text:
    No. 90-1119.
    No. 90-7825.
    LeBlanc v. United States, Windle v. Maryland,
   499 U. S. 921; and 500 U. S. 946. Motions for leave to file petitions for rehearing denied.


source: Caselaw Access Project

license: Public Domain

text:
    No. 90-5744.
    Chapman et al. v. United States,
   500 U. S. 453. Petition for rehearing denied. Petition of Stanley J. Marshall for rehearing denied.

       [Reporter’s Note: Stanley J. Marshall was an appellant in the case below. See United States v. Marshall, 908 F. 2d 1312 (CA7 1990). Marshall’s petition for certiorari was denied in Marshall v. United States, No. 90-929, ante, p. 1205.)


text:
    August 20, 1991
    No. A-116.
    Watkins et al. v. Mabus, Governor of Mississippi, et al.
   D. C. S. D. Miss. Application for injunction and stay pending appeal, presented to Justice Scalia, and by him referred to the Court, denied. Justice Marshall and Justice Blackmun would grant the application.


author: Justice Marshall,

text:
    August 22, 1991
    No. A-140.
    Byrd v. Delo, Superintendent, Potosi Correctional Center.
   Application for stay of execution of sentence of death, presented to Justice Blackmun, and by him referred to the Court, denied.

Justice Marshall,

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, 231 (1976), I would grant the application for stay of execution in order to give the applicant time to file a petition for writ of certio-rari and would grant the petition and vacate the death sentence in this case.


text:
    No. A-143.
    Peterson v. Murray, Director, Virginia Department of Corrections.
   Application for stay of execution of sentence of death, presented to The Chief Justice, and by him referred to the Court, denied. Justice Blackmun and Justice Stevens would grant the application.

Justice Marshall,

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, 231 (1976), I would grant the application for stay of execution.


text:
    September 5, 1991
    No. 91-5685 (A-174).
    Gaskins v. Evatt, Commissioner, South Carolina Department of Corrections, et al.
   Sup. Ct. S. C. Application for stay of execution of sentence of death, presented to The Chief Justice, and by him referred to the Court, denied. Certiorari denied.

Justice Marshall,

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, 231 (1976), I would grant the application for stay of execution and the petition for writ of certiorari and would vacate the death sentence in this case.


text:
    No. 91-5688 (A-176).
    Gaskins v. Evatt, Commissioner, South Carolina Department of Corrections.
   C. A. 4th Cir. Application for stay of execution of sentence of death, presented to The Chief Justice, and by him referred to the Court, denied. Certiorari denied.

Justice Marshall,

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, 231 (1976), I would grant the application for stay of execution and the petition for writ of certiorari and would vacate the death sentence in this case.


text:
    September 10, 1991
    No. A-165.
    United States Department of Commerce v. Assembly of the State of California et al.
   Application for stay, presented to Justice O’Connor, and by her referred to the Court, granted, and it is ordered that the order of the United States District Court for the Eastern District of California, case No. Civ. S-91-0990-WBS, filed August 20, 1991, be and the same is hereby stayed pending final disposition of the appeal of that order by the United States Court of Appeals for the Ninth Circuit. Justice Marshall, Justice Blackmun, and Justice Stevens would deny the application.


text:
    September 13, 1991
    No. A-83.
    Clarke v. Texas.
   Ct. Crim. App. Tex. Application for stay of mandate, addressed to Justice Stevens and referred to the Court, denied.


text:
    No. A-85.
    Rice et al. v. United States.
   D. C. Ariz. Application for stay of mandate, injunction, and restraining order, addressed to Justice Souter and referred to the Court, denied.


text:
    No. D-989.
    In re Disbarment of Mach.
   Disbarment entered. [For earlier order herein, see 499 U. S. 945.]


text:
    No. D-994.
    In re Disbarment of Crosley.
   Disbarment entered. [For earlier order herein, see 499 U. S. 957.]


text:
    No. D-995.
    In re Disbarment of Tucker.
   Disbarment entered. [For earlier order herein, see 499 U. S. 973.]


text:
    No. D-1001.
    In re Disbarment of Tracy.
   Disbarment entered. [For earlier order herein, see 500 U. S. 940.]


text:
    No. D-1004.
    In re Disbarment of Looney.
   Disbarment entered. [For earlier order herein, see 500 U. S. 950.]


text:
    No. D-1007.
    In re Disbarment of Rivers.
   Disbarment entered. [For earlier order herein, see ante, p. 1203.]


text:
    No. D-1008.
    In re Disbarment of Tobias.
   Disbarment entered. [For earlier order herein, see ante, p. 1203.]


text:
    No. D-1009.
    In re Disbarment of Franklin.
   Disbarment entered. [For earlier order herein, see ante, p. 1203.]


text:
    No. D-1011.
    In re Disbarment of Thompson.
   Disbarment entered. [For earlier order herein, see ante, p. 1215.]


text:
    No. D-1012.
    In re Disbarment of Lukas.
   Disbarment entered. [For earlier order herein, see ante, p. 1215.]


text:
    No. D-1013.
    In re Disbarment of Miller.
   Disbarment entered. [For earlier order herein, see ante, p. 1215.]


text:
    No. D-1014.
    In re Disbarment of Bennett.
   Disbarment entered. [For earlier order herein, see ante, p. 1228.]


text:
    No. D-1016.
    In re Disbarment of Gamer.
   Disbarment entered. [For earlier order herein, see ante, p. 1228.]


text:
    No. D-1017.
    In re Disbarment of Caronna.
   Disbarment entered. [For earlier order herein, see ante, p. 1228.]


text:
    No. D-1018.
    In re Disbarment of Hayden.
   Disbarment entered. [For earlier order herein, see ante, p. 1228.]


text:
    No. D-1021.
    In re Disbarment of Duva.
   Disbarment entered. [For earlier order herein, see ante, p. 1248.]


text:
    No. D-1029.
    In re Disbarment of Kessler.
   It is ordered that Melvyn Kessler, of Miami, Fla., 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-1030.
    In re Disbarment of Guller.
   It is ordered that Jeffrey M. Guller, of Gastonia, N. C., be suspended from the practice of law in this Court and that a rule issue, returnable within 40 days, requiring him to show cause why he should not be disbarred from the practice of law in this Court.


text:
    No. D-1031.
    In re Disbarment of Wade.
   It is ordered that E. Gene Wade, of Mesa, Ariz., 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-1032.
    In re Disbarment of Brill.
   It is ordered that Marvin A. Brill, of Providence, R. I., 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-1033.
    In re Disbarment of Robbins.
   It is ordered that Gerald Rockwood Robbins, of Arlington, Va., 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-1034.
    In re Disbarment of Ostrowe.
   It is ordered that Eugene Ostrowe, of Walled Lake, 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. D-1035.
    In re Disbarment of Marcus.
   It is ordered that Harold V. Marcus, of Brooklyn, N. Y., be suspended from the practice of law in this Court and that a rule issue, returnable within 40 days, requiring him to show cause why he should not be disbarred from the practice of law in this Court.


text:
    No. D-1036.
    In re Disbarment of Goerlich.
   It is ordered that Harold L. Goerlich, of Jericho, 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. D-1037.
    In re Disbarment of Dellorfano.
   It is ordered that Fred M. Dellorfano, Jr., of Cohasset, Mass., 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-1038.
    In re Disbarment of Nolan.
   It is ordered that Frank J. Nolan, of Garden City, 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. 118, Orig.
    United States v. Alaska.
   Motion of Alaska for modification of briefing schedule set by order of Court on June 28, 1991 [ante, p. 1248], granted, and it is ordered that briefs in support of cross-motions for summary judgment may be filed within 45 days of September 6, 1991, with reply briefs, if any, to be filed within 30 days of the filing of the opening briefs. [For earlier order herein, see, e. g., ante, p. 1248.]


text:
    No. 90-408.
    No. 90-577.
    County of Yakima et al. v. Confederated Tribes and Bands of the Yakima Indian Nation; and Confederated Tribes and Bands of the Yakima Indian Nation v. County of Yakima et al.
   C. A. 9th Cir. [Certiorari granted, 500 U. S. 903.] Motion of the Solicitor General for leave to participate in oral argument as amicus curiae and for divided argument granted.


text:
    No. 90-711.
    No. 90-712.
    Presley v. Etowah County Commission et al.; and Mack et al. v. Russell County Commission et al.
   D. C. M. D. Ala. [Probable jurisdiction noted, 500 U. S. 914.] Motion of the Solicitor General for leave to participate in oral argument as amicus curiae and for divided argument granted.


text:
    No. 90-741.
    Dewsnup v. Timm et al.
   C. A. 10th Cir. [Certiorari granted, 498 U. S. 1081.] Motion of the Solicitor General for leave to participate in oral argument as amicus curiae and for divided argument granted.


text:
    No. 90-913.
    No. 90-914.
    Board of Governors of the Federal Reserve System v. MCorp Financial, Inc., et al.; and MCorp et al. v. Board of Governors of the Federal Reserve System.
   C. A. 5th Cir. [Certiorari granted, 499 U. S. 904.] Motion of respondents and cross-petitioners MCorp et al. for divided argument denied.


text:
    No. 90-1126.
    No. 90-1435.
    Norman et al. v. Reed et al.; and Cook County Officers Electoral Board et al. v. Reed et al.
   Sup. Ct. Ill. [Certiorari granted, 500 U. S. 931.] Motion of petitioners Cook County Officers Electoral Board et al. for divided argument granted to be divided as follows: petitioners Barbara Norman et al., 15 minutes; petitioners Cook County Officers Electoral Board et al., 15 minutes; and respondents Dorothy Reed et al., 30 minutes.


text:
    No. 90-1156.
    New Orleans Public Service Inc. v. Council of the City of New Orleans et al.
   C. A. 5th Cir. [Certiorari granted, 499 U. S. 974.] Motion of the Solicitor General for leave to participate in oral argument as amicus curiae and for divided argument granted. Motion of respondent Alliance for Affordable Energy, Inc., for divided argument and for additional time for oral argument denied.


text:
    No. 90-1205.
    No. 90-6588.
    United States v. Mabus, Governor of Mississippi, et al.; and Ayers et al. v. Mabus, Governor of Mississippi, et al.
   C. A. 5th Cir. [Certiorari granted, 499 U. S. 958.] Motions of Alcorn State University National Alumni Association, Joseph Califano, Jr., et al., and Jackson State University for leave to file briefs as amici curiae granted. Motion of the Solicitor General for divided argument granted. Motion of petitioners Jake Ayers, Jr., et al. for divided argument and for additional time for oral argument denied.


text:
    No. 90-1390.
    General Motors Corp. et al. v. Romein et al.
   Sup. Ct. Mich. [Certiorari granted, 500 U. S. 915.] Motion of the Attorney General of Michigan for divided argument denied.


text:
    No. 90-1577.
    United States v. R. L. C.
   C. A. 8th Cir. [Certiorari granted, ante, p. 1230.] Motion of the Solicitor General to dispense with printing the joint appendix granted.


text:
    No. 109, Orig.
    No. 89-7662.
    No. 89-7679.
    No. 90-333.
    No. 90-1700.
    No. 90-5551.
    No. 90-5721.
    No. 90-5917.
    No. 90-6799.
    No. 90-7018.
    No. 90-7200.
    No. 90-7304.
    No. 90-7452.
    No. 90-7583.
    No. 90-7636.
    No. 90-7641.
    No. 90-7717.
    No. 90-7927.
    No. 90-7969.
    Oklahoma et al. v. New Mexico, Coleman v. Thompson, Warden, Russell v. Collins, Director, Texas Department of Criminal Justice, Institutional Division, Lampf, Pleva, Lipkind, Prupis & Petigrow v. Gilbertson et al., Wrenn v. Ohio et al., Schad v. Arizona, Payne v. Tennessee, Newman v. United States, Wagner v. Seely et al., LaGrand v. Arizona, De la Cerda v. Collins, Director, Texas Department of Criminal Justice, Institutional Division, Miller v. Federal Bureau of Investigation, Morrison v. Brooks, Superintendent, Robeson Correctional Center, Ziegler v. Champion, Warden, et al., Meehan v. Metro Nashville Police Department et al., Nabkey v. United States, Sanders v. District of Columbia et al., Schmidt v. Utah et al., Wolfenbarger v. Kansas Department of Social and Rehabilitation Services,
   ante, p. 221; ante, p. 722; ante, p. 1259; ante, p. 350; ante, p. 1251; ante, p. 624; ante, p. 808; 498 U. S. 1070; ante, p. 1219; ante, p. 1259; 500 U. S. 955; ante, p. 1254; 500 U. S. 922; 500 U. S. 944; 500 U. S. 956; ante, p. 1207; ante, p. 1234; ante, p. 1221; and ante, p. 1256. Petitions for rehearing denied.


text:
    No. 90-1503.
    Ordway et ux. v. United States,
   ante, p. 1261. Motion of petitioners to defer consideration of petition for rehearing denied. Petition for rehearing denied. Justice Blackmun took no part in the consideration or decision of this motion and this petition.


text:
    September 18, 1991
    No. 91-5845 (A-214).
    Russell v. Collins, Director, Texas Department of Criminal Justice, Institutional Division.
   C. A. 5th Cir. Application for stay of execution of sentence of death, presented to Justice Scalia, and by him referred to the Court, denied. Certiorari denied.

Justice Marshall,

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, 231 (1976), I would grant the application for stay of execution and the petition for writ of certiorari and would vacate the death sentence in this case.


text:
    September 19, 1991
    No. A-184.
    Clark et al. v. Roemer, Governor of Louisiana, et al.
   Application to vacate the stay entered by the United States Court of Appeals for the Fifth Circuit, presented to Justice Scalia, and by him referred to the Court, denied. Justice Marshall and Justice Blackmun would grant the application.


text:
    September 20, 1991
    No. A-76.
    Cristina v. DeRamus.
   C. A. 3d Cir. Application for certificate of probable cause to appeal, addressed to Justice Stevens and referred to the Court, denied.


text:
    No. A-119.
    Saukstelis et al. v. City of Chicago.
   C. A. 7th Cir. Application for stay, addressed to Justice Blackmun and referred to the Court, denied.


text:
    No. A-206.
    Republican Party of Virginia et al. v. Wilder, Governor of Virginia, et al.
   D. C. W. D. Va. Application for injunction, addressed to Justice Stevens and referred to the Court, denied.


text:
    No. D-1039.
    In re Disbarment of Townsend.
   It is ordered that L. Wayne Townsend, of Richmond, Va., 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. 90-711.
    No. 90-712.
    Presley v. Etowah County Commission et al.; and Mack et al. v. Russell County Commission et al.
   D. C. M. D. Ala. [Probable jurisdiction noted, 500 U. S. 914.] Motion of NAACP Legal Defense and Educational Fund for leave to file a brief as amicus curiae granted. Motion of ap-pellee Etowah County Commission for divided argument denied. Motion of appellee Russell County Commission for divided argument denied.


text:
    No. 90-1029.
    Eastman Kodak Co. v. Image Technical Services, Inc., et al.
   C. A. 9th Cir. [Certiorari granted, ante, p. 1216.] Motion of the Solicitor General for leave to participate in oral argument as amicus curiae and for divided argument granted.


text:
    No. 90-1488.
    Suter et al. v. Artist M. et al.
   C. A. 7th Cir. [Certiorari granted, 500 U. S. 915.] Motion of the Solicitor General for leave to participate in oral argument as amicus curiae and for divided argument granted.


text:
    No. 90-6531.
    Hudson v. McMillian et al.
   C. A. 5th Cir. [Certiorari granted, 499 U. S. 958.] Motion of the Solicitor General for leave to participate in oral argument as amicus curiae and for divided argument granted.


text:
    No. 90-1205.
    No. 90-6588.
    United States v. Mabus, Governor of Mississippi, et al.; and Ayers et al. v. Mabus, Governor of Mississippi, et al.
   C. A. 5th Cir. [Certiorari granted, 499 U. S. 958.] Motions of National Bar Association et al. and NAACP Legal Defense and Educational Fund et al. for leave to file briefs as amici curiae granted.


text:
    No. 90-1361.
    No. 90-1484.
    Holywell Corp. et al. v. Smith et al.; and United States v. Smith et al.
   C. A. 11th Cir. [Certiorari granted, 500 U. S. 941.] Motion of petitioners for divided argument denied. Motion of respondents for divided argument denied.


text:
    No. 90-1491.
    Union Bank v. Wolas, Chapter 7 Trustee for the Estate of ZZZZ Best Co., Inc.
   C. A. 9th Cir. [Certiorari granted, 500 U. S. 915.] Motion of American Bankers Association for leave to file a brief as amicus curiae granted.


text:
    No. 90-1479.
    No. 90-1703.
    No. 90-7109.
    No. 90-7210.
    No. 90-7442.
    No. 90-7755.
    No. 90-7782.
    No. 90-7811.
    No. 90-7824.
    No. 90-7835.
    No. 90-7872.
    No. 90-7939.
    No. 90-7944.
    No. 90-7962.
    No. 90-7990.
    No. 90-8024.
    No. 90-8043.
    No. 90-8058.
    Grover v. Rocheleau et al., Parnar v. Green, Ning, Lilly & Jones, Hernandez v. Wooten, Warden, et al., Fernandez v. United States, Assa’ad-Faltas v. Armstrong et al., Rector v. Bryant, Attorney General of Arkansas, et al., Parke v. United States Postal Service, McGrew v. Florida, Smith v. McKaskle et al., McGarry v. Internal Revenue Service et al., Matthews, aka Brown v. Jolly et al., Reed v. Ft. Worth Independent School District et al., Pletten v. Marsh, Secretary of the Army, et al., Veneri v. Fulcomer, Deputy Commissioner, Western Region, Pennsylvania Department of Corrections, et al., Anderson v. Lehr et al., Jost v. Oregon et al. (two cases), Humphrey v. Tate, Warden, Carney v. Department of Veterans Affairs, Borroto v. United States, Nunez v. Costello, Superintendent, Mid-State Correctional Facility,
   500 U. S. 918; ante, p. 1206; ante, p. 1253; 500 U. S. 948; 500 U. S. 934; ante, p. 1239; ante, p. 1209; ante, p. 1220; ante, p. 1221; ante, p. 1221; ante, p. 1235; ante, p. 1255; ante, p. 1221; ante, p. 1255; ante, p. 1256; ante, p. 1256; ante, p. 1256; ante, p. 1237; ante, p. 1257; and ante, p. 1259. Petitions for rehearing denied.

No. 90-8142.

No. 90-8225.


text:
    No. 90-8030.
    Johnson v. Longview Independent School District et al.,
   ante, p. 1256. Motion for leave to file petition for rehearing denied.


text:
    September 24, 1991
    No. A-227.
    McCleskey v. Bowers, Attorney General of Georgia, et al.
   Application for stay of execution of sentence of death scheduled for September 24, 1991, to allow the filing of a petition for writ of certiorari to the Superior Court of Butts County, Georgia, and/or the United States Court of Appeals for the Eleventh Circuit, presented to Justice Kennedy, and by him referred to the Court, denied. Justice Blackmun and Justice Stevens would grant the application for stay.

Justice Marshall,

dissenting.

I

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, 231 (1976), I would grant the application for stay of execution in order to give the applicant time to file a petition for a writ of certiorari, and would grant the petition and vacate the death sentence in this case.

II

For the third time, this Court disregards Warren McCleskey’s constitutional claims. In 1986, McCleskey, an Afro-American defendant, presented uncontroverted evidence that Georgia murder defendants with white victims were more than four times as likely to receive the death sentence as were defendants with Afro-American victims. Despite such clear and convincing evidence of irrationality in sentencing — irrationality we have consistently condemned in our Eighth Amendment jurisprudence — the Court somehow rejected McCleskey’s claim and upheld the constitutionality of Georgia’s death penalty. See McCleskey v. Kemp, 481 U. S. 279 (1987). Since then, the factual record has continued to show that the death penalty is not and cannot be administered fairly: white lives are routinely valued more than Afro-American lives.

Last Term, the Court not only discounted Warren McCleskey’s constitutional claim but sharply limited the opportunity of criminal defendants, even those on death row, to obtain federal habeas review. See McCleskey v. Zant, 499 U. S. 467 (1991). In radically redefining the content of the “abuse of the writ” doctrine, the Court repudiated a long line of judicial decisions and unconscionably denied defendants such as McCleskey the judicial protections the Constitution requires. The Court, in essence, valued finality over justice.

Now, in the final hours of his life, Warren McCleskey alleges that he was denied an impartial clemency hearing because the Attorney General threatened to “wage a full scale campaign to overhaul the pardons and paroles board” if the Board granted relief. McCleskey also alleges that to counteract this assault, the Board’s chairman announced, even before the hearing, that there would be “no change” in McCleskey’s sentence. In refusing to grant a stay to review fully McCleskey’s claims, the Court values expediency over human life.

Repeatedly denying Warren McCleskey his constitutional rights is unacceptable. Executing him is inexcusable.


text:
    September 25, 1991
    No. 91-5901 (A-228).
    McCleskey v. Bowers, Attorney General of Georgia, et al.
   C. A. 11th Cir. Application for stay of execution of sentence of death, presented to Justice Kennedy, and by him referred to the Court, denied. Certiorari denied. Justice Blackmun would grant the application for stay and the petition for writ of certiorari. Justice Stevens would grant the application for stay.

Justice Marshall,

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, 231 (1976), I would grant the application for stay of execution and the petition for writ of certiorari and would vacate the death sentence in this case. For a further expression of my views, see McCleskey v. Bowers, ante, p. 1281.


text:
    October 1, 1991
    No. 88-1403.
    Air Line Pilots Assn. et al. v. Eastern Air Lines, Inc.
   C. A. D. C. Cir. Certiorari dismissed as to petitioner International Association of Machinists & Aerospace Workers under this Court’s Rule 46.


text:
    October 4, 1991
    No. 90-1862.
    EDAP, S. A. v. Richard Wolf GmbH et al.
   C. A. Fed. Cir. Certiorari dismissed under this Court’s Rule 46.


author: Justice Scalia,

text:
    BARNES, COMMISSIONER OF TEXAS STATE BOARD OF INSURANCE, et al. v. E-SYSTEMS, INC. GROUP HOSPITAL MEDICAL & SURGICAL INSURANCE PLAN et al.
    No. A-94.
    Decided August 2, 1991
   Justice Scalia,

Circuit Justice.

Texas state officials responsible for the collection of taxes and the regulation of insurance seek a stay of the judgments of the Court of Appeals for the Fifth Circuit in these two sets of consolidated cases, pending action by this Court on their intended petition for certiorari. The judgments at issue upheld decisions by the United States District Court for the Western District of Texas, which declared the Texas Administrative Services Tax Act, Tex. Ins. Code Ann., Art. 4.11A (Vernon Supp. 1991), to be pre-empted by the Employee Retirement Income Security Act of 1974 (ERISA), 88 Stat. 829, as amended, 29 U. S. C. § 1001 et seq. (1988 ed. and Supp. I), enjoined its enforcement, and directed the State to issue refunds to the challenging taxpayers. E-Systems, Inc. v. Pogue, 929 F. 2d 1100 (1991).

The authority for a single Justice to issue a stay of the sort requested here is conferred by 28 U. S. C. § 2101(f). Before the predecessor to that provision was enacted in 1925, see Act of Feb. 13, 1925, 43 Stat. 940, similar action could be taken by the Court by issuing a supersedeas under the All Writs Act, 28 U. S. C. § 1651. See Magnum Import Co. v. Coty, 262 U. S. 159 (1923); Ex parte Milwaukee R. Co., 5 Wall. 188, 190 (1867); Hardeman v. Anderson, 4 How. 640, 642-643 (1846). Under § 2101(f), as under the All Writs Act and the prior common law, a stay issues not of right but pursuant to sound equitable discretion; “it requires,” as Chief Justice Taft said, “a clear case and a decided balance of convenience.” Magnum Import Co., supra, at 164.

The practice of the Justices has settled upon three conditions that must be met before issuance of a § 2101(f) stay is appropriate. There must be a reasonable probability that certiorari will be granted (or probable jurisdiction noted), a significant possibility that the judgment below will be reversed, and a likelihood of irreparable harm (assuming the correctness of the applicant’s position) if the judgment is not stayed. Times-Picayune Publishing Corp. v. Schulingkamp, 419 U. S. 1301, 1305 (1974) (Powell, J., in chambers). In my view all three of these conditions are met here.

The Tax Injunction Act, 28 U. S. C. § 1341, provides: “The district courts shall not enjoin, suspend or restrain the assessment, levy or collection of any tax under State law where a plain, speedy and efficient remedy may be had in the courts of such State.” The Fifth Circuit’s holding that this provision does not apply to state taxes that violate ERISA is in apparent conflict with the position taken by the Ninth Circuit. See Ashton v. Cory, 780 F. 2d 816, 821-822 (1986) (Kennedy, J.). See also General Motors Corp. v. California Bd. of Equalization, 815 F. 2d 1305, 1308 (CA9 1987) (Kennedy, J.). The question has been explicitly reserved in an opinion of this Court. Franchise Tax Bd. of Cal. v. Construction Laborers Vacation Trust for Southern Cal., 463 U. S. 1, 20, n. 21, 27, n. 31 (1983). The establishment of an ERISA exception to the Tax Injunction Act is alone a matter of some importance to the States. In addition, however, the Fifth Circuit’s basis for the exception is that there can be no “plain, speedy and efficient remedy” in Texas courts because ERISA forbids their consideration of ERISA pre-emption challenges. E-Systems, Inc., supra, at 1102. This means, apparently, that state courts cannot even grant refund relief, since we have held that refund relief alone may constitute “a plain, speedy and efficient remedy.” See, e. g., California v. Grace Brethren Church, 457 U. S. 393, 413-414 (1982); Rosewell v. LaSalle National Bank, 450 U. S. 503, 514-515 (1981). In addition, the Fifth Circuit rejected, without explanation, applicants’ objection that the Eleventh Amendment forbade the District Court to require a refund of the ERISA pre-empted taxes from Texas’ State Treasury. E-Systems, Inc., supra, at 1101-1102. This is also in apparent conflict with the views of the Ninth Circuit. See General Motors Corp., supra, at 1309. In my view these issues are of sufficient importance that a grant of certiorari by this Court is probable.

I also think there is a substantial possibility that the judgment below will be reversed. The Fifth Circuit’s construction of the Tax Injunction Act and ERISA assumes that ERISA’s creation of a private cause of action to enjoin violations of ERISA, 29 U. S. C. § 1132(a)(3), and its provision that this cause of action can be brought only in federal court, § 1132(e)(1), implicitly deprive the state courts of jurisdiction to entertain claims for monetary or equitable relief that rest upon the invalidity (under the Supremacy Clause) of a state statute that violates ERISA. That is not an inevitable implication, and perhaps not a likely one. The Fifth Circuit’s position on the Eleventh Amendment presumably rests upon the proposition that ERISA has impliedly authorized suit against States for monetary (as well as injunctive) relief, thus abrogating state sovereign immunity. But ERISA makes no mention of monetary relief, and in any event our cases do not favor implicit abrogation of Eleventh Amendment immunity. See Dellmuth v. Muth, 491 U. S. 223, 230 (1989); Atascadero State Hospital v. Scanlon, 473 U. S. 234, 242 (1985).

As to the third condition, the likelihood of irreparable harm: In my view the Tax Injunction Act itself reflects a congressional judgment, with which I agree, that unlawful interference with state tax collection always entails that likelihood. It produces in all cases not merely the possibility of ultimate noncollection because of the taxpayer’s exhaustion of the funds but also an interference with the State’s orderly management of its fiscal affairs.

“It is upon taxation that the several States chiefly rely to obtain the means to carry on their respective governments, and it is of the utmost importance to all of them that the modes adopted to enforce the taxes levied should be interfered with as little as possible. Any delay in the proceedings of the officers, upon whom the duty is devolved of collecting the taxes, may derange the operations of government, and thereby cause serious detriment to the public.” Dows v. City of Chicago, 11 Wall. 108, 110 (1871).

See also California v. Grace Brethren Church, supra, at 410, and n. 23. The same may be said of the asserted Eleventh Amendment violation: Directing a priority expenditure from the state treasury “may derange the operations of government, and thereby cause serious detriment to the public.” The conditions that are necessary for issuance of a stay are not necessarily sufficient. Even when they all exist, sound equitable discretion will deny the stay when “a decided balance of convenience,” Magnum Import Co., supra, at 164, does not support it. It is ultimately necessary, in other words, “to ‘balance the equities’ — to explore the relative harms to applicant and respondent, as well as the interests of the public at large.” Rostker v. Goldberg, 448 U. S. 1306, 1308 (1980) (Brennan, J., in chambers) (citations omitted). The likelihood that denying the stay will permit irreparable harm to the applicant may not clearly exceed the likelihood that granting it will cause irreparable harm to others. (This depends, of course, not only upon the relative likelihood that the merits disposition one way or the other will produce irreparable harm, but also upon the relative likelihood that the merits disposition one way or the other is correct.) Or the irreparable harm threatened to the applicant, while more likely, may be vastly less severe. The balancing seems to me quite easy in the present case, since I am aware of no irreparable harm that granting the stay would produce. The State’s credit remains good, and I have been advised of no emergency need for the funds already paid under protest or for any funds that will be collected before termination of the litigation.

The application for stay of the judgments of the Fifth Circuit Court of Appeals is granted, pending applicants’ timely filing, and this Court’s disposition, of a petition for certiorari.


author: Per Curiam.

text:
    UNITED STATES v. IBARRA
    No. 90-1713.
    Decided October 15, 1991
   Per Curiam.

The United States District Court for the District of Wyoming ordered that certain evidence which the Government proposed to use in respondent’s pending criminal trial be suppressed. The Government appealed the order to the Court of Appeals for the Tenth Circuit, but that court dismissed the Government’s appeal. It held that the 30-day period in which to file an appeal began to run on the date of the District Court’s original suppression order, rather than on the date the District Court denied the Government’s motion for reconsideration. 920 F. 2d 702 (1990). We grant the Government’s petition for certiorari and vacate the judgment of the Court of Appeals.

h—

Respondent was indicted for possession of cocaine with intent to distribute. The circumstances leading to the indictment are largely uncontested. Law enforcement officers stopped respondent’s car for a suspected operating violation. The officers questioned respondent and asked for permission to search the car. Respondent granted the request and a brief search was conducted but no cocaine was identified or seized. However, noting that neither respondent nor his passenger had a valid operator’s license, the officers impounded the car and transported respondent and his passenger to a Western Union office. The officers then went to the towing service lot and searched the car a second time. They found cocaine in the trunk. Respondent filed a pretrial motion to suppress the evidence found in the second search. Among the theories on which the Government originally contested the motion was that the second search had been conducted pursuant to respondent’s continuing consent. However, before the District Court ruled on the suppression motion, the Government abandoned the continuing consent theory in papers filed with the court, citing a lack of legal support for its position. On November 15, 1989, after an evidentiary hearing, the District Court granted the motion to suppress and noted in its order the Government’s abandonment of the continuing consent theory. 725 F. Supp. 1195, 1200 (Wyo. 1989). On December 13,1989, the Government filed with the District Court a “Motion for Reconsideration of Suppression Order.” The sole basis for the Government’s motion was its reassertion of the continuing consent theory. On January 3, 1990, the District Court denied the motion. The Government noticed its appeal on January 30, 1990, less than 30 days after the denial of the motion for reconsideration but 76 days after the initial suppression order.

A divided panel of the Tenth Circuit dismissed the appeal as untimely, holding that the Government’s motion to reconsider did not “toll” the 30-day period to appeal which began to run on the date of the initial order. In the course of its opinion, the Court of Appeals rejected the Government’s argument that this Court’s decisions in United States v. Healy, 376 U. S. 75 (1964), and United States v. Dieter, 429 U. S. 6 (1976) (per curiam), controlled the decision.

In United States v. Healy, supra, we said:

“The question, therefore, is simply whether in a criminal case a timely petition for rehearing by the Government filed within the permissible time for appeal renders the judgment not final for purposes of appeal until the Court disposes of the petition — in other words whether in such circumstances the 30-day period . . . begins to run from the date of entry of judgment or the denial of the petition for rehearing.” 376 U. S., at 77-78.

The Court answered this question by saying that under the “well-established rule in civil cases,” id., at 78, the 30-day period begins with the denial of the petition for rehearing and by further observing that this Court’s consistent practice had been to treat petitions for rehearing as having the same effect in criminal cases. Id., at 78-79. More than 12 years later, we decided United States v. Dieter, supra (per curiam). There, too, the Court of Appeals for the Tenth Circuit dismissed as untimely the Government’s appeal from a District Court’s order dismissing an indictment. Although the Government’s notice of appeal had been filed within 30 days of a District Court order denying its “Motion to Set Aside Order of Dismissal,” it was not filed within 30 days after the order of dismissal itself. The Court of Appeals held that our decision in Healy, supra, governed only in cases of claimed errors of law, whereas the basis of the Government’s motion for reconsideration in Dieter was mistake or inadvertence.

We vacated and remanded the decision of the Court of Appeals, saying that it “misconceived the basis of our decision in Healy. We noted there that the consistent practice in civil and criminal cases alike has been to treat timely petitions for rehearing as rendering the original judgment non-final for purposes of appeal for as long as the petition is pending.” 429 U. S., at 8. We pointed out the presumed benefits of this rule — district courts are given the opportunity to correct their own alleged errors, and allowing them to do so prevents unnecessary burdens being placed on the courts of appeals. We concluded that “the Court of Appeals’ law/ fact distinction — assuming such a distinction can be clearly drawn for these purposes — finds no support in Healy.” Ibid.

The Court of Appeals in the present case nonetheless determined that the 30-day period was not affected by the Government’s motion to reconsider. It instead created a special rule for motions that seek reconsideration of previously disavowed theories because it concluded that suspending the time to appeal upon such motions does not further the goals described in Dieter. Because such motions do not serve to permit the district court to reconsider matters initially overlooked, the Court of Appeals thought that delaying the appellate process pending resolution of such motions is unlikely to contribute to judicial efficiency. 920 F. 2d, at 706. It also noted that Government motions to reconsider a position conceded during appellate litigation are viewed with disfavor when filed before an appellate tribunal. Ibid. (citing United States v. Smith, 781 F. 2d 184 (CA10 1986)).

II

We think the Court of Appeals has misread our decisions in Healy, supra, and Dieter, supra. The first of these decisions established that a motion for rehearing in a criminal case, like a motion for rehearing in a civil case, renders an otherwise final decision of a district court not final until it decides the petition for rehearing. In Dieter, we rejected an effort to carve out exceptions to this general rule in the case of petitions for rehearing which do not assert an alleged error of law. We think that the Court of Appeals' present effort to carve out a different exception to the general rule laid down in Healy must likewise be rejected.

It may be that motions to reconsider based on previously abandoned grounds are not apt to fare well either in the district court or on appeal to the court of appeals. But if such a judgment as to the merits were allowed to play a part in deciding the time in which a denial of the motion may be appealed, it is difficult to see why a similar merits analysis should not be undertaken for all motions for reconsideration. The result would be, as the dissenting judge below pointed out, to "graf[t] a merits inquiry onto what should be a bright-line jurisdictional inquiry." 920 F. 2d, at 710 (Baldock, J., dissenting).

Undoubtedly some motions for reconsideration are so totally lacking in merit that the virtues of the rule established in Healy are not realized by delaying the 30-day period. If it were possible to pick them out in advance, it would be better if litigants pursuing such motions were made to go sooner, rather than later, on their fruitless way to the appellate court. But there is no certain way of deciding in advance which motions for reconsideration have the requisite degree of merit, and which do not. Given this, it is far better that all such motions be subsumed under one general rule — the rule laid down in Healy. Without a clear general rule litigants would be required to guess at their peril the date on which the time to appeal commences to run. Prudent attorneys would be encouraged to file notices of appeal from orders of the district court, even though the latter court is in the course of considering a motion for rehearing of the order. Cf. United States v. Ladson, 774 F. 2d 436, 438-439, n. 3 (CA11 1985). Less prudent attorneys would find themselves litigating in the courts of appeals whether a motion for reconsideration filed in the district court had sufficient potential merit to justify the litigant’s delay in pursuing appellate review. Neither development would be desirable.

The Court of Appeals’ opinion can be read to hold that because the Government did not initially urge the argument which it made in its motion for reconsideration, that motion was not a “true” motion for reconsideration which would extend the time for appeal. But this method of analysis, too, would break down into subcategories the more general category of “motions for reconsideration” described in our previous opinions. Here, the Government’s motion before the District Court sought to “ ‘reconsider [a] question decided in the case’ in order to effect an ‘alteration of the rights adjudicated.’” Dieter, 429 U. S., at 8-9 (quoting Department of Banking of Neb. v. Pink, 317 U. S. 264, 266 (1942)). That is sufficient under Healy and Dieter.

The petition for certiorari is granted, respondent’s motion to proceed in forma pauperis is granted, the judgment of the Court of Appeals is vacated, and the case is remanded to that court for further proceedings.

It is so ordered.

       Federal Rule of Appellate Procedure 4(b) provides, inter alia:

      “When an appeal by the government is authorized by statute, the notice of appeal shall be filed in the district court within 30 days after the entry of (i) the judgment or order appealed from or (ii) a notice of appeal by any defendant.”
      Statutory authorization for the United States to appeal a suppression order is found at 18 U. S. C. §3731:
      “An appeal by the United States shall lie to a court of appeals from a decision or order of a district courts [sic] suppressing or excluding evidence.

      “The appeal in all such cases shall be taken within thirty days after the decision, judgment or order has been rendered and shall be diligently prosecuted.”

       The Court of Appeals’ decision discusses the issue as a matter of whether the motion for reconsideration “tolled” the 30-day period that, by assumption, began to run with the District Court’s first decision. We believe the issue is better described as whether the 30-day period began to run on the date of the first order or on the date of the order denying the motion for reconsideration, rather than as a matter of tolling. Principles of equitable tolling usually dictate that when a time bar has been suspended and then begins to run again upon a later event, the time remaining on the clock is calculated by subtracting from the full limitations period whatever time ran before the clock was stopped. See Cada v. Baxter Healthcare Corp., 920 F. 2d 446 (CA7 1990) (discussing principles of equitable tolling). Thus, in the present case for example, a motion to reconsider filed after 20 days, if it tolled the 30-day period to appeal, would leave at most only 10 days to appeal once the reconsideration motion was decided. However, we previously made clear that would-be appellants are entitled to the full 30 days after a motion to reconsider has been decided. United States v. Dieter, 429 U. S. 6, 7-8 (1976) (per curiam) (“[T]he 30-day limitation period runs from the denial of a timely petition .. . rather than from the date of the order itself”).

       Two other concerns that animate the Tenth Circuit’s decision are simply inapposite to the present case. First, there is no assertion that the Government’s abandonment and reassertion of the consensual search theory was done in bad faith. We thus have no occasion to consider whether instances of bad faith might require a different result'. See United States
        v. Healy, 376 U. S. 75, 80, n. 4 (1964). Second, only a single motion for reconsideration was filed. We thus also have no occasion to consider whether it is appropriate to refuse to extend the time to appeal in cases in which successive motions for reconsideration are submitted. See United States v. Marsh, 700 F. 2d 1322 (CA10 1983).


author:
Per Curiam.
      Justice Stevens, Justice Scalia,

text:
    MIRELES v. WACO
    No. 91-311.
    Decided October 21, 1991
   Per Curiam.

A long line of this Court’s precedents acknowledges that, generally, a judge is immune from a suit for money damages. See, e. g., Forrester v. White, 484 U. S. 219 (1988); Cleavinger v. Saxner, 474 U. S. 193 (1985); Dennis v. Sparks, 449 U. S. 24 (1980); Supreme Court of Va. v. Consumers Union of United States, Inc., 446 U. S. 719 (1980); Butz v. Economou, 438 U. S. 478 (1978); Stump v. Sparkman, 435 U. S. 349 (1978); Pierson v. Ray, 386 U. S. 547 (1967). Although unfairness and injustice to a litigant may result on occasion, “it is a general principle of the highest importance to the proper administration of justice that a judicial officer, in exercising the authority vested in him, shall be free to act upon his own convictions, without apprehension of personal consequences to himself.” Bradley v. Fisher, 13 Wall. 335, 347 (1872).

In this case, respondent Howard Waco, a Los Angeles County public defender, filed suit in the United States District Court for the Central District of California under Rev. Stat. § 1979, 42 U. S. C. § 1983, against petitioner, Raymond Míreles, a judge of the California Superior Court, and two police officers, for damages arising from an incident in November 1989 at the Superior Court building in Van Nuys, Cal. Waco alleged that after he failed to appear for the initial call of Judge Míreles’ morning calendar, the judge, “angered by the absence of attorneys from his courtroom,” ordered the police officer defendants “to forcibly and with excessive force seize and bring plaintiff into his courtroom.” App. to Pet. for Cert. B-3, ¶ 7(a). The officers allegedly “by means of unreasonable force and violence seize[d] plaintiff and remove[d] him backwards” from another courtroom where he was waiting to appear, cursed him, and called him “vulgar and offensive names,” then “without necessity slammed” him through the doors and swinging gates into Judge Míreles’ courtroom. Id., at B-4, ¶ 7(c). Judge Míreles, it was alleged, “knowingly and deliberately approved and ratified each of the aforedescribed acts” of the police officers. Ibid. Waco demanded general and punitive damages. Id., at B-5 and B-6.

Judge Míreles moved to dismiss the complaint as to him, pursuant to Federal Rules of Civil Procedure 12(b)(1) and (6), for failure to state a claim upon which relief could be granted. The District Court dismissed the claim against the judge and entered final judgment as to him, pursuant to Rule 54(b), on grounds of “complete judicial immunity.” App. to Pet. for Cert. D-2. On Waco’s appeal, the United States Court of Appeals for the Ninth Circuit reversed that judgment. Waco v. Baltad, 934 F. 2d 214 (1991). The court determined that Judge Míreles was not immune from suit because his alleged actions were not taken in his judicial capacity. It opined that Judge Míreles would have been acting in his judicial capacity if he had “merely directed the officers to bring Waco to his courtroom without directing them to use excessive force.” Id., at 216. But “[i]f Judge Míreles requested and authorized the use of excessive force, then he would not be acting in his judicial capacity.” Ibid.

Taking the allegations of the complaint as true, as we do upon a motion to dismiss, we grant the petition for certiorari and summarily reverse.

Like other forms of official immunity, judicial immunity is an immunity from suit, not just from ultimate assessment of damages. Mitchell v. Forsyth, 472 U. S. 511, 526 (1985). Accordingly, judicial immunity is not overcome by allegations of bad faith or malice, the existence of which ordinarily cannot be resolved without engaging in discovery and eventual trial. Pierson v. Ray, 386 U. S., at 554 (“[Ijmmunity applies even when the judge is accused of acting maliciously and corruptly”). See also Harlow v. Fitzgerald, 457 U. S. 800, 815-819 (1982) (allegations of malice are insufficient to overcome qualified immunity).

Rather, our cases make clear that the immunity is overcome in only two sets of circumstances. First, a judge is not immune from liability for nonjudicial actions, i. e., actions not taken in the judge’s judicial capacity. Forrester v. White, 484 U. S., at 227-229; Stump v. Sparkman, 435 U. S., at 360. Second, a judge is not immune for actions, though judicial in nature, taken in the complete absence of all jurisdiction. Id., at 356-357; Bradley v. Fisher, 13 Wall., at 351.

We conclude that the Court of Appeals erred in ruling that Judge Míreles’ alleged actions were not taken in his judicial capacity. This Court in Stump made clear that “whether an act by a judge is a 'judicial' one relate[s] to the nature of the act itself, i. e., whether it is a function normally performed by a judge, and to the expectations of the parties, i. e., whether they dealt with the judge in his judicial capacity.” 435 U. S., at 362. See also Forrester v. White, 484 U. S., at 227-229. A judge’s direction to court officers to bring a person who is in the courthouse before him is a function normally performed by a judge. See generally Cal. Civ. Proc. Code Ann. §§ 128, 177, 187 (West 1982 and Supp. 1991) (setting forth broad powers of state judges in the conduct of proceedings). Waco, who was called into the courtroom for purposes of a pending case, was dealing with Judge Míreles in the judge’s judicial capacity.

Of course, a judge’s direction to police officers to carry out a judicial order with excessive force is not a “function normally performed by a judge.” Stump v. Sparkman, 435 U. S., at 362. But if only the particular act in question were to be scrutinized, then any mistake of a judge in excess of his authority would become a “nonjudicial” act, because an improper or erroneous act cannot be said to be normally performed by a judge. If judicial immunity means anything, it means that a judge “will not be deprived of immunity because the action he took was in error ... or was in excess of his authority.” Id., at 356. See also Forrester v. White, 484 U. S., at 227 (a judicial act “does not become less judicial by virtue of an allegation of malice or corruption of motive”). Accordingly, as the language in Stump indicates, the relevant inquiry is the “nature” and “function” of the act, not the “act itself.” 435 U. S., at 362. In other words, we look to the particular act’s relation to a general function normally performed by a judge, in this case the function of directing police officers to bring counsel in a pending case before the court.

Nor does the fact that Judge Míreles’ order was carried out by police officers somehow transform his action from “judicial” to “executive” in character. As Forrester instructs, it is “the nature of the function performed, not the identity of the actor who performed it, that inform[s] our immunity analysis.” 484 U. S., at 229. A judge’s direction to an executive officer to bring counsel before the court is no more executive in character than a judge’s issuance of a warrant for an executive officer to search a home. See Burns v. Reed, 500 U. S. 478, 492 (1991) (“[T]he issuance of a search warrant is unquestionably a judicial act”).

Because the Court of Appeals concluded that Judge Mí-reles did not act in his judicial capacity, the court did not reach the second part of the immunity inquiry: whether Judge Míreles’ actions were taken in the complete absence of all jurisdiction. We have little trouble concluding that they were not. If Judge Míreles authorized and ratified the police officers’ use of excessive force, he acted in excess of his authority. But such an action — taken in the very aid of the judge’s jurisdiction over a matter before him — cannot be said to have been taken in the absence of jurisdiction.

The petition for certiorari is granted, and the judgment of the Court of Appeals is reversed.

It is so ordered.

Justice Stevens,

dissenting.

Judicial immunity attaches only to actions undertaken in a judicial capacity. Forrester v. White, 484 U. S. 219, 227-229 (1988). In determining whether an action is “judicial,” we consider the nature of the act and whether it is a “function normally performed by a judge.” Stump v. Sparkman, 435 U. S. 349, 362 (1978).

Respondent Howard Waco alleges that petitioner Judge Raymond Míreles ordered police officers “to forcibly and with excessive force seize and bring” respondent into petitioner’s courtroom. App. to Pet. for Cert. B-3, ¶ 7(a). As the Court acknowledges, ordering police officers to use excessive force is “not a ‘function normally performed by a judge.’” Ante, at 12 (quoting Stump v. Sparkman, 435 U. S., at 362). The Court nevertheless finds that judicial immunity is applicable because of the action’s “relation to a general function normally performed by a judge.” Ante, at 13.

Accepting the allegations of the complaint as true, as we must in reviewing a motion to dismiss, petitioner issued two commands to the police officers. He ordered them to bring respondent into his courtroom, and he ordered them to commit a battery. The first order was an action taken in a judicial capacity; the second clearly was not. Ordering a battery has no relation to a function normally performed by a judge. If an interval of a minute or two had separated the two orders, it would be undeniable that no immunity would attach to the latter order. The fact that both are alleged to have occurred as part of the same communication does not enlarge the judge’s immunity.

Accordingly, I respectfully dissent.

Justice Scalia,

with whom Justice Kennedy joins,

dissenting.

“A summary reversal... is a rare and exceptional disposition, ‘usually reserved by this Court for situations in which the law is well settled and stable, the facts are not in dispute, and the decision below is clearly in error.’” R. Stern, E. Gressman, & S. Shapiro, Supreme Court Practice 281 (6th ed. 1986) (quoting Schweiker v. Hansen, 450 U. S. 785, 791 (1981) (Marshall, J., dissenting)). As Justice Stevens’ dissent amply demonstrates, the decision here reversed is, at a minimum, not clearly in error.

I frankly am unsure whether the Court’s disposition or Justice Stevens’ favored disposition is correct; but I am sure that, if we are to decide this case, we should not do so without briefing and argument. In my view, we should not decide it at all; the factual situation it presents is so extraordinary that it does not warrant the expenditure of our time. I would have denied the petition for writ of certiorari.

       The Court, however, has recognized that a judge is not absolutely immune from criminal liability, Ex parte Virginia, 100 U. S. 339, 348-349 (1880), or from a suit for prospective injunctive relief, Pulliam v. Allen, 466 U. S. 522, 536-543 (1984), or from a suit for attorney’s fees authorized by statute, id., at 543-544.

       California Civ. Proc. Code Ann. §128 (West Supp. 1991) provides in pertinent part: “Every court shall have the power to do all of the following: ... (5) To control in furtherance of justice, the conduct of its ministerial officers, and of all other persons in any manner connected with a judicial proceeding before it, in every matter pertaining thereto.” See Ligda v. Superior Court of Solano County, 5 Cal. App. 3d 811, 826, 85 Cal. Rptr. 744, 753 (1970) (public defender is “ ‘ministerial officer’ ” and one of “ ‘all other persons in any manner connected with a judicial proceeding’ ” within the meaning of §128, and may be ordered to appear to assist criminal defendant).

       See also Supreme Court of Va. v. Consumers Union of United States, Inc., 446 U. S. 719, 736-737 (1980) (judge not entitled to judicial immunity when acting in enforcement capacity); cf. Mitchell v. Forsyth, 472 U. S. 511, 520-524 (1985) (Attorney General not absolutely immune when performing “national security,” rather than prosecutorial, function). Moreover, even if the act is “judicial,” judicial immunity does not attach if the judge is acting in the ‘“clear absence of all jurisdiction.’” Stump v. Sparkman, 435 U. S., at 357 (quoting Bradley v. Fisher, 13 Wall. 335, 351 (1872)).


author: Per Curiam. Justice Stevens,

text:
    ZATKO v. CALIFORNIA
    No. 91-5052.
    Decided November 4, 1991

       Together with No. 91-5111, Zatko v. United States District Court for the Northern District of California, No. 91-5166, Zatko v. United States District Court for the Northern District of California, No. 91-5167, Zatko v. United States, No. 91-5244, Martin v. Mrvos, No. 91-5246, Martin v. Smith, No. 91-5307, Martin v. Delaware Law School of Widener University, Inc., No. 91-5331, Martin v. Walmer, No. 91-5332, Martin v. Townsend, No. 91-5401, Martin v. Supreme Court of New Jersey, No. 91-5416, Zatko v. California, No. 91-5476, Martin v. Bar of the District of Columbia Court of Appeals, No. 91-5583, Martin v. Huyett, No. 91-5594, Zatko v. United States District Court for the Northern District of California, No. 91-6692, Zatko v. United States District Court for the Northern District of California, No. 91-5730, Zatko v. California, and No. 91-5732, Zatko v. California, also on motion for leave to proceed in forma pauperis.

   Per Curiam.

Last Term, we amended Rule 39 of the Rules of the Supreme Court of the United States to add the following:

“39.8. If satisfied that a petition for a writ of certiorari, jurisdictional statement, or petition for an extraordinary-writ, as the case may be, is frivolous or malicious, the Court may deny a motion for leave to proceed in forma pauperis.”

Because in forma pauperis petitioners lack the financial disincentives — filing fees and attorney’s fees — that help to deter other litigants from filing frivolous petitions, we felt such a Rule change was necessary to provide us some control over the informa pawperis docket. In ordering the amendment, we sought to discourage frivolous and malicious in forma pauperis filings, “particularly [from] those few persons whose filings are repetitive with the obvious effect of burdening the office of the Clerk and other members of the Court staff.” In re Amendment to Rule 39, 500 U. S. 13 (1991).

Today, we invoke Rule 39.8 for the first time, and deny in forma pauperis status to petitioners Vladimir Zatko and James L. Martin. We do not do so casually, however. We deny leave to proceed in forma pauperis only with respect to two petitioners who have repeatedly abused the integrity of our process through frequent frivolous filings. Over the last 10 years, Zatko has filed 73 petitions in this Court; 34 of those filings have come within the last 2 years. Martin has been only slightly less prolific over the same 10-year period and has filed over 45 petitions, 15 of them within the last 2 years. In each of their filings up to this point, we have permitted Zatko and Martin to proceed informa pauperis, and we have denied their petitions without recorded dissent. However, this Court’s goal of fairly dispensing justice “is compromised when the Court is forced to devote its limited resources to the processing of repetitious and frivolous requests” such as these. In re Sindram, 498 U. S. 177, 179-180 (1991). We conclude that the pattern of repetitious filing on the part of Zatko and Martin has resulted in an extreme abuse of the system. In the hope that our action will deter future similar frivolous practices, we deny Zatko and Martin leave to proceed in forma pauperis in these cases.

The dissent complains that, by invoking this Rule against Zatko and Martin, we appear to ignore our duty to provide equal access to justice for both the rich and the poor. The message we hope to send is quite the opposite, however. In order to advance the interests of justice, the Court’s general practice is to waive all filing fees and costs for indigent individuals, whether or not the petitions those individuals file are frivolous. As the dissent recognizes, for example, well over half of the numerous in forma pauperis petitions filed since the beginning of this Term are best characterized as frivolous. It is important to observe that we have not applied Rule 39.8 to those frivolous petitions, although the Rule might technically apply to them. Instead, we have denied those petitions in the usual manner, underscoring our commitment to hearing the claims, however meritless, of the poor. But “[i]t is vital that the right to file in forma pau-peris not be incumbered by those who would abuse the integrity of our process by frivolous filings.” In re Amendment to Rule 39, supra, at 13. For that reason we take the limited step of censuring two petitioners who are unique — not merely among those who seek to file informa pauperis, but also among those who have paid the required filing fees— because they have repeatedly made totally frivolous demands on the Court’s limited' resources.

To discourage abusive tactics that actually hinder us from providing equal access to justice for all, we therefore deny leave to proceed informa pauperis in these cases, pursuant to Rule 39.8. Accordingly, petitioners are allowed until November 25, 1991, within which to pay the docketing fee required by Rule 38 and to submit petitions in compliance with Rule 33 of the Rules of this Court. Future similar filings from these petitioners will merit additional measures.

It is so ordered.

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

Justice Stevens,

with whom Justice Blackmun joins,

dissenting.

Last Term, over the dissent of three Justices, the Court amended its Rule 39 for the “vital” purpose of protecting “the integrity of our process” from those indigent petitioners who file frivolous petitions for certiorari. Since the amended Rule became effective on July 1,1991, indigent litigants have filed almost 1,000 petitions, which this Court has denied without pausing to determine whether they were frivolous within the meaning of Rule 39. In my judgment, well over half of these petitions could have been characterized as frivolous. Nevertheless, under procedures that have been in place for many years, the petitions were denied in the usual manner. The “integrity of our process” was not compromised in the slightest by the Court’s refusal to spend valuable time deciding whether to enforce Rule 39 against so many indigent petitioners.

The Court has applied a different procedure to the petitioners in these cases. Their multiple filings have enabled the Court to single them out as candidates for enforcement of the amended Rule. As a result, the order in their cases denies leave to proceed informa pauperis pursuant to Rule 39.8, rather than simply denying certiorari. The practical effect of such an order is the same as a simple denial. However, the symbolic effect of the Court’s effort to draw distinctions among the multitude of frivolous petitions — none of which will be granted in any event — is powerful. Although the Court may have intended to send a message about the need for the orderly administration of justice and respect for the judicial process, the message that it actually conveys is that the Court does not have an overriding concern about equal access to justice for both the rich and the poor.

By its action today, the Court places yet another barrier in the way of indigent petitioners. By branding these petitioners under Rule 39.8, the Court increases the chances that their future petitions, which may very well contain a color-able claim, will not be evaluated with the attention they deserve.

Because I believe the Court has little to gain and much to lose by applying Rule 39.8 as it does today, I would deny certiorari in these cases, and will so vote in similar cases in the future.

        In re Amendment to Rule 39, 500 U. S. 13, 14 (1991). The amended Rule, Rule 39.8 of the Rules of the Supreme Court of the United States, provides as follows:
      “If satisfied that a petition for a writ of certiorari, jurisdictional statement, or petition for an extraordinary writ, as the case may be, is frivolous or malicious, the Court may deny a motion for leave to proceed in forma pauperis. ”

       In the past, I have noted that the work of the Court is “facilitated by the practice of simply denying certiorari once a determination is made that there is no merit to the petitioner’s claim,” rather than determining whether “the form of the order should be a denial or a dismissal” in cases of questionable jurisdiction. Davis v. Jacobs, 454 U. S. 911, 914-915 (1981) (opinion respecting denial of petitions for writs of certiorari).

       “Our longstanding tradition of leaving our door open to all classes of litigants is a proud and decent one worth maintaining. See Talamini v. Allstate Ins. Co., 470 U. S. 1067, 1070 (1985) (Stevens, J., concurring).” In re Sindram, 498 U. S. 177, 182 (1991) (Marshall, J., dissenting, joined by Blackmun and Stevens, JJ.).

       “And with each barrier that it places in the way of indigent litigants, . . . the Court can only reinforce in the hearts and minds of our society’s less fortunate members the unsettling message that their pleas are not welcome here.” In re Demos, 500 U. S. 16, 19 (1991) (Marshall, J., dissenting, joined by Blackmun and Stevens, JJ.).


author: Justice O’Connor

text:
    HAFER v. MELO et al.
    No. 90-681.
    Argued October 15, 1991
    Decided November 5, 1991

      O’Connor, J., delivered the opinion of the Court, in which all other Members joined, except Thomas, J., who took no part in the consideration or decision of the case.

      Jerome R. Richter argued the cause for petitioner. With him on the briefs was Goncer M. Krestal.

      William Goldstein argued the cause for respondents. With him on the brief was Edward H. Ruhenstone.

         Richard Ruda filed a brief for the National Association of Counties et al. as amici curiae urging reversal.
      Briefs of amici curiae urging affirmance were filed for the American Civil Liberties Union et al. by Andrew J. Pincus, John A. Powell, and Steven R. Shapiro; for the American Federation of Labor and Congress of Industrial Organizations by Robert M. Weinberg, Walter Kamiat, and Laurence Gold; for Kenneth W. Fultz by Clettis P. Lyman; and for Nancy Haberstroh by Stephen R. Kaplan.

   Justice O’Connor

delivered the opinion of the Court.

In Will v. Michigan Dept. of State Police, 491 U. S. 58 (1989), we held that state officials “acting in their official capacities” are outside the class of “persons” subject to liability under Rev. Stat. § 1979, 42 U. S. C. § 1983. 491 U. S., at 71. Petitioner takes this language to mean that § 1983 does not authorize suits against state officers for damages arising from official acts. We reject this reading of Will and hold that state officials sued in their individual capacities are “persons” for purposes of § 1983.

I

In 1988, petitioner Barbara Hafer sought election to the post of auditor general of Pennsylvania. Respondents allege that during the campaign United States Attorney James West gave Hafer a list of 21 employees in the auditor general’s office who secured their jobs through payments to a former employee of the office. App. 10. They further allege that Hafer publicly promised to fire all employees on the list if elected. Ibid.

Hafer won the election. Shortly after becoming auditor general, she dismissed 18 employees, including named respondent James Melo, Jr., on the basis that they “bought” their jobs. Melo and seven other terminated employees sued Hafer and West in Federal District Court. They asserted state and federal claims, including a claim under § 1983, and sought monetary damages. Carl Gurley and the remaining respondents in this case also lost their jobs with the auditor general soon after Hafer took office. These respondents allege that Hafer discharged them because of their Democratic political affiliation and support for her opponent in the 1988 election. Id., at 28, 35, 40. They too filed suit against Hafer, seeking monetary damages and reinstatement under § 1983.

After consolidating the Melo and Gurley actions, the District Court dismissed all claims. In relevant part, the court held that the § 1983 claims against Hafer were barred because, under Will, she could not be held liable for employment decisions made in her official capacity as auditor general.

The Court of Appeals for the Third Circuit reversed this portion of the District Court’s decision. 912 F. 2d 628 (1990). As to claims for reinstatement brought against Hafer in her official capacity, the court rested on our statement in Will that state officials sued for injunctive relief in their official capacities are “persons” subject to liability under § 1983. See Will, supra, at 71, n. 10. Turning to respondents’ monetary claims, the court found that six members of the Gurley group had expressly sought damages from Hafer in her personal capacity. The remaining plaintiffs “although not as explicit, signified a similar intent.” 912 F. 2d, at 636. The court found this critical. While Hafer’s power to hire and fire derived from her position as auditor general, it said, a suit for damages based on the exercise of this authority could be brought against Hafer in her personal capacity. Because Hafer acted under color of state law, respondents could maintain a § 1983 individual-capacity suit against her.

We granted certiorari, 498 U. S..1H8 (1991), to address the question whether state officers may be held personally liable for damages under § 1983 based upon actions taken in their official capacities.

II

In Kentucky v. Graham, 473 U. S. 159 (1985), the Court sought to eliminate lingering confusion about the distinction between personal- and official-capacity suits. We emphasized that official-capacity suits “‘generally represent only another way of pleading an action against an entity of which an officer is an agent.’ ” Id., at 165 (quoting Monell v. New York City Dept. of Social Services, 436 U. S. 658, 690, n. 55 (1978)). Suits against state officials in their official capacity therefore should be treated as suits against the State. 473 U. S., at 166. Indeed, when officials sued in this capacity in federal court die or leave office, their successors automatically assume their roles in the litigation. See Fed. Rule Civ. Proc. 25(d)(1); Fed. Rule App. Proc. 43(c)(1); this Court’s Rule 35.3. Because the real party in interest in an official-capacity suit is the governmental entity and not the named official, “the entity’s ‘policy or custom’ must have played a part in the violation of federal law.” Graham, supra, at 166 (quoting Monell, supra, at 694). For the same reason, the only immunities available to the defendant in an official-capacity action are those that the governmental entity possesses. 473 U. S., at 167.

Personal-capacity suits, on the other hand, seek to impose individual liability upon a government officer for actions taken under color of state law. Thus, “[o]n the merits, to establish personal liability in a § 1983 action, it is enough to show that the official, acting under color of state law, caused the deprivation of a federal right.” Id., at 166. While the plaintiff in a personal-capacity suit need not establish a connection to governmental “policy or custom,” officials sued in their personal capacities, unlike those sued in their official capacities, may assert personal immunity defenses such as objectively reasonable reliance on existing law. Id., at 166-167.

Our decision in Will v. Michigan Dept. of State Police, 491 U. S. 58 (1989), turned in part on these differences between personal- and official-capacity actions. The principal issue in Will was whether States are “persons” subject to suit under § 1983. Section 1983 provides, in relevant part:

“Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State . . . subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured . . . .”

The Court held that interpreting the words “[ejvery person” to exclude the States accorded with the most natural reading of the law, with its legislative history, and with the rule that Congress must clearly state its intention to alter “ ‘the federal balance’” when it seeks to do so. Will, supra, at 65 (quoting United States v. Bass, 404 U. S. 336, 349 (1971)).

The Court then addressed the related question whether state officials, sued for monetary relief in their official capacities, are persons under § 1983. We held that they are not. Although “state officials literally are persons,” an official-capacity suit against a state officer “is not a suit against the official but rather is a suit against the official’s office. As such it is no different from a suit against the State itself.” 491 U. S., at 71 (citation omitted).

Summarizing our holding, we said: “[NJeither a State nor its officials acting in their official capacities are ‘persons’ under § 1983.” Ibid. Hafer relies on this recapitulation for the proposition that she may not be held personally liable under § 1983 for discharging respondents because she “act[ed]” in her official capacity as auditor general of Pennsylvania. Of course, the claims considered in Will were official-capacity claims; the phrase “acting in their official capacities” is best understood as a reference to the capacity in which the state officer is sued, not the capacity in which the officer inflicts the alleged injury. To the extent that Will allows the construction Hafer suggests, however, we now eliminate that ambiguity.

A

Will itself makes clear that the distinction between official-capacity suits and personal-capacity suits is more than “a mere pleading device.” Ibid. State officers sued for damages in their official capacity are not “persons” for purposes of the suit because they assume the identity of the government that employs them. Ibid. By contrast, officers sued in their personal capacity come to court as individuals. A government official in the role of personal-capacity defendant thus fits comfortably within the statutory term “person.” Cf. id., at 71, n. 10 (“[A] state official in his or her official capacity, when sued for injunctive relief, would be a person under § 1983 because ‘official-capacity actions for prospective relief are not treated as actions against the State’ ”) (quoting Graham, 473 U. S., at 167, n. 14).

Hafer seeks to overcome the distinction between official- and personal-capacity suits by arguing that §1983 liability turns not on the capacity in which state officials are sued, but on the capacity in which they acted when injuring the plaintiff. Under Will, she asserts, state officials may not be held liable in their personal capacity for actions they take in their official capacity. Although one Court of Appeals has endorsed this view, see Cowan v. University of Louisville School of Medicine, 900 F. 2d 936, 942-943 (CA6 1990), we find it both unpersuasive as an interpretation of § 1983 and foreclosed by our prior decisions.

Through § 1983, Congress sought “to give a remedy to parties deprived of constitutional rights, privileges and immunities by an official’s abuse of his position.” Monroe v. Pape, 365 U. S. 167, 172 (1961). Accordingly, it authorized suits to redress deprivations of civil rights by persons acting “under color of any [state] statute, ordinance, regulation, custom, or usage.” 42 U. S. C. § 1983. The requirement of action under color of state law means that Hafer may be liable for discharging respondents precisely because of her authority as auditor general. We cannot accept the novel proposition that this same official authority insulates Hafer from suit.

In an effort to limit the scope of her argument, Hafer distinguishes between two categories of acts taken under color of state law: those outside the official’s authority or not essential to the operation of state government, and those both within the official’s authority and necessary to the performance of governmental functions. Only the former group, she asserts, can subject state officials to personal liability under § 1983; the latter group (including the employment decisions at issue in this case) should be considered acts of the State that cannot give rise to a personal-capacity action.

The distinction Hafer urges finds no support in the broad language of § 1983. To the contrary, it ignores our holding that Congress enacted § 1983 “ ‘to enforce provisions of the Fourteenth Amendment against those who carry a badge of authority of a State and represent it in some capacity, whether they act in accordance with their authority or misuse it.’ ” Scheuer v. Rhodes, 416 U. S. 232, 243 (1974) (quoting Monroe v. Pape, supra, at 171-172). Because of that intent, we have held that in § 1983 actions the statutory requirement of action “under color of” state law is just as broad as the Fourteenth Amendment’s “state action” requirement. Lugar v. Edmondson Oil Co., 457 U. S. 922, 929 (1982).

Furthermore, Hafer’s distinction cannot be reconciled with our decisions regarding immunity of government officers otherwise personally liable for acts done in the course of their official duties. Her theory would absolutely immunize state officials from personal liability for acts within their authority and necessary to fulfilling governmental responsibilities. Yet our cases do not extend absolute immunity to all officers who engage in necessary official acts. Rather, immunity from suit under § 1983 is “predicated upon a considered inquiry into the immunity historically accorded the relevant official at common law and the interests behind it,” Imbler v. Pachtman, 424 U. S. 409, 421 (1976), and officials seeking absolute immunity must show that such immunity is justified for the governmental function at issue, Burns v. Reed, 500 U. S. 478, 486-487 (1991).

This Court has refused to extend absolute immunity beyond a very limited class of officials, including the President of the United States, legislators carrying out their legislative functions, and judges carrying out their judicial functions, “whose special functions or constitutional status requires complete protection from suit.” Harlow v. Fitzgerald, 457 U. S. 800, 807 (1982). State executive officials are not entitled to absolute immunity for their official actions. Scheuer v. Rhodes, supra. In several instances, moreover, we have concluded that no more than a qualified immunity attaches to administrative employment decisions, even if the same official has absolute immunity when performing other functions. See Forrester v. White, 484 U. S. 219 (1988) (dismissal of court employee by state judge); Harlow v. Fitzgerald, supra (discharge of Air Force employee, allegedly orchestrated by senior White House aides) (action under Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388 (1971)); Davis v. Passman, 442 U. S. 228 (1979) (dismissal of congressional aide) (Bivens action). That Hafer may assert personal immunity within the framework of these cases in no way supports her argument here.

B

Hafer further asks us to read Will’s language concerning suits against state officials as establishing the limits of liability under the Eleventh Amendment. She asserts that imposing personal liability on officeholders may infringe on state sovereignty by rendering government less effective; thus, she argues, the Eleventh Amendment forbids personal-capacity suits against state officials in federal court.

Most certainly, Will’s holding does not rest directly on the Eleventh Amendment. Whereas the Eleventh Amendment bars suits in federal court “by private parties seeking to impose a liability which must be paid from public funds in the state treasury,” Edelman v. Jordan, 415 U. S. 651, 663 (1974), Will arose from a suit in state court. We considered the Eleventh Amendment in Will only because the fact that Congress did not intend to override state immunity when it enacted § 1983 was relevant to statutory construction: “Given that a principal purpose behind the enactment of § 1983 was to provide a federal forum for civil rights claims,” Congress’ failure to authorize suits against States in federal courts suggested that it also did not intend to authorize such claims in state courts. 491 U. S., at 66.

To the extent that Hafer argues from the Eleventh Amendment itself, she makes a claim that failed in Scheuer v. Rhodes, supra. In Scheuer, personal representatives of the estates of three students who died at Kent State University in May 1970 sought damages from the Governor of Ohio and other state officials. The District Court dismissed their complaints on the theory that the suits, although brought against state officials in their personal capacities, were in substance actions against the State of Ohio and therefore barred by the Eleventh Amendment.

We rejected this view. “[S]ince Ex parte Young, 209 U. S. 123 (1908),” we said, “it has been settled that the Eleventh Amendment provides no shield for a state official confronted by a claim that he had deprived another of a federal right under the color of state law.” Scheuer, supra, at 237. While the doctrine of Ex parte Young does not apply where a plaintiff seeks damages from the public treasury, damages awards against individual defendants in federal courts “are a permissible remedy in some circumstances notwithstanding the fact that they hold public office.” 416 U. S., at 238. That is, the Eleventh Amendment does not erect a barrier against suits to impose “individual and personal liability” on state officials under § 1983. Ibid.

To be sure, imposing personal liability on state officers may hamper their performance of public duties. But such concerns are properly addressed within the framework of our personal immunity jurisprudence. See Forrester v. White, supra, at 223. Insofar as respondents seek damages against Hafer personally, the Eleventh Amendment does not restrict their ability to sue in federal court.

We hold that state officials, sued in their individual capacities, are “persons” within the meaning of § 1983. The Eleventh Amendment does not bar such suits, nor are state officers absolutely immune from personal liability under § 1983 solely by virtue of the “official” nature of their acts.

The judgment of the Court of Appeals is

Affirmed.

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

       The Third Circuit looked to the proceedings below to determine whether certain respondents brought their claims for damages against Hafer in her official capacity or her personal capacity. 912 F. 2d, at 635-636. Several other Courts of Appeals adhere to this practice. See Conner v. Reinhard, 847 F. 2d 384, 394, n. 8 (CA7), cert. denied, 488 U. S. 856 (1988); Houston v. Reich, 932 F. 2d 883, 885 (CA10 1991); Lundgren v. McDaniel, 814 F. 2d 600, 603-604 (CA11 1987). Still others impose a more rigid pleading requirement. See Wells v. Brown, 891 F. 2d 591, 592 (CA6 1989) (§ 1983 plaintiff must specifically plead that suit for damages is brought against state official in individual capacity); Nix v. Norman, 879 F. 2d 429, 431 (CA8 1989) (same). Because this issue is not properly before us, we simply reiterate the Third Circuit’s view that “[i]t is obviously preferable for the plaintiff to be specific in the first instance to avoid any ambiguity.” 912 F. 2d, at 636, n. 7. See this Court’s Rule 14.1(a) (“Only the questions set forth in the petition, or fairly included therein, will be considered by the Court”).