, p. 913;

452 U. S. 18;

ante, p. 902;

ante, p. 609;

452 U. S. 938;

452 U. S. 939; and

452 U. S. 956. Petitions for rehearing denied.


text:
    No. 80-1940.
    No. 80-6322.
    No. 80-6506.
    No. 80-6510.
    No. 80-6551.
    No. 80-6580.
    No. 80-6593.
    No. 80-6657.
    No. 80-6672.
    Long v. District Director, Internal Revenue Service, Phoenix, Arizona, Skillern v. Texas, Fleming v. Austin, Warden, Smith v. Kentucky, Rucker v. City of St. Louis et al., Zarrilli v. Capitol Bank & Trust Co. et al., Reiter v. City of Keene, Patterson v. Abernathy et al., Sonderup v. United States,
   452 U. S. 934;

452 U. S. 931;

452 U. S. 910;

452 U. S. 908;

452 U. S.942;

452 U. S.965;

452 U. S. 965;

452 U. S. 956; and

452 U. S. 920. Petitions for rehearing denied.


text:
    No. 79-880.
    No. 79-881.
    No. 79-882.
    No. 79-883.
    No. 79-1120.
    Kissinger et al. v. Halperin et al., Mitchell v. Zweibon et al., Nixon et al. v. Smith et al., Zweibon et al. v. Mitchell, Mitchell et al. v. Forsyth et al.,
   452 U. S. 713;.

ante, p. 912;

ante, p. 912;

ante, p. 912; and

ante, p. 913. Petitions for rehearing denied.

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


text:
    No. 79-1314.
    No. 80-6426.
    1776 K Street Associates et al. v. United States, Odes v. Nowland, Acting Director, Department of Registration and Education of Illinois,
   447 U. S. 905; and

451 U. S. 991. Motions for leave to file petitions for rehearing denied.


author: Justice Powell. Justice Rehnquist.

text:
    September 2, 1981
    No. A-72.
    Graddick, Attorney General of Alabama v. Newman et al.
   D. C. M. D. Ala. Application for stay, presented to The Chief Justice, and by him referred to the Court, denied.

Opinion of

Justice Powell.

This case, involving an application and “reapplication” for a stay, arises in a complex and unusual procedural posture. The applicant Charles A. Graddick is the Attorney General of Alabama. Late on the afternoon of July 23 he applied to me as Circuit Justice to stay an order of the District Court for the Middle District of Alabama. The order arose from protracted litigation, commenced in 1971, involving conditions in the Alabama prison system. It directed release of some 400 inmates at midnight on July 24. In order to consider the issues presented, I entered a temporary stay and requested responses. I subsequently denied the application on July 25.

In his application to me as Circuit Justice, Attorney General Graddick did not claim standing as a party to the underlying prison litigation. On the contrary, he came to this Court complaining of the District Court’s refusal to grant his motion to intervene in that lawsuit. He sought a stay to permit him to appeal following resolution of his claimed right of intervention.

On July 25, the order of the District Court was given effect. More than 200 prisoners were released. Despite this change in the underlying circumstances — which a “stay” would ordinarily be entered to preserve — Graddick promptly filed a “reapplication” for stay with The Chief Justice. The Chief Justice referred this “reapplication,” on which we act today, to the full Court.

The “reapplication” was in fact a new application. In it Graddick for the first time claimed standing as the successor Attorney General to a party defendant dating back to the original action in 1971. If he is such a party, his motion to intervene was unnecessary.

Crediting Graddick’s claim to status as a party, the Court decides today that he is still not entitled to a stay.

I

In view of the change in Attorney General Graddick’s position and the unusual history of this case, and its resulting present posture, I write to summarize the relevant facts and to restate my reasons for concluding that Graddick is not entitled to a stay. The current controversy represents the latest chapter in protracted litigation over conditions in the Alabama prisons. The litigation involves at least three cases, consolidated by the Fifth Circuit in Newman v. Alabama, 559 F. 2d 283 (1977). See Newman v. Alabama, 349 F. Supp. 278 (MD Ala. 1972); Pugh v. Locke, 406 F. Supp. 318 (MD Ala. 1976) (together with James v. Wallace). The original lawsuits in each of the cases sought redress of alleged constitutional violations in the Alabama prisons. On more than one occasion the District Court has held specifically that the conditions in the Alabama prison system, including overcrowding, violate the rights of inmates under the Eighth and Fourteenth Amendments. See Newman v. Alabama, 349 F. Supp. 278; Pugh v. Locke, supra; James v. Wallace, supra.

In Pugh and James, the court awarded far-reaching injunctive relief, and enjoined the defendants from failing fully to implement it. But the status of various defendants has proved a recurring problem in the lawsuits. In Pugh and James the defendants included the State of Alabama; the Governor of Alabama, George C. Wallace; the Commissioner of Corrections; the Deputy Commissioner of Corrections; the Members of the Alabama Board of Corrections; the State Board of Corrections; and Wardens at various state institutions. In Newman, the original complaint also named the Attorney General of Alabama, William J. Baxley, among those from whom relief was sought. On consolidated appeal, the Court of Appeals for the Fifth Circuit upheld most of the relief prescribed in various orders of the District Court, including those issued in Newman v. Alabama, supra; Pugh v. Locke, supra; and James v. Wallace, supra. See Newman v. Alabama, 559 F. 2d 283. But it also held that certain terms of the order in Pugh and James must be modified, and it ordered dissolution of the injunction entered against Governor Wallace. This Court then granted certiorari on the limited question whether suits against the State of Alabama and the Alabama Board of Corrections were barred by the Eleventh Amendment. We held that they were. Alabama v. Pugh, 438 U. S. 781 (1978).

As a result of the decisions by this Court and by the Court of Appeals, the State of Alabama, the Governor of Alabama, and the Alabama Board of Corrections were dismissed as parties. Nonetheless, the District Court retained jurisdiction, and it continued to enter orders and decrees affecting various areas of compliance. The active defendants appear to have been the officials responsible for the management of the State’s prison system. The Attorney General appeared as a party infrequently. An exception appears to have occurred in 1977, when the then Attorney General sought to “intervene” in the District Court. The District Court denied the motion as unnecessary, noting that the Attorney General had been named as a defendant in the original complaint in Newman. Even after this motion, however, the Attorney General did not continue to participate as a party. Nor does he appear to have been named in any subsequent order of the District Court. When Attorney General Graddick moved to intervene on July 16, it was his first attempt to participate as a party to the action.

The State’s principal representative in the recent litigation has been Fob James, elected Governor of Alabama in November 1978. In February 1979, the District Court entered an order naming him as Receiver of the Alabama Prison System. The order provided that all powers, duties, and authority of the Alabama Board of Corrections were transferred to the Receiver. After James’ appointment as Receiver, the Alabama Legislature abolished the Alabama Board of Corrections and transferred its power, duties, and authority to the Governor. See Ala. Code §§ 14-1-15, 14-1-16 (Supp. 1980). Thus, both by court order and by Alabama law, responsibility for the maintenance of Alabama prisons has now rested for more than two years in Governor James.

On October 9, 1980, the District Court found, based on the agreement of the parties, that the Alabama prison system had failed to achieve compliance with standards provided in prior judicial orders. By order of that date, the court established deadlines for the achievement of certain levels óf compliance. At a hearing on May 18, 1981, it was stipulated that those deadlines had not been met. On the contrary, it was established that overcrowding had grown more severe. Although the District Court took no immediate remedial action, on May 20 it ordered the Alabama Department of Corrections and the Receiver to submit a list of prisoners “least deserving of further incarceration.” Having received such a list, on July 15 it entered the order at issue here, granting a writ of habeas corpus directing the release of some 400 named inmates, all of whom normally were entitled to be released no later than January 8, 1982.

At this juncture the applicant Charles A. Graddick undertook to enter the litigation. On July 16, he filed papers in the District Court seeking to intervene as a party defendant. Purporting to represent the interests of the people of the State of Alabama, he sought a stay of the order granting the writ of habeas corpus. On July 17, Governor Fob James, in his capacity as Receiver, moved to dismiss all motions filed by Attorney General Graddick. The District Court set the Attorney General’s motions for hearing on August 6. But it declined to stay its order directing release of the 400 inmates on July 24. On July 22, Attorney General Graddick filed a notice of appeal with the Court of Appeals for the Fifth Circuit. He also requested a stay pending appeal. The Court of Appeals denied the stay on July 23. Following this denial, Attorney General Graddick filed his application for a stay with me as Circuit Justice.

II

Our cases establish that an applicant for a stay bears a heavy burden of persuasion. “The judgment of the court below is presumed to be valid, and absent unusual circumstances we defer to the decision of that court not to stay its judgment.” Wise v. Lipscomb, 434 U. S. 1329, 1333 (1977) (Powell, J., in chambers). The applicant’s burden is especially heavy when, as in this case, both the District Court and the Court of Appeals have declined his petitions for stay without dissent. Beame v. Friends of the Earth, 434 U. S. 1310, 1312 (1977) (Marshall, J., in chambers); Board of Education v. Taylor, 82 S. Ct. 10, 10-11 (1961) (Brennan, J., in chambers).

To prevail on an application for stay, an applicant must make a showing of a threat of irreparable injury to interests that he properly represents. See Bailey v. Patterson, 368 U. S. 346, 346-347 (1961) (per curiam). This requirement has two dimensions. The first, embraced by the concept of “standing,” looks to the status of the party to redress the injury of which he complains. The second aspect of the inquiry involves the nature and severity of the actual or threatened harm alleged by the applicant. In acting on an application for a stay, a Circuit Justice must “ ‘balance the equities’ . . . and determine on which side the risk of irreparable injury weighs most heavily.” Holtzman v. Schlesinger, 414 U. S. 1304, 1308-1309 (1973) (Marshall, J., in chambers) ; Beame v. Friends of the Earth, supra, at 1312.

Considering that the burden is on the applicant to establish his entitlement to the extraordinary relief that he requests, on July 25 I denied Graddick’s application for a stay. In his papers filed as of that date, Attorney General Graddick had failed to establish either irreparable injury to any cognizable interests or his standing to assert the interests to which he alleged' that injury had occurred. Graddick had made no allegation that he, either as an official or as a citizen of the State of Alabama, would suffer any individualized injury. His application did aver that “the people of the State of Alabama” would incur irreparable injury if a stay were not granted. But the dimensions of any such injury were cast into serious doubt by the position of the Governor of the State.

Even if Graddick’s allegation of irreparable injury were accepted, he had made no showing that he was the proper official to assert that claim. Graddick’s original application presented no state-law basis for his attempt to assert the rights of Alabama citizens generally. His standing to represent Alabama’s interests in this matter was not self-evident in the unusual context of this case. Alabama statutes had vested responsibility for the prison system in the Governor, and the Governor, who is also the State’s chief executive officer, opposed Graddick’s application. The Governor averred that he, not the Attorney General, properly represented the State’s interests in this case.

Finally, Graddick had failed to show that the “balance of equities” favored the grant of a stay. The District Court had issued its relief order to remedy what it perceived as possible serious violations of constitutional rights. As long ago as 1972, Judge Frank Johnson had determined that conditions in the Alabama prisons failed to satisfy the constitutional minimum. See Newman v. Alabama, 349 F. Supp. 278 (MD Ala. 1972). Subject to judicial orders for nearly a decade, the State had still failed to achieve compliance with standards established in Newman. As I have asserted previously, a Circuit Justice should show great “reluctance, in considering in-chambers stay applications, to substitute [his] view for that of other courts that are closer to the relevant factual considerations that so often are critical to the proper resolution of these questions.” Times-Picayune Publishing Corp. v. Schulingkamp, 419 U. S. 1301, 1305 (1974) (in chambers); see Graves v. Barnes, 405 U. S. 1201, 1203 (1972) (Powell, J., in chambers). Here there was no basis, on the record as presented, to disagree with the two courts below as to the balance of equities.

Established legal criteria thus required that the application for stay should be denied. In so concluding, I was not unaware that the application raised interesting and substantial questions on the merits. These included the propriety of the District Court’s use of the writ of habeas corpus as a class remedy for prison overcrowding. But these questions were not properly presented for decision.

III

In his “reapplication” for a stay, Attorney General Grad-dick claims standing as a party to the underlying controversy. He also asserts a state-law basis for his claim of authority to represent the interests of the people of the State of Alabama. As I understand them, these averments pertain only to the issue of standing. They do not speak to the other considerations governing the grant of stays by this Court. However the standing question would now be resolved — for I remain uncertain whether Graddick even now has established his standing to seek a stay in the highly unusual context of this case — those considerations continue to require a denial of Graddick’s application. He has not met the heavy burden imposed on an applicant who asks us to grant extraordinary relief denied by both the District Court and the Court of Appeals.

A

Assuming that Graddick now has established his position as a party, he still has failed to show that the “balance of equities” would support a stay. The views of the Governor, stated above, remain entitled to great weight in assessing the competing risks of irreparable injury. The court-ordered release of prisoners occurred on July 25. Graddick alleges no specific damage that has occurred since then. Moreover, the sudden return of more than 200 former prisoners to jail would present the State with large administrative problems, as well as exacerbating the overcrowding of all prisoners within the Alabama system. A risk of new constitutional rights violations would arise.

In deciding whether to grant extraordinary equitable relief pending appeal, this Court must consider the confusion and disruption that affirmative action might occasion. See, e. g., Westerman v. Nelson, 409 U. S. 1236 (1972) (Douglas, J., in chambers); Gomperts v. Chase, 404 U. S. 1237 (1971) (Douglas, J., in chambers); cf. Mahan v. Howell, 404 U. S. 1201 (1971) (Black, J., in chambers). This equitable concern weighs most heavily in a case, such as this one, in which the applicant has moved with unexplained tardiness. See, e. g., Westerman v. Nelson, supra, at 1237 (Douglas, J., in chambers) (“[O]ne in my position cannot give relief in a responsible way when the application is as tardy as this one”); O’Brien v. Skinner, 409 U. S. 1240 (1972) (Marshall, J., in chambers).

B

Additionally, I believe that Graddick’s request for a “stay” is now moot. Ordinary linguistic usage suggests that an order, once executed, cannot be “stayed.” Affirmative action then becomes necessary to restore the status quo. See McCarthy v. Briscoe, 429 U. S. 1317, n. 1 (1976) (Powell, J., in chambers) (although application is styled as seeking a “stay,” it actually requests “affirmative relief” and must therefore be considered under different standards governing affirmative relief); Barthuli v. Board of Trustees, 434 U. S. 1337, 1338-1339 (1977) (Rehnquist, J., in chambers) (“stay” of state-court decision would not reinstate a discharged employee, though “the extraordinary interim remedy of a mandatory injunction” would do so).

I do not doubt the power of this Court to enter an injunction ordering restoration of the prior status quo. See 28 U. S. C. § 1651 (a). If it were “necessary or appropriate in aid of” our jurisdiction, ibid., we could order the arrest and imprisonment of all the prisoners released on July 25. But it is settled that our injunctive power “should be used sparingly and only in the most critical and exigent circumstances.” Williams v. Rhodes, 89 S. Ct. 1, 2, 21 L. Ed. 2d 69, 70 (1968) (Stewart, J., in chambers); Fishman v. Schaffer, 429 U. S. 1325, 1326 (1976) (Marshall, J., in chambers). “In order that it be available, the applicants’ right to relief must be indisputably clear.” Communist Party of Indiana v. Whitcomb, 409 U. S. 1235 (1972) (Rehnquist, J., in chambers).

In view of all the legal and factual circumstances of this case, Attorney General Graddick’s application falls far distant from this exacting standard.

Opinion of

Justice Rehnquist.

Applicant seeks to stay an order of the United States District Court for the Middle District of Alabama pending an appeal to the United States Court of Appeals for the Fifth Circuit. By that order the District Court issued a writ of habeas corpus mandating the release of some 400 inmates incarcerated in the Alabama prison system. The order also accelerated by six months the parole eligibility dates of a substantial number of other prisoners. Applicant unsuccessfully sought a stay from the District Court and from the Court of Appeals. On July 25, 1981, Justice Powell also denied a stay, largely on the ground that applicant was without standing to seek the relief requested. Also of significance was the opposition to the stay manifested by Governor Pob James, who possesses authority, under both statute and court order, for administration of the Alabama prison system.

Following Justice Powell’s decision denying a stay, Alabama prison authorities effectuated the District Court’s order by releasing more than 200 prisoners. Regardless of whether this event altered the nature of relief that applicant now must seek to obtain a satisfactory result, there is no question that it increased the practical difficulty of arresting the procedural momentum of the District Court’s release order on reapplication for a stay. The opinion of Justice Powell accompanying the Court’s denial of the reapplication reflects this fact. See ante, at 935-936, 937. Nevertheless, a reapplication was filed and referred to the full Court.

The Court has decided to deny a stay. Had this result been communicated without explanation, the parties might well have been left with the impression that the full Court adopted the rationale of Justice Powell’s opinion accompanying his denial of the original application, i. e., that applicant lacks standing to seek a stay. I write separately to emphasize my view that such an impression would be erroneous.

I

“Standing” is not a term used for its precision. As it is most commonly understood, standing embraces both constitutional and prudential limitations on a federal court’s exercise of jurisdiction. So used, it normally measures the quality of the interest asserted by a private plaintiff in obtaining resolution of a particular dispute through the authority of a court. As a threshold inquiry, we have required the plaintiff to show “some threatened or actual injury resulting from the putatively illegal action.” Linda R. S. v. Richard D., 410 U. S. 614, 617 (1973). Further generalization is hazardous.

In this reapplication, however, the issue of standing has been raised in an unusual setting. The question is whether the chief legal officer of a State, named as a defendant in a suit asserting constitutional limitations on the State’s authority and acting as counsel for other state officials, has “standing” to seek a stay of court orders that suspend the normal operation of the State’s laws regarding the confinement of convicted criminals. One might well regard the answer as self-evident. On the assumption that further investigation is warranted, one still might doubt whether conventional methods of analysis are relevant. For example, to ask if the state official has suffered individualized injury from the court’s order strikes me as anomalous. The “standing” of a state official to defend against judicial orders that impinge upon the sovereignty of the State derives not from his individualized interest in the suit, but from the authority delegated to the official by the State’s citizens to act on their behalf in upholding the laws enacted by their representatives.

The issue of standing as it has been raised in this reapplication, therefore, involves only two questions. First, as a matter of federal law, is applicant’s procedural status in the underlying litigation such that he may seek a stay? Second, as a matter of state-law, is applicant acting within his statutory authority in seeking a stay?

At the time the original application was filed the first question was not free from doubt. The applicant had sought to intervene as a matter of right pursuant to Federal Rule of Civil Procedure 24 (a), but the District Court had not yet ruled on the motion. The applicant now maintains, however, that he seeks a stay in his status as a party defendant in this litigation. I am inclined to believe that this new position is the product not of a tactical change of course, but of attention to a question previously neglected due to the press of events. In any event, I am persuaded that the position is correct.

The original complaint in Newman v. Alabama, Civ. A. No. 3501-N (MD Ala.), filed in 1971, named as a party defendant the Attorney General of Alabama, at that time William J. Baxley. An order issued by the District Court as late as 1977 expressly recognized that the Attorney General was still a party defendant, as well as counsel of record for the other defendant state officials. In response to Attorney General Baxley’s motion for leave to appear as amfaus curiae, the order recited:

“This Court finds no necessity for granting the motion of the Attorney General of the State of Alabama to ‘intervene’ in these cases since the Attorney General is not only a named defendant in Newman, but the records of this Court reflect that the Attorney General of the State of Alabama has been counsel of record for defendants in all these cases since their inception.” App. N to Brief in Support of Applicant’s Reapplication.

Governor James, in his papers opposing the original application, asserted that this Court in Alabama v. Pugh, 438 U. S. 781 (1978), “restricted the parties to those persons ‘responsible for the administration of [Alabama] prisons.’ ” Objection of Fob James to the Application for Stay 3, n. (quoting Alabama v. Pugh, supra, at 781). That assertion is without foundation. The narrow question that we considered was whether the Eleventh Amendment barred the District Court’s injunction against the State of Alabama and the Alabama Board of Corrections. 438 U. S., at 782, and n. 2. Our affirmative answer resulted in the dismissal of the State and the Board, but had no effect on the remaining parties defendant, whose amenability to suit was an issue not encompassed by our limited grant of certiorari.

In short, the Attorney General of Alabama was named as a party defendant in this litigation, and there is no indication he has ever been dismissed. I would have thought this simple fact conclusive of the question of procedural status, as that question bears on applicant’s standing to seek a stay. Nevertheless, it has been argued that applicant’s lack of active participation as a party in this litigation prior to the District Court’s release order somehow weakens his claim of standing as a party. I am aware, however, of no rule that conditions party status on the appearance of activity or results in automatic dismissal from the lack thereof. Certainly, Charles Graddick has lost, nothing by his evident failure to request a formal substitution of parties following his replacement of William Baxley as Attorney General. Federal Rule of Civil Procedure 25 (d) provides that when a public officer ceases to hold office, his successor is automatically substituted as a party, regardless of whether the court enters an order of substitution.

Whether applicant’s past participation in this litigation has been sufficient to demonstrate vigilance in protection of the State’s interests is a question I am not in a position to answer and one that is, in any event, irrelevant to the issue of standing. I do note that applicant has represented the other defendant state officials since commencement of this litigation. There would be little reason for him to participate actively as a party so long as his interests and those of the officials he represents as counsel do not diverge. Applicant has indicated that the District Court’s release order has occasioned just such a divergence. While I do not know whether other orders issued by the District Court in the course of this litigation should have called for a response by a vigilant Attorney General acting as a party, I am surely not surprised that this Attorney General has taken exception to an order opening the doors of the State’s prisons.

The remaining question, therefore, is whether Alabama law provides the applicant sufficient authority to request a stay of the release order. Two statutes are relevant. The first, Ala. Code § 36-15-12 (1975), authorizes the Attorney General “to institute and prosecute, in the name of the state, all civil actions and other proceedings necessary to protect the rights and interests of the state.” Although the term “other proceedings” does not appear to have been authoritatively construed, it would be incongruous for the term to exclude appeals from actions in which the Attorney General is authorized to participate. See McDowell v. State, 243 Ala. 87, 89, 8 So. 2d 569, 570-571 (1942) (“We can perceive of no good reason why the express statutory authority of the Attorney General to institute and prosecute suits should not carry with it the implied authority to do all things necessary and proper to their final conclusion”). With respect to the commencement of actions, the Alabama Supreme Court consistently has held that the Attorney General’s authority is independent of that of the Governor. State v. Stacks, 264 Ala. 510, 88 So. 2d 696 (1956) (institution of suit for recovery of funds misused by public officers); Try-Me Bottling Co. v. State, 235 Ala. 207, 210, 178 So. 231, 232 (1938) (institution of suit to enjoin operation of lottery); Montgomery v. Sparks, 225 Ala. 343, 344-345, 142 So. 769, 770 (1932) (institution of suit for recovery of public funds).

The second statute, Ala. Code § 36-15-21 (1975), provides that “[a]ll litigation concerning the interest of the state, or any department thereof, shall be under the direction and control of the attorney general . . . .” The Alabama Supreme Court, construing the predecessor of this statute, held that the Attorney General was authorized to settle a suit for the liquidation of a tax claim asserted by the State Department of Revenue, despite the objections of the state official charged with collection of the tax and despite a specific statute conditioning dismissal of such suits on the approval of that official. State ex rel. Carmichael v. Jones. 252 Ala. 479, 41 So. 2d 280 (1949). The court held that in the absence of specific legislative expression to the contrary, the Attorney General “ ‘is empowered to make any disposition of the state’s litigation which he deems for its best interest.’ ” Id., at 484, 41 So. 2d, at 284.

These two statutes, taken together, convince me that the Attorney General possesses ample authority under Alabama law to seek a stay of the release order, with or without the consent of the Governor. But any doubts about applicant’s authority could have been resolved by adopting the course this Court pursued in Massachusetts v. Feeney, 429 U. S. 66 (1976), and certifying the question to the State’s highest court. The Supreme Court of Alabama has provided a certification procedure in Alabama Rule of Appellate Procedure 18. I have no reason to second-guess applicant’s assessment of the State’s interest in ensuring both proper enforcement of duly imposed sentences and unimpeded administration of the statutes and regulations relating to parole. Coupled with the fact that applicant is a party defendant in this litigation, the foregoing conclusion establishes his standing to seek a stay of the District Court’s release order.

II

As explained at the outset, I have decided to state my views on the question of standing to ensure that the Court’s denial of the reapplication for a stay does not engender the erroneous impression that applicant is somehow barred from requesting extraordinary relief from orders of the District Court. My decision to so confine my remarks should not be similarly misconstrued as an expression of approval of the District Court’s order. Justice Powell’s decision to state his views on the merits of the reapplication, however, have prompted me to depart somewhat from my original intention. In particular, I am compelled to state my disagreement with his assertion that applicant’s request for a stay is now moot.

Justice Powell initially relies on “ordinary linguistic usage” for the proposition that an order, once executed, cannot be “stayed.” Ante, at 936. I have some doubt whether this proposition is true, even as a matter of linguistic usage. Where an order has been actually effectuated but remains subject to the issuance of temporary common-law writs, such as those authorized by 28 U. S. C. § 1651, it is frequent practice in both federal and state courts to recite that “the mandate is recalled,” rather than “the order is stayed.”

Linguistics aside, the proposition rests on one of two assumptions of law, both of which are erroneous. The first is that the legal force of an order is spent once the parties to whom it is directed have complied with the decree. Discharge of a writ of habeas corpus, however, does not exhaust the force of the writ. Until vacated by reversal or a stay, the writ stands as a barrier to the lawful resumption of custody.

The second assumption is that issuance of a stay would be an empty gesture, because a stay exerts no compulsion on the parties to return to the positions they occupied before issuance of the original order. It is, of course, true that a stay does not have the legal effect of an injunction. Unlike an injunction, a stay in this case would not compel Alabama authorities to arrest and imprison those convicts freed by the District Court. It would, however, remove the federal barrier to efforts by the State itself to restore the prior status quo. This much plainly follows from the Court’s decision in Eagles v. United States ex rel. Samuels, 329 U. S. 304 (1946). The petitioner in Eagles sought exemption from military service and toward that end filed a petition for a writ of habeas corpus in federal court. The District Court denied the writ, but the Court of Appeals reversed and remanded with instructions to discharge petitioner from military custody. On remand the writ issued and petitioner was unconditionally released. The post commander appealed and this Court rejected petitioner’s claim that the case was moot. Noting that his release had been “obtained through the assertion of judicial power,” the Court held:

“It is the propriety of the exercise of that power which is in issue in the appellate court, whether the prisoner is discharged or remanded to custody. Though the writ has been granted and the prisoner released, the appellate court by what it does is not rendering an opinion and issuing an order which cannot affect the litigants in the case before it. . . . Affirmance makes the prisoner’s release final and unconditional. Reversal undoes what the habeas corpus court did and makes lawful a resumption of the custody.” Id., at 307-308 (emphasis added).

See Michigan v. Doran, 439 U. S. 282, 285, n. 2 (1978); Carr v. Zaja, 283 U. S. 62, 53 (1931).

The only action sought by applicant from this Court is a decision “mak[ing] lawful a resumption of the custody.” Eagles v. United States ex rel. Samuels, supra, at 308. A stay of the release order would achieve that result by removing the federal impediment to applicant’s exercise of authority to return the prisoners to confinement. This request should not be deemed moot simply because he has not asked for more. Although applicant might have encountered further impediments in attempting to return the prisoners to confinement, he chose to confront those problems on his own. It is enough for now that issuance of a stay would amount to something considerably more than “a mere declaration in the air.” Giles v. Harris, 189 U. S. 475, 486 (1903).

       The same conclusion follows from the more familiar line of cases concerning appellate review of judgments involving the payment of money or transfer of property. Since property transferred or money paid involuntarily pursuant to a judgment can be recovered, execution of the lower court’s judgment pending appeal normally does not render the case moot. E. g., Cahill v. New York, N. H. & H. R. Co., 351 U. S. 183, 184 (1956); Porter v. Lee, 328 U. S. 246, 251 (1946); Dakota County v. Glidden, 113 U. S. 222, 224 (1885). These cases represent merely a particularization of the rule that issuance of a court’s mandate or obedience to its judgment does not bar timely appellate review. Bakery Drivers v. Wagshal, 333 U. S. 437, 442 (1948); Aetna Casualty Co. v. Flowers, 330 U. S. 464, 467 (1947).


text:
    September 8, 1981
    No. 90,
    Orig.
    California v. Texas et al.
   Stipulation to dismiss the State of Mississippi as a party defendant was filed under Rule 53.


text:
    September 9, 1981
    No. A-218.
    Koch, Mayor of New York City, et al. v. Herron et al.
   Application to stay enforcement of the order filed with the Clerk of the United States District Court for the Southern District of New York on September 8, 1981, presented to Justice Marshall, and by him referred to the Court, denied.

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


text:
    September 12, 1981
    No. 80-1946.
    No. 80-1962.
    City of Pensacola, Florida, et al. v. Jenkins et al. Jenkins et al. v. City of Pensacola, Florida, et al.
   Appeal from C. A. 5th Cir.; and

C. A. 5th Cir. Jurisdictional statement in No. 80-1946 and petition for writ of certiorari in No. 80-1962 dismissed under this Court’s Rule 53. Reported below: No. 80-1946, 638 F. 2d 1239; No. 80-1962, 638 F. 2d 1249.


text:
    September 16, 1981
    No. 80-2062.
    Alpha Portland Industries, Inc., et al. v. California et al.
   C. A. 6th Cir. Certiorari dismissed under this Court’s Rule 53.2 (c).


text:
    September 21, 1981
    No. 80-2091.
    Indiana v. Cherry.
   Sup. Ct. Ind. Certiorari dismissed under this Court’s Rule 53.


text:
    September 23, 1981
    No. A-43 (81-247).
    Alabama v. Ritter.
   Sup. Ct. Ala. Application for stay, addressed to The Chief Justice and referred to the Court, denied.

Justice Rehnquist dissents from the denial of the application for stay.

He believes that upon consideration of Alabama’s petition for certiorari, a majority of this Court will conclude that the case should be remanded to the Supreme Court of Alabama for such proceedings as may be appropriate under California v. Krivda, 409 U. S. 33, 35 (1972), and that therefore the traditional stay equities favor the applicant.


text:
    No. A-137 (81-463).
    Brown, Warden v. Vargas.
   C. A. 1st Cir. Application for stay, addressed to Justice Rehnquist and referred to the Court, denied.


text:
    No. A-142.
    Alander v. Florida.
   Dist. Ct. App. Fla., 2d Dist. Application for stay, addressed to Justice Brennan and referred to the Court, denied.


text:
    No. A-144.
    Metropolitan County Board of Education et al. v. Kelley et al.
   Application to vacate the stay entered by the United States Court of Appeals for the Sixth Circuit, presented to Justice Rehnquist, and by him referred to the Court, denied.


text:
    No. A-152.
    Martins Ferry Hospital Assn. v. National Labor Relations Board.
   C. A. 6th Cir. Application for stay, addressed to Justice Rehnquist and referred to the Court, denied.


text:
    No. A-157 (81-453).
    LaBriola v. United States.
   C. A. 2d Cir. Application for stay and/or recall of mandate, addressed to Justice Rehnquist and referred to the Court, denied.


text:
    No. 80-415.
    No. 80-1239.
    Railway Labor Executives’ Assn. v. Gibbons, Trustee, et al. Railway Labor Executives’ Assn. v. Gibbons, Trustee, et al.
   D. C. N. D. Ill. [Probable jurisdiction postponed, 451 U. S. 936]; and

C. A. 7th Cir. [Probable jurisdiction noted, 451 U. S. 936.] Motion of the Solicitor General for divided argument and for additional time for oral argument granted, and 10 additional minutes allotted for that purpose. The nonfederal appellees are also allotted an additional 10 minutes for oral argument.


text:
    No. 80-990.
    Cabell, Acting Chief Probation Officer of Los Angeles County, et al. v. Chavez-Salido et al.
   D. C. C. D. Cal. [Probable jurisdiction noted, 450 U. S. 978.] Motion of Service Employees International Union, Local 535, for leave to file a brief as amicus curiae granted.


text:
    No. 80-1082.
    Smith, Correctional Superintendent v. Phillips.
   C. A. 2d Cir. [Certiorari granted, 450 U. S. 909.] Motion of American Civil Liberties Union et al. for leave to file a brief as amici curiae granted.


text:
    No. 80-1208.
    No. 80-1471.
    No. 80-1610.
    New England Power Co. v. New Hampshire Public Utilities Commission et al.; Massachusetts et al. v. New Hampshire Legislative Utility Consumers’ Council et al.; and Roberts, Attorney General of Rhode Island, et al. v. New Hampshire Public Utilities Commission et al.
   Sup. Ct. N. H. [Probable jurisdiction noted, 451 U. S. 981.] Motion of appellants for divided argument granted.


text:
    No. 80-1348.
    Florida Department of State v. Treasure Salvors, Inc., et al.
   C. A. 5th Cir. [Certiorari granted, 451 U. S. 982.] Motion of petitioner for divided argument and for additional time for oral argument denied.


text:
    No. 80-1429.
    Youngberg, Superintendent, Pennhurst State School and Hospital, et al. v. Romeo, an incompetent, by his mother and next friend, Romeo.
   C. A. 3d Cir. [Certiorari granted, 451 U. S. 982.] Motion of American Psychiatric Association for leave to participate in oral argument as amicus curiae and for additional time for argument denied. Motion of respondent for divided argument to permit amicus curiae American Psychological Association to present oral argument denied.


text:
    No. 80-1430.
    Engle, Correctional Superintendent v. Isaac; Perini, Correctional Superintendent v. Bell; and Engle, Correctional Superintendent v. Hughes.
   C. A. 6th Cir. [Certiorari granted, 451 U. S. 906.] Motion of Institutional Legal Services Project for leave to file a brief as amicus curiae granted.


text:
    No. 80-1538.
    No. 80-1934.
    Plyler, Superintendent, Tyler Independent School District, et al. v. Doe, Guardian, et al. Texas et al. v. Certain Named and Unnamed Undocumented Alien Children et al.
   C. A. 5th Cir. [Probable jurisdiction noted, 451 U. S. 968]; and

C. A. 5th Cir. [Probable jurisdiction noted, 452 U. S. 937.] Motion of National School Boards Association for leave to file a brief as amicus curiae in No. 80-1934 granted.


text:
    No. 80-1640.
    No. 80-1656.
    United States Nuclear Regulatory Commission et al. v. Sholly et al.; and Metropolitan Edison Co. et al. v. People Against Nuclear Energy et al.
   C. A. D. C. Cir. [Certiorari granted, 451 U. S. 1016.] Motion of Edison Electric Institute for leave to file a brief as amicus curiae granted. Motion of petitioners for divided argument granted.


text:
    No. 80-1765.
    American Society of Mechanical Engineers, Inc. v. Hydrolevel Corp.
   C. A. 2d Cir. [Certiorari granted, 452 U. S. 937.] Motion of Legal Foundation of America for leave to file a brief as amicus curiae granted.


text:
    No. 80-5727.
    Eddings v. Oklahoma.
   Ct. Crim. App. Okla. [Certiorari granted, 450 U. S. 1040.] Motion of Washington Legal Foundation for leave to file brief as amicus curiae granted.


text:
    No. 79-5587.
    No. 80-148.
    No. 80-289.
    No. 80-692.
    No. 80-328.
    No. 80-6604.
    Brooks v. Texas, Robbins v. California, United Mine Workers of America, Local No. 1854, et al. v. National Labor Relations Board et al., National Labor Relations Board v. Amax Coal Co., a division of Amax, Inc., et al., New York v. Belton, Thomas v. Georgia,
   ante, p. 913;

ante, p. 420;

ante, p. 322;

ante, p. 322;

ante, p. 454; and

452 U. S. 973. Petitions for rehearing denied.


text:
    No. 80-5284.
    No. 80-6501.
    Sarto v. New Jersey, Manley v. United States,
   449 U. S. 938; and

451 U. S. 992. Motions for leave to file petitions for rehearing denied.


text:
    September 29, 1981
    No. 80-2068.
    Atchison, Topeka & Santa Fe Railway Co. et al. v. United States et al.
   C. A. 5th Cir. Certio-rari dismissed under this Court’s Rule 53.


text:
    October 1, 1981
    No. 80-2076.
    Stokely-Van Camp, Inc. v. Espinoza et al.
   C. A. 7th Cir. Certiorari dismissed under this Court’s Rule 53.1


text:
    No. 80-1804.
    Ledbetter, Sheriff, et al. v. Jones et al.
   C. A. 5th Cir. [For order limiting grant of certiorari, see ante, p. 911.] Writ of certiorari dismissed under this Court’s Rule 53.


text:
    October 2, 1981
    No. 80-6946.
    Csaky v. Hornblower & Weeks-Hemphill, Noyes, Inc.
   C. A. D. C. Cir. Certiorari dismissed under this Court’s Rule 53.


author: Justice Powell, Circuit Justice.

text:
    SOUTH PARK INDEPENDENT SCHOOL DISTRICT v. UNITED STATES
    No. A-5.
    Decided July 21, 1981

      Together with No. A-33, Huch et al. v. United States, also on application for stay of the same mandate.

   Justice Powell, Circuit Justice.

A school district in Beaumont, Tex., and a group of inter-venor parents, children, and citizens have requested me as Circuit Justice to stay the mandate of the Court of Appeals for the Fifth Circuit pending disposition of their petition for a writ of certiorari. The Court of Appeals ordered the District Court to prepare and implement a desegregation plan to operate during the 1981-1982 school year. For the reasons stated below, I must deny the applications.

Much of the history of this lawsuit is set out in Huch v. United States and South Park Independent School District v. United States, 439 U. S. 1007, 1008 (1978) (Rebcnquist, J., dissenting from denial of certiorari). In brief, prior to 1970, the applicant school district maintained a dual school system based on de jure racial segregation. In that year the District Court entered a school integration plan that was accepted by all parties. The plan established racially neutral attendance zones for each school and included a provision allowing any student to transfer from a school where his race was in the majority to one where it was in the minority.

In 1976, the United States filed a motion for supplemental relief, alleging that a dual system still existed in fact. The District Court denied relief, holding that its 1970 order had created a unitary school system and finding that the present racial concentrations in the school district were the result of shifting residential patterns, the transfer of some pupils to private schools, and other factors beyond the control of the school district. It held that it no longer retained jurisdiction over the case and that the United States must file a new complaint if it seeks further relief.

The Court of Appeals reversed. 566 F. 2d 1221 (1978). Relying on Swann v. Charlotte-Mecklenburg Board of Education, 402 U. S. 1, 26 (1971), it held that the District Court’s findings were insufficient to show that the predominance of substantially one-race schools was not the result of past or present acts of intentional discrimination. The court remanded to the District Court to hold further hearings on the question whether the school district is now a unitary system. This Court denied certiorari. 439 U. S. 1007. Two Justices dissented, suggesting that the case presented an important issue whether Pasadena City Board of Education v. Spangler, 427 U. S. 424 (1976), precluded continuing jurisdiction by the District Court where all parties had acquiesced in a desegregation plan six years previously.

On remand the District Court held an evidentiary hearing and made findings of fact. It found that the 1970 order created a unitary school system by implementing a racially neutral attendance zone for each school and that the court was now without jurisdiction to entertain a motion for supplemental relief. The court recounted at length evidence tending to show that the “lesser percentage of desegregation that had been anticipated” was caused by demographic changes and parental resistance. The court found no evidence that the school district had committed any act of intentional discrimination, but rather that the authorities had implemented the 1970 plan in good faith.

The Court of Appeals again reversed. United States v. Texas Education Agency, 647 F. 2d 504 (1981). It held that the District Court’s finding that the implementation of the 1970 order had created a unitary school system was clearly erroneous. In reaching this decision, the court compared statistics concerning the racial composition of schools in the district in the 1969 and 1979 school years. These statistics indicate that there has been little lasting progress in achieving schools with balanced pupil populations. In 1969, 15 of 20 schools in the district had student populations 90% or more of one race; in 1979, 11 of 18 still were 90% or more of one race. The percentage of blacks in the system rose from 33% in 1969 to 40% in 1979. The court held that the District Court retained jurisdiction because these figures proved that the school authorities “had failed to eliminate the continuing system wide effects of the prior discriminatory dual school system.” Id., at 508.

The standards for granting a stay of mandate pending disposition of a petition for certiorari are well established:

“[T]here must be a reasonable probability that four members of the Court would consider the underlying issue sufficiently meritorious for the grant of certiorari or the notation of probable jurisdiction; there must be a significant possibility of reversal of the lower court’s decision; and there must be a likelihood that irreparable harm will result if that decision is not stayed.” Times-Picayune Publishing Corp. v. Schulingkamp, 419 U. S. 1301, 1305 (1974) (Powell, J., in chambers).

I cannot conclude that there is a “reasonable probability” four Members of the Court will vote to grant certiorari. The issues presented by applicants are almost identical to those presented three years ago, when the Court voted to deny cer-tiorari. Indeed, much of the school district's argument for granting a stay merely incorporates by reference Justice Rehnquist’s opinion, joined by me, dissenting from the denial of certiorari at that time. Because this argument did not persuade the Court then, I cannot predict responsibly that it will persuade the Court now.

Speaking for myself, I believe that the case in its present posture merits review by this Court. The Court of Appeals, relying exclusively on statistics comparing 1969 and 1979, rejected with little explanation the District Court’s finding of fact that the implementation of the consensual 1970 plan had created a unitary school system, and that the degree of segregation existing in 1980 was caused, not by any discriminatory action by the school authorities, but by demographic changes in the public school population and by private parental choice. The statistics relied on by the Court of Appeals do not address the legal effect of the implementation of the 1970 order or the legal cause of the degree of present imbalance. These latter questions should determine whether the District Court retains jurisdiction over the local schools.

It seems to me that the Court of Appeals may have erred as a matter of law in failing to give appropriate recognition to the District Court’s factual findings as to the cause of the lack of present integration. Pasadena made clear that once a unitary school system has been attained, the District Court no longer has jurisdiction to continue its oversight, respond to inevitable demographic changes, and attempt by judicial decree to maintain for an indefinite time what it perceives to be a desirable racial mix in the schools. This is not to say, of course, that a federal court should not respond forcefully to proof of fresh or continued racial discrimination.

In sum, it seems to me that there is an impasse between the District Court and the Court of Appeals as to the meaning of our decision in Pasadena. This is an important question of law. For this reason, I expect to vote to grant cer-tiorari. Yet, I cannot say with confidence that the requisite number of other Justices will join me. Accordingly, the requests for a stay are denied.


author: Justice Stevens.

text:
    METROPOLITAN COUNTY BOARD OF EDUCATION et al. v. KELLEY et al.
    No. A-144.
    Decided August 20, 1981
   Justice Stevens.

Pursuant to the Rules of this Court, the motion of the Metropolitan Nashville Board of Education to vacate the stay entered by the United States Court of Appeals for the Sixth Circuit on August 19, 1981, has been referred to me for decision. The movants have persuaded me that I have jurisdiction to vacate the stay entered by the Court of Appeals, but for the following reasons I have decided not to do so.

The District Court order of April 17, 1981, that has been stayed by the Court of Appeals substantially modifies the desegregation order that had previously been in effect in Davidson County, Tenn. The plaintiffs filed an appeal from the April 17 order and, after hearing oral argument in connection with the plaintiffs’ application for a stay, the Court of Appeals expressed the opinion that the changes in the prior order are of sufficient significance that they should be reviewed by an appellate court before they are implemented. I share that opinion.

Although, as the Board of Education has pointed out, the stay will cause significant expense and inconvenience to the community, because the interim order will affect 21 elementary schools, 6 middle schools and 3 high schools immediately, and also will have an impact on the permanent plan scheduled to go into effect in 1984, it seems to me that even greater inconvenience might result if the plan were to go into effect forthwith and be modified or set aside at a later date when the Court of Appeals reviews its merits. The Court of Appeals has greater familiarity with the case than it is possible for me to have in the brief time I have had to examine the papers that have been filed with me; for the purpose of my action I accept the correctness of that court’s determination that there is a likelihood that plaintiffs will prevail on their appeal. If that be so, it seems to me that in the long run there will be less inconvenience and hardship to all parties if appellate review is had prior to the implementation of the interim order of the District Court. Accordingly, the motion of the Board of Education to vacate the stay is denied.


author: Justice Rehnquist, Circuit Justice.

text:
    CITY OF LOS ANGELES et al. v. LYONS
    No. A-230.
    Decided September 29, 1981
   Justice Rehnquist, Circuit Justice.

The Court of Appeals, in its most recent opinion in this case, rested its holding on the proposition that “[t]his court will not disturb an order granting a preliminary injunction unless it was an abuse of discretion by the district court.” 656 F. 2d 417 (CA9 1981). This proposition, of course, is not only in accord with its own precedents cited in the opinion, but with our own cases on the subject. See, e. g., Brown v. Chote, 411 U. S. 452, 457 (1973). If that were all the case involved, there would be so little likelihood that four Members of this Court would grant certiorari that no further discussion would be necessary and the applicants’ request for a stay would be denied.

But, as I understand the matter, there is a good deal more to this case than the most recent opinion of the Court of Appeals issued August 17, 1981. The preliminary injunction referred to in that opinion was issued by the District Court only after its earlier partial summary judgment in favor of the applicants had been reversed by the Court of Appeals in Lyons v. City of Los Angeles, 615 F. 2d 1243 (CA9), cert, denied, 449 U. S. 934 (1980) (Lyons I).

In its opinion in Lyons I, the Court of Appeals held that respondent had standing to challenge the use by members of the City of Los Angeles Police Department of so-called “choke-holds” in situations that are not life threatening. 615 F. 2d, at 1246-1249. Because respondent had once been the subject of such a “choke-hold,” the Court of Appeals held that respondent had standing to seek an injunction, even though there was no indication that he would ever be subjected to them again by reason of an arrest by Los Angeles police officers. “[T]he threat of future injury to not only Lyons, but to every citizen in the area is much more immediate” than those described in Rizzo v. Goode, 423 U. S. 362 (1976), or O’Shea v. Littleton, 414 U. S. 488 (1974). 615 F. 2d, at 1246.

The Court of Appeals in Lyons I also held that respondent’s request for injunctive relief was not moot. “Lyons once had a live and active claim meeting all the Article III requirements ... if only for a period that lasted but a few seconds. That period could be described as the time between the moment he was stopped and the moment the stranglehold was applied, or even the split second between the moment the officer moved to grab him and the moment the stranglehold was applied.” Id., at 1248. The Court of Appeals also explained that Lyons’ claim is one that is “capable of repetition, yet evading review,” even though a “future recurring controversy [will] have but a small chance of affecting the original plaintiff.”

On remand, the United States District Court entered the following temporary injunction:

“IT IS ORDERED that defendants are hereby enjoined from the use of both the carotid artery and bar arm holds under circumstances which do not threaten death or serious bodily harm.
“IT IS FURTHER ORDERED that this injunction is effective . . . and shall continue in force until this Court approves a training program presented to it. Such program shall consist of a detailed written training manual, prepared by qualified individuals, in addition to appropriate, practical training sessions for the members of the Los Angeles Police Department.
“IT IS FURTHER ORDERED that defendant City of Los Angeles establish a requirement, forthwith, that all applications of the use of the holds in question, even under the conditions permitted by this Order, to wit, the death or serious bodily harm situation, be reported in writing to said defendant within forty-eight hours after the use of such holds.
“IT IS FURTHER ORDERED that defendant City of Los Angeles shall maintain records of such reports in an orderly fashion, and shall allow this court ready access to such records upon twenty-four hours’ notice.” Application, Ex. 4 (emphasis added).

It was this latter “preliminary injunction” that the Court of Appeals affirmed in its most recent per curiam, opinion issued August 17, 1981. Respondent, in opposing this stay of that judgment of the Court of Appeals, states that “[t]he question of Lyons’ standing to sue was settled in Lyons I.” Response, at 2. This is undoubtedly quite true insofar as the Court of Appeals for the Ninth Circuit is concerned, but Lyons I is not “law of the case” so far as this Court is concerned. The city petitioned for certiorari to review Lyons I, but its petition was at that time denied. Justice White, Justice Powell, and I dissented. City of Los Angeles v. Lyons, 449 U. S. 934 (1980).

I am of the opinion that since the District Court has now formulated the specific terms of an injunction, and held the use of the so-called “choke-holds” unconstitutional except in life-threatening situations, there is a substantial likelihood that an additional Member of this Court would now join Justice White’s dissent from denial of certiorari in Lyons I, thereby resulting in a grant if the city, as it proposes to do, files a timely petition for certiorari by December 9, 1981. The issue to be reviewed, of course, is not whether a preliminary injunction should be affirmed on appeal unless it represents an abuse of discretion, but whether respondent has standing to maintain this action. On this issue, I think there is enough difference in the approach of the Court of Appeals in this case and the approach of this Court in O’Shea v. Littleton, supra, and Rizzo v. Goode, supra, to offer applicants a reasonable chance of success on the merits should the Court grant certiorari. I likewise think that the Court of Appeals’ “capable of repetition, yet evading review” discussion with respect to mootness is not entirely consistent with this Court’s opinion in Weinstein v. Bradford, 423 U. S. 147, 149 (1975).

Applicants assert that “[t]he effect of the district court’s order will be to cause more injuries to and deaths of suspects,” because “[pjolice officers will be unequipped to deal with the day-to-day handling of violent arrestees who do not threaten death or serious bodily harm.” Application, at 12-13. Respondent argues to the contrary, since he claims that the applicant city of Los Angeles may obtain relief from the preliminary injunction merely by properly reforming its training practices “to assure that its police officers understand how dangerous strangulation is and when its officers should strangle.” Response, at 18. I find it both unnecessary and probably impossible to decide which of these forecasts, if either, will prove true.

Respondent urges that I should not act on this stay, because the applicants’ request for a stay is nothing more than a petition for rehearing of the earlier denial of certiorari by this Court and therefore our Rule 51.1 prevents me from granting a stay. I am not persuaded by this argument. In Lyons I, the Court of Appeals stated:

“We note that the appellant in no way asks for a complete prohibition on the use of the stranglehold. He only seeks to restrain its use to situations where it is constitutional. In what circumstances the use of the strangleholds is constitutional is, of course, a judgment for the district court to make.” 615 F. 2d, at 1244, n. 1.

The District Court has now made that judgment, and entered an injunction forbidding its use except under certain circumstances. The order requires recordkeeping and that such records be made available to the District Court upon its request. The case has thus progressed considerably further toward final resolution than it had at the time certiorari was denied in Lyons I.

The complaint alleging the use of these police tactics was filed on February 7, 1977, and the city’s petition for certiorari is due by December 9, 1981. Thus, what is basically involved in a consideration of traditional “stay equities” is whether the city shall be allowed to use a particular procedure, already in use for at least four years, for the few additional months before this Court acts on its petition for certiorari. I conclude that there is sufficient doubt about the correctness of the basic holding of the Court of Appeals with respect to standing on the part of respondent, together with sufficient equities in favor of the city, to warrant a stay of the Court of Appeals’ order affirming the District Court’s granting of an injunction, pending a timely filing of a petition for certiorari by the applicants and the disposition thereof by this Court.

It is so ordered.


author: Per Curiam.

text:
    DUCKWORTH, WARDEN v. SERRANO
    No. 80-2041.
    Decided October 19, 1981
   Per Curiam.

The motion of respondent to proceed in forma pawperis and the petition for writ of certiorari are granted.

This habeas corpus case involves the presentation to a federal appellate court of an ineffective-assistance-of-counsel claim that had never been raised in a state court. Respondent, Isadore Serrano, was convicted of the murder of Debra Gomez in Sunnyside Park, East Chicago, Ind. At trial, Norma Hernandez testified that Serrano had told her that he had killed Gomez. The respondent was represented by William Walker. Upon cross-examination, Mrs. Hernandez stated that the firm of Walker & Walker had represented her on a traffic ticket in the past and that she had asked William Walker to represent her on a pending robbery charge, unrelated to the Gomez slaying. Serrano did not challenge the effectiveness of counsel in his appeal to the Indiana Supreme Court, which affirmed his conviction, Serrano v. State, 266 Ind. 126, 360 N. E. 2d 1257 (1977), or before theEederal District Court, which dismissed his petition for a writ of habeas corpus.

The issue was first raised in the Court of Appeals for the Seventh Circuit, which reversed the District Court’s dismissal on grounds that Serrano’s attorney’s representation of a prosecution witness constituted a per se violation of the Sixth Amendment guarantee of effective representation. 654 F. 2d 725 (1981). While acknowledging that the ineffective-assistance argument had never been presented to the state courts, the court nevertheless decided that “in view of the clear violation” of respondent’s rights and “in the interest of judicial economy,” there was no reason to await the state court’s consideration of the issue. App. to Pet. for Cert A-3.

No cases were cited by the Court of Appeals in support of its decision. Nor could such support reasonably be found. It has been settled for nearly a century that a state prisoner must normally exhaust available state remedies before a writ of habeas corpus can be granted by the federal courts. Ex parte Royall, 117 U. S. 241 (1886); Ex parte Hawk, 321 U. S. 114 (1944); Irvin v. Dowd, 359 U. S. 394, 404-405 (1959); Nelson v. George, 399 U. S. 224, 229 (1970); Picard v. Connor, 404 U. S. 270 (1971); Pitchess v. Davis, 421 U. S. 482 (1975). The exhaustion requirement, now codified in the federal ha-beas statute, 28 U. S. C. §§ 2254(b) and (c), serves to minimize friction between our federal and state systems of justice by allowing the State an initial opportunity to pass upon and correct alleged violations of prisoners’ federal rights. Picard v. Connor, supra,, at 275; Wilwording v. Swenson, 404 U. S. 249, 250 (1971). An exception is made only if there is no opportunity to obtain redress in state court or if the corrective process is so clearly deficient as to render futile any effort to obtain relief. See, e. g., Wilwording v. Swenson, supra, at 250. State courts are “equally bound to guard and protect rights secured by the Constitution,” Ex parte Roy all, supra, at 251, and here neither the Court of Appeals nor the respondent contends that Indiana’s postconviction procedures are inadequate to adjudicate the ineffective-assistance claim. Because obvious constitutional errors, no less than obscure transgressions, are subject to the requirements of § 2254(b), the Court of Appeals was obligated to dismiss respondent’s petition.

Sound judicial policy points in the same direction. Creating a new exception for “clear violations” would not promote judicial economy, but rather would invite habeas petitioners to make a practice of first seeking relief on these grounds in federal courts. Significantly more time and resources would be consumed as district and appellate courts examined the merits to determine whether a claim met the requisite level of validity to justify dispensing with the exhaustion requirement. It is likely that in most cases the violation would not be so “clear” and that state prisoners would be directed to seek relief in the state system. Moreover, even when such clear violations are found, considerations of federal-state comity would still inhere, and it would be unseemly in our dual system of government for the federal courts to upset a state-court conviction without affording to the state courts the opportunity to correct a constitutional violation. Picard v. Connor, supra, at 275.

The Court of Appeals engrafted an exception onto the ha-beas statute not envisioned by Congress, inconsistent with the clear mandate of the Act, and irreconcilable with our decisions requiring the exhaustion of state judicial remedies. Therefore, the judgment of the Court of Appeals is reversed, and the case is remanded to that court for further proceedings consistent with this opinion.

So ordered.

Justice Marshall dissents.

        Roberts v. LaVallee, 389 U. S. 40 (1967), referred to by respondent as an example where the possibility of success in the state courts did not require denying relief, is not to the contrary. The habeas petitioner in Roberts thoroughly exhausted his state remedies, and we held, relying upon Brown v. Allen, 344 U. S. 443, 449, n. 3 (1953), that “Congress had not intended ‘to require repetitious applications to state courts.’” 389 U. S., at 42.

       Title 28 U. S. C. § 2254 provides in pertinent part:
      “(b) An application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court should not be granted unless it appears that the applicant has exhausted the remedies available in the courts of the State, or that there is either an absence of available State corrective process or the existence of circumstances rendering such process ineffective to protect the rights of the prisoner.
      “(c) An applicant shall not be deemed to have exhausted the remedies available in the courts of the State, within the meaning of this section, if he has the right under the law of the State to raise, by any available procedure, the question presented.”

       Indiana Rules of Procedure for Post-Conviction Remedies, Rule 1, § 1, provides that
      “(a) Any person who has been convicted of, or sentenced for, a crime by a court of this state, and who claims
      “(1) that the conviction or the sentence was in violation of the Constitution of the United States or the constitution or laws of this state
      “. . . may institute at any time a proceeding under this rule to secure relief.”
      The Seventh Circuit has previously recognized that resort to this procedure was necessary to fully exhaust state remedies. Evans v. Lane, 419 F. 2d 1337, cert. denied, 398 U. S. 939 and 944 (1970).


author:
Per Curiam.
      Justice Brennan,
      Justice Stevens,

text:
    CHARDON, SECRETARY OF PUBLIC EDUCATION OF PUERTO RICO, et al. v. FERNANDEZ et al.
    No. 81-249.
    Decided November 2, 1981

       Together with Chardon, Secretary of Public Education of Puerto Rico, et al. v. Rodriguez; Chardon, Secretary of Public Education of Puerto Rico, et al. v. Santiago de Orta; Chardon, Secretary of Public Education of Puerto Rico, et al. v. Angiuta de Rios; Chardon, Secretary of Public Education of Puerto Rico, et al. v. Sanchez; Chardon, Secretary of Public Education of Puerto Rico, et al. v. Santana; Chardon, Secretary of Public Education of Puerto Rico, et al. v. Perez-Ramirez; Chardon, Secretary of Public Education of Puerto Rico, et al. v. Roman de Molina; Chardon, Secretary of Public Education of Puerto Rico, et al. v. Collazo; Chardon, Secretary of Public Education of Puerto Rico, et al. v. Garcia; Chardon, Secretary of Public Education of Puerto Rico, et al. v. Lopez de Ferra; Chardon, Secretary of Public Education of Puerto Rico, et al. v. Beltran; Chardon, Secretary of Public Education of Puerto Rico, et al. v. Cacho de Freytes; and Chardon, Secretary of Public Education of Puerto Rico, et al. v. Navarro, also on petition for certiorari to the same court (see this Court’s Rule 19.4).

   Per Curiam.

Respondents were nontenured administrators in the Puerto Rico Department of Education during the 1976-1977 school year. On dates prior to June 18, 1977, each respondent was notified by letter that his appointment would terminate at a specified date between June 30 and August 8, 1977. On June 19, 1978, Rafael Rivera Fernandez filed a complaint alleging that the terminations violated 42 U. S. C. § 1983. The District Court dismissed the suit, holding that the action had accrued on the date the employees received the letters and that the claims were therefore barred by the applicable 1-year statute of limitations, P. R. Laws Ann., Tit. 31, § 5298(2) (1968). The Court of Appeals for the First Circuit reversed on the ground that the limitations period did not begin running until respondents’ appointments ended. 648 F. 2d 765 (1981).

The decision below is contrary to a recent decision of this Court: Delaware State College v. Ricks, 449 U. S. 250 (1980). In that case, Ricks filed suit alleging that the denial of tenure at a state college deprived him of his rights under Title VII of the Civil Rights Act of 1964, 42 U. S. C. §2000e et seq., and under 42 U. S. C. § 1981. And we held that the applicable limitations periods began to run when Ricks was denied tenure, rather than on the date his employment terminated. His action was, therefore, time-barred.

The Court of Appeals for the First Circuit distinguished Ricks on the ground that Ricks had alleged that denial of tenure was the “unlawful employment practice,” whereas here respondents allege that termination of their employment as administrators was the “unlawful employment practice.” We think Ricks is indistinguishable. When Ricks was denied tenure, he was given a 1-year “terminal” contract. Thus, in each case, the operative decision was made — and notice given — in advance of a designated date on which employment terminated.

In Ricks, we held that the proper focus is on the time of the discriminatory act, not the point at which the consequences of the act become painful. 449 U. S., at 258. The fact of termination is not itself an illegal act. In Ricks, the alleged illegal act was racial discrimination in the tenure decision. Id., at 259. Here, respondents allege that the decision to terminate was made solely for political reasons, violative of First Amendment rights. There were no other allegations, either in Ricks or in these cases, of illegal acts subsequent to the date on which the decisions to terminate were made. As we noted in Ricks, “[m]ere continuity of employment, without more, is insufficient to prolong the life of a cause of action for employment discrimination.” Id., at 257. In the cases at bar, respondents were notified, when they received their letters, that a final decision had been made to terminate their appointments. The fact that they were afforded reasonable notice cannot extend the period within which suit must be filed. We therefore grant certiorari. The judgments entered below on May 8, 1981, and June 11, 1981, are reversed, and the cases are remanded for further proceedings consistent with this decision.

Reversed and remanded.

Justice Brennan,

with whom Justice Marshall joins,

dissenting.

While I agree with the analysis of Judge Campbell for the Court of Appeals, and therefore join in the dissenting opinion of Justice Stevens, I believe this per curiam disposition is particularly ill-conceived.

It is one thing to hold, as was held in Delaware State College v. Ricks, 449 U. S. 250 (1980), that for the purpose of computing the limitations period, a cause of action for denial of a benefit such as tenure, and consequent damage, accrues when the plaintiff learns that he has been denied that benefit; it is quite another to hold, as the Court does here, that a cause of action for damages resulting from an unconstitutional termination of employment accrues when the plaintiff learns that he will be terminated. To my knowledge, such a rule has no analogue in customary principles of limitations law. See 4 A. Corbin, Contracts § 989 (1951) (“The plaintiff should not be penalized for leaving to the defendant an opportunity to retract his wrongful repudiation; and he would be so penalized if the statutory period of limitation is held to begin to run against him immediately”).

The thrust of the Court’s decision is to require a potential civil rights plaintiff to measure the time for filing his claim from the moment some form of injunctive relief first becomes available. The effect of this ruling will be to increase the number of unripe and anticipatory lawsuits in the federal courts — lawsuits that should not be filed until some concrete harm has been suffered, and until the parties, and the forces of time, have had maximum opportunity to resolve the controversy.

Because this case is plainly distinguishable from Ricks, and the decision potentially far-reaching in its impact, the issue should be decided only upon plenary review. The Court’s summary reversal is therefore particularly inappropriate, and I respectfully dissent.

Justice Stevens,

with whom Justice Brennan and Justice Marshall join,

After noting that most judges who have confronted the issue have reached a conclusion at odds with the Court’s holding today, Judge Campbell, writing for the Court of Appeals, cogently explained why the decision in Delaware State College v. Ricks, 449 U. S. 250, is not dispositive and should not be followed in this case:

“The issue of when the cause of action accrues depends, we believe, on when the alleged unlawful act occurred. It is necessary, therefore, to identify the unlawful act. Where, as here, the claim is that an employment decision was made for a prohibited reason, it could be argued that the unlawful act was the making of the decision, rather than the implementation of it. But we think such a refined rule would depart too sharply from the understanding of ordinary people. The plaintiffs in these cases are complaining that they were demoted or discharged, not merely that a decision was made on a particular occasion, of which notice was then given, to take such action against them. Had the decision been made but not yet implemented, equitable relief might have been sought to forestall irreparable harm, but it is unlikely that plaintiffs would have sought or received damages until or unless the threatened action was consummated. The alleged unlawful act was revocable, incomplete and, for practical purposes, nonexistent until the actual demotion or discharge.
“Moreover, important policies of judicial administration favor a rule based on the date of implementation. While the date of notice in the present cases was easily established, other cases would surely arise in which resolution of that question would require lengthy proceedings. Notice might be oral, or it might be ambiguously phrased, or it might be transmitted by one whose authority is subject to question. We see no value in requiring courts and parties to devote their resources to litigating the adequacy of notice, when the date of the action itself is easily determined. In saying this we are aware that the Supreme Court has declined to reach out for an easily identified date when that date bears no genuine relationship to the act of which plaintiff complains. Compare Delaware State College v. Ricks, [449 U. S. 250] (1980) (date of termination not sufficiently connected to the challenged denial of tenure), discussed infra. But where, as here, the date that is most closely related to the plaintiffs’ claim is also the date most easily identified, we think concern for adoption of the rule that best promotes certainty and eliminates litigation over technical niceties is well warranted.
“After the district court’s decision of these cases, the Supreme Court decided Delaware State College v. Ricks, supra. Defendants contend that that decision compels affirmance here. We disagree. Ricks, a black Liberian instructor, was informed in June 1974 that the faculty of Delaware State College had voted to deny him tenure. In accordance with the school’s usual practice, he was thereafter granted a one-year terminal contract, after which his employment with the school ended. In his suit alleging discrimination on the basis of national origin, Ricks contended that the limitations period under Title VII began to run only when he left the university in June 1975. The Supreme Court rejected this argument and concluded that Ricks’ cause of action had accrued when he was notified of the denial of tenure, in June 1974, and that his suit was therefore barred. The Court focussed on the allegations of Ricks’ complaint, which it found to charge discrimination in the denial of tenure, not in the discharge or any other subsequent action. The Court held that the denial of tenure was the ‘unlawful employment practice’ within the meaning of Title VII, and that the date of that action was therefore the beginning of the limitations period. Three justices, in dissent, accepted the majority’s analysis (i. e., that denial of tenure, not discharge, was the unlawful employment practice) but placed the denial of tenure at a later date because of the later decision of an internal grievance board. Justice Stevens, alone among the justices, took the view that denial of tenure is analogous to advance notice of discharge. Based on that analogy, he argued that the date of discharge should control.
“Refusal of the Ricks majority to adopt Justice Stevens’ analogy does not seem to us in any way to repudiate the precedents to which he sought to draw an analogy. The majority held merely that the denial of tenure in the academic setting is fundamentally different from a notice of discharge; it is a distinct and separate employment action, with important and far-reaching consequences for all aspects of the employee’s status. While denial of tenure is often followed by discharge, it is not always, and the consequences of denial of tenure are not dependent on its being followed by discharge. The Court found that Ricks’ complaint was based on the denial of tenure, which was effective immediately; it followed, therefore, that the limitations period began as soon as Ricks received notice of that action. Here, plaintiffs complain of discharges and demotions, not of any distinct event that occurred on an earlier date. The letters notifying them of the planned actions were notice and nothing more; they were not actions in themselves comparable to the denial of tenure.
“To be sure, as we have said, one can argue that the notices themselves mirror the allegedly discriminatory motives of the defendants. One can also argue that a suit for injunctive relief might lie after receipt of notice (or, indeed, even before) to forestall threatened irreparable harm. Still plaintiffs’ quarrel is with their demotions and discharges — not with the notices themselves. No actual harm is done until the threatened action is consummated. Until then, the act which is the central focus of the plaintiffs’ claim remains incomplete. Such was not the situation in Ricks, where the denial of tenure was itself the completed act being challenged.
“We conclude, therefore, that Ricks is inapplicable to these cases, and that the district court erred in dismissing the complaints.” 648 F. 2d 765, 768-770 (CA11981) (footnotes omitted).

For the reasons stated by the Court of Appeals, I respectfully dissent.

       Petitioners request a writ of certiorari to the Court of Appeals for the First Circuit to review a total of 14 judgments entered in favor of 36 respondents. The published decision, discussed in text, represents one judgment in a suit brought by 23 respondents; that decision was issued May 8, 1981. See 648 F. 2d 765 (1981). Identical individual judgments in favor of the other 13 respondents were issued on June 11, 1981. See App. to Pet. for Cert. 11a (unpublished orders).

       Delaware State College had a policy of giving a final 1-year contract to teachers who were denied tenure. Only when that contract expired, did the “employment relationship en[d].” 449 U. S., at 253. Apparently, the practice of the Puerto Rico Department of Education was similar in principle. Following a decision to terminate, the actual ending of employment was deferred to a designated date. Advance notice of termination is a customary and reasonable employment practice which affords the employee an opportunity to find another job.