source: Caselaw Access Project

author: Justice Stevens

license: Public Domain

text:
    NATIONAL FARMERS UNION INSURANCE COS. et al. v. CROW TRIBE OF INDIANS et al.
    No. 84-320.
    Argued April 16, 1985
    Decided June 3, 1985

      Stevens, J., delivered the opinion for a unanimous Court.

      Rodney T. Hartman argued the cause for petitioners. With him on briefs was Jack Ramirez.

      Clay Riggs Smith, Assistant Attorney General of Montana, argued the cause for the State of Montana et al. as amici curiae urging reversal. With him on the brief were Michael T. Greely, Attorney General of Montana, Rick Barios, Norman C. Gorsuch, Attorney General of Alaska, Robert K. Corbin, Attorney General of Arizona, Jim Jones, Attorney General of Idaho, Hubert H. Humphrey III, Attorney General of Minnesota, Paul Bardacke, Attorney General of New Mexico, Lacy Thornburg, Attorney General of North Carolina, and Robert E. Cansler, Assistant Attorney General, Michael Turpén, Attorney General of Oklahoma, Mark V. Meierhenry, Attorney General of South Dakota, Bronson C. LaFollette, Attorney General of Wisconsin, and Archie G. McClintock, Attorney General of Wyoming.

      Clarence T. Belue, by appointment of the Court, 469 U. S. 1104, argued the cause for respondents and filed a brief for respondents Sage et al. Robert S. Pelcyger filed a brief for the Crow respondents.

      Deputy Solicitor General Claiborne argued the cause for the United States as amicus curiae urging affirmance. With him on the brief were Solicitor General Lee, and Assistant Attorney General Habicht.

      Briefs of amici curiae urging reversal were filed for the State of Washington by Kenneth 0. Eikenberry, Attorney General, and Timothy R. Malone, Assistant Attorney General; and for the Salt River Project Agricultural Improvement and Power District et al. by Robert B. Hoffman and Frederick J. Martone.

      Briefs of amici curiae urging affirmance were filed for the Assiniboine and Sioux Tribes of the Fort Peck Reservation et al. by Arthur Lazarus,

        Jr,, W. Richard West, Jr., Reid Peyton Chambers, Kevin A. Griffin, and George E. Fettinger; and for the Salt River Pima-Maricopa Indian Community et al. by Rodney B. Lewis and Richard B. Wilks.

   Justice Stevens

delivered the opinion of the Court.

A member of the Crow Tribe of Indians filed suit against the Lodge Grass School District No. 27 (School District) in the Crow Tribal Court and obtained a default judgment. Thereafter, the School District and its insurer, National Farmers Union Insurance Companies (National), commenced this litigation in the District Court for the District of Montana; that court was persuaded that the Crow Tribal Court had no jurisdiction over a civil action against a non-Indian and entered an injunction against further proceedings in the Tribal Court. The Court of Appeals reversed, holding that the District Court had no jurisdiction to enter such an injunction. We granted certiorari to consider whether the District Court properly entertained petitioners’ request for an injunction under 28 U. S. C. § 1331. 469 U. S. 1032 (1984).

The facts as found by the District Court are not substantially disputed. On May 27, 1982, Leroy Sage, a Crow Indian minor, was struck by a motorcycle in the Lodge Grass Elementary School parking lot while returning from a school activity. The school has a student body that is 85% Crow Indian. It is located on land owned by the State within the boundaries of the Crow Indian Reservation. Through his guardian, Flora Not Afraid, Sage initiated a lawsuit in the Crow Tribal Court against the School District, a political subdivision of the State, alleging damages of $153,000, including medical expenses of $3,000 and pain and suffering of $150,000.

On September 28, 1982, process was served by Dexter Falls Down on Wesley Falls Down, the Chairman of the School Board. For reasons that have not been explained, Wesley Falls Down failed to notify anyone that a suit had been filed. On October 19, 1982, a default judgment was entered pursuant to the rules of the Tribal Court, and on October 25, 1982, Judge Roundface entered findings of fact, conclusions of law, and a judgment for $158,000 against the School District. Sage v. Lodge Grass School District, 10 Indian L. Rep. 6019 (1982). A copy of that judgment was hand-delivered by Wesley Falls Down to the school Principal who, in turn, forwarded it to National on October 29, 1982.

On November 3, 1982, National and the School District (petitioners) filed a verified complaint and a motion for a temporary restraining order in the District Court for the District of Montana. The complaint named as defendants the Crow Tribe of Indians, the Tribal Council, the Tribal Court, judges of the court, and the Chairman of the Tribal Council. It described the entry of the default judgment, alleged that a writ of execution might issue on the following day, and asserted that a seizure of school property would cause irreparable injury to the School District and would violate the petitioners’ constitutional and statutory rights. The District Court entered an order restraining all the defendants “from attempting to assert jurisdiction over plaintiffs or issuing writs of execution out of Cause No. Civ. 82-287 of the Crow Tribal Court until this court orders otherwise.”

In subsequent proceedings, the petitioners filed an amendment to their complaint, invoking 28 U. S. C. §1331 as a basis for federal jurisdiction, and added Flora Not Afraid and Leroy Sage as parties defendant. After the temporary restraining order expired, a hearing was held on the defendants’ motion to dismiss the complaint and on the plaintiffs’ motion for a preliminary injunction. On December 29, 1982, the District Court granted the plaintiffs a permanent injunction against any execution of the Tribal Court judgment. 560 F. Supp. 213, 218 (1983). The basis “for the injunction was that the Crow Tribal Court lacked subject-matter jurisdiction over the tort that was the basis of the default judgment.” Id., at 214.

A divided panel of the Court of Appeals for the Ninth Circuit reversed. 736 F. 2d 1320 (1984). Without reaching the merits of petitioners’ challenge to the jurisdiction of the Tribal Court, the majority concluded that the District Court’s exercise of jurisdiction could not be supported on any constitutional, statutory, or common-law ground. Id., at 1322-1323. One judge dissented in part and concurred in the result, expressing the opinion that petitioners stated a federal common-law cause of action involving a substantial federal question over which subject-matter jurisdiction was conferred by 28 U. S. C. § 1331. He concluded, however, that the petitioners had a duty to exhaust their Tribal Court remedies before invoking the jurisdiction of a federal court, and therefore concurred in the judgment directing that the complaint be dismissed. Id., at 1324-1326.

I

Section 1331 of the Judicial Code provides that a federal district court “shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States.” It is well settled that this statutory grant of “jurisdiction will support claims founded upon federal common law as well as those of a statutory origin.” Federal common law as articulated in rules that are fashioned by court decisions are “laws” as that term is used in § 1331.

Thus, in order to invoke a federal district court’s jurisdiction under § 1331, it was not essential that the petitioners base their claim on a federal statute or a provision of the Constitution. It was, however, necessary to assert a claim “arising under” federal law. As Justice Holmes wrote for the Court, a “suit arises under the law that creates the cause of action.” Petitioners contend that the right which they assert — a right to be protected against an unlawful exercise of Tribal Court judicial power — has its source in federal law because federal law defines the outer boundaries of an Indian tribe’s power over non-Indians.

As we have often noted, Indian tribes occupy a unique status under our law. At one time they exercised virtually unlimited power over their own members as well as those who were permitted to join their communities. Today, however, the power of the Federal Government over the Indian tribes is plenary. Federal law, implemented by statute, by treaty, by administrative regulations, and by judicial decisions, provides significant protection for the individual, territorial, and political rights of the Indian tribes. The tribes also retain some of the inherent powers of the self-governing political communities that were formed long before Europeans first settled in North America.

This Court has frequently been required to decide questions concerning the extent to which Indian tribes have retained the power to regulate the affairs of non-Indians. We have also been confronted with a series of questions concerning the extent to which a tribe’s power to engage in commerce has included an immunity from state taxation. In all of these cases, the governing rule of decision has been provided by federal law. In this case the petitioners contend that the Tribal Court has no power to enter a judgment against them. Assuming that the power to resolve disputes arising within the territory governed by the Tribe was once an attribute of inherent tribal sovereignty, the petitioners, in essence, contend that the Tribe has to some extent been divested of this aspect of sovereignty. More particularly, when they invoke the jurisdiction of a federal court under § 1331, they must contend that federal law has curtailed the powers of the Tribe, and thus afforded them the basis for the relief they seek in a federal forum.

The question whether an Indian tribe retains the power to compel a non-Indian property owner to submit to the civil jurisdiction of a tribal court is one that must be answered by reference to federal law and is a “federal question” under §1331. Because petitioners contend that federal law has divested the Tribe of this aspect of sovereignty, it is federal law on which they rely as a basis for the asserted right of freedom from Tribal Court interference. They have, therefore, filed an action “arising under” federal law within the meaning of § 1331. The District Court correctly concluded that a federal court may determine under § 1331 whether a tribal court has exceeded the lawful limits of its jurisdiction.

“Their incorporation within the territory of the United States, and their acceptance of its protection, necessarily divested them of some aspects of the sovereignty which they had previously exercised. ... In sum, Indian tribes still possess those aspects of sovereignty not withdrawn by treaty or statute, or by implication as a necessary result of their dependent status.
“The areas in which such implicit divestiture of sovereignty has been held to have occurred are those involving the relations between an Indian tribe and nonmembers of the tribe. Thus, Indian tribes can no longer freely alienate to non-Indians the land they occupy. Oneida Indian Nation v. County of Oneida, 414 U. S. 661, 667-668; Johnson v. M’Intosh,

II

Respondents’ contend that, even though the District Court’s jurisdiction was properly invoked under § 1331, the Court of Appeals was correct in ordering that the complaint be dismissed because the petitioners failed to exhaust their remedies in the tribal judicial system. They further assert that the underlying tort action “has turned into a procedural and jurisdictional nightmare” because petitioners did not pursue their readily available Tribal Court remedies. Petitioners, in response, relying in part on Oliphant v. Suquamish Indian Tribe, 435 U. S. 191 (1978), assert.that resort to exhaustion as a matter of comity “is manifestly inappropriate.”

In Oliphant we held that the Suquamish Indian Tribal Court did not have criminal jurisdiction to try and to punish non-Indians for offenses committed on the reservation. That holding adopted the reasoning of early opinions of two United States Attorneys General, and concluded that federal legislation conferring jurisdiction on the federal courts to try non-Indians for offenses committed in Indian Country had implicitly pre-empted tribal jurisdiction. We wrote:

“While Congress never expressly forbade Indian tribes to impose criminal penalties on non-Indians, we now make express our implicit conclusion of nearly a century ago that Congress consistently believed this to be the necessary result of its repeated legislative actions.” Id., at 204.

If we were to apply the Oliphant rule here, it is plain that any exhaustion requirement would be completely foreclosed because federal courts would always be the only forums for civil actions against non-Indians. For several reasons, however, the reasoning of Oliphant does not apply to this case. First, although Congress’ decision to extend the criminal jurisdiction of the federal courts to offenses committed by non-Indians against Indians within Indian Country supported the holding in Oliphant, there is no comparable legislation granting the federal courts jurisdiction over civil disputes between Indians and non-Indians that arise on an Indian reservation. Moreover, the opinion of one Attorney General on which we relied in Oliphant, specifically noted the difference between civil and criminal jurisdiction. Speaking of civil jurisdiction, Attorney General Cushing wrote:

“But there is no provision of treaty, and no statute, which takes away from the Choctaws jurisdiction of a case like this, a question of property strictly internal to the Chocktaw nation; nor is there any written law which confers jurisdiction of such a case in any court of the United States.
“The conclusion seems to me irresistible, not that such questions are justiciable nowhere, but that they remain subject to the local jurisdiction of the Chocktaws.
“Now, it is admitted on all hands . . . that Congress has ‘paramount right to legislate in regard to this question, in all its relations. It has legislated, in so far as it saw fit, by taking jurisdiction in criminal matters, and omitting to take jurisdiction in civil matters. ... By all possible rules of construction the inference is clear that jurisdiction is left to the Choctaws themselves of civil controversies arising strictly within the Chocktaw Nation.” 7 Op. Atty. Gen. 175, 179-181 (1855) (emphasis added).

Thus, we conclude that the answer to the question whether a tribal court has the power to exercise civil subject-matter jurisdiction over non-Indians in a case of this kind is not automatically foreclosed, as an extension of Oliphant would require. Rather, the existence and extent of a tribal court’s jurisdiction will require a careful examination of tribal sovereignty, the extent to which that sovereignty has been altered, divested, or diminished, as well as a detailed study of relevant statutes, Executive Branch policy as embodied in treaties and elsewhere, and adminstrative or judicial decisions.

We believe that examination should be conducted in the first instance in the Tribal Court itself. Our cases have often recognized that Congress is committed to a policy of supporting tribal self-government and self-determination. That policy favors a rule that will provide the forum whose jurisdiction is being challenged the first opportunity to evaluate the factual and legal bases for the challenge. Moreover the orderly administration of justice in the federal court will be served by allowing a full record to be developed in the Tribal Court before either the merits or any question concerning appropriate relief is addressed. The risks of the kind of “procedural nightmare” that has allegedly developed in this case will be minimized if the federal court stays its hand until after the Tribal Court has had a full opportunity to determine its own jurisdiction and to rectify any errors it may have made. Exhaustion of tribal court remedies, moreover, will encourage tribal courts to explain to the parties the precise basis for accepting jurisdiction, and will also provide other courts with the benefit of their expertise in such matters in the event of further judicial review.

h — I I — I I — I

Our conclusions that § 1331 encompasses the federal question whether a tribal court has exceeded the lawful limits of its jurisdiction, and that exhaustion is required before such a claim may be entertained by a federal court, require that we reverse the judgment of the Court of Appeals. Until petitioners have exhausted the remedies available to them in the Tribal Court system, n. 4, supra, it would be premature for a federal court to consider any relief. Whether the federal action should be dismissed, or merely held in abeyance pending the development of further Tribal Court proceedings, is a question that should be addressed in the first instance by the District Court. Accordingly, the judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.

It is so ordered.

       Record, Doc. No. 6.

       Record, Doc. No. 14. In their original complaint, petitioners relied on 25 U. S. C. § 1302 and on 28 U. S. C. § 1343 as bases for federal jurisdiction.

       The Court of Appeals believed that the petitioners’ due process and equal protection claims had no merit because Indian tribes are not constrained by the provisions of the Fourteenth Amendment. Further, although recognizing that the Tribe is bound by the Indian Civil Rights Act, 25 U. S. C. § 1301 et seq., the Court of Appeals held that a federal court has no jurisdiction to enjoin violations of that Act. See Santa Clara Pueblo v. Martinez, 436 U. S. 49 (1978). Finally, although the majority assumed that a complaint alleging that a tribe had abused its regulatory jurisdiction would state a claim arising under federal common law, it concluded that a claim that a tribe had abused its adjudicatory jurisdiction could not be recognized because Congress, by enacting the Indian Civil Rights Act, had specifically restricted federal court interference with tribal court proceedings to review on petition for habeas corpus.

       After the District Court’s injunction was vacated, tribal officials issued a writ of execution on August 1, 1984, and seized computer terminals, other computer equipment, and a truck from the School District. A sale of the property was scheduled for August 22, 1984. On that date, the School District appeared in the Tribal Court, attempting to enjoin the sale and to set aside the default judgment. App. to Brief in Opposition 1a-9a. The Tribal Court stated that it could not address the default-judgment issue “without a full hearing, research, and briefs by counsel,” id., at 4a; that it would consider a proper motion to set aside the default judgment; and that the sale should be postponed. Petitioners also proceeded before the Court of Appeals, which denied an emergency motion to recall the mandate on August 20, 1984. The next day Justice Rehnquist granted the petitioners’ application for a temporary stay. On September 10, 1984, he continued the stay pending disposition of the petitioners’ petition for certiorari. 469 U. S. 1032 (1984). On September 19, the Tribal Court entered an order postponing a ruling on the motion to set aside the default judgment until after final review by this Court. App. to Brief in Opposition 15a. Subsequently, the Court of Appeals stayed all proceedings in the District Court. On April 24, 1985, Justice Rehnquist denied an application to “dissolve” the Court of Appeals’ stay. Post, p. 1301.

       28 U. S. C. §1331.

        Illinois v. City of Milwaukee, 406 U. S. 91, 100 (1972).

       See Romero v. International Terminal Operating Co., 358 U. S. 354, 392-393 (1959) (opinion of Brennan, J.); cf. County of Oneida v. Oneida Indian Nation, 470 U. S. 226, 235-236 (1985); Texas Industries, Inc. v. Radcliff Materials, Inc., 451 U. S. 630, 640 (1981); United States v. Little Lake Misere Land Co., 412 U. S. 580, 592-593 (1973); Erie R. Co. v. Tompkins, 304 U. S. 64, 78-79 (1938).

         American Well Works Co. v. Layne and Bowler Co., 241 U. S. 257, 260 (1916).

       See, e. g., United States v. Wheeler, 435 U. S. 313, 323 (1978); United States v. Mazurie, 419 U. S. 544, 557 (1975); cf. Turner v. United States, 248 U. S. 354, 354-355 (1919).

         Escondido Mutual Water Co. v. La Jolla Bands of Mission Indians, 466 U. S. 765, 788, n. 30 (1984) (“[A]ll aspects of Indian sovereignty are subject to defeasance by Congress”); Rice v. Rehner, 463 U. S. 713, 719 (1983); White Mountain Apache Tribe v. Bracker, 448 U. S. 136, 143 (1980); United States v. Wheeler, 435 U. S., at 323.

        White Mountain Apache Tribe v. Bracker, 448 U. S., at 142; Santa Clara Pueblo v. Martinez, 436 U. S., at 55-56.

       Thus, in recent years we have decided whether a tribe has the power to regulate the sale of liquor on a reservation, Rice v. Rehner, supra; the power to impose a severance tax on oil and gas production by non-Indian lessees, Merrion v. Jicarilia Apache Tribe, 455 U. S. 130 (1982); the power to regulate hunting and fishing, Montana v. United States, 450 U. S. 544 (1981), Puyallup Tribe v. Washington Dept. of Game, 433 U. S. 165 (1977); and the power to tax the sale of cigarettes to non-Indians, Washington v. Confederated Tribes of Colville Indian Reservation, 447 U. S. 134 (1980).

       See, e. g., Mescalero Apache Tribe v. Jones, 411 U. S. 145 (1973); cf. White Mountain Apache Tribe v. Bracker, supra.

       We have recognized that federal law has sometimes diminished the inherent power of Indian tribes in significant ways. As we stated in United States v. Wheeler, 435 U. S., at 323-326: 8 Wheat. 543, 574. They cannot enter into direct commercial or governmental relations with foreign nations. Worcester v. Georgia, 6 Pet. 515, 559; Cherokee Nation v. Georgia, 5 Pet., at 17-18; Fletcher v. Peck, 6 Cranch 87, 147 (Johnson, J., concurring). And, as we have recently held, they cannot try nonmembers in tribal courts. Oliphant v. Suquamish Indian Tribe [435 U. S. 191 (1978)].”

       We stated:
      “Faced by attempts of the Chocktaw Tribe to try non-Indian offenders in the early 1800’s the United States Attorneys General also concluded that the Choctaws did not have criminal jurisdiction over non-Indians absent congressional authority. See 2 Op. Atty. Gen. 693 (1834); 7 Op. Atty. Gen. 174 (1855). According to the Attorney General in 1834, tribal criminal jurisdiction over non-Indians is, inter alia, inconsistent with treaty provisions recognizing the sovereignty of the United States over the territory assigned to the Indian nation and the dependence of the Indians on the United States.” 435 U. S., at 198-199.

       F. Cohen, Handbook of Federal Indian Law 253 (1982) (“The development of principles governing civil jurisdiction in Indian Country has been markedly different from the development of rules dealing with criminal jurisdiction”).

       A leading treatise on Indian law suggests strongly that Congress has had a similar understanding:
      “In the civil field, however, Congress has never enacted general legislation to supply a federal or state forum for disputes between Indians and non-Indians in Indian country. Furthermore, although treaties between the federal government and Indian tribes sometimes required tribes to surrender non-Indian criminal offenders to state or federal authorities, Indian treaties did not contain provision for tribal relinquishment of civil jurisdiction over non-Indians.” Id., at 253-254.

       Cf. Kennerly v. District Court of Montana, 400 U. S. 423 (1971); Williams v. Lee, 358 U. S. 217 (1959).

       See, e. g., New Mexico v. Mescalero Apache Tribe, 462 U. S. 324, 331-332 (1983); Merrion v. Jicarilla Apache Tribe, 455 U. S., at 137; Washington v. Confederated Tribes of Colville Indian Reservation, 447 U. S., at 152.

         New Mexico v. Mescalero Apache Tribe, 462 U. S., at 332; Merrion v. Jicarilla Apache Tribe, 455 U. S., at 138, n. 5; White Mountain Apache Tribe v. Bracker, 448 U. S., at 143-144, and n. 10; Morton v. Mancari, 417 U. S. 535, 551 (1974); Williams v. Lee, 358 U. S., at 223.

       We do not suggest that exhaustion would be required where an assertion of tribal jurisdiction “is motivated by a desire to harass or is conducted in bad faith,” cf. Juidice v. Vail, 430 U. S. 327, 338 (1977), or where the action is patently violative of express jurisdictional prohibitions, or where exhaustion would be futile because of the lack of an adequate opportunity to challenge the court’s jurisdiction.

       Four days after receiving notice of the default judgment, petitioners requested that the District Court enter an injunction. Crow Tribal Court Rule of Civil Procedure 17(d) provides that a party in a default may move to set aside the default judgment at any time within 30 days. App. 17. Petitioners did not utilize this legal remedy. It is a fundamental principle of long standing that a request for an injunction will not be granted as long as an adequate remedy at law is available. See, e. g., Rondeau v. Mosinee Paper Corp., 422 U. S. 49, 57 (1975); Sampson v. Murray, 415 U. S. 61, 88 (1974).

       C. Wright, Handbook of the Law of Federal Courts § 16 (1976).

       Cf. Weinberger v. Salfi, 422 U. S. 749, 765 (1975).

         Ibid.; see, e. g., North Dakota ex rel. Wefald v. Kelly, 10 Indian L. Rep. 6059 (1983); Crow Creek Sioux Tribe v. Buum, 10 Indian L. Rep. 6031 (1983).


text:
    RUSSELL v. UNITED STATES
    No. 84-435.
    Argued April 24, 1985
    Decided June 3, 1985
    Stevens, J., delivered the opinion for a unanimous Court.

      Julius Lucius Echeles argued the cause for petitioner. With him on the briefs was Frederick F. Cohn.

      Christopher J. Wright argued the cause pro hac vice for the United States. With him on the brief were Solicitor General Lee, Assistant Attorney General Trott, Deputy Solicitor General Wallace, and Thomas E. Booth.

   Justice Stevens

delivered the opinion of the Court.

The question presented is whether 18 U. S. C. § 844(i) applies to a two-unit apartment building that is used as rental property.

Petitioner owns an apartment building located at 4530 South Union, Chicago, Illinois. He earned rental income from it and treated it as business property for tax purposes. In early 1983, he made an unsuccessful attempt to set fire to the building and was consequently indicted for violating §844(i). Following a bench trial, petitioner was convicted and sentenced to 10 years’ imprisonment. The District Court and the Court of Appeals both rejected his contention that the building was not commercial or business property, and therefore was not capable of being the subject of an offense under § 844(i).

Section 844(i) uses broad language to define the offense. It provides:

“Whoever maliciously damages or destroys, or attempts to damage or destroy, by means of fire or an explosive, any building, vehicle, or other real or personal property used in interstate or foreign commerce or in any activity affecting interstate or foreign commerce shall be imprisoned for not more than ten years or fined not more than $10,000, or both. . . .”

The reference to “any building . . . used ... in any activity affecting interstate or foreign commerce” expresses an intent by Congress to exercise its full power under the Commerce Clause.

The legislative history indicates that Congress intended to exercise its full power to protect “business property.” Moreover, after considering whether the bill as originally introduced would cover bombings of police stations or churches, the bill was revised to eliminate the words “for business purposes” from the description of covered property. Even after that change, however, the final Report on the bill emphasized the “very broad” coverage of “substantially all business property.” In the floor debates on the final bill, although it was recognized that the coverage of the bill was extremely broad, the Committee Chairman, Representative Celler, expressed the opinion that “the mere bombing of a private home even under this bill would not be covered because of the question whether the Congress would have the authority under the Constitution.” In sum, the legislative history suggests that Congress at least intended to protect all business property, as well as some additional property that might not fit that description, but perhaps not every private home.

By its terms, however, the statute only applies to property that is “used” in an “activity” that affects commerce. The rental of real estate is unquestionably such an activity. We need not rely on the connection between the market for residential units and “the interstate movement of people,” to recognize that the local rental of an apartment unit is merely an element of a much broader commercial market in rental properties. The congressional power to regulate the class of activities that constitute the rental market for real estate includes the power to regulate individual activity within that class.

Petitioner was renting his apartment building to tenants at the time he attempted to destroy it by fire. The property was therefore being used in an activity affecting commerce within the meaning of §844(i).

The judgment of the Court of Appeals is affirmed.

It is so ordered.

       Petitioner hired Ralph Branch, a convicted felon, to start a fire in the building by using a natural gas line in the basement. Branch attempted to start a fire by lighting a potato-chip bag and a piece of wood, but was unsuccessful in torching the building. 1 Tr. 35-39. Petitioner asked Branch to make a second attempt; however, Branch reported the events to the Federal Bureau of Investigation and consented to tape-record a conversation with petitioner. After the conversation, petitioner was arrested. The fire was never set. Id., at 41-50.

       563 F. Supp. 1085 (ND Ill., ED 1983).

       738 F. 2d 825 (CA7 1984).

       See Scarborough v. United States, 431 U. S. 563, 571 (1977), in which the Court stated:
      “As we have previously observed, Congress is aware of the ‘distinction between legislation limited to activities “in commerce” and an assertion of its full Commerce Clause power so as to cover all activity substantially affecting interstate commerce.’ United States v. American Bldg. Maintenance Industries, 422 U. S. 271, 280 (1975); see also NLRB v. Reliance Fuel Corp., 371 U. S. 224, 226 (1963).”

       Section 844(i) was passed as part of Title XI of the Organized Crime Control Act of 1970. 84 Stat. 922, 952. The section originated because of the need “to curb the use, transportation, and possession of explosives.” Hearings on H. R. 17154, H. R. 16699, H. R. 18573 and Related Proposals before Subcommittee No. 5 of the House Committee on the Judiciary, 91st Cong., 2d Sess., 1 (1970) (hereinafter Hearings). After hearings before a House Subcommittee, Title XI emerged from two bills, H. R. 18573 and H. R. 16699, 91st Cong., 2d Sess., that Representative McCullough introduced in the House of Representatives and that were referred to the House Committee on the Judiciary. 116 Cong. Rec. 35198 (1970) (statement of Rep. McCullough). H. R. 16699 stated, in pertinent part:
      “(f) Whoever maliciously damages or destroys, or attempts to damage or destroy, by means of an explosive, any building, vehicle, or other real or personal property used for business purposes by a person engaged in commerce or in any activity affecting commerce shall be imprisoned for not more than ten years or fined not more than $10,000, or both. . . .” Hearings, at 30 (emphasis added).
      During the hearings there were several discussions and statements on the reach of subsection (f) of H. R. 16699. Will R. Wilson, Assistant Attorney General, Criminal Division, Department of Justice, stated early in the hearings:
      “[W]e have added a new provision (subsection (f)) covering malicious damage or destruction by means of an explosive of any property used for business purposes by a person engaged in commerce or in any activity affecting commerce. . . . Since the term ‘affecting commerce’ embraces ‘the fullest jurisdictional breadth constitutionally permissible under the commerce clause,’ NLRB v. Reliance Fuel Corp., 371 U. S. 224, 226 (1963), subsection (f) would cover damage by explosives to substantially any business property.” Id., at 37.

       Shortly after Assistant Attorney General Wilson made the comment quoted in n. 5, supra, Representative Rodino of New Jersey engaged in the following colloquy with Wilson:

        “Mr. Rodino. That is the problem.
      “Mr. Wilson, subsection (f) of section 837, as proposed by H. R. 16699, applies to structures used ‘for business purposes.’ I am a little bit in the dark. Would this section and these words cover the bombings of police stations? . . . Just what would new section 837(f) cover?
      “Mr. Wilson. I don’t believe it would cover either public buildings or private homes under normal use, but what this is designed for is the business office, where the business is interstate commerce, giving the Federal Government a basis for jurisdiction. It is to broaden the thing, to get at such things as the bombing of business offices in New York City, where the business is in interstate commerce..
      “Mr. Rodino. Would it apply to the bombings of churches, synagogues, or religious edifices?
      “Mr. Wilson. I don’t think so.” Hearings, at 56.

       See id., at 300:
      “The CHAIRMAN. The question is whether you want to broaden it to cover a private dwelling or a church or other property not used in business.
      “Mr. Wylie. As far as I am concerned we could leave out the words ‘for business purposes,’ and it would help the situation. . . .”
      The phrase “for business purposes” was not included when the House Committee on the Judiciary amended S. 30 and those words were omitted from the statute as finally enacted.

       The Report stated in pertinent part:
      “Section 844(i) proscribes the malicious damaging or destroying, by means of an explosive, any building, vehicle, or other real or personal.property used in interstate or foreign commerce or in any activity affecting interstate or foreign commerce. Attempts would also be covered. Since the term affecting [interstate or foreign] ‘commerce’ represents ‘the fullest jurisdictional breadth constitutionally permissible under the Commerce Clause,’ NLRB v. Reliance Fuel Corp., 371 U. S. 224, 226 (1963), this is a very broad provision covering substantially all business property.” H. R. Rep. No. 91-1549, pp. 69-70 (1970).

       See 116 Cong. Rec. 35359 (1970); see also id., at 35198 (“[T]he committee extended the provision protecting interstate and foreign commerce from the malicious use of explosives to the full extent of our constitutional powers”) (statement of Rep. McCullough); id., at 37187 (“The reach of the law ... is greatly extended by making it unlawful to damage or destroy property which is used in or affects interstate commerce. Nearly all types of property will now be protected by the Federal law”) (statement of Rep. MacGregor).

       See McLain v. Real Estate Board of New Orleans, 444 U. S. 232, 245 (1980).

       See Perez v. United States, 402 U. S. 146, 153-154 (1971).


text:
    April 1, 1985
    No. 84-724.
    Texas A & M University et al. v. Gay Student Services et al.
   Appeal from C. A. 5th Cir. Motion of appellants to disqualify counsel for appellees and to strike appel-lees’ motion to dismiss or affirm denied. Appeal dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for writ of certiorari, certiorari denied.


text:
    No. 83-2034.
    United States Department of Justice v. Falkowski.
   C. A. D. C. Cir. Certiorari granted, judgment vacated, and case remanded for further consideration in light of Heckler v. Chaney, 470 U. S. 821 (1985).


text:
    No. 83-2035.
    United States v. Schmucker.
   C. A. 6th Cir. Certiorari granted, judgment vacated, and case remanded for further consideration in light of Wayte v. United States, 470 U. S. 598 (1985).


text:
    No. 84-5035.
    Spikes v. Indiana.
   Sup. Ct. Ind. Motion of petitioner for leave to proceed in forma pauperis and certiorari granted. Judgment vacated and case remanded for further consideration in light of Hayes v. Florida, 470 U. S. 811 (1985).


text:
    No. 84-823.
    United States v. Doe No. 462.
   C. A. 4th Cir. [Certiorari granted, 469 U. S. 1188.] Judgment vacated and case remanded with instructions to dismiss the cause as moot.


text:
    No. D-453.
    In re Disbarment of Nothstein.
    [For earlier order herein, see 469 U. S. 808.]
   Disbarment entered.


text:
    No. D-467.
    In re Disbarment of McGlasson.
    [For earlier order herein, see 469 U. S. 1083.]
   Disbarment entered.


text:
    No. 102,
    Orig.
    Indiana v. United States et al.
   Motion of plaintiff to expedite consideration of motion for leave to file bill of complaint denied.


text:
    No. 84-468.
    City of Cleburne, Texas, et al. v. Cleburne Living Center, Inc., et al.
   C. A. 5th Cir. [Certiorari granted, 469 U. S. 1016.] Case restored to calendar for re-argument.

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


text:
    No. 84-679.
    Bateman Eichler, Hill Richards, Inc. v. Berner et al.
   C. A. 9th Cir. [Certiorari granted, 469 U. S. 1105.] Motion of the Solicitor General to permit Bruce N. Kuhlik, Esquire, to present oral argument pro hac vice granted.

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


text:
    No. 84-806.
    Buckingham Corp. v. Odom Corp., dba Arizona Distributing Co.
   C. A. 9th Cir. The Solicitor General is invited to file a brief in this case expressing the. views of the United States.


text:
    No. 84-836.
    Vasquez, Warden v. Hillery.
   C. A. 9th Cir.

[Certiorari granted, 470 U. S. 1026.] Motion for appointment of counsel granted, and it is ordered that Clifford Earl Tedmon, Esquire, of Sacramento, Cal., be appointed to serve as counsel for respondent in this case.


text:
    No. 84-1231.
    Strickland, Warden, et al. v. King.
   C. A. 11th Cir. Motion of respondent for leave to proceed in forma pauperis granted.


text:
    No. 84-1070.
    Witters v. Washington Department of Services for the Blind.
   Sup. Ct. Wash. Certiorari granted.


text:
    No. 83-2004.
    Matsushita Electric Industrial Co., Ltd., et al. v. Zenith Radio Corp. et al.
   C. A. 3d Cir. Certiorari granted limited to Questions 1 and 2 presented by the petition.


text:
    No. 84-1181.
    New York v. Class.
   Ct. App. N. Y. Motion of respondent for leave to proceed in forma pauperis and certio-rari granted.


text:
    No. 84-5786.
    Miller v. Fenton, Superintendent, Rahway State Prison, et al.
   C. A. 3d Cir. Motion of petitioner for leave to proceed in forma pauperis and certiorari granted.


text:
    No. 84-6270.
    Green et al. v. Mansour, Director, Michigan Department of Social Services.
   C. A. 6th Cir. Motions of petitioners for leave to proceed in forma pauperis and certiorari granted.


text:
    No. 83-138.
    Gold Cross Ambulance Co., Inc., et al. v. Kansas City et al.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 83-825.
    Central Iowa Refuse Systems, Inc. v. Des Moines Metropolitan Area Solid Waste Agency et al.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 83-1959.
    Eklund v. United States; and Martin v. United States.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 83-2098.
    Sasway v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 84-360.
    Scott et al. v. City of Sioux City, Iowa, et al.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 84-378.
    Golden State Transit Corp. v. City of Los Angeles.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 84-480.
    P. I. A. Asheville, Inc., et al. v. North Carolina ex rel. Thornburg, Attorney General.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 84-643.
    Arkansas v. Baird et al.
   Ct. App. Ark. Certiorari denied.


text:
    No. 84-667.
    Lyons v. Warden, Nevada State Prison.
   Sup. Ct. Nev. Certiorari denied.


text:
    No. 84-767.
    Carr v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 84-809.
    No. 84-1107.
    McGuire v. United States; and Lee v. United States.
   C. A. 6th Cir. Certiorari denied. Reported below: 744 F. 2d 1197.


text:
    No. 84-832.
    Hybud Equipment Corp. et al. v. City of Akron, Ohio, et al.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 84-982.
    Chapman v. Thomas et al.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 84-1003.
    Sailors’ Union of the Pacific, Seafarers International Union of North America, AFL-CIO v. Secretary of Labor et al.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 84-1252.
    Guerin v. Florida.
   Dist. Ct. App. Fla., 4th Dist. Certiorari denied.


text:
    No. 84-1253.
    George et ux. v. Liberty National Bank & Trust Company of Louisville.
   Ct. App. Ky. Certiorari denied.


text:
    No. 84-1267.
    Michigan v. Carlton.
   Ct. App. Mich. Cer-tiorari denied.


text:
    No. 84-1268.
    KFC National Management Co. v. Brown.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 84-1276.
    Grace v. Bills Auto Repair & Towing.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 84-1277.
    Duncan, dba TV News Clips v. Pacific & Southern Co., Inc., dba WXIA-TV.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 84-1295.
    Patton v. Thomson et al.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 84-1297.
    Montgomery City-County Personnel Board et al. v. Williams.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 84-1298.
    Quansah v. Bisco Industries, Inc., et al.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 84-1302.
    Shell Oil Co. v. Piney Woods Country Life School et al.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 84-1311.
    Bonin v. American Airlines, Inc., et al.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 84-1381.
    Ficalora v. Commissioner of Internal Revenue.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 84-1383.
    Bryn Mar, Ltd., et al. v. Carlton Browne & Co., Inc., et al.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 84-1396.
    Kramer v. United States.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 84-1408.
    Renner v. United States.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 84-5857.
    Cummiskey v. United States.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 84-5938.
    Wallace v. Ford, Warden.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 84-5958.
    Harvey v. Virginia.
   Sup. Ct. Va. Certiorari denied.


text:
    No. 84-5968.
    Brewer v. City of Clayhatchee.
   Sup. Ct. Ala. Certiorari denied.


text:
    No. 84-6151.
    Zeisler v. Illinois.
   App. Ct. Ill., 3d Dist. Certiorari denied.


text:
    No. 84-6160.
    Antonelli v. United States Parole Commission et al.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 84-6165.
    Harrod v. Black, Warden.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 84-6194.
    Antonelli v. Illinois.
   App. Ct. Ill., 1st Dist. Certiorari denied.


text:
    No. 84-6195.
    Jones v. Procunier, Director, Texas Department of Corrections.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 84-6198.
    Flores v. United States.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 84-6199.
    Abdi v. Georgia et al.
   C. A. 11th Cir. Cer-tiorari denied.


text:
    No. 84-6210.
    Mealer v. Jones, Superintendent, Great Meadows Correctional Facility.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 84-6211.
    Holsey v. United States District Court for the District of Maryland.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 84-6212.
    Hopgood v. Hopgood.
   Sup. Ct. Ga. Certiorari denied.


text:
    No. 84-6213.
    Guerrero v. Territory of Guam.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 84-6226.
    Moret v. Newsome, Superintendent, Georgia State Prison.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 84-6233.
    Hook v. Fauver, Commissioner, New Jersey Department of Corrections, et al.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 84-6235.
    In re Bailey.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 84-6236.
    Smith v. Arizona.
   Sup. Ct. Ariz. Certiorari denied.


text:
    No. 84-6238.
    Tyson v. South Carolina.
   Sup. Ct. S. C. Certiorari denied.


text:
    No. 84-6293.
    Black v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 84-6299.
    Lewis v. United States.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 84-6308.
    Caldwell v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 84-6336.
    Gage v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 84-6338.
    Ligon v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 84-6341.
    Green et al. v. United States.
   C. A. 9th Cir. Certiorari denied.


author: Justice White,

text:
    No. 83-1896.
    Mobil Oil Corp. v. Blanton et al.
   C. A. 9th Cir. Certiorari denied.

Justice White,

dissenting.

In this case, the United States Court of Appeals for the Ninth Circuit affirmed a jury verdict that petitioner had attempted to monopolize in violation of §2 of the Sherman Act, ch. 647, 26 Stat. 209, as amended, 15 U. S. C. § 2, and was therefore liable to respondents for treble damages. 721 F. 2d 1207 (1983). Ordinarily, a finding of attempted monopolization depends on a showing that there was a dangerous probability that the defendant would succeed in monopolizing a relevant market. See Walker Process Equipment, Inc. v. Food Machinery & Chemical Corp., 382 U. S. 172, 177 (1965); Swift & Co. v. United States, 196 U. S. 375, 396 (1905); Berkey Photo, Inc. v. Eastman Kodak Co., 603 F. 2d 263, 271-275 (CA2 1979), cert. denied, 444 U. S. 1093 (1980). In this case, the jury found that the relevant submarket that petitioner had attempted to monopolize consisted of sales of “Mobil-branded and non-Mobil-branded oil, lubricants, and [tires, batteries, accessories and specialties] to Mobil dealers.”

On appeal, petitioner contended that, as a matter of law, sales to Mobil dealers only could not constitute a relevant submarket. The Court of Appeals found it unnecessary to address this contention, for it concluded that the finding of attempted monopolization could be sustained without reference to the effects of petitioner’s conduct in any relevant market. The court relied in part on the Ninth Circuit’s earlier ruling in Lessig v. Tidewater Oil Co., 327 F. 2d 459, cert. denied, 377 U. S. 993 (1964), in which the court had held that the relevant market was not an issue in an attempted monopoly case. In subsequent cases, the Ninth Circuit had refined the holding of Lessig to allow avoidance of the issue of effects in a relevant market only in cases where the plaintiff had proved “either predatory conduct or a per se violation of § 1 [of the Sherman Act, 15 U. S. C. §1].” Gough v. Rossmoor Corp., 585 F. 2d 381, 390 (1978), cert. denied, 440 U. S. 936 (1979). Relying on the “Lessig doctrine” as modified in Gough, the court held that because respondents had proved that petitioner had engaged in practices that constitute per se violations of § 1 of the Sherman Act, the attempted monopolization verdict could be sustained without reference to the probability that petitioner’s conduct would lead to monopolization of any relevant market.

Sections 1 and 2 of the Sherman Act are directed to different sorts of threats to competition in our economy. Section 1 proscribes concerted action — contracts, combinations, and conspiracies in restraint of trade. Such concerted action is so inherently threatening to competition that in certain instances it is forbidden without regard to whether it has actually damaged competition in a particular market. Section 2 regulates unilateral conduct by outlawing monopolization and attempted monopolization. Because unilateral conduct is far less likely than concerted action to pose a threat to competition, “[t]he conduct of a single firm is governed by §2 alone and is unlawful only when it threatens actual monopolization.” Copperweld Corp. v. Independence Tube Corp., 467 U. S. 752, 767 (1984).

Because the Lessig doctrine allows a violation of § 2 to be found on the basis of a per se violation of § 1, without regard to the effect of a defendant’s conduct in any relevant market, it appears to be in tension with these principles. In addition, the doctrine, although accepted within the Ninth Circuit for over 20 years, has been explicitly rejected by a number of Courts of Appeals outside the Ninth Circuit. See Edward J. Sweeney & Sons, Inc. v. Texaco, Inc., 637 F. 2d 105, 117 (CA3 1980), cert. denied, 451 U. S. 911 (1981); Photovest Corp. v. Fotomat Corp., 606 F. 2d 704, 711-712 (CA7 1979), cert. denied, 445 U. S. 917 (1980); Spectrofuge Corp. v. Beckman Instruments, Inc., 575 F. 2d 256, 276, and n. 69 (CA5 1978), cert. denied, 440 U. S. 939 (1979); FLM Collision Parts, Inc. v. Ford Motor Co., 543 F. 2d 1019, 1030 (CA2 1976), cert. denied, 429 U. S. 1097 (1977); E. J. Delaney Corp. v. Bonne Bell, Inc., 525 F. 2d 296, 305 (CA10 1975), cert. denied, 425 U. S. 907 (1976); George R. Whitten, Jr., Inc. v. Paddock Pool Builders, Inc., 508 F. 2d 547, 550 (CA1 1974), cert. denied, 421 U. S. 1004 (1975); Agrashell, Inc. v. Hammons Products Co. 479 F. 2d 269, 287 (CA8), cert. denied, 414 U. S. 1022 (1973). The questionable validity of the doctrine on which the decision of the Ninth Circuit in this case rested and the longstanding conflict among the Circuits over the issue indicate that this case is one that this Court ought to resolve. I would therefore grant the petition for certiorari.


author: Justice Brennan and Justice Marshall,

text:
    No. 83-6298.
    No. 84-6006.
    No. 84-6036.
    No. 84-6098.
    No. 84-6131.
    No. 84-6167.
    No. 84-6183.
    No. 84-6186.
    No. 84-6189.
    No. 84-6223.
    No. 84-6230.
    No. 84-6254.
    McDonald v. Missouri. Mason v. Sielaff, Director, Virginia Department of Corrections. Garrett v. Texas. Session v. Texas. Devier v. Georgia. Groover v. Florida. Huffstetler v. North Carolina. Ferrell v. South Carolina. Chaffee v. South Carolina. Daniel v. Alabama. Truesdale v. South Carolina. Bannister v. Missouri.
   Sup. Ct. Mo.;

C. A. 4th Cir.;

Ct. Crim. App. Tex.;

Ct. Crim. App. Tex.;

Sup. Ct. Ga.;

Sup. Ct. Fla.;

Sup. Ct. N. C.;

Sup. Ct. S. C.;

Sup. Ct. S. C.;

Sup. Ct. Ala.;

Sup. Ct. S. C.; and

Sup. Ct. Mo. Certiorari denied. Reported below: No. 83-6298, 661 S. W. 2d 497; No. 84-6006, 748 F. 2d 852; No. 84-6036, 682 S. W. 2d 301; No. 84-6098, 676 S. W. 2d 364; No. 84-6131, 253 Ga. 604, 323 S. E. 2d 150; No. 84-6167, 458 So. 2d 226; No. 84-6183, 312 N. C. 92, 322 S. E. 2d 110; Nos. 84-6186 and 84-6189, 285 S. C. 21, 328 S. E. 2d 464; No. 84-6223, 459 So. 2d 948; No. 84-6230, 285 S. C. 13, 328 S. E. 2d 53; No. 84-6254, 680 S. W. 2d 141.

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. 84-1179.
    Tavone v. Rhode Island.
   Sup. Ct. R. I. Certiorari denied.

Justice Brennan and Justice Marshall would grant the petition for writ of certiorari and reverse the judgment of conviction.


text:
    No. 84-1262.
    Federation Internationale de Basketball Amateur v. Behagen.
   C. A. 10th Cir. Certiorari denied.

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


text:
    No. 84-1294.
    Villages, Inc. v. Metropolitan Development Commission of Marion County.
   Ct. App. Ind. Motion of National Association of Homes for Children for leave to file a brief as amicus curiae granted. Certiorari denied.


text:
    No. 84-5307.
    No. 84-5626.
    No. 84-5945.
    Thetford v. United States, Dufour v. Mississippi, Watkins v. Heckler, Secretary of Health and Human Services,
   469 U. S. 1218;

469 U. S. 1230; and

469 U. S. 1223. Petitions for rehearing denied.

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


text:
    April 15, 1985
    No. 84-1387.
    Moore v. Virginia.
   Sup. Ct. Va. Certiorari dismissed under this Court’s Rule 53.


text:
    No. 84-1093.
    Welch et al. v. Claiborne County Beer Board et al.
   Appeal from Sup. Ct. Tenn. dismissed for want of substantial federal question.

Justice White and Justice Blackmun would note probable jurisdiction and set case for oral argument.


text:
    No. 84-1299.
    Arango v. Florida.
   Appeal from Dist. Ct.

App. Fla., 3d 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. 84-1441.
    Kay v. Pennsylvania.
   Appeal from Super. Ct. Pa. dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for writ of certiorari, certiorari denied.


text:
    No. 84-6425.
    White v. McGoff, Superintendent, Fremont Correctional Facility.
   Appeal from Sup. Ct. Colo, dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for writ of certiorari, certiorari denied.


text:
    No. 84-1329.
    Crea v. New York.
   Appeal from App. Term, Sup. Ct. N. Y., 9th and 10th Jud. Dists., dismissed for want of substantial federal question.


text:
    No. 84-1346.
    Heinrich v. Illinois.
   Appeal from Sup. Ct. Ill. dismissed for want of jurisdiction.


text:
    No. 84-6256.
    Mack v. American Telephone & Telegraph Co., Long Lines, et al.
   Appeal from D. C. N. D. Ga. dismissed for want of jurisdiction.


text:
    No. 84-1382.
    Stern et al. v. Weiss et al.
   Appeal from Sup. Ct. N. C. dismissed for want of substantial federal question. Justice Blackmun would note probable jurisdiction and give this case plenary consideration.


text:
    No.---.
    Furman v. Commissioner of Internal Revenue.
   Motion to direct the Clerk to file a petition for writ of certiorari that does not comply with Rule 33 denied. Motion to direct the Clerk to file a petition for writ of certiorari out of time denied.


text:
    No. A-674 (84-6082).
    Attwell et al. v. United States Postal Service et al.,
   470 U. S. 1008. Application to suspend the effect of the order denying certiorari pending action on a petition for rehearing, addressed to Justice Marshall and referred to the Court, denied.


text:
    No. D-455.
    In re Disbarment of Phillips.
    [For earlier order herein, see 469 U. S. 914.]
   Disbarment entered.


text:
    No. D-472.
    In re Disbarment of Miller.
    [For earlier order herein, see 469 U. S. 1186.]
   Disbarment entered.


text:
    No. D-475.
    In re Disbarment of Padell.
   The order of this Court entered February 19, 1985 [469 U. S. 1203], suspending Bert Padell from further practice of law in this Court is vacated and the rule to show cause issued February 19, 1985, is discharged.


text:
    No. D-488.
    In re Disbarment of Rouse.
   It is ordered that Arthur J. Rouse, of West Nyack, N. Y., be suspended from the practice of law in this Court and that a rule issue, returnable within 40 days, requiring him to show cause why he should not be disbarred from the practice of law in this Court.


text:
    No. 100,
    Orig.
    Webber v. Oklahoma et al.
   Motion for leave to file bill of complaint denied.


text:
    No. 83-1925.
    Hillsborough County, Florida, et al. v. Automated Medical Laboratories, Inc.
   C. A. 11th Cir. [Probable jurisdiction noted, 469 U. S. 1156.] Motion of the Solicitor General to permit Paul J. Larkin, Jr., Esquire, to present oral argument pro hac vice granted.


text:
    No. 84-310.
    In re Snyder.
   C. A. 8th Cir. [Certiorari granted, 469 U. S. 1156.] Motion of United States Court of Appeals for the Eighth Circuit to supplement the joint appendix granted.


text:
    No. 84-320.
    National Farmers Union Insurance Cos. et al. v. Crow Tribe of Indians et al.
   C. A. 9th Cir. [Certiorari granted, 469 U. S. 1032.] Motion of Sac and Fox Tribe of Indians of Oklahoma for leave to file a brief as amicus curiae out of time denied.


text:
    No. 84-518.
    No. 84-710.
    Johnson et al. v. Mayor and City Council of Baltimore et al.; and Equal Employment Opportunity Commission v. Mayor and City Council of Baltimore et al.
   C. A. 4th Cir. [Certiorari granted, 469 U. S. 1156.] Motion of National League of Cities for leave to file a brief as amicus curiae granted.


text:
    No. 84-589.
    Dowling v. United States.
   C. A. 9th Cir. [Certiorari granted, 469 U. S. 1157.] Motion of Recording Industry Association of America, Inc., for leave to file a brief as amicus curiae granted.


text:
    No. 84-648.
    Sedima, S. P. R. L. v. Imrex Co., Inc., et al.
   C. A. 2d Cir. [Certiorari granted, 469 U. S. 1157.] Motions of American Institute of Certified Public Accountants, Alliance of American Insurers et al., and Securities Industry Association for leave to file briefs as amici curiae granted.


text:
    No. 84-822.
    American National Bank & Trust Company of Chicago et al. v. Haroco, Inc., et al.
   C. A. 7th Cir. [Certiorari granted, 469 U. S. 1157.] Motions of Interinsurance Exchange of the Automobile Club of Southern California and John Grado et al. for leave to file briefs as amici curiae granted.


text:
    No. 84-835.
    No. 84-776.
    New Jersey Department of Corrections v. Nash; and Carchman, Mercer County Prosecutor v. Nash.
   C. A. 3d Cir. [Certiorari granted, 469 U. S. 1157.] Motion of respondent to permit John Burke III, Esquire, to present oral argument pro hac vice granted.


text:
    No. 84-861.
    National Labor Relations Board v. International Longshoremen’s Assn., AFL-CIO, et al.
   C. A. 4th Cir. [Certiorari granted, 469 U. S. 1188.] Motion of American Federation of Labor and Congress of Industrial Organizations for leave to file a brief as amicus curiae granted.


text:
    No. 84-1023.
    United States v. Rojas-Contreras.
   C. A. 9th Cir. [Certiorari granted, 469 U. S. 1207.] Motion of the Solicitor General to dispense -with printing the joint appendix granted.


text:
    No. 84-5909.
    Adams v. Fulcomer et al.,
   469 U. S. 1205. Motion of petitioner to reconsider the order denying leave to proceed informa pauperis denied.

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


text:
    No. 84-6317.
    No. 84-6368.
    No. 84-6429.
    In re Antonelli; In re Brown; and In re Ross.
   Petitions for writs of habeas corpus denied.


text:
    No. 84-6297.
    In re Hellwarth.
   Petition for writ of mandamus denied.


text:
    No. 84-1360.
    City of Renton et al. v. Playtime Theatres, Inc., et al.
   Appeal from C. A. 9th Cir. Motion of National League of Cities et al. for leave to file a brief as amici curiae granted. Probable jurisdiction noted.


text:
    No. 84-495.
    Thornburgh, Governor of Pennsylvania, et al. v. American College of Obstetricians and Gynecologists et al.
   Appeal from C. A. 3d Cir. Further consideration of question of jurisdiction postponed to hearing of case on the merits.


text:
    No. 84-248.
    Pino v. District Court of the Second Judicial District’s Children’s Court in and for the County of Bernalillo.
   Appeal from Sup. Ct. N. M. Motion of Navajo

Nation for leave to file a brief as amicus curiae granted. Further consideration of question of jurisdiction postponed to hearing of case on the merits.


text:
    No. 84-1340.
    Wygant et al. v. Jackson Board of Education et al.
   C. A. 6th Cir. Certiorari granted.


text:
    No. 84-1321.
    Nix, Warden v. Whiteside.
   C. A. 8th Cir. Motion of respondent for leave to proceed in forma pauperis and certiorari granted.


text:
    No. 84-1361.
    United States v. Loud Hawk et al.
   C. A. 9th Cir. Motion of respondents for leave to proceed in forma pauperis and certiorari granted.


text:
    No. 82-1841.
    Board of Water Supply, City and County of Honolulu, Hawaii v. Nakata et al.
   Sup. Ct. Haw. Cer-tiorari denied.


text:
    No. 84-881.
    Baker et al. v. United States District Court for the Northern District of Oklahoma.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 84-930.
    Cherek v. United States.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 84-932.
    CED’s, Inc., dba Products for Power v. United States Environmental Protection Agency et al.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 84-943.
    Elvrum et al. v. Williams et al.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 84-971.
    Kapnison v. United States.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 84-976.
    Bellevue Fire Fighters Local 1604, International Association of Fire Fighters, AFL-CIO, CLC, et al. v. City of Bellevue.
   Sup. Ct. Wash. Certiorari denied.


text:
    No. 84-1011.
    Oliphant v. United States.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 84-1016.
    Harrington v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 84-1017.
    University of Pittsburgh et al. v. Krynicky et al.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 84-1019.
    Carpenter’s Local Union No. 1478 et al. v. Stevens.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 84-1020.
    White v. United States.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 84-1053.
    Ecclesiastical Order of the ISM of AM, Inc. v. Commissioner of Internal Revenue.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 84-1086.
    Perkins v. United States.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 84-1135.
    Commissioner of Transportation of the State of New York v. United States et al.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 84-1151.
    Estate of Kremm v. Commissioner of Patents and Trademarks.
   C. A. Fed. Cir. Certiorari denied.


text:
    No. 84-1157.
    NKC Hospitals, Inc. v. Heckler, Secretary of Health and Human Services.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 84-1167.
    Pinar v. Dole, Secretary of Transportation, et al.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 84-1185.
    Razatos v. Colorado Supreme Court et al.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 84-1231.
    Strickland, Warden, et al. v. King.
   C. A.

11th Cir. Certiorari denied.


text:
    No. 84-1238.
    Roop v. Alaska.
   Ct. App. Alaska. Certiorari denied.


text:
    No. 84-1263.
    Rodman et al. v. Hensley et al.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 84-1275.
    Stewart v. Disneyland, Division of Walt Disney Productions, et al.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 84-1283.
    Luna v. House of Sofas et al.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 84-1284.
    United States v. Squillacote et al.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 84-1289.
    Port Terminal Railroad Assn. v. Sims.
   Ct. App. Tex., 1st Sup. Jud. Dist. Certiorari denied.


text:
    No. 84-1290.
    Byrne v. Mass Transit Administration et al.
   Ct. Sp. App. Md. Certiorari denied.


text:
    No. 84-1296.
    Pennsylvania Dental Assn. et al. v. Medical Association of Pennsylvania, dba Pennsylvania Blue Shield, et al.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 84-1301.
    Amis v. Steele, Lee County Tax Collector, et al.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 84-1305.
    Epperson v. Estate of Epperson.
   Sup. Ct. Ark. Certiorari denied.

S. W. 2d 792.


text:
    No. 84-1308.
    Bosley, Clerk of the Circuit Court, City of St. Louis, et al. v. Barnes et al.
   C. A. 8th Cir. Certio-rari denied.


text:
    No. 84-1309.
    Starnes et al. v. Heckler, Secretary of Health and Human Services, et al.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 84-1314.
    International Longshoremen’s Assn., AFL-CIO, et al. v. Hampton Roads Shipping Assn.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 84-1322.
    Nill v. Essex Group, Inc., et al.
   Ct. App. Ind. Certiorari denied.


text:
    No. 84-1325.
    Ponterio v. Koch, Mayor of the City of New York, et al.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 84-1328.
    Ulane v. Eastern Air Lines, Inc.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 84-1330.
    Gould v. Mutual Life Insurance Company of New York.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 84-1336.
    Kern v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 84-1338.
    Ramos v. Ramos.
   App. Ct. Ill., 1st Dist. Certiorari denied.


text:
    No. 84-1339.
    Raske v. Board of Commissioners of the Forest Preserve District of Cook County, Illinois.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 84-1349.
    Busto v. Martin Marietta.
   Ct. App. Colo. Certiorari denied.


text:
    No. 84-1356.
    Kohn Beverage Co. v. Teamsters’ Local No. 348 et al.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 84-1371.
    Farwest Steel Corp. v. DeSantis et al.
   Sup. Ct. Wash. Certiorari denied.


text:
    No. 84-1391.
    Independent School District No. 3 of Broken Arrow, Tulsa County, Oklahoma v. Helms.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 84-1392.
    George et al. v. Liberty National Bank & Trust of Louisville, Formerly dba United Kentucky Bank, Inc., et al.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 84-1405.
    Ghibaudy v. United States.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 84-1407.
    Scott v. Baldrige, Secretary of Commerce.
   C. A. D. C. Cir. Certiorari denied.


text:
    No. 84-1424.
    Ciro v. United States.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 84-1434.
    Mangrum v. Continental Casualty Co.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 84-1456.
    Erdlen v. United States.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 84-1474.
    Bartholomew v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 84-1489.
    Phelps v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 84-5844.
    Primiano v. United States.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 84-5933.
    Bowring v. Booker, Warden.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 84-5979.
    Barngrover v. California.
   Ct. App. Cal., 1st App. Dist. Certiorari denied.


text:
    No. 84-5997.
    McQueen v. Parole and Probation Commission.
   Sup. Ct. Fla. Certiorari denied.


text:
    No. 84-6034.
    Smith v. Missouri.
   Sup. Ct. Mo. Certiorari denied.


text:
    No. 84-6076.
    Rabb v. United States.
   C. A. 9th Cir. Cer-tiorari denied.


text:
    No. 84-6090.
    Kane v. Florida State Attorney General et al.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 84-6134.
    Alexander v. Illinois.
   App. Ct. Ill., 1st Dist. Certiorari denied.


text:
    No. 84-6150.
    Smith v. Illinois.
   App. Ct. Ill., 1st Dist. Certiorari denied.


text:
    No. 84-6190.
    Judd v. United States et al.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 84-6231.
    Doe v. Michigan Department of Social Services et al.
   Ct. App. Mich. Certiorari denied.


text:
    No. 84-6240.
    Speedy v. Wyrick, Warden, et al.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 84-6241.
    Lee v. Alderman et al.
   C. A. 4th Cir. Cer-tiorari denied.


text:
    No. 84-6242.
    Midwife v. El Paso Maternity Nursing Home et al.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 84-6244.
    Ward v. Oklahoma et al.
   Ct. Crim. App. Okla. Certiorari denied.


text:
    No. 84-6245.
    Kimball v. Lewellen et al.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 84-6252.
    Phillips v. Alabama.
   Ct. Crim. App. Ala. Certiorari denied.


text:
    No. 84-6257.
    Lucien v. Illinois.
   App. Ct. Ill., 2d Dist. Certiorari denied.


text:
    No. 84-6258.
    Lucien v. McGinnis, Warden.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 84-6262.
    Bragg v. Cave, Judge.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 84-6264.
    Ash v. Swanson et al.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 84-6265.
    Baker et al. v. Alabama.
   Ct. Crim. App.

Ala. Certiorari denied.


text:
    No. 84-6266.
    Finney v. Rothgerber, Chairman, Kentucky Parole Board, et al.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 84-6267.
    Liberta v. New York.
   Ct. App. N. Y. Certiorari denied.


text:
    No. 84-6269.
    Howard v. Landry.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 84-6274.
    O’Connor v. O’Connor.
   C. A. 3d Cir. Certio-rari denied.


text:
    No. 84-6276.
    Spoon et al. v. Wyoming.
   Sup. Ct. Wyo. Certiorari denied.


text:
    No. 84-6277.
    Vossbrinck v. Vossbrinck.
   Sup. Ct. Conn. Certiorari denied.


text:
    No. 84-6278.
    McCall v. Tovey et al.
   C. A. 3d Cir. . Cer-tiorari denied.


text:
    No. 84-6279.
    Norman v. Oregon.
   Ct. App. Ore. Certiorari denied.


text:
    No. 84-6280.
    Zarrilli v. Braunstein.
   C. A. 1st Cir. Cer-tiorari denied.


text:
    No. 84-6288.
    Sockwell v. Blackburn, Warden, et al.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 84-6292.
    Chance v. Zimmerman et al.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 84-6295.
    Gibbs v. Phelps, Secretary, Louisiana Department of Corrections, et al.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 84-6296.
    Howard v. Cupp, Superintendent, Oregon State Penitentiary.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 84-6304.
    Williams v. New Jersey.
   Sup. Ct. N. J. Certiorari denied.


text:
    No. 84-6311.
    Mitchell v. Meese, Attorney General.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 84-6313.
    Yocum v. United States.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 84-6314.
    Calvente et al. v. United States.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 84-6319.
    Gray et al. v. United States.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 84-6324.
    Ingraham v. United States Postal Service et al.
   C. A. Fed. Cir. Certiorari denied.


text:
    No. 84-6328.
    Fleming v. United States.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 84-6331.
    Thomas v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 84-6347.
    Jones v. United States.
   Ct. App. D. C. Certiorari denied.


text:
    No. 84-6355.
    Pride v. United States.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 84-6362.
    Merritt v. United States.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 84-6363.
    Tooker v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 84-6376.
    Andrews v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 84-6380.
    Martin v. Pennsylvania Board of Law Examiners.
   Sup. Ct. Pa. Certiorari denied.


text:
    No. 84-6382.
    Yates v. United States.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 84-6383.
    Esquibel v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 84-6385.
    Wise v. United States.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 84-6386.
    Neely v. Central Intelligence Agency.
   C. A. D. C. Cir. Certiorari denied.


text:
    No. 84-6388.
    DiNoia v. New York.
   App. Div., Sup. Ct. N. Y., 2d Jud. Dept. Certiorari denied.


text:
    No. 84-6389.
    Haywood v. Procunier, Director, Texas Department of Corrections.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 84-6392.
    Lewis v. Procunier, Director, Texas Department of Corrections.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 84-6402.
    Miriti v. Schade et al.
   C. A. D. C. Cir. Certiorari denied.


text:
    No. 84-6419.
    Harvey v. Smith.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 84-6436.
    DeVyver, aka Wilson v. Smith, Superintendent, Attica Correctional Facility.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 84-322.
    Reminick et al. v. Maltz et al.
   Ct. App. N. Y. Motion of Bankers Trust Co. for leave to intervene denied. Certiorari denied.


text:
    No. 84-600.
    Cooper v. United States Postal Service.
   C. A. 9th Cir. Certiorari denied.

Justice White,

dissenting.

In December 1980, petitioner filed an administrative complaint with respondent, her employer, alleging that she had been denied a position because of her sex. The Regional Postmaster General denied the complaint, notifying petitioner that she could appeal to the Equal Employment Opportunity Commission within 20 days, or file suit in federal district court within 30. See 42 U. S. C. § 2000e-16(c). Choosing the latter route, petitioner filed this suit on October 29, 1982, the day before the 30-day limit expired. She did not serve copies of the complaint on the United States Attorney or the Attorney General until January 1983, and did not serve the Postmaster General until February. The record does not indicate when or if the Postal Service, which was the named defendant, was served, but it was not within the 30-day period.

The District Court dismissed the complaint because it did not name the proper defendant, who was the Postmaster General. § 2000e-16(c). Petitioner sought to correct this defect and have the amendment relate back to the date of the initial complaint. See Fed. Rule Civ. Proc. 15(c). The District Court denied the motion on the ground that the Postmaster General had not had notice of the suit within the 30-day period.

On appeal, a panel of the Ninth Circuit agreed that the Postmaster General was the only proper defendant and that the 30-day period was a flat — parenthetically, a jurisdictional — requirement. 740 F. 2d 714, 716 (1984). Therefore, petitioner’s action was necessarily time-barred unless the amendment could relate back to the date of the original complaint. Observing that “[tjhere is no unanimity among the circuits concerning the proper interpretation of rule 15(c)’s notice provision,” ibid., the court adopted a strict, literal reading and affirmed.

The case raises two important issues. The first is whether the 30-day limit of § 2000e-16(c) is jurisdictional or, like the equivalent limitation for suits against private employers, see Zipes v. Trans World Airlines, Inc., 455 U. S. 385 (1982), subject to waiver, es-toppel, and equitable tolling. I have previously noted my dissent from the Court’s refusal to address this issue, which has divided the Courts of Appeals. See Stuckett v. United States Postal Service, 469 U. S. 898 (1984) (White, J., joined by Rehnquist, J., dissenting from denial of certiorari). In light of the Court of Appeals’ firm stance on the 30-day requirement and its view that petitioner’s claim “must be barred” unless the amendment related back, I believe the issue is presented here. I continue to think it merits our attention.

The petition also challenges the Ninth Circuit’s strict reading of Rule 15(c). As that court observed, the Courts of Appeals have not taken a consistent approach to this provision. Some have rejected a literal construction of the requirement that the added party have had notice of institution of the action within “the period provided by law for commencing the action against him,” allowing, for example, a reasonable time thereafter for service of process. See Kirk v. Cronvich, 629 F. 2d 404, 408 (CA5 1980); Ingram v. Kumar, 585 F. 2d 566, 571-572 (CA2 1978), cert. denied, 440 U. S. 940 (1979); see also Ringrose v. Engelberg Huller Co., 692 F. 2d 403, 410 (CA6 1982) (Jones, J., concurring). The argument in favor of such a grace period for service of process is appealing when the statute of limitations is as short as 30 days. On the other hand, the Ninth Circuit is hardly alone in requiring that the added defendant have had notice strictly within the limitations period. See, e. g., Watson v. Uni-press, Inc., 733 F. 2d 1386, 1390 (CA10 1984) (explicitly rejecting Ingram, supra)] Trace X Chemical, Inc. v. Gulf Oil Chemical Co., 724 F. 2d 68, 71-72 (CA8 1983); Hughes v. United States, 701 F. 2d 56, 58-59 (CA7 1982).

Relying on the implications of the Rule’s second paragraph, respondent argues that except as provided therein, actual notice is always required against a federal defendant. It points out that the cases with which the decision below conflicts did not involve federal defendants. This effort to separate federal from private defendants may or may not be legitimate, but neither the court below nor any other cited decision relied on the identity of the added defendant in denying relation back. Moreover, this argument goes more to the question of when the added defendant may be deemed to have had notice, rather than the question, raised by petitioner, whether the period within which notice is required may be viewed flexibly.

In light of the conflicts in the lower courts on both issues raised by this petition, I would grant certiorari and set the case for oral argument.

       That Rule provides:
      “Whenever the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the original pleading. An amendment changing the party against whom a claim is asserted relates back if the foregoing provision is satisfied and, within the period provided by law for commencing the action against him, the party to be brought in by amendment (1) has received such notice of the institution of the action that he will not be prejudiced in maintaining his defense on the merits, and (2) knew or should have know that, but for a mistake concerning the identity of the proper party, the action would have been brought against him.
      “The delivery or mailing of process to the United States Attorney, or his designee, or the Attorney General of the United States, or an agency or officer who would have been a proper defendant if named, satisfies the requirement of clauses (1) and (2) hereof with respect to the United States or any agency or officer thereof to be brought into the action as a defendant.”

       The two questions presented are not unrelated. For example, were the 30-day period jurisdictional, the question would arise whether a district court would even have the power, notwithstanding the authorization of Rule 15(e), to add a new defendant after 30 days. See generally Canavan v. Beneficial Finance Corp., 553 F. 2d 860, 864-865 (CA3 1977).

       In some cases, as where a complaint naming a corporation as the defendant is later amended to add the corporation’s owner, e. g., Itel Capital Corp. v. Cups Coal Co., 707 F. 2d 1253, 1258 (CA11 1983), or parent corporation, e. g., Marks v. Prattco, Inc., 607 F. 2d 1153 (CA5 1979), the added party is deemed to have had notice in light of its identity of interests or close association with the original defendant. See generally Hernandez Jimenez v. Calero Toledo, 604 F. 2d 99, 102-103 (CA1 1979). Petitioner’s position is somewhat weak in this regard because, while the complaint was filed within the requisite 30 days, no party was served with process within that period.


text:
    No. 84-1013.
    Bough et al. v. Ramirez.
   C. A. 7th Cir. Motion of respondent for leave to proceed in forma pauperis granted. Certiorari denied.


text:
    No. 84-1180.
    Petrov v. United States.
   C. A. 2d Cir. Certiorari denied.

Justice Brennan and Justice Marshall would grant the petition for writ of certiorari and reverse the judgment of conviction.


author: Justice Marshall,

text:
    No. 84-1224.
    Evans v. Virginia.
   Sup. Ct. Va. Certiorari denied.

Justice Marshall,

with whom Justice Brennan joins,

dissenting.

I continue to adhere to my view that the death penalty is under all circumstances cruel and unusual punishment forbidden by the Eighth and Fourteenth Amendments, and I would vacate the judgment of the Supreme Court of Virginia insofar as it left undisturbed the death sentence imposed in this case. Gregg v. Georgia, 428 U. S. 153, 231 (1976) (Marshall, J., dissenting). However, even if I believed that the death penalty could constitutionally be imposed under certain circumstances, I would grant certiorari to decide the constitutional validity of the death sentence imposed here.

I

Petitioner Wilbert Lee Evans was convicted of capital murder in April 1981. At his sentencing hearing, the State urged the jury to recommend the death sentence based on Evans’ “future dangerousness.” To prove future dangerousness, the State relied principally upon the records of seven purported out-of-state convictions. The State’s prosecutor later admitted that he knew, at the time he introduced the records into evidence, that two of them were false. App. to Pet. for Cert. 50a-52a. One of the seven “convictions,” for assault on an officer with a deadly weapon, had been dismissed on appeal. Another, for engaging in an affray with a deadly weapon, had been vacated on appeal, and Evans had been reconvicted in a trial de novo; the conviction for one crime was, however, counted as two convictions. After considering Evans’ prior “history,” the jury determined that there was a probability that he would commit criminal acts of violence that would constitute a continuing serious threat to society, see Va. Code § 19.2-264.4C (1983), and it recommended the death penalty based solely upon its finding of future dangerousness. 228 Va. 468, 323 S. E. 2d 114 (1984). Evans was sentenced to death on June 1, 1981.

On October 16, 1981, while Evans’ direct appeal was pending, the Supreme Court of Virginia ruled that, when a capital defendant’s right to a fair and impartial jury is violated during the sentencing phase of trial, a death sentence must be commuted to life imprisonment. Patterson v. Commonwealth, 222 Va. 653, 283 S. E. 2d 212 (1981). The court premised its decision on a construction of the then-existing death-penalty statute under which only the jury that finds a capital defendant guilty can fix his punishment. Because the original jury, tainted by the constitutional error, could not be reconvened to resentence the defendant, the death sentence had to be reduced automatically to life imprisonment. Id., at 660, 283 S. E. 2d, at 216.

This ruling was in effect when the Virginia Supreme Court considered Evans’ direct appeal. Therefore, had that court known of the error in the sentencing hearing and vacated Evans’ death sentence, he would very likely have received a life sentence. But the State not only failed to confess its error, it listed all the purported convictions, including the erroneous ones, in its brief. App. to Pet. for Cert. 42a. In sustaining Evans’ death sentence, the State Supreme Court relied, in part, on this inaccurate record. Id., at 31a. When Evans petitioned this Court for a writ of certiorari, the State again relied on the misleading records of convictions in its brief in opposition. Id., at 46a. Certiorari was denied. 455 U. S. 1038 (1982).

The State did not notify Evans that it would confess its error regarding the false evidence until March 28, 1983. App. to Pet. for Cert. 73a. On that day, the Virginia Governor signed into law a bill that amended the state death-penalty statute to allow for resentencing by a different jury after a death sentence was set aside, thus effectively overruling Patterson. See Va. Code § 19.2-264.3C (1983). The State subsequently confessed error to the trial judge on April 12, 1983. At a hearing to consider the propriety of resentencing Evans, the prosecutor at Evans’ trial admitted that he knew the evidence that he introduced at the sentencing hearing was false. The judge then ordered a new sentencing hearing. A new jury recommended the death penalty, and petitioner was again sentenced to death.

II

In Napue v. Illinois, 360 U. S. 264 (1959), this Court reversed a conviction obtained through the use of false evidence that was known to be false by representatives of the State. Since Napue, this Court has adhered to the principle that a conviction obtained by the knowing use of false evidence is fundamentally unfair. See, e. g., United States v. Agurs, 427 U. S. 97, 103 (1976); Miller v. Pate, 386 U. S. 1, 7 (1967). The rule of Napue is undoubtedly applicable to the sentencing phase of a capital trial. In this case, the prosecutor admitted that he knowingly introduced false evidence at Evans’ sentencing hearing to demonstrate “future dangerousness.” Evans was therefore deprived of the fundamental fairness due him under the Fourteenth Amendment.

To remedy this injury, the state court ordered a new sentencing hearing free from the taint of false evidence. This remedy, however, was inadequate to undo the harm suffered by Evans. For the State compounded its original misconduct by concealing the deception during both Evans’ direct appeal and his petition for certiorari to this Court. Had the State honestly confessed the error, petitioner’s sentence would almost certainly have been commuted to life imprisonment under the then-existing statute. Instead, the State did not confess error until nearly two years after the original death sentence had been imposed, by which time the death-penalty statute had been amended.

The court below ruled that, even assuming that the prosecutor’s handling of the sentencing hearing involved serious prosecutorial misconduct, the State was not barred from seeking the death penalty a second time. In doing so, it relied on the holding in United States v. Morrison, 449 U. S. 361 (1981), that drastic remedies should not be used to redress “deliberate” and “egregious” violations of constitutional rights “absent demonstrable prejudice, or substantial threat thereof,” to the defendant. Id., at 365. The court concluded that Evans’ resentencing hearing removed any prejudice. But the court considered only the prejudice suffered by Evans at the initial sentencing. It failed to account for the harm done to Evans afterwards, during his direct appeal. Had the State not continued to rely on the false evidence, very likely the death sentence would have been commuted to life imprisonment.

The State argues, nevertheless, that this Court cannot consider the harm done to Evans by its conduct during the appeal. It directs our attention to the finding by the trial judge that the State did not delay its confession of error until after the death-penalty statute was amended just to have a second chance to sentence Evans to death. App. to Pet. for Cert. 20a. This argument misses the point. Regardless of its purpose in regard to the amendment, the State’s continued, knowing use of false evidence during the direct appeal and petition for certiorari, and its failure to disclose this misconduct, constituted egregious conduct that seriously harmed Evans.

Ill

To my mind, the only way to remedy the federal constitutional violation Evans has suffered would be for the Virginia courts to consider, nunc pro tunc, how Patterson would have applied to this case. I would grant the petition for certiorari to consider whether the court below was constitutionally obligated to make this inquiry. Accordingly, I dissent from the denial of certiorari.

       In addition, several of the other convictions had been obtained when Evans was without the benefit of counsel. App. to Pet. for Cert. 3a-4a.

       In its brief in opposition, the State urges that the opinion of the Virginia Supreme Court implied that the court would not have applied the Patterson rule to Evans’ sentence. A fair reading of the opinion below, however, indicates that the court was not rejecting Evans’ contention that Patterson would have controlled his ease had it not been legislatively overruled; rather, the court was rejecting Evans’ ex post facto argument, which was based on the subsequent overruling of Patterson. See 228 Va. 468, 476-477, 323 S. E. 2d 114, 118-119 (1984).

       Further, whether the delay of nearly two years in confessing error was intentional or merely negligent has no bearing on the degree of prejudice suffered by Evans. “Clearly, a deliberate attempt by the government to use delay to harm the accused, or governmental delay that is ‘purposeful or oppressive,’ is unjustifiable. . . . The same may be true of any governmental delay that is unnecessary, whether intentional or negligent in origin.” Dickey v. Florida, 398 U. S. 30, 51 (1970) (Brennan, J., concurring).
      Nor does it matter whether the state attorney who appeared at the sentencing hearing, and who admitted that he knew the evidence on which the State relied was false, took part in preparing the State’s briefs in the Virginia Supreme Court or in this Court. The prosecutor’s office is an entity, not just a group of isolated individuals, and the prosecutor is responsible for assuring that relevant information is communicated among the lawyers in the office. See Giglio v. United States, 405 U. S. 150, 154 (1972); Moore v. Illinois, 408 U. S. 786, 810 (1972) (MARSHALL, J., concurring in part and dissenting in part).


text:
    No. 84-1341.
    Duquesne Light Co. et al. v. State Tax Department of West Virginia et al.
   Sup. Ct. App. W. Va. Certiorari denied.

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


text:
    No. 84-1353.
    No. 84-1354.
    Kartell et al. v. Blue Shield of Massachusetts, Inc.; and Rodkey et al. v. Blue Shield of Massachusetts, Inc.
   C. A. 1st Cir. Motion of American Medical Association for leave to file a brief as amicus curiae granted. Motion of Ball Memorial Hospital, Inc., et al. for leave to file a brief as amici curiae in No. 84-1353 granted. Certiorari denied. Reported below: 749 F. 2d 922.


text:
    No. 84-5339.
    No. 84-6073.
    No. 84-6224.
    No. 84-6250.
    No. 84-6251.
    No. 84-6285.
    No. 84-6348.
    No. 84-6442.
    Wingo v. Louisiana. Nelson v. Louisiana. Waldrop v. Alabama. Milton v. Procunier, Director, Texas Department of Corrections. Nuckols v. Oklahoma. Averhart v. Indiana. Copeland v. Florida. Weeks v. Alabama.
   Sup. Ct. La.;

Sup. Ct. La.;

Sup. Ct. Ala.;

C. A. 5th Cir.;

Ct. Crim. App. Okla.;

Sup. Ct. Ind.;

Sup. Ct. Fla.; and

Sup. Ct. Ala. Certiorari denied. Reported below: No. 84-5339, 457 So. 2d 1159; No. 84-6073, 459 So. 2d 510; No. 84-6224, 459 So. 2d 959; No. 84-6250, 744 F. 2d 1091; No. 84-6251, 690 P. 2d 463; No. 84-6285, 470 N. E. 2d 666; No. 84-6348, 457 So. 2d 1012; No. 84-6442, 456 So. 2d 404.

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.