text:
    YOUNG, COMMISSIONER OF FOOD AND DRUG ADMINISTRATION v. COMMUNITY NUTRITION INSTITUTE et al.
    No. 85-664.
    Argued April 30, 1986
    Decided June 17, 1986

      O’Connor, J., delivered the opinion of the Court, in which Burger, C. J., and Brennan, White, Marshall, Blackmun, Powell, and Rehnquist, JJ., joined. Stevens, J., filed a dissenting opinion, post, p. 984.

      Paul J. Larkin, Jr., argued the cause for petitioner. With him on the briefs were Solicitor General Fried, Assistant Attorney General Willard, Deputy Solicitor General Geller, Leonard Schaitman, Marleigh D. Dover, and Thomas Scarlett.

      William B. Schultz argued the cause for respondents. With him on the brief were Alan B. Morrison and Katherine A. Meyer.

       Briefs of amici curiae urging reversal were filed for the State of South Carolina by Philip C. Olsson, T. Travis Medlock, Attorney General, and Brooks Shealy, Assistant Attorney General; for the American Feed Industry Association by David F. Weeda; for the Grocery Manufacturers of America, Inc., by Peter Barton Hutt; for the National Food Processors Association by H. Edward Dunkelberger, Jr.; and for the National Peanut Council, Inc., by James M. Goldberg.

   Justice O’Connor

delivered the opinion of the Court.

We granted certiorari in this case to determine whether the Court of Appeals for the District of Columbia Circuit correctly concluded that the Food and Drug Administration’s longstanding interpretation of 21 U. S. C. § 346 was in conflict with the plain language of that provision. 474 U. S. 1018 (1985). We hold that, in light of the inherent ambiguity of the statutory provision and the reasonableness of the Food and Drug Administration’s interpretation thereof, the Court of Appeals erred. We therefore reverse.

I

A

The Food and Drug Administration (FDA) enforces the Federal Food, Drug, and Cosmetic Act (Act) as the designee of the Secretary of Health and Human Services. 21 U. S. C. § 371(a). See also 21 CFR §5.10 (1986). The Act seeks to ensure the purity of the Nation’s food supply, and accordingly bans “adulterated” food from interstate commerce. 21 U. S. C. § 331(a). Title 21 U. S. C. § 342(a) deems food to be “adulterated”

“(1) If it bears or contains any poisonous or deleterious substance which may render it injurious to health; but in case the substance is not an added substance such food shall not be considered adulterated under this clause if the quantity of such substance in such food does not ordinarily render it injurious to health; or (2)(A) if it bears or contains any added poisonous or added deleterious substance (other than [exceptions not relevant here]) which is unsafe within the meaning of section 346a(a) of this title . . . .”

As this provision makes clear, food containing a poisonous or deleterious substance in a quantity that ordinarily renders the food injurious to health is adulterated. If the harmful substance in the food is an added substance, then the food is deemed adulterated, even without direct proof that the food may be injurious to health, if the added substance is “unsafe” under 21 U. S. C. §346.

Section 346 states:

“Any poisonous or deleterious substance added to any food, except where such substance is required in the production thereof or cannot be avoided by good manufacturing practice shall be deemed to be unsafe for purposes of the application of clause (2)(A) of section 342(a) of this title; but when such substance is so required or cannot be so avoided, the Secretary shall promulgate regulations limiting the quantity therein or thereon to such extent as he finds necessary for the protection of public health, and any quantity exceeding the limits so fixed shall also be deemed to be unsafe for purposes of the application of clause (2)(A) of section 342(a) of this title. While such a regulation is in effect . . . food shall not, by reason of bearing or containing any added amount of such substance, be considered to be adulterated . . . .”

Any quantity of added poisonous or added deleterious substances is therefore “unsafe,” unless the substance is required in food production or cannot be avoided by good manufacturing practice. For these latter substances, “the Secretary shall promulgate regulations limiting the quantity therein or thereon to such extent as he finds necessary for the protection of public health.” It is this provision that is the heart of the dispute in this case.

The parties do not dispute that, since the enactment of the Act in 1938, the FDA has interpreted this provision to give it the discretion to decide whether to promulgate a § 346 regulation, which is known in the administrative vernacular as a “tolerance level.” Tolerance levels are set through a fairly elaborate process, similar to formal rulemaking, with evidentiary hearings. See 21 U. S. C. § 371(e). On some occasions, the FDA has instead set “action levels” through a less formal process. In setting an action level, the FDA essentially assures food producers that it ordinarily will not enforce the general adulteration provisions of the Act against them if the quantity of the harmful added substance in their food is less than the quantity specified by the action level.

B

The substance at issue in this case is aflatoxin, which is produced by a fungal mold that grows in some foods. Aflatoxin, a potent carcinogen, is indisputedly “poisonous” or “deleterious” under §§342 and 346. The parties also agree that, although aflatoxin is naturally and unavoidably present in some foods, it is to be treated as “added” to food under § 346. As a “poisonous or deleterious substance added to any food,” then, aflatoxin is a substance falling under the aegis of § 346, and therefore is at least potentially the subject of a tolerance level.

The FDA has not, however, set a § 346 tolerance level for aflatoxin. It has instead established an action level for aflatoxin of 20 parts per billion (ppb). In 1980, however, the FDA stated in a notice published in the Federal Register:

“The agency has determined that it will not recommend regulatory action for violation of the Federal Food, Drug, and Cosmetic Act with respect to the interstate shipment of corn from the 1980 crop harvested in North Carolina, South Carolina, and Virginia and which contains no more than 100 ppb aflatoxin . . . .” 46 Fed. Reg. 7448 (1981).

The notice further specified that such corn was to be used only as feed for mature, nonlactating livestock and mature poultry. Id., at 7447.

In connection with this notice, two public-interest groups and a consumer (respondents here) brought suit against the Commissioner of the FDA (petitioner here) in the United States District Court for the District of Columbia. Respondents alleged that the Act requires the FDA to set a tolerance level for aflatoxin before allowing the shipment in interstate commerce of food containing aflatoxin; that the FDA had employed insufficiently elaborate procedures to set its aflatoxin action level even if a tolerance level was not required; and that the FDA’s decision to grant the 1980 exemption from the action level independently violated the Act and the FDA’s own regulations.

On a motion for summary judgment, the District Court deferred to the FDA’s interpretation of §346, and therefore ruled that the FDA need not establish a tolerance level for aflatoxin before allowing the shipment of aflatoxin-tainted corn in interstate commerce. The District Court also ruled against respondents on their other claims.

The Court of Appeals reversed the District Court’s conclusion as to the proper interpretation of § 346. 244 U. S. App. D. C. 279, 757 F. 2d 354 (1985). The Court of Appeals determined that Congress had spoken directly and unambiguously to the precise question at issue:

“The presence of the critical word ‘shall’ plainly suggests a directive to the Secretary to establish a tolerance, if a food with an unavoidable . . . deleterious substance is to be considered unadulterated.
“It is . . . clear from the structure of the sentence at issue here that the phrase relied upon by the Secretary simply does not modify the pivotal word ‘shall.’” Id., at 282, 283, 757 F. 2d, at 357, 358.

After examining the entirety of § 346, the Court of Appeals also concluded that, since tolerance levels make food with added harmful substances unadulterated, tolerance levels were necessary before food could be judged unadulterated. Id., at 283, 757 F. 2d, at 358.

The Court of Appeals considered none of the other issues before the District Court, and therefore only the § 346 issue is before this Court.

II

The FDA’s longstanding interpretation of the statute that it administers is that the phrase “to such extent as he finds necessary for the protection of public health” in § 346 modifies the word “shall.” The FDA therefore interprets the statute to state that the FDA shall promulgate regulations to the extent that it believes the regulations necessary to protect the public health. Whether regulations are necessary to protect the public health is, under this interpretation, a determination to be made by the FDA.

Respondents, in contrast, argue that the phrase “to such extent” modifies the phrase “the quantity therein or thereon” in §346, not the word “shall.” Since respondents therefore view the word “shall” as unqualified, they interpret § 346 to require the promulgation of tolerance levels for added, but unavoidable, harmful substances. The FDA under this interpretation of § 346 has discretion in setting the particular tolerance level, but not in deciding whether to set a tolerance level at all.

Our analysis must begin with Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837 (1984). We there stated:

“First, always, is the question whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter, for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress. If, however, the court determines Congress has not directly addressed the precise question at issue, the court does not simply impose its own construction on the statute, as would be necessary in the absence of an administrative interpretation. Rather, if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency’s answer is based on a permissible construction of the statute. . . . [A] court may not substitute its own construction of a statutory provision for a reasonable interpretation made by the administrator of an agency.” Id., at 842-844.

While we agree with the Court of Appeals that Congress in § 346 was speaking directly to the precise question at issue in this case, we cannot agree with the Court of Appeals that Congress unambiguously expressed its intent through its choice of statutory language. The Court of Appeals’ reading of the statute may seem to some to be the more natural interpretation, but the phrasing of § 346 admits of either respondents’ or petitioner’s reading of the statute. As enemies of the dangling participle well know, the English language does not always force a writer to specify which of two possible objects is the one to which a modifying phrase relates. A Congress more precise or more prescient than the one that enacted § 346 might, if it wished petitioner’s position to prevail, have placed “to such extent as he finds necessary for the protection of public health” as an appositive phrase immediately after “shall” rather than as a free-floating phrase after “the quantity therein or thereon.” A Congress equally fastidious and foresighted, but intending respondents’ position to prevail, might have substituted the phrase “to the quantity” for the phrase “to such extent as.” But the Congress that actually enacted § 346 took neither tack. In the absence of such improvements, the wording of § 346 must remain ambiguous.

The FDA has therefore advanced an interpretation of an ambiguous statutory provision.

“This view of the agency charged with administering the statute is entitled to considerable deference; and to sustain it, we need not find that it is the only permissible construction that [the agency] might have adopted but only that [the agency’s] understanding of this very ‘complex statute’ is a sufficiently rational one to preclude a court from substituting its judgment for that of [the agency]. Train, Inc. v. NRDC, 421 U. S. 60, 75, 87 (1975) . . . .” Chemical Manufacturers Assn. v. Natural Resources Defense Council, Inc., 470 U. S. 116, 125 (1985).

We find the FDA’s interpretation of § 346 to be sufficiently rational to preclude a court from substituting its judgment for that of the FDA.

To read §346 as does the FDA is hardly to endorse an absurd result. Like any other administrative agency, the FDA has been delegated broad discretion by Congress in any number of areas. To interpret Congress’ statutory language to give the FDA discretion to decide whether toleranee levels are necessary to protect the public health is therefore sensible.

Nor does any other portion of § 346 prohibit the FDA from allowing the shipment of aflatoxin-tainted food without a tolerance level, despite the Court of Appeals’ conclusion to the contrary. The Court of Appeals stated:

“Since the existence of a regulation operates to render the food legally unadulterated, the statute, in our view, plainly requires the establishment by regulation of tolerances before aflatoxin-tainted corn may lawfully be shipped in interstate commerce.” 244 U. S. App. D. C., at 283, 757 F. 2d, at 358.

The premise of the Court of Appeals is of course correct: the Act does provide that when a tolerance level has been set and a food contains an added harmful substance in a quantity below the tolerance level, the food is legally not adulterated. But one cannot logically draw from this premise, or from the Act, the Court of Appeals’ conclusion that food containing substances not subject to a tolerance level must be deemed adulterated. The presence of a certain premise (i. e., tolerance levels) may imply the absence of a particular conclusion (i. e., adulteration) without the absence of the premise implying the presence of the conclusion. For example, the presence of independent and adequate state-law grounds in the decision of a state supreme court means this Court has no jurisdiction over the case, but the absence of independent and adequate state grounds does not mean that this Court necessarily has jurisdiction. The Act is silent on what specifically to do about food containing an unavoidable, harmful, added substance for which there is no tolerance level; we must therefore assume that Congress intended the general provisions of § 342(a) to apply in such a case. Section 342(a) thus remains available to the FDA to prevent the shipment of any food “[i]f it bears or contains any poisonous or deleterious substance which may render it injurious to health.” See generally United States v. Lexington Mill & Elevator Co., 232 U. S. 399, 411 (1914) (discussing proper interpretation of the language that became § 342(a)).

The legislative history of the Act provides no single view about whether Congress intended § 346 to be mandatory or permissive with respect to tolerance levels. Compare, e. g., Confidential House Committee Print 2, on Interstate and Foreign Commerce, 75th Cong., 1st Sess., S. 5, §406(a), reprinted in 5 Legislative History of the Federal Food, Drug, and Cosmetic Act and its Amendments 767, 792 (Dept. of Health, Education, and Welfare 1979) (changing, without explanation, words “is authorized to” to “shall” in relevant provision), with H. R. Rep. No. 2139, 75th Cong., 3d Sess. 6 (1938) (stating that, under the Act, “the establishment of tolerances is authorized”) (emphasis added). A clearer indication of Congress’ intentions with regard to tolerance levels occurred in 1954, when Congress condemned the cumbersomeness of the tolerance-level procedure as applied to pesticides. Congress fashioned a more streamlined procedure for those and other deliberately added substances. See 21 U. S. C. §346a. But in revisiting §346, Congress did not change the procedures governing unintentionally added substances like aflatoxin. This failure to change the scheme under which the FDA operated is significant, for a “congressional failure to revise or repeal the agency’s interpretation is persuasive evidence that the interpretation is the one intended by Congress.” NLRB v. Bell Aerospace, Co., 416 U. S. 267, 275 (1974). See FDIC v. Philadelphia Gear Corp., ante, at 437; Zenith Radio Corp. v. United States, 437 U. S. 443, 457 (1978). In sum, although the legislative history is not unambiguous, it certainly is no support for assertions that the FDA’s interpretation of §346 is insufficiently rational to warrant our deference.

Finally, we note that our interpretation of § 346 does not render that provision superfluous, even in light of Congress’ decision to authorize the FDA to “promulgate regulations for the efficient enforcement of [the] Act.” 21 U. S. C. § 371(a). Section 346 gives the FDA the authority to choose whatever tolerance level is deemed “necessary for the protection of public health,” and food containing a quantity of a required or unavoidable substance less than the tolerance level “shall not, by reason of bearing or containing any added amount of such substance, be considered to be adulterated.” Section 346 thereby creates a specific exception to § 342(a)’s general definition of adulterated food as that containing a quantity of a substance that renders the food “ordinarily . . . injurious to health.” Simply because the FDA is given the choice between employing the standard of § 346 and the standard of § 342(a) does not render § 346 superfluous.

For the reasons set forth, the judgment is reversed, and the case is remanded to the Court of Appeals for the District of Columbia Circuit for further proceedings consistent with this opinion.

Reversed.

Justice Stevens,

dissenting.

The parties agree that aflatoxins are added, unavoidable contaminants of food and as such are governed by the following provision of the Federal Food, Drug, and Cosmetic Act:

“[W]hen such substance . . . cannot be so avoided, the Secretary shall promulgate regulations limiting the quantity therein or thereon to such extent as he finds necessary for the protection of public health, and any quantity exceeding the limits so fixed shall also be deemed to be unsafe for purposes of the application of clause (2)(A) of section 342(a) of this title.” 21 U. S. C. § 346 (emphasis added).

To one versed in the English language, the meaning of this provision is readily apparent. The plain language of the section tells us when the Secretary’s duty to promulgate regulations arises — “when such substance . . . cannot be so avoided”; it tells us the purpose of the regulations — to establish a tolerance level that will enable manufacturers to know what they can lawfully produce and to enable the public to know what they can safely consume; and it tells us what standard he should employ in drafting them — “to such extent as he finds necessary for the protection of public health.” For purposes of deciding this case, the parties’ agreement that aflatoxins are substances that “cannot be so avoided” within the meaning of the section triggers the obligation to initiate rulemaking.

The Court’s contrary conclusion reflects an absence of judgment and of judging. Before exploring either infirmity, it is worthwhile to summarize the Court’s reason for reading the section to authorize, but not require, the promulgation of regulations. First, the Court declares that the qualifying language — “to such extent as he finds necessary for protection of the public health” — is a “dangling participle” that might or might not modify the words “shall promulgate regulations.” Ante, at 981. Second, as between the two readings of this “ambiguous statutory provision,” ibid., deference dictates that the Commissioner of the Food and Drug Administration (FDA) (to whom enforcement of the Act has been delegated) may take his pick.

The Court’s finding of ambiguity is simply untenable. The antecedent of the qualifying language is quite clearly the phrase “limiting the quantity therein or thereon,” which immediately precedes it, rather than the word “shall,” which appears eight words before it. Thus, the Commissioner is to “limi[t] the quantity [of an added, unavoidable poisonous or deleterious substance] therein or thereon to such extent as he finds necessary for the protection of public health.” By instead reading the section to mean that “the Secretary shall promulgate regulations ... to such extent as he finds necessary,” the Court ignores the import of the words immediately following, which specify the effect of the “limits so fixed”— i. e., fixed by “limiting the quantity [of the poisonous substance] therein or thereon to such extent as he finds necessary for the protection of public health” — which can only mean that the qualification modifies the limits set by regulation rather than the duty to regulate. In addition, the Court’s construction, by skipping over the words “limiting the quantity therein or thereon,” renders them superfluous and of no operative force or effect. Indeed, the Court renders the very language it construes superfluous, because reading the provision to authorize (rather than mandate) the promulgation of regulations assigns it an office already filled by the general rulemaking authority conferred later in the Food, Drug, and Cosmetic Act. See 21 U. S. C. § 371(a). If Congress intended the Secretary to have unbridled authority to proceed with action levels, instead of with formal regulations, there was no need to enact this part of § 346 at all. This is plainly a case in which “the intent of Congress is clear [and] the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress.” Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837, 842-843 (1984).

The task of interpreting a statute requires more than merely inventing an ambiguity and invoking administrative deference. A statute is not “unclear unless we think there are decent arguments for each of two competing interpretations of it.” R. Dworkin, Law’s Empire 352 (1986). Thus, to say that the statute is susceptible of two meanings, as does the Court, is not to say that either is acceptable. Furthermore, to say that the Commissioner’s interpretation of the statute merits deference, as does the Court, is not to say that the singularly judicial role of marking the boundaries of agency choice is at an end. As Justice Frankfurter reminds us, “[t]he purpose of construction being the ascertainment of meaning, every consideration brought to bear for the solution of that problem must be devoted to that end alone.” Frankfurter, Some Reflections on the Reading of Statutes, 47 Colum. L. Rev. 527, 529 (1947). It is not “a ritual to be observed by unimaginative adherence to well-worn professional phrases.” Ibid. “Nor can canons of construction save us from the anguish of judgment.” Id., at 544. The Court, correctly self-conscious of the limits of the judicial role, employs a reasoning so formulaic that it trivializes the art of judging.

I respectfully dissent.

       This interpretation is in accord with the Committee Report on the House bill, which became the Food, Drug, and Cosmetic Act of 1938. The Report states that “[t]he addition of poison to foods is prohibited except where such addition is necessary or cannot be avoided; and in such eases tolerances are provided limiting the amount of added poison to the extent necessary to safeguard the public health.” H. R. Rep. No. 2139, 75th Cong., 3d Sess., pt. 1, p. 2 (1938) (emphasis added). By using the present tense, the Report makes clear that the qualifying language is operative when regulations are promulgated — to limit the amount of poison “to the extent necessary to safeguard the public health.” The qualifying language thus defines the standard by which tolerances are to be determined and not the occasions on which regulations are to be promulgated.

       The Court does not deny that the specific language which it construes — the clause providing that “the Secretary shall promulgate regulations” setting tolerance levels — is superfluous under its view of the Act. See ante, at 983-984. It instead emphasizes that a later sentence in § 346 which prescribes the legal effect of tolerance-setting regulations remains effective. But since tolerances may be promulgated pursuant to § 371(a) as well as § 346, the Court’s response merely underscores the fact that its construction of the “shall promulgate” clause to authorize rather than to require such rulemaking renders it redundant to the general rulemaking authority conferred by § 371(a).

       Because Congress explicitly required the Commissioner to promulgate regulations for added, unavoidable contaminants, that should be “the end of the matter.” Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S., at 842. The Commissioner’s “longstanding” practice to the contrary does not help his legal position. For even if it were true that the Commissioner has from time to time announced an “action level” to advise the industry when he intended to institute enforcement proceedings concerning certain deleterious substances, the fact that the FDA had never actually addressed in any detail the statutory authorization under which it took such action means that its plea for deference should fail for the reasons carefully stated in SEC v. Sloan, 436 U. S. 103, 117-118 (1978):
      “The Commission next argues that its interpretation of the statute — that the statute authorizes successive suspension orders — has been both consistent and longstanding, dating from 1944. It is thus entitled to great deference. See United States v. National Assn. of Securities Dealers, 422 U. S. 694, 710 (1975); Saxbe v. Bustos, 419 U. S. 65, 74 (1974).
      “While this undoubtedly is true as a general principle of law, it is not an argument of sufficient force in this case to overcome the clear contrary indications of the statute itself. In the first place it is not apparent from the record that on any of the occasions when a series of consecutive summary suspension orders was issued the Commission actually addressed in any detail the statutory authorization under which it took that action.
      “[S]ince this Court can only speculate as to the Commission’s reasons for reaching the conclusion that it did, the mere issuance of consecutive summary suspension orders, without a concomitant exegesis of the statutory authority for doing so, obviously lacks ‘power to persuade’ as to the existence of such authority. [Adamo Wrecking Co. v. United States, 434 U. S. 275, 287-288, n. 5 (1978)].”
      As we emphasized in FMC v. Seatrain Lines, Inc., 411 U. S. 726, 745 (1973), “an agency may not bootstrap itself into an area in which it has no jurisdiction by repeatedly violating its statutory mandate.” Instead, “our clear duty in such a situation is to reject the administrative interpretation of the statute.” SEC v. Sloan, 436 U. S., at 119.
      The Sloan case also provides an adequate answer to the argument that Congress has revisited the statute from time to time without condemning the FDA’s “action level” practice:

        “We are extremely hesitant to presume general congressional awareness of the Commission’s construction based only upon a few isolated statements in the thousands of pages of legislative documents. That language in a Committee Report, without additional indication of more widespread congressional awareness, is simply not sufficient to invoke the presumption in a case such as this. For here its invocation would result in a construction of the statute which not only is at odds with the language of the section in question and the pattern of the statute taken as a whole, but also is extremely far reaching in terms of the virtually untrammeled and unreviewable power it would vest in a regulatory agency.” Id,., at 121.


source: Caselaw Access Project

license: Public Domain

text:
    May 5, 1986
    No. 85-1425.
    Republican Party of Hawaii et al. v. Mink et al.
   Appeal from Sup. Ct. Haw. dismissed for want of substantial federal question.


author: Justice Brennan and Justice Marshall,

text:
    No. 85-6104.
    Cordova v. Texas.
   Appeal from Ct. Crim. App. Tex. dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for writ of certiorari, certiorari denied.

Justice Brennan and Justice Marshall,

dissenting.

Adhering to our views that the death penalty is in all circumstances cruel and unusual punishment prohibited by the Eighth and Fourteenth Amendments, Gregg v. Georgia, 428 U. S. 153, 227, 231 (1976), we would grant certiorari and vacate the death sentence in this case.


text:
    No. 84-1783.
    Jordan v. Mississippi.
   Sup. Ct. Miss. Certiorari granted, judgment vacated, and case remanded for further consideration in light of Skipper v. South Carolina, ante, p. 1.


text:
    No. 84-1942.
    Nationwide Mutual Insurance Co. v. Clay.
   Sup. Ct. Ala. Certiorari granted, judgment vacated, and case remanded for further consideration in light of Aetna Life Insurance Co. v. Lavoie, 475 U. S. 813 (1986).


text:
    No. 85-5087.
    Elmore v. South Carolina.
   Sup. Ct. S. C. Motion of petitioner for leave to proceed in forma pauperis and certiorari granted. Judgment vacated and case remanded for further consideration in light of Skipper v. South Carolina, ante, p. 1.


text:
    No. 85-5339.
    Jones v. South Carolina.
   Sup. Ct. S. C. Motion of petitioner for leave to proceed in forma pauperis and certiorari granted. Judgment vacated and case remanded for further consideration in light of Skipper v. South Carolina, ante, p. 1.


text:
    No. 85-5411.
    Plemmons v. South Carolina.
   Sup. Ct. S. C. Motion of petitioner for leave to proceed in forma pauperis and certiorari granted. Judgment vacated and case remanded for further consideration in light of Skipper v. South Carolina, ante, p. 1.


text:
    No. 85-6063.
    Valle v. Florida.
   Sup. Ct. Fla. Motion of petitioner for leave to proceed in forma pauperis and certiorari granted. Judgment vacated and case remanded for further consideration in light of Skipper v. South Carolina, ante, p. 1.


text:
    No.---.
    Leslie v. United States.
   Motion to direct the Clerk to file a petition for writ of certiorari which does not comply with the Rules of this Court denied.


text:
    No. A-760.
    Smith v. United States.
   Application for bail pending appeal, addressed to Justice Stevens and referred to the Court, denied.


text:
    No. A-804.
    Seaboard System Railroad, Inc. v. Page.
   Sup. Ct. Ala. Application for stay pending appeal, presented to Justice Powell, and by him referred to the Court, denied.

Justice Blackmun would grant the application.


text:
    No. D-553.
    In re Disbarment of Velasquez.
   It is ordered that Ray Velasquez, of Marlow Heights, Md., be suspended from the practice of law in this Court and that a rule issue, returnable within 40 days, requiring him to show cause why he should not be disbarred from the practice of law in this Court.


text:
    No. D-556.
    In re Disbarment of Sodowick.
   It is ordered that Michael Samuel Sodowick, of West Caldwell, N. J., be suspended from the practice of law in this Court and that a rule issue, returnable within 40 days, requiring him to show cause why he should not be disbarred from the practice of law in this Court.


text:
    No. 81, Orig.
    Kentucky v. Indiana et al.
   Accounting of the Special Master is received and ordered filed. The Special Master appointed by the Court is discharged with the thanks of the Court. [For earlier decision herein, see, e. g., 474 U. S. 1.]


text:
    No. 84-1947.
    Cerbone, Justice of the Village Court, Village of Mt. Kisco, New York, et al. v. Conway.
   C. A. 2d Cir. [Certiorari granted, 474 U. S. 1100.] Motion of petitioners for divided argument denied.


text:
    No. 85-488.
    Ohio Civil Rights Commission et al. v. Dayton Christian Schools, Inc., et al.
   C. A. 6th Cir. [Probable jurisdiction postponed, 474 U. S. 978.] Motion of appellants for leave to file a supplemental brief after argument granted.


text:
    No. 85-1524.
    Hubbard Broadcasting, Inc. v. Southern Satellite Systems, Inc., et al.
   C. A. 8th Cir. The Solicitor General is invited to file a brief in this case expressing the views of the United States.


text:
    No. 85-6562.
    Baxter v. Federal Communications Commission.
   C. A. D. C. Cir. Motion of petitioner for leave to proceed in forma pauperis denied. Petitioner is allowed until May 27, 1986, within which to pay the docketing fee required by Rule 45(a) and to submit a petition in compliance with Rule 33 of the Rules of this Court.

Justice Brennan, Justice Marshall, and Justice Stevens,

dissenting.

For the reasons expressed in Brown v. Herald Co., 464 U. S. 928 (1983), we would deny the petition for writ of certiorari without reaching the merits of the motion to proceed in forma pauperis.


text:
    No. 85-6628.
    In re Burney.
   Petition for writ of habeas corpus denied.


text:
    No. 85-1513.
    Edwards, Governor of Louisiana, et al. v. Aguillard et al.
   Appeal from C. A. 5th Cir. Probable jurisdiction noted.


text:
    No. 85-1140.
    Atchison, Topeka & Santa Fe Railway Co. v. Buell.
   C. A. 9th Cir. Certiorari granted.


text:
    No. 85-1517 (A-619).
    Colorado v. Spring.
   Sup. Ct. Colo. Motion of respondent for leave to proceed in forma pauperis granted. Certiorari granted limited to Question 1 presented by the petition. Application for stay, presented to Justice White, and by him referred to the Court, is granted pending the issuance of the mandate of this Court.


text:
    No. 85-550.
    Union Oil Company of California v. Spaeth.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 85-695.
    Illinois Central Gulf Railroad Co. v. Coleman.
   Sup. Ct. Ala. Certiorari denied.


text:
    No. 85-751.
    Motion Picture Laboratory Technicians & Film Tape Editors Local 780 of the International Alliance of Theatrical Stage Employees & Moving Picture Machine Operators of the United States and Canada, AFL-CIO v. National Aeronautics and Space Administration et al.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 85-859.
    Sullivan v. Texas.
   Ct. App. Tex., 1st Sup. Jud. Dist. Certiorari denied.


text:
    No. 85-946.
    Kerr-McGee Corp. et al. v. Silkwood, Administrator of the Estate of Silkwood.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 85-1083.
    No. 85-6019.
    Moeckly v. United States; and Coulombe v. United States.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 85-1223.
    Kimmel v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 85-1268.
    Massman Construction Co. v. Tennessee Valley Authority.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 85-1333.
    Nimrod Marketing (Overseas) Ltd. et al. v. Texas Energy Investment Corp. et al.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 85-1354.
    DiBernardo et al. v. United States.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 85-1381.
    Heller v. United States et al.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 85-1488.
    Lignarolo et al. v. United States.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 85-1506.
    Quansah v. CTS Printex Corp.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 85-1511.
    Betts v. Attorney Registration and Disciplinary Commission of the Supreme Court of Illinois.
   Sup. Ct. Ill. Certiorari denied.


text:
    No. 85-1515.
    Russell v. Texas.
   Ct. App. Tex., 1st Sup. Jud. Dist. Certiorari denied.


text:
    No. 85-1521.
    Smith v. Office of Personnel Management.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 85-1522.
    Miller v. City of Chicago et al.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 85-1526.
    Gopal v. California.
   Ct. App. Cal., 1st App. Dist. Certiorari denied.


text:
    No. 85-1536.
    Angel et ux. v. Martinson, Judge, Superior Court of San Diego County (Renn, Real Party in Interest).
   Ct. App. Cal., 4th App. Dist. Certiorari denied.


text:
    No. 85-1539.
    Sandhu v. Aamco Transmissions, Inc.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 85-1542.
    Orleans v. City of Wildwood Housing Authority et al.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 85-1603.
    Strozzi v. Colorado.
   Ct. App. Colo. Certiorari denied.


text:
    No. 85-1619.
    Redmond v. United States.
   Ct. Mil. App. Certiorari denied.


text:
    No. 85-1638.
    Law Mathematics & Technology, Inc. v. United States.
   C. A. Fed. Cir. Certiorari denied.


text:
    No. 85-5965.
    Clark v. United States.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 85-6080.
    Williams v. United States.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 85-6124.
    Johnson v. United States.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 85-6256.
    Green v. California.
   Ct. App. Cal., 4th App. Dist. Certiorari denied.


text:
    No. 85-6269.
    Taylor v. Tennessee.
   Ct. Crim. App. Tenn. Certiorari denied.


text:
    No. 85-6271.
    Jones v. Cuyler et al.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 85-6277.
    Lawrence v. Missouri.
   Ct. App. Mo., Eastern Dist. Certiorari denied.


text:
    No. 85-6346.
    Boggs v. United States.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 85-6369.
    Keller v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 85-6373.
    Howard v. United States.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 85-6378.
    Clements v. Illinois.
   App. Ct. Ill., 1st Dist. Certiorari denied.


text:
    No. 85-6425.
    Burnett v. United States.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 85-6458.
    Cook v. United States.
   C. A. 9th Cir. Certiorari before judgment denied.


text:
    No. 85-6504.
    Wood v. Xerox Corp.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 85-6508.
    Frazar v. Lowe.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 85-6515.
    Kalec v. Lane, Director, Illinois Department of Corrections, et al.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 85-6516.
    Savage v. Ohio.
   Ct. App. Ohio, Franklin County. Certiorari denied.


text:
    No. 85-6524.
    Washington v. Angelone, Warden, et al.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 85-6526.
    Cole v. Missouri.
   Ct. App. Mo., Western Dist. Certiorari denied.


text:
    No. 85-6528.
    Day v. Pope, Former Chief Justice, Supreme Court of Texas, et al.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 85-6529.
    Coulverson v. Ohio Adult Parole Authority.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 85-6530.
    Yellen v. California.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 85-6533.
    Picciotti v. Roberts, New York State Commissioner of Labor.
   App. Div., Sup. Ct. N. Y., 3d Jud. Dept. Certiorari denied.


text:
    No. 85-6534.
    Orth v. Housewright, Director, Nevada Department of Prisons.
   Sup. Ct. Nev. Certiorari denied.


text:
    No. 85-6544.
    Kimsey v. Celeste, Governor of Ohio, et al.
   Sup. Ct. Colo. Certiorari denied.


text:
    No. 85-6548.
    Ryan v. Stephen.
   Sup. Ct. Tex. Certiorari denied.


text:
    No. 85-6560.
    Watson v. Morris, Superintendent, Southern Ohio Correctional Facility.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 85-6589.
    Boles v. Department of Transportation.
   C. A. Fed. Cir. Certiorari denied.


text:
    No. 85-6594.
    Eusch v. Skow et al.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 85-6596.
    Walker v. City of Bowling Green, Kentucky, et al.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 85-6618.
    Anesi v. United States Department of Agriculture.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 85-6652.
    Gennuso v. Eppolito et al.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 85-6656.
    Watkins v. United States.
   Ct. Mil. App. Certiorari denied.


text:
    No. 85-426.
    Save the Dunes Council, Inc. v. United States et al.
   C. A. 7th Cir. Motion of Sierra Club for leave to file a brief as amicus curiae granted. Certiorari denied.


text:
    No. 85-953.
    Cagle v. Carlson et al.
   Ct. App. Ariz. Certiorari denied.

Justice White and Justice Powell would grant certiorari.


text:
    No. 85-1362.
    Stern et al. v. Tarrant County Hospital District et al.
   C. A. 5th Cir. Certiorari denied.

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


text:
    No. 85-1518.
    Volkswagen of America et al. v. Rossell, Guardian ad Litem of Kennon, a Minor.
   Sup. Ct. Ariz. Certiorari denied.

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


text:
    No. 85-1490.
    Basch et al. v. Westinghouse Corp.
   C. A. 4th Cir. Certiorari denied.

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


text:
    No. 85-1801.
    Larson et al. v. Fargo Women’s Health Organization, Inc., et al.
   Appeal from Sup. Ct. N. D. Motion of appellants to treat the jurisdictional statement as a petition for writ of certiorari granted. Certiorari denied.


text:
    No. 85-5881.
    Harriman v. Louisiana.
   Sup. Ct. La. Certiorari denied. Justice Brennan and Justice Marshall would grant certiorari.


text:
    No. 85-6276.
    No. 85-6325.
    No. 85-6511.
    No. 85-6512.
    No. 85-6554.
    Bundy v. Florida. Johnson v. Mississippi. Adams v. Aiken, Warden, et al. Spann v. South Carolina. Young v. Missouri.
   Sup. Ct. Fla.;

Sup. Ct. Miss.;

Ct. Common Pleas of York County, S. C.;

Ct. Common Pleas of York County, S. C.; and

Sup. Ct. Mo. Certiorari denied.

Justice Brennan and Justice Marshall,

dissenting.

Adhering to our views that the death penalty is in all circumstances cruel and unusual punishment prohibited by the Eighth and Fourteenth Amendments, Gregg v. Georgia, 428 U. S. 153, 227, 231 (1976), we would grant certiorari and vacate the death sentences in these cases.


text:
    No. 85-1124.
    No. 85-5634.
    No. 85-5903.
    No. 85-6284.
    No. 85-6368.
    No. 85-6371.
    Christensen v. United States (two cases), Bernard v. Bernard et al., Bernard v. Warden et al., Nelson v. Veterans Administration, In re Kierstead, In re Karriem et al.,
   475 U. S. 1018;

474 U. S. 1103;

474 U. S. 1104;

475 U. S. 1087;

475 U. S. 1094; and

475 U. S. 1094. Petitions for rehearing denied.


text:
    No. 85-1212.
    Olen v. Purdue et al.,
   475 U. S. 1065. Petition for rehearing denied.

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


author: Justice Brennan, Justice Marshall,

text:
    May 14, 1986
    No. A-872.
    Pinkerton v. McCotter, Director, Texas Department of Corrections.
   Application for stay of execution of sentence of death, presented to Justice White, and by him referred to the Court, denied.

Justice Brennan,

dissenting.

Adhering to my view that the death penalty is in all circumstances cruel and unusual punishment prohibited by the Eighth and Fourteenth Amendments, Gregg v. Georgia, 428 U. S. 153, 227 (1976), I would grant the application for stay in order to give the applicant time to file a petition for writ of certiorari, and would grant the petition and vacate the sentence in this case.

Justice Marshall,

with whom Justice Brennan joins,

dissenting.

Applicant seeks a stay of execution, claiming that the Eighth and Fourteenth Amendments are offended by the State’s attempt to execute him for a crime he committed while a juvenile. This Court has not yet considered whether imposition of the death penalty for a minor’s crimes is so antagonistic to civilized notions of morality as to transgress the bounds imposed by the Constitution. I believe it is time for this Court to address this issue of profound significance. See Roach v. Aiken, 474 U. S. 1039 (1986) (Brennan, J., joined by Marshall, J., dissenting). Accordingly, I would grant the stay of execution in order to afford Pinkerton an opportunity to present his claim in a petition for certiorari.


text:
    May 19, 1986
    No. 85-777.
    National Federation of Federal Employees v. Defense Language Institute.
   C. A. 9th Cir. Certiorari dismissed under this Court’s Rule 53.


text:
    No. 85-1257.
    Rogers et al. v. Cheyenne Airport Board et al.
   Appeal from Sup. Ct. Wyo. dismissed for want of substantial federal question.


text:
    No. 85-1537.
    Muka v. Carter, Chief Disciplinary Counsel.
   Appeal from Sup. Ct. R. I. dismissed for want of substantial federal question.


text:
    No. 85-1584.
    Niedzwiecki v. Circuit Protective Devices, Division of Westinghouse Electric Corp.
   Appeal from C. A. 2d Cir. dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for writ of certiorari, certiorari denied.


text:
    No. 85-1606.
    Whalers’ Village Club v. California Coastal Commission.
   Appeal from Ct. App. Cal., 2d App. Dist., dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for writ of certiorari, certiorari denied.


text:
    No. 85-1612.
    De Nardo v. Murphy et al.
   Appeal from C. A. 9th Cir. dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for writ of certiorari, certiorari denied.


text:
    No. 85-6573.
    Hunter v. Ellinwood.
   Appeal from Sup. Ct. N. M. dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for writ of certiorari, certiorari denied.


text:
    No. 85-6674.
    In re Dyson.
   Appeal from C. A. 5th Cir. dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for writ of certiorari, certiorari denied.


text:
    No. 85-6688.
    Bury v. City of Lakeland, Florida, et al.
   Appeal from C. A. 11th Cir. dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for writ of certiorari, certiorari denied.


text:
    No. 85-1596.
    Stein Distributing Co., Inc. v. Department of the Treasury, Bureau of Alcohol, Tobacco and Firearms.
   Appeal from C. A. 9th Cir. dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for writ of certiorari, certiorari denied.

Justice White and Justice Rehnquist would postpone jurisdiction to a hearing of the case on the merits.


text:
    No. 84-2026.
    Lockhart, Director, Arkansas Department of Correction v. Pitts.
   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 Lockhart v. McCree, ante, p. 162.


text:
    No. 84-2027.
    Lockhart, Director, Arkansas Department of Correction v. Ruiz et al.
   C. A. 8th Cir. Motion of respondents for leave to proceed informa pauperis and certiorari granted. Judgment vacated and case remanded for further consideration in light of Lockhart v. McCree, ante, p. 162.


text:
    No. 84-2028.
    Sargent, Warden v. Woodard.
   C. A. 8th Cir. Certiorari granted, judgment vacated, and case remanded for further consideration in light of Lockhart v. McCree, ante, p. 162.


text:
    No. 85-5768.
    Griffin v. Wainwright, Secretary, Florida Department of Corrections.
   C. A. 11th Cir. Motion of petitioner for leave to proceed in forma pauperis and certiorari granted. Judgment vacated and case remanded for further consideration in light of Cabana v. Bullock, 474 U. S. 376 (1986).


text:
    No. A-800.
    Kinney v. Kinney.
   App. Ct. Conn. Application for stay, addressed to Justice Rehnquist and referred to the Court, denied.


text:
    No. A-825.
    Shumate v. Patterson.
   C. A. 4th Cir. Application for stay of mandate, addressed to Justice Marshall and referred to the Court, denied.


text:
    No. A-853 (85-1609).
    Hastings, United States District Judge, et al. v. Godbold, Chief Judge, United States Court of Appeals for the Eleventh Circuit, et al.
   C. A. 11th Cir. Application of Investigating Committee for order vacating stay entered by the United States Court of Appeals for the Eleventh Circuit, presented to Justice Powell, and by him referred to the Court, denied.


text:
    No. D-526.
    In re Disbarment of Dobbs.
   Disbarment entered. [For earlier order herein, see 474 U. S. 917.]


text:
    No. D-545.
    In re Disbarment of Willis.
   Disbarment entered. [For earlier order herein, see 475 U. S. 1003.]


text:
    No. D-547.
    In re Disbarment of Magruder.
   Disbarment entered. [For earlier order herein, see 475 U. S. 1063.]


text:
    No. 85-1027.
    Arizona v. Hicks.
   Ct. App. Ariz. [Certiorari granted, 475 U. S. 1107.] Motion for appointment of counsel granted, and it is ordered that John William Rood III, Esquire, of Phoenix, Ariz., be appointed to serve as counsel for respondent in this case.


text:
    No. 85-1792.
    No. 85-1852.
    Brotherhood of Maintenance of Way Employes v. Richmond, Fredericksburg & Potomac Railroad Co. Brotherhood of Maintenance of Way Employes v. Burlington Northern Railroad Co. et al.
   C. A. 4th Cir.; and C. A. 7th Cir. Motion of petitioner to expedite consideration of the petitions for writs of certiorari before judgment denied.


text:
    No. 85-6702.
    In re Mueller.
   Petition for writ of habeas corpus denied.


text:
    No. 85-6606.
    In re Basalyga.
   Petition for writ of mandamus denied.


text:
    No. 85-6580.
    In re Osipova.
   Petition for writ of prohibition denied.


text:
    No. 85-1244.
    City of Pleasant Grove v. United States.
   Appeal from D. C. D. C. Probable jurisdiction noted.


text:
    No. 85-1370.
    Arkansas Writers’ Project, Inc. v. Ragland, Commissioner of Revenue of Arkansas.
   Appeal from Sup. Ct. Ark. Probable jurisdiction noted.


text:
    No. 85-1530.
    Brock, Secretary of Labor, et al. v. Roadway Express, Inc.
   Appeal from D. C. N. D. Ga. Probable jurisdiction noted.


text:
    No. 85-1360.
    International Brotherhood of Electrical Workers, AFL-CIO, et al. v. Hechler.
   C. A. 11th Cir. Certiorari granted.


text:
    No. 85-899.
    Connecticut v. Barrett.
   Sup. Ct. Conn. Motion of respondent for leave to proceed in forma pauperis and certiorari granted.


text:
    No. 85-1409.
    Bowen, Secretary of Health and Human Services v. Yuckert.
   C. A. 9th Cir. Motion of respondent for leave to proceed in forma pauperis and certiorari granted.


text:
    No. 85-860.
    Biasini v. New York.
   County Court of Montgomery County, N. Y. Certiorari denied.


text:
    No. 85-1190.
    No. 85-1207.
    Associated Gas Distributors et al. v. Federal Energy Regulatory Commission et al.; and Transcontinental Gas Pipe Line Corp. et al. v. Federal Energy Regulatory Commission et al.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 85-1210.
    Santiesteban v. New Mexico.
   Ct. App. N. M. Certiorari denied.


text:
    No. 85-1219.
    No. 85-1236.
    No. 85-1237.
    No. 85-1250.
    No. 85-1252.
    Transwestern Pipeline Co. v. Federal Energy Regulatory Commission et al.; ANR Pipeline Co. v. Federal Energy Regulatory Commission et al.; Texas Eastern Transmission Corp. v. Federal Energy Regulatory Commission et al.; Trunkline Gas Co. et al. v. Federal Energy Regulatory Commission et al.; and Arkla Energy Resources, a Division of Arkla, Inc. v. Federal Energy Regulatory Commission et al.
   C. A. D. C. Cir. Certiorari denied.


text:
    No. 85-1231.
    Passaro v. United States.
   C. A. Fed. Cir. Certiorari denied.


text:
    No. 85-1283.
    Hayssen et al. v. Board of Zoning Adjustments of the County of Sonoma (Berry, Real Party in Interest).
   Ct. App. Cal., 1st App. Dist. Certiorari denied.


text:
    No. 85-1285.
    Bailey v. Pennsylvania.
   Super. Ct. Pa. Certiorari denied.


text:
    No. 85-1289.
    Veillette v. United States.
   C. A. 1st Cir. Certiorari denied.


text:
    No. 85-1335.
    Gilmere, Individually and as Administratrix of the Estate of Patillo v. City of Atlanta et al.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 85-1357.
    Brauer v. Colorado.
   Sup. Ct. Colo. Certiorari denied.


text:
    No. 85-1373.
    Massman Construction Co. v. United States.
   C. A. Fed. Cir. Certiorari denied.


text:
    No. 85-1387.
    Cesaroni et al. v. United States.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 85-1389.
    Lone Pine Steering Committee et al. v. United States Environmental Protection Agency.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 85-1443.
    Cordis Corp. v. Medtronic, Inc.
   C. A. Fed. Cir. Certiorari denied.


text:
    No. 85-1466.
    Jet Industries, Inc. v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 85-1471.
    Boreal Ridge Corp. v. Second Judicial District Court of the State of Nevada in and for the County of Washoe (Tietjen, Real Party in Interest).
   Sup. Ct. Nev. Certiorari denied.


text:
    No. 85-1501.
    Cortlandt Nursing Home et al. v. Axelrod, Commissioner of Health of the State of New York, et al.
   Ct. App. N. Y. Certiorari denied.


text:
    No. 85-1504.
    Maritime Overseas Corp. et al. v. Brunner.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 85-1510.
    Christy Newsreel Services, Inc. v. City of Ann Arbor.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 85-1533.
    Davis et al. v. City of Dallas et al.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 85-1543.
    Flinn v. Gordon.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 85-1548.
    Dillon v. Lutterman et al.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 85-1549.
    G. J. Deasy Investment, Inc., dba Texas Vehicle Management v. Mattox, Attorney General of Texas, et al.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 85-1553.
    Church of Scientology Flag Service Organization, Inc. v. City of Clearwater et al.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 85-1554.
    Santarelli et al. v. Ellison.
   App. Ct. Ill., 4th Dist. Certiorari denied.


text:
    No. 85-1556.
    Steingraber v. Pennsylvania.
   Super. Ct. Pa. Certiorari denied.


text:
    No. 85-1558.
    Empiregas, Inc. of Ardmore v. Hardy et al.
   Sup. Ct. Ala. Certiorari denied.


text:
    No. 85-1570.
    Drury, Administrator of the Estate of Abdallah v. Abdallah et al.
   C. A. 1st Cir. Certiorari denied.


text:
    No. 85-1572.
    Lee v. Georgia.
   Ct. App. Ga. Certiorari denied.


text:
    No. 85-1573.
    Bradfield v. Pennsylvania.
   Super. Ct. Pa. Certiorari denied.


text:
    No. 85-1574.
    Burlington Northern Railroad Co. v. Anderson.
   Ct. App. Mo., Eastern Dist. Certiorari denied.


text:
    No. 85-1575.
    Rivera v. Arizona.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 85-1576.
    Wright et al. v. KECH-TV et al.
   Sup. Ct. Ore. Certiorari denied.


text:
    No. 85-1577.
    Dinwiddie et al. v. Board of County Commissioners of Lea County et al.
   Sup. Ct. N. M. Certiorari denied.


text:
    No. 85-1578.
    Minaya v. California.
   Ct. App. Cal., 2d App. Dist. Certiorari denied.


text:
    No. 85-1582.
    Gross v. Gross.
   Sup. Ct. Ohio. Certiorari denied.


text:
    No. 85-1586.
    Camps v. Louisiana.
   Ct. App. La., 2d Cir. Certiorari denied.


text:
    No. 85-1597.
    Ivancic v. Olmstead.
   Ct. App. N. Y. Certiorari denied.


text:
    No. 85-1598.
    A & A Concrete, Inc., et al. v. White Mountain Apache Tribe, dba White Mountain Apache Development Enterprise, et al.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 85-1607.
    Gibbs v. King, Secretary, Louisiana Department of Corrections, et al.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 85-1615.
    Booker et al. v. Thomas.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 85-1627.
    Mayer v. Davis et al.
   Ct. App. Ohio, Summit County. Certiorari denied.


text:
    No. 85-1634.
    Conner et al. v. Shelter Mutual Insurance Co.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 85-1636.
    O’Donnell v. Paine, Judge, United States District Court for the Southern District of Florida.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 85-1647.
    Rubinstein v. Texas.
   Ct. App. Tex., 10th Sup. Jud. Dist. Certiorari denied.


text:
    No. 85-1657.
    Nelms v. Weaver et ux.
   Sup. Ct. Tenn. Certiorari denied.


text:
    No. 85-1666.
    Hosford v. United States.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 85-1675.
    Kalish v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 85-1681.
    Hecht v. United States.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 85-1682.
    Ward v. United States Consumer Product Safety Commission.
   C. A. Fed. Cir. Certiorari denied.


text:
    No. 85-1703.
    Stranahan v. United States.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 85-1723.
    Fesler et ux. v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 85-5929.
    Casey v. Alaska.
   Sup. Ct. Alaska. Certiorari denied.


text:
    No. 85-5951.
    Otero v. United States.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 85-5983.
    Churchill v. Illinois.
   App. Ct. Ill., 3d Dist. Certiorari denied.


text:
    No. 85-6033.
    Shah v. Kern County, California, et al.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 85-6138.
    Wilkins v. McCotter, Director, Texas Department of Corrections.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 85-6187.
    Lee v. Miller, Warden.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 85-6209.
    Berton v. United States.
   Ct. App. D. C. Certiorari denied.


text:
    No. 85-6252.
    Brown v. Maryland.
   Ct. Sp. App. Md. Certiorari denied.


text:
    No. 85-6254.
    Figueroa v. United States.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 85-6292.
    Clifford v. Daugherty et al.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 85-6347.
    Birdsell v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 85-6348.
    Sam v. Louisiana.
   Ct. App. La., 3d Cir. Certiorari denied.


text:
    No. 85-6349.
    White v. Wainwright, Secretary, Florida Department of Corrections.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 85-6357.
    Hill v. United States.
   Ct. App. D. C. Certiorari denied.


text:
    No. 85-6366.
    Johnson v. Missouri.
   Sup. Ct. Mo. Certiorari denied.


text:
    No. 85-6381.
    Wilson v. United States.
   Ct. App. D. C. Certiorari denied.


text:
    No. 85-6383.
    Brooks v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 85-6422.
    Shook v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 85-6433.
    Forman v. Baer, Chairman, United States Parole Commission.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 85-6435.
    Camacho v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 85-6442.
    Taylor v. White, Warden, et al.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 85-6471.
    Klier v. Oregon.
   Sup. Ct. Ore. Certiorari denied.


text:
    No. 85-6509.
    Brysinski v. Illinois.
   App. Ct. Ill., 1st Dist. Certiorari denied.


text:
    No. 85-6531.
    Spraggins v. Georgia.
   Sup. Ct. Ga. Certiorari denied.


text:
    No. 85-6542.
    Freeman v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 85-6555.
    Williford v. Young, Superintendent, Waupun Correctional Institution, et al.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 85-6559.
    Griffin v. Virginia et al.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 85-6561.
    Stewart v. Foltz, Warden.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 85-6563.
    Buffaloe v. Anderson.
   Ct. Sp. App. Md. Certiorari denied.


text:
    No. 85-6565.
    Godbee v. Newsome, Warden.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 85-6566.
    Friend v. Rees, Warden, et al.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 85-6568.
    Smith v. Schroeder, Chief Justice, Kansas Supreme Court, et al.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 85-6570.
    Day v. Continental Insurance Cos.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 85-6571.
    Ford v. Stephenson, Superintendent, Caledonia and Odom Complex.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 85-6574.
    Davis v. Boston Edison Co. et al.
   C. A. 1st Cir. Certiorari denied.


text:
    No. 85-6576.
    Unger v. Hoelen.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 85-6578.
    Morgan v. New York.
   App. Div., Sup. Ct. N. Y., 3d Jud. Dept. Certiorari denied.


text:
    No. 85-6583.
    Kim et al. v. Stroh, Director of Alcoholic Beverage Control, et al.
   Sup. Ct. Cal. Certiorari denied.


text:
    No. 85-6586.
    Wilder v. Estelle, Warden.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 85-6587.
    McFall v. Rees, Warden, et al.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 85-6588.
    Kiser v. Ohio.
   Sup. Ct. Ohio. Certiorari denied.


text:
    No. 85-6590.
    Hernandez v. City of Louisville, Kentucky, et al.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 85-6591.
    LaGrange v. Texas Department of Public Safety et al.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 85-6592.
    Harris v. Abshire, Superintendent, Riverside Correctional Facility.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 85-6605.
    Johnson v. Womack, Clerk, Supreme Court of Mississippi.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 85-6607.
    Bryson v. Oklahoma.
   Ct. Crim. App. Okla. Certiorari denied.


text:
    No. 85-6608.
    Rosberg v. Goeres.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 85-6610.
    Myers v. Guillory, Warden, et al.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 85-6611.
    Tinney v. Oklahoma.
   Ct. Crim. App. Okla. Certiorari denied.


text:
    No. 85-6613.
    Sellers v. Georgia.
   Ct. App. Ga. Certiorari denied.


text:
    No. 85-6614.
    Randall v. Superior Court of California, Riverside County.
   Sup. Ct. Cal. Certiorari denied.


text:
    No. 85-6617.
    Kunkel v. Florida.
   Sup. Ct. Fla. Certiorari denied.


text:
    No. 85-6619.
    Hart v. Holland, Warden.
   Sup. Ct. App. W. Va. Certiorari denied.


text:
    No. 85-6621.
    Hollingsworth v. Stephenson, Superintendent, Caledonia and Odom Complex, et al.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 85-6624.
    Allen v. Oklahoma.
   Ct. Crim. App. Okla. Certiorari denied.


text:
    No. 85-6625.
    Day v. CMC Corp.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 85-6629.
    Morris v. Jackson Park Hospital.
   App. Ct. Ill., 1st Dist. Certiorari denied.


text:
    No. 85-6632.
    Simpson v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 85-6651.
    Lee v. Hardage et al.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 85-6657.
    Shumate v. Patterson et al.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 85-6666.
    De Vito v. United States.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 85-6685.
    Markouski v. New York et al.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 85-6686.
    Morgan v. United States.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 85-6690.
    Richardson v. United States.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 85-6691.
    Mercer v. United States et al.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 85-6694.
    Boone v. Cashion, Superintendent of North Carolina Division of Prisons, et al.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 85-6701.
    Wilson v. United States.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 85-6708.
    Jeffers v. Lockhart, Director, Arkansas Department of Correction.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 85-6711.
    Kaye v. United States.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 85-6719.
    Nunez v. United States.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 85-6720.
    Glascoe v. United States.
   Ct. App. D. C. Certiorari denied.


text:
    No. 85-6722.
    Swanson v. Office of Personnel Management et al.
   C. A. Fed. Cir. Certiorari denied.


text:
    No. 85-6728.
    Womble v. Norton.
   Ct. App. D. C. Certiorari denied.


text:
    No. 85-6735.
    Vannerson et al. v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 85-6736.
    Creech v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 85-6740.
    Jimenez v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 85-121.
    Kemp, Warden v. Young.
   C. A. 11th Cir. Motion of respondent for leave to proceed in forma pauperis granted. Certiorari denied.


text:
    No. 85-801.
    Wainwright, Secretary, Florida Department of Corrections v. Griffin.
   C. A. 11th Cir. Motion of respondent for leave to proceed informa pauperis granted. Certiorari denied.


text:
    No. 85-1337.
    North Carolina v. Harbison.
   Sup. Ct. N. C. Motion of respondent for leave to proceed informa pauperis granted. Certiorari denied.


text:
    No. 85-1590.
    Kirk, Secretary, North Carolina Department of Human Resources v. Thomas S., by his Appointed Guardian ad Litem, Brooks.
   C. A. 4th Cir. Motion of respondent for leave to proceed informa pauperis granted. Certiorari denied.


text:
    No. 85-541.
    No. 85-584.
    No. 85-717.
    BarclaysAmerican/Credit, Inc. v. Quiller et ux.; Grant et al. v. General Electric Credit Corp.; and Quiller et ux. v. BarclaysAmerican/Credit, Inc.
   C. A. 11th Cir. Motion of American Financial Services

Association et al. for leave to file a brief as amici curiae in No. 85-541 granted. Certiorari denied. Justice Blackmun took no part in the consideration or decision of this motion and these petitions.


author: Chief Justice Burger,

text:
    No. 85-1186.
    Sampson v. Gilmere, Individually and as Administratrix of the Estate of Patillo.
   C. A. 11th Cir. Certiorari denied.

Chief Justice Burger,

with whom Justice O’Connor joins,

dissenting.

On New Year’s Day, 1980, Atlanta police responded to a report that Thomas Patillo had threatened the driver of a van with a gun after Patillo had nearly caused an accident with the van. Petitioner Sampson and a fellow police officer, Craig, responded to the call, and arrived at Patillo’s residence. Patillo, who appeared to be inebriated, refused the officers’ order to accompany them to the police car for questioning, and attempted to flee. The police officers then escorted Patillo from his residence by force. Some witnesses reported that at this point the officers began beating Patillo in the head but no evidence of head wounds was discovered. Patillo broke free of the officers’ hold and reached for officer Craig’s revolver. During the struggle that followed, Patillo lunged towards Officer Sampson. Sampson, believing that Patillo had the gun in his hand, shot Patillo twice at close range. Patillo died from these gunshot wounds.

Respondent is Patillo’s sister, who filed this suit under 42 U. S. C. § 1983 on her own behalf and on behalf of Patillo’s estate. After a bench trial, the District Court concluded that Patillo’s due process rights had been violated both by the alleged beating and by the shooting, and that Sampson’s belief that his life was in danger was not objectively reasonable, and awarded damages against petitioner. A panel of the United States Court of Appeals for the Eleventh Circuit reversed the award of damages, reasoning that under Parratt v. Taylor, 451 U. S. 527 (1981), the availability of a state-law tort action against the police officers precluded relief under § 1983 for a due process violation. The panel decision was vacated and the case was listed before the Eleventh Circuit for en banc hearing. The en banc court affirmed the award of damages against the police officers. Gilmere v. City of Atlanta, 774 F. 2d 1495 (1985). Reasoning that Parratt barred only purely procedural due process claims for which state remedies are available, the Court of Appeals discerned two substantive constitutional bases for the imposition of § 1983 liability in this case. First, the court determined that Patillo’s shooting deprived him of substantive due process by the excessive use of force. In reaching this conclusion, the Court of Appeals reasoned that any fear that Sampson had for his own life was legally insufficient to justify the use of deadly force because any fear on the officer’s part was the fear of retaliation against his own unjustified physical abuse. Second, as an alternative holding, the Court of Appeals determined that Patillo’s shooting was also an unconstitutional “seizure” in violation of this Court’s holding in Tennessee v. Garner, 471 U. S. 1 (1985), that use of deadly force to arrest a nonviolent suspect violates the Fourth Amendment.

The Court of Appeals’ holding that Patillo’s shooting violates the Fourth Amendment despite Officer Sampson’s fear for his life is plainly at odds with language in Gamer emphasizing that the use of deadly force in effecting an arrest is constitutional when the officer has probable cause to believe that the suspect poses a threat to the officer. Id., at 11-12. The Court of Appeals’ holding conflicts with a holding of the Fifth Circuit that an officer’s conduct which makes the need for deadly force more likely does not constitutionally disable the officer from later using deadly force to defend himself. Young v. City of Killeen, 775 F. 2d 1349 (1985).

Because the Court of Appeals’ decision in this case misreads this Court’s holding in Gamer, and because the decision conflicts with the decision of the Fifth Circuit in Young, I would grant certiorari.


author: Justice White,

text:
    No. 85-1246.
    No. 85-1253.
    No. 85-1288.
    Raymark Industries, Inc. v. Bath Iron Works Corp. et al.; Eagle-Picher Industries, Inc. v. United States; and Raymark Industries, Inc., et al. v. United States.
   C. A. 1st Cir. Certiorari denied.

Justice White,

dissenting.

In No. 85-1246, petitioner, an asbestos manufacturer, is the defendant in a products liability suit brought by the widow of a deceased employee of respondent Bath Iron Works’ shipyard. Petitioner sought contribution from respondent on various theories, including a claim under § 5(b) of the Longshoremen’s and Harbor Workers’ Compensation Act, 86 Stat. 1263, 33 U. S. C. § 905(b). The United States Court of Appeals for the First Circuit held that § 5(b) covers only those torts that are within the reach of admiralty jurisdiction as defined in Executive Jet Aviation, Inc. v. City of Cleveland, 409 U. S. 249 (1972). Drake v. Raymark Industries, Inc., 772 F. 2d 1007 (1985). The First Circuit concluded that ship construction does not satisfy the “maritime nexus” test of Executive Jet. As the First Circuit realized, its interpretation of the scope of § 5(b) conflicts with the decision in Hall v. Hvide Hull No. 3, 746 F. 2d 294 (CA5 1984), which holds that employees covered by the LHWCA who sue under § 5(b) need not satisfy the “maritime nexus” test of Executive Jet so long as the underlying event took place on a ship on navigable water.

In Nos. 85-1253 and 85-1288, which involve third-party claims by asbestos manufacturers against the United States as vessel owner and shipyard employer, the First Circuit followed its holding in Drake, supra, regarding the scope of §5(b). In re All Maine Asbestos Litigation (PNS Cases), 772 F. 2d 1023 (1985).

I would grant certiorari to resolve the conflict presented in these cases.


text:
    No. 85-1359.
    Norvell, Sheriff, St. Lucie Jail, et al. v. Miller.
   C. A. 11th Cir. Motion of respondent for leave to proceed in forma pauperis granted. Certiorari denied.

Chief Justice Burger,

with whom Justice Rehnquist and Justice O’Connor join,

dissenting.

Miller was charged with “misapplication of funds” in connection with the 1978 construction of several homes. The Florida statute under which Miller was charged provides that one of the elements of the crime, the “intent to defraud,” can be prima facie established by the “failure to pay for such labor, services or materials furnished for this specific improvement after receipt of such proceeds.” Fla. Stat. §713.34(3) (1985).

The state trial court instructed the jury that

“[p]roof that the defendant failed to pay for such labor, services or materials for any specific improvement from the proceeds of any payment made to him for such specific improvements shall constitute prima facie evidence of intent to defraud. Prima facie evidence means evidence of such nature as is sufficient to establish a fact and which, if unrebutted, remains sufficient for that purpose.”

Miller was found guilty and sentenced to 6 months in county jail and 1414 years’ probation. After Miller’s conviction was affirmed on direct appeal, he brought this federal habeas action. The District Court denied the application.

The Court of Appeals for the Eleventh Circuit reversed, 775 F. 2d 1572 (1985), holding that the jury instructions could have been interpreted as creating a “mandatory rebuttable presumption” in violation of Francis v. Franklin, 471 U. S. 307 (1985), and Sandstrom v. Montana, 442 U. S. 510 (1979). Although this holding was sufficient to dispose of the application, the court went on to hold that the statute under which Miller was convicted was unconstitutional. Since the improper jury instructions were a “verbatim” rendition of the statute, the court reasoned, the statute, like the instructions, must fail.

Even if the jury instructions were impermissible under Franklin and Sandstrom, by striking down the underlying statute the Court of Appeals’ decision flies in the face of Ulster County Court v. Allen, 442 U. S. 140 (1979), where we considered a facial attack upon a New York statute on the grounds that it impermissibly shifted the burden of proof. As the Court explained, a facial attack to a statute on these grounds will fail if the statute creates only a “permissive inference,” leaving the trier of fact free to credit or reject the inference. The application of the statute to a particular case, however, can be successfully challenged if there is no rational way the trier could make the connection permitted by the inference. On the other hand, a statute creating a “mandatory presumption” is “a far more troublesome evidentiary device” because it may “affect not only the strength of the ‘no reasonable doubt’ burden but also the placement of that burden; it tells the trier that he or they must find the elemental fact upon proof of the basic fact.” Id., at 157. To the extent that the trier of fact is forced to abide by the presumption irrespective of particular facts presented by the case, the analysis of the mandatory presumption’s constitutional validity “is logically divorced from those facts and based on the presumption’s accuracy in the run of cases.” Id., at 159. Because the statute in Ulster County created only a permissive inference, the Court held that the Court of Appeals erred in passing on the constitutionality of the statute “on its face.” Id., at 163.

The Court of Appeals’ decision in this case striking down the statute cannot be reconciled with Ulster County. According to the Florida Supreme Court, the statute creates only a “permissive inference.” State v. Ferrari, 398 So. 2d 804 (1981). A state trial court could, consistently with the statute as interpreted by the Florida Supreme Court, instruct the jury that it is free to either accept or reject the inference; that is, from the evidence that a contractor received advance payment for a particular project and did not use the money for the project, the jury could but need not infer that the contractor intended to defraud the owner. As we held in Ulster County, whether this kind of permissive inference unconstitutionally relieves the State of its burden of proof is to be determined on the facts of each case. But, because such an inference can be applied in a manner not repugnant to the Constitution, the Court of Appeals had no warrant to hold the Florida statute unconstitutional.

The Court of Appeals suggested that, while the Florida Supreme Court said that the statute created only a permissive inference, as a matter of federal law it created a mandatory rebuttable presumption. The Florida Supreme Court, however, is the final expositor of Florida law, not the Eleventh Circuit. Whether the troublesome phrase in the statute — “shall constitute prima facie evidence” — places the burden upon the defendant to rebut the State’s showing is a question properly left to the Florida Supreme Court. Even if the Florida Supreme Court had not already declared that the statute created only a permissive inference, the Court of Appeals still should have allowed the Florida courts to interpret their statute to conform with federal constitutional requirements. And, even if the statute were incapable of such interpretation, the Florida courts should have been left free to make that determination in the first instance.

The holding of the Court of Appeals is not only incorrect but also completely gratuitous. After holding that the petition should be granted because of the flawed jury instruction, it had no reason to go on and take the drastic step of holding a state statute unconstitutional, thereby leaving the State with no means of retrying Miller. Accordingly, I would grant the petition and at least allow plenary consideration of the issue.


text:
    No. 85-1423.
    Private Truck Council of America, Inc., et al. v. Quinn, Secretary of State of Maine, et al.
   Sup. Jud. Ct. Me. Certiorari denied.

Justice White,

with whom Justice Brennan and Justice O’Connor join,

dissenting.

In this case, the Supreme Judicial Court of Maine held that an allegation that a State has violated the Commerce Clause is not cognizable in an action under 42 U. S. C. § 1983. 503 A. 2d 214 (1986). This decision, while supported by the weight of authority, see, e. g., Consolidated Freightways Corp. v. Kassel, 730 F. 2d 1139 (CA8), cert. denied, 469 U. S. 834 (1984), conflicts with the holding in Kennecott Corp. v. Smith, 637 F. 2d 181, 186, n. 5 (CA3 1980). I would grant certiorari to resolve this conflict.

This case also presents the question whether persons subjected to an unconstitutional tax, the nonpayment of which is a crime, may bring a refund action under the Fourteenth Amendment if no state refund procedure is available. The Supreme Judicial Court recognized that the Fourteenth Amendment may require a refund of unconstitutional taxes paid under compulsion. See Carpenter v. Shaw, 280 U. S. 363, 369 (1930); Ward v. Board of County Comm’rs, 253 U. S. 17, 24 (1920). However, the court rejected the “implied duress” theory of Atchison, T. & S. F. R. Co. v. O’Connor, 223 U. S. 280, 286 (1912), and held that petitioners have no right of recovery under the Fourteenth Amendment because they failed to present evidence that the State actually threatened them with arrest or seizure of personal property if they failed to pay the tax in question. Because this holding calls into question the continuing vitality of Atchison, I would grant certiorari on this issue as well.


text:
    No. 85-1617.
    Emerson Electric Co. v. Swenson et al.
   Sup. Ct. Minn. Motion of Chamber of Commerce of the United States et al. for leave to file a brief as amici curiae granted. Motion of petitioner to defer consideration of the petition for writ of certiorari denied. Certiorari denied.


text:
    No. 85-5273.
    David v. Louisiana.
   Sup. Ct. La. Certiorari denied. Justice Brennan and Justice Marshall would grant certiorari.


text:
    No. 85-5793.
    No. 85-6525.
    No. 85-6630.
    No. 85-6631.
    Skaggs v. Kentucky (two cases). Johnson v. Tennessee. Rogers, aka Heyduk v. Nevada. Farmer v. Nevada.
   Sup. Ct. Ky.;

Sup. Ct. Tenn.;

Sup. Ct. Nev.; and

Sup. Ct. Nev. Certiorari denied.

Justice Brennan and Justice Marshall,

dissenting.

Adhering to our views that the death penalty is in all circumstances cruel and unusual punishment prohibited by the Eighth and Fourteenth Amendments, Gregg v. Georgia, 428 U. S. 153, 227, 231 (1976), we would grant certiorari and vacate the death sentences in these cases.


text:
    No. 85-6556.
    Anderson v. Spring Lake Park Partnership.
   C. A. 8th Cir. Certiorari denied.

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


text:
    No. 85-6930 (A-889).
    Straight v. Wainwright, Secretary, Florida Department of Corrections, et al.
   Sup. Ct. Fla. Application for stay of execution of sentence of death, presented to Justice Powell, and by him referred to the Court, denied. Certiorari denied.

Justice Blackmun would deny the state habeas petition without prejudice to the presentation of claims on federal habeas.

Justice Brennan and Justice Marshall,

dissenting.

Adhering to our views that the death penalty is in all circumstances cruel and unusual punishment prohibited by the Eighth and Fourteenth Amendments, Gregg v. Georgia, 428 U. S. 153, 227, 231 (1976), we would grant the application for stay and the petition for writ of certiorari and would vacate the death sentence in this case.


text:
    No. 85-24.
    No. 85-1096.
    No. 85-1272.
    No. 85-1296.
    No. 85-5375.
    No. 85-5729.
    No. 85-5890.
    No. 85-5920.
    No. 85-5978.
    No. 85-6183.
    No. 85-6224.
    No. 85-6229.
    No. 85-6260.
    No. 85-6310.
    No. 85-6311.
    No. 85-6367.
    No. 85-6375.
    No. 85-6403.
    No. 85-6460.
    Maryland v. ElFadl, Van Sant v. United States Postal Service et al., Myer v. Pacific Federal Savings & Loan Assn., Rosenbaum v. Rosenbaum, Blanks v. Georgia, Howell v. Maryland, Baig v. United States, Pool v. Armontrout, Warden, Clark v. State Treasurer’s Office Employer et al., In re May, Drinkwine v. Federated Publications, Inc., et al., Collins v. Georgia, Lynch v. Johnson et al., Gregory v. Solem, Warden, Houghton v. Coder et al., Choat v. Rome Industries, Inc., et al., Knies v. Wisconsin, Dyson v. Texas A & M University, Purcell et ux. v. Board of Immigration Appeals,
   475 U. S. 1081;

475 U. S. 1082;

475 U. S. 1084;

475 U. S. 1078;

475 U. S. 1090;

475 U. S. 1110;

474 U. S. 1103;

475 U. S. 1110;

475 U. S. 1024;

475 U. S. 1044;

475 U. S. 1087;

475 U. S. 1090;

475 U. S. 1087;

475 U. S. 1088;

475 U. S. 1088;

475 U. S. 1097;

475 U. S. 1110;

475 U. S. 1113; and

475 U. S. 1098. Petitions for rehearing denied.


text:
    No. 84-773.
    Bender et al. v. Williamsport Area School District et al.,
   475 U. S. 534. Motion of Bender et al. for leave to file petition for rehearing denied. Petition for rehearing denied.


text:
    May 20, 1986
    No. A-891.
    Wainwright, Secretary, Florida Department of Corrections v. Zeigler.
   Application of the Attorney-General of Florida for an order to dissolve a stay of execution of sentence of death entered by the United States Court of Appeals for the Eleventh Circuit, presented to Justice Powell, and by him referred to the Court, denied.


author:
Justice Powell,
      Justice Brennan,
      Justice Marshall,

text:
    No. A-892 (85-6947).
    Straight v. Wainwright, Secretary, Florida Department of Corrections, et al.
   C. A. 11th Cir. The order heretofore entered staying the execution of the sentence of death until 5 p.m., May 20, 1986, is vacated. The application for stay of execution of sentence of death, presented to Justice Powell, and by him referred to the Court, is denied. Justice Stevens would grant the application for stay of execution.

Justice Powell,

joined by The Chief Justice, Justice Rehnquist, and Justice O’Connor,

concurring in the denial of a stay.

In view of the discussion in the dissents, I write to summarize my reasons for voting to deny a stay in this case.

Ronald Straight is here on his second federal habeas corpus petition. In his first petition, Straight argued that he was handicapped by the reasonable belief of trial counsel and the trial judge that Florida law barred the introduction of nonstatutory mitigating evidence at capital sentencing proceedings. Cf. Lockett v. Ohio, 438 U. S. 586 (1978). The District Court denied relief on this claim, and on Straight’s other claims as well, and the Court of Appeals for the Eleventh Circuit affirmed. Straight v. Wainwright, 772 F. 2d 674 (1985). Less than seven weeks ago, this Court denied Straight’s petition for certiorari, a petition that again raised his Lockett argument. 475 U. S. 1099.

In his second habeas petition, filed late yesterday, Straight raises the same substantive legal claim, and adds various new factual allegations in support. The District Court properly found that, to the extent Straight seeks to relitigate the same claims raised earlier, his petition should be dismissed under Habeas Corpus Rule 9(b) as a successive petition. The court also found that, to the extent that Straight sought to make new arguments that plainly could have been raised earlier, his petition was an abuse of the writ. See Woodard v. Hutchins, 464 U. S. 377, 378-380 (1984) (Powell, J., joined by Burger, C. J., and Blackmun, Rehnquist, and O’Connor, JJ., concurring). The Court of Appeals found no error in the District Court’s disposition, and denied a certificate of probable cause to appeal. The Court of Appeals granted a stay of execution until noon today to permit this Court to consider Straight’s belated application for a stay and petition for certiorari.

I find no basis for concluding that the District Court abused its discretion. Applicant has not offered any reason why he should be permitted to relitigate his Lockett claim, nor has he justified his previous failure to allege the supporting factual grounds on which he now relies. Thus, the District Court’s decision to deny relief based on Rule 9 was plainly correct. That being the case, there is no ground for reaching the merits argument that the dissenting opinions now rely on.

Justice Brennan,

with whom Justice Marshall joins, and with whom Justice Blackmun joins in all but the first paragraph,

dissenting.

Adhering to my view that the death penalty is in all circumstances cruel and unusual punishment prohibited by the Eighth and Fourteenth Amendments, Gregg v. Georgia, 428 U. S. 153, 227 (1976) (Brennan, J., dissenting), I would grant the stay application and the petition for certiorari and would vacate the sentence in this case.

But even if I did not hold this view, I would extend the stay of execution in this case until the Court acts on Straight’s petition for certiorari in No. 85-6947. In that petition, Straight contends that the State of Florida’s death penalty statute and the cases interpreting it prior to his trial resulted in the failure of the trial court to consider nonstatutory mitigating factors in violation of this Court’s holding in Lockett v. Ohio, 438 U. S. 586 (1978). This issue is similar to one presented in Darden v. Wainwright, No. 85-5319, a case that has been argued but not yet decided by the Court, and other petitions that are before the Court that have not yet been acted upon.

It would be disturbing enough if the Court were to allow this execution to proceed without acting on the merits of Straight’s petition for certiorari, since this would allow him to be executed despite the continuing possibility of relief from this Court. What the Court does here is far more alarming, however. For the fact is that in my view the Court has acted on the merits of Straight’s petition. Four Justices have voted to “hold” Straight’s petition because they believe that it presents an issue sufficiently similar to Darden to warrant delaying disposition of Straight’s case until a decision is reached in that case. To deny a stay of execution in the face of this “hold” is, in my view, a wrong to which I may not be a silent witness.

A minority of the Justices has the power to grant a petition for certiorari over the objection of five Justices. The reason for this “antimajoritarianism” is evident: in the context of a preliminary 5-to-4 vote to deny, 5 give the 4 an opportunity to change at least one mind. Accordingly, when four vote to grant certiorari in a capital case, but there is not a fifth vote to stay the scheduled execution, one of the five Justices who does not believe the case worthy of granting certiorari will nonetheless vote to stay; this is so that the “Rule of Four” will not be rendered meaningless by an execution that occurs before the Court considers the case on the merits.

A “hold” is analogous to a decision to grant a petition for certiorari. The Court’s “hold” policy represents the conviction that like cases must be treated alike. Like the “Rule of Four,” it grants to a minority of the Court the power to prevent the majority from denying a petition for certiorari when the minority is persuaded that the issues or questions presented in the case to be held are similar to a case that the Court is to decide. The principle is apparent: whether an individual obtains relief should not turn on the fortuity of whether his papers were the first, the second, or the tenth to reach the Court. What counts is the merits. A vote to “hold” is a statement by a number of Justices that the disposition of the granted case may have an effect on the merits of the case which is to be held. The fact that a majority of the Justices disagree with the decision to “hold” does not warrant subversion of the “hold” rule any more than does disagreement by five with the decision to grant a petition for certiorari justify departure from the “Rule of Four.” It is unthinkable to me that the practice that four votes to grant certiorari trigger an “automatic” fifth vote to stay an execution should not apply to a “hold” when a man’s life is in the balance.

For the Court to deny a stay to a petitioner who is under sentence of death, and whose petition four Justices have determined to hold, is to give a new and gruesome meaning to the old notion of the “race to the courthouse.” It is to distinguish as an initial matter between those who may live and those who will die by rewarding with a stay of execution that litigant whose lawyer files his papers first. It is to divide litigants arbitrarily into the condemned and the spared on the basis of what amounts to little more than a footrace. It is to reject those first principles of justice that ultimately define a system of law: the principles of uniform application of rules, of consistency, of evenhandedness, of fairness.

I dissent.

Justice Marshall,

with whom Justice Brennan joins,

dissenting from denial of application for stay of execution.

The State of Florida intends to execute applicant at 5:01 this afternoon. In the papers he has filed in this Court, applicant claims that the Florida death penalty statute and the cases interpreting it prior to his trial led all participants in his sentencing hearing, including the trial judge, to believe that nonstatutory mitigating circumstances could not be considered in the sentencing decision. He argues that the failure of the trial court to consider such nonstatutory factors violated the injunction of this Court in Lockett v. Ohio, 438 U. S. 586 (1978), that a death penalty scheme must not prevent the sentencer from considering “any aspect of a defendant’s character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death.” Id., at 604; see Eddings v. Oklahoma, 455 U. S. 104 (1982).

When presented with evidence that a sentencing judge had actually believed himself precluded from considering nonstatutory mitigating circumstances, both the Florida Supreme Court and the Court of Appeals for the Eleventh Circuit have held that a defendant is constitutionally entitled to a new sentencing proceeding. See, e. g., Harvard v. State, 486 So. 2d 537 (Fla. 1986); Songer v. Wainwright, 769 F. 2d 1488 (CA11 1985). Unlike the defendants in Harvard and Songer, applicant never had the chance during postconviction proceedings to ascertain how his sentencing judge had interpreted Florida’s statutory scheme. He now seeks an evidentiary hearing where he might make such an inquiry. I believe he should be given at least the chance to do so.

I would grant the petition for certiorari and the application for a stay of execution.

       Acting in my capacity as Circuit Justice, I extended the stay of petitioner’s execution until 5 p.m. today to allow fuller consideration of his stay application.

       Justice Brennan contends that, because four Justices have voted to “hold” this case pending disposition of Darden v. Wainwright, No. 85-5319, the Court is obliged to stay applicant’s execution in order that the case not be mooted. Justice Brennan correctly notes that, in the past, the Court has ordinarily stayed executions when four Members have voted to grant certiorari, and he maintains that “[a] ‘hold’ is analogous to a decision to grant a petition for certiorari.” Post, at 1135 (dissenting). In my view, this last assertion is incorrect on several levels. First and foremost, the Court often “holds” cases for reasons that have nothing to do with the merits of the cases being held, as when we wish not to “tip our hand” in advance of an opinion’s announcement. Second, when certiorari is granted, by definition the Court’s resolution of the issues presented in that case might affect the judgment rendered below. That is not necessarily true of held eases. The judgment in a held case may rest on a number of grounds sufficient to sustain it. In this ease, my vote to deny Straight’s petition for certiorari — and therefore not to hold the petition for Darden, supra — reflects my view that no matter how Darden is resolved, the judgment of the District Court will be unaffected. The reason for that conclusion is obvious: the District Court found that the petition must be dismissed under Habeas Corpus Rule 9, and therefore did not reach the merits of applicant’s claim. Darden, of course, does not raise any issue concerning the applicability of Rule 9 in cases such as this one.

       With respect to Justice Powell’s suggestion that the merits ought not to be reached here, I note only that there is no little confusion on the procedural aspects of this case. When, in his first habeas petition, applicant raised a variant of the Lockett claim he raises here, the Court of Appeals incorrectly found that claim procedurally barred even though, on state collateral review, the Florida Supreme Court had reached it on the merits, 422 So. 2d 827, 832 (1982). 772 F. 2d 674, 677-678 (1985). Had the Court of Appeals properly considered that claim, this second habeas petition might not have been necessary.


text:
    May 21, 1986
    No. 85-6770.
    Adams v. United States.
   C. A. 4th Cir. Certiorari dismissed under this Court’s Rule 53.


text:
    May 27, 1986
    No. 85-31.
    Owens et al. v. Bowen, Secretary of Health and Human Services.
   Appeal from D. C. C. D. Cal. dismissed.


text:
    No. 85-1493.
    Metropolitan Edison Co. et al. v. Pennsylvania Public Utility Commission et al.
   Appeal from Sup. Ct. Pa. dismissed for want of substantial federal question.


text:
    No. 85-1637.
    Budget Rent-A-Car of Cincinnati, Inc. v. Kentucky Revenue Cabinet.
   Appeal from Sup. Ct. Ky. dismissed for want of substantial federal question.


text:
    No. 85-1610.
    Northern Indiana Public Service Co. v. Citizens Action Coalition of Indiana, Inc., et al.
   Appeal from Sup. Ct. Ind. dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for writ of certiorari, certiorari denied.


text:
    No. 85-6635.
    Wilkerson v. Township of East Brunswick, New Jersey.
   Appeal from Super. Ct. N. J., App. Div., dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for writ of certiorari, certiorari denied.


text:
    No. 84-1859.
    Marsh v. Board of Education of the City of Flint et al.
   C. A. 6th Cir. Certiorari granted, judgment vacated, and case remanded for further consideration in light of Wygant v. Jackson Board of Education, ante, p. 267.


text:
    No. 85-912.
    Brock, Secretary of Labor v. Southeastern Arizona Governments Organization.
   C. A. 9th Cir. Certiorari granted, judgment vacated, and case remanded for further consideration in light of Brock v. Pierce County, ante, p. 253.


text:
    No. 85-1105.
    No. 85-1118.
    No. 85-1120.
    Carter et al. v. United States; Murray v. United States; and Rooney v. United States.
   C. A. 1st Cir. Certiorari granted, judgment vacated, and cases remanded for further consideration in light of Henderson v. United States, ante, p. 321. Justice Stevens would deny the petitions for writs of certiorari.


text:
    No. 85-5040.
    Isaac v. United States.
   C. A. 4th Cir. Motion of petitioner for leave to proceed in forma pauperis and certiorari granted. Judgment vacated and case remanded for further consideration in light of Henderson v. United States, ante, p. 321.

Justice Stevens would deny the petition for writ of certiorari.


text:
    No. 85-236.
    Eichenlaub v. Yurky et al.
   C. A. 3d Cir. [Certiorari granted, 474 U. S. 1049.] Judgment vacated and case remanded to the Court of Appeals to consider whether the case is moot.


text:
    No. 85-6947.
    Straight v. Wainwright, Secretary, Florida Department of Corrections, et al.
   C. A. 11th Cir. Petition for writ of certiorari dismissed as moot.


text:
    No.---.
    Peede v. Florida.
   Motion to direct the Clerk to file the petition for writ of certiorari without the affidavit in support of motion for leave to proceed in forma pauperis granted.


text:
    No. D-509.
    In re Disbarment of Alexander.
   Disbarment entered. [For earlier order herein, see 474 U. S. 977.]


text:
    No. D-557.
    In re Disbarment of Keiden.
   It is ordered that Bruce H. Keiden, of Southfield, Mich., be suspended from the practice of law in this Court and that a rule issue, returnable within 40 days, requiring him to show cause why he should not be disbarred from the practice of law in this Court.


text:
    No. 85-88.
    Paulussen v. Herion,
   475 U. S. 557. Motion of appellee to retax costs denied.

Justice Blackmun would grant this motion.


text:
    No. 85-495.
    Ansonia Board of Education et al. v. Philbrook et al.
   C. A. 2d Cir. [Certiorari granted, 474 U. S. 1080.] Motion of The Rutherford Institute of Alabama et al. for leave to file a brief as amici curiae granted.


text:
    No. 85-608.
    Illinois v. Krull et al.
   Sup. Ct. Ill. [Certiorari granted, 475 U. S. 1080.] Motion of Americans for Effective Law Enforcement, Inc., et al. for leave to file a brief as amici curiae granted.


text:
    No. 85-1033.
    Kelly, Connecticut Chief State’s Attorney, et al. v. Robinson.
   C. A. 2d Cir. [Certiorari granted, 475 U. S. 1009.] Motion of National Governors’ Association et al. for leave to file a brief as amici curiae granted.