author: Justice Scalia Justice Kennedy,

text:
    ELI LILLY & CO. v. MEDTRONIC, INC.
    No. 89-243.
    Argued February 26, 1990
    Decided June 18, 1990

      Scalia, J., delivered the opinion of the Court, in which Rehnquist, C. J., and Brennan, Marshall, Blackmun, and Stevens, JJ., joined. Kennedy, J., filed a dissenting opinion, in which White, J., joined, post, p. 679. O’Connor, J., took no part in the consideration or decision of the case.

      Timothy J. Malloy argued the cause for petitioner. With him on the briefs were Gregory J. Vogler, Lawrence M. Jarvis, and Edward P. Gray.

      Arthur R. Miller argued the cause for respondent. With him on the brief were Ronald E. Lund, John F. Lynch, and W. Bryan Farney.

      Briefs of amici curiae urging reversal were filed for the Industrial Biotechnology Association by Stephan E. Lawton; for Intellectual Property Owners, Inc., by Donald W. Banner and Herbert C. Wamsley; for Neuromedical Technologies, Inc., by John R. Feather; for Procter & Gamble Co. by Ronald L. Hemingway and Richard C. Witte; and for Zimmer, Inc., by Donald O. Beers, Barbara J. Delaney, Timothy Wendt, and Paul David Schoenle.

      Briefs of amici curiae urging affirmance were filed for the Commonwealth of Pennsylvania et al. by the Attorneys General for their respective States as follows: Ernest D. Preate, Jr., of Pennsylvania, Mary Sue Terry of Virginia, Don Siegelman of Alabama, John Steven Clark of Arkansas, Charles M. Oberly III of Delaware, Warren Price III of Hawaii, Neil F. Hartigan of Illinois, William J. Guste, Jr., of Louisiana, Frank J. Kelley of Michigan, Brian McKay of Nevada, Lacy H. Thornburg of North Carolina, James E. O’Neil of Rhode Island, T. Travis Medlock of South Carolina, Roger A. Tellinghuisen of South Dakota, R. Paul Van Dam of Utah, Jeffrey L. Amestoy of Vermont, Kenneth O. Eikenberry of Washington, Roger W. Tompkins II of West Virginia, and Hubert H. Humphrey III of Minnesota; for the American Association of Retired Persons by Jamie S. Gorelick and Jonathan B. Sallet; for Carbon Implants Inc. by Michael M. Phillips; for Cook Group Inc. by Charles R. Reeves; for Intermedies, Inc., by John R. Merkling; for Teletronics, Inc., by Michael I. Rackman and William C. Nealon; for the University of Minnesota et al. by William P. Donahue; for Ventritex, Inc., by George H. Gerstman; and for Dr. Gust H. Bardy by David L. Garrison.

      Briefs of amici curiae were filed for Paralyzed Veterans of America by Charles L. Gholz, Jeffrey H. Kaufman, and Robert L. Nelson; for Pfizer Hospital Products Group, Inc., by Rudolf E. Hutz; and for Dr. Denton Cooley by Margaret E. Anderson.

   Justice Scalia

delivered the opinion of the Court.

This case presents the question whether 35 U. S. C. § 271(e)(1) (1982 ed., Supp II) renders activities that would otherwise constitute patent infringement noninfringing if they are undertaken for the purpose of developing and submitting to the Food and Drug Administration (FDA) information necessary to obtain marketing approval for a medical device under § 515 of the Federal Food, Drug, and Cosmetic Act (FDCA), 90 Stat. 552, 21 U. S. C. § 360e.

I

In 1983, pursuant to 28 U. S. C. § 1338(a), the predecessor-in-interest of petitioner Eli Lilly & Co. filed an action against respondent Medtronic, Inc., in the United States District Court for the Eastern District of Pennsylvania to enjoin respondent’s testing and marketing of an implantable cardiac defibrillator, a medical device used in the treatment of heart patients. Petitioner claimed that respondent’s actions infringed its exclusive rights under United States Patent No. Re 27,757 and United States Patent No. 3,942,536. Respondent sought to defend against the suit on the ground that its activities were “reasonably related to the development and submission of information under” the FDCA, and thus exempt from a finding of infringement under 35 U. S. C. § 271(e)(1) (1982 ed., Supp. II). The District Court rejected this argument, concluding that the exemption does not apply to the development and submission of information relating to medical devices. Following a jury trial, the jury returned a verdict for petitioner on infringement of the first patent, and the court directed a verdict for petitioner on infringement of the second patent. The court entered judgment for petitioner and issued a permanent injunction against infringement of both patents.

On appeal, the Court of Appeals for the Federal Circuit reversed, holding that by virtue of § 271(e)(1) respondent’s activities could not constitute infringement if they had been undertaken to develop information reasonably related to the development and submission of information necessary to obtain regulatory approval under the FDCA. It remanded for the District Court to determine whether in fact that condition had been met. 872 F. 2d 402 (1989). We granted certiorari. 493 U. S. 889 (1989).

II

In 1984, Congress enacted the Drug Price Competition and Patent Term Restoration Act of 1984 (1984 Act), 98 Stat. 1585, which amended the FDCA and the patent laws in several important respects. The issue in this case concerns the proper interpretation of a portion of § 202 of the 1984 Act, codified at 35 U. S. C. § 271(e)(1). That paragraph, as originally enacted, provided:

“It shall not be an act of infringement to make, use, or sell a patented invention (other than a new animal drug or veterinary biological product (as those terms are used in the Federal Food, Drug, and Cosmetic Act and the Act of March 4, 1913)) solely for uses reasonably related to the development and submission of information under a Federal law which regulates the manufacture, use, or sale of drugs.” 35 U. S. C. § 271(e)(1) (1982 ed., Supp. II).

The parties dispute whether this provision exempts from infringement the use of patented inventions to develop and submit information for marketing approval of medical devices under the FDCA.

A

The phrase “patented invention” in § 271(e)(1) is defined to include all inventions, not drug-related inventions alone. See 35 U. S. C. § 100(a) (“When used in this title unless the context otherwise indicates . . . [t]he term ‘invention’ means invention or discovery”). The core of the present controversy is that petitioner interprets the statutory phrase, “a Federal law which regulates the manufacture, use, or sale of drugs,” to refer only to those individual provisions of federal law that regulate drugs, whereas respondent interprets it to refer to the entirety of any Act (including, of course, the FDCA) at least some of whose provisions regulate drugs. If petitioner is correct, only such provisions of the FDCA as § 505, 52 Stat. 1052, as amended, 21 U. S. C. § 355, governing premarket approval of new drugs, are covered by § 271 (e)(1), and respondent’s submission of information under 21 U. S. C. § 360e, governing premarket approval of medical devices, would not be a noninfringing use.

On the basis of the words alone, respondent’s interpretation seems preferable. The phrase “a Federal law” can be used to refer to an isolated statutory section—one might say, for example, that the judicial review provision of the Administrative Procedure Act, 5 U. S. C. § 706, is “a Federal law.” The phrase is also used, however, to refer to an entire Act. The Constitution, for example, provides that “Every Bill which shall have passed the House of Representatives and the Senate, shall, before it become a law, be presented to the President of the United States.” U. S. Const., Art. I, § 7, cl. 2 (emphasis added). And the United States Code provides that “[w]henever a bill. . . becomes a law or takes effect, it shall forthwith be received by the Archivist of the United States from the President.” 1 U. S. C. § 106a (emphasis added). This latter usage, which is probably the more common one, seems also the more natural in the present context. If § 271(e)(1) referred to “a Federal law which pertains to the manufacture, use, or sale of drugs” it might be more reasonable to think that an individual provision was referred to. But the phrase “a Federal law which regulates the manufacture, use, or sale of drugs” more naturally summons up the image of an entire statutory scheme of regulation. The portion of § 271(e)(1) that immediately precedes the words “a Federal law” likewise seems more compatible with reference to an entire Act. It refers to “the development and submission of information under a Federal law” (emphasis added). It would be more common, if a single section rather than an entire scheme were referred to, to speak of “the development and submission of information pursuant to a Federal law,” or perhaps “in compliance with a Federal law.” Taking the action “under a Federal law” suggests taking it in furtherance of or compliance with a comprehensive scheme of regulation. Finally, and perhaps most persuasively, the fact that § 202 of the 1984 Act (which established § 271(e)(1)) used the word “law” in its broader sense is strongly suggested by the fact that the immediately preceding—and, as we shall see, closely related—section of the 1984 Act, when it meant to refer to a particular provision of law rather than an entire Act, referred to “the first permitted commercial marketing or use of the product under the provision of law.” § 201, 98 Stat. 1598, 35 U. S. C. § 156(a)(5)(A) (emphasis added).

The centrally important distinction in this legislation (from the standpoint of the commercial interests affected) is not between applications for drug approval and applications for device approval, but between patents relating to drugs and patents relating to devices. If only the former patents were meant to be included, there were available such infinitely more clear and simple ways of expressing that intent that it is hard to believe the convoluted manner petitioner suggests was employed would have been selected. The provision might have read, for example, “It shall not be an act of infringement to make, use, or sell a patented drug invention . . . solely for uses reasonably related to the development and submission of information required, as a condition of manufacture, use, or sale, by Federal law.” Petitioner contends that the terms “patented drug,” or “drug invention” (or, presumably, “patented drug invention”) would have been “potentially unclear” as to whether they covered only patents for drug products, or patents for drug composition and drug use as well. Brief for Petitioner 22. If that had been the concern, however, surely it would have been clearer and more natural to expand the phrase constituting the object of the sentence to “patented invention for drug product, drug composition, or drug use” than to bring in such a limitation indirectly by merely limiting the laws under which the information is submitted to drug regulation laws.

On the other side of the ledger, however, one must admit that while the provision more naturally means what respondent suggests, it is somewhat difficult to understand why anyone would want it to mean that. Why should the touchstone of noninfringement be whether the use is related to the development and submission of information under a provision that happens to be included within an Act that, in any of its provisions, not necessarily the one at issue, regulates drugs? The first response is that this was a shorthand reference to the pertinent provisions Congress was aware of, all of which happened to be included in Acts that regulated drugs. But since it is conceded that all those pertinent provisions were contained within only two Acts (the FDCA and the Public Health Service Act (PHS Act), 58 Stat. 682, as amended, 42 U. S. C. § 201 et seq.), that is not much of a time-saving shorthand. The only rejoinder can be that Congress anticipated future regulatory-submission requirements that it would want to be covered, which might not be included in the FDCA or the PHS Act but would surely (or probably) be included in another law that regulates drugs. That is not terribly convincing. On the other hand, this same awkwardness, in miniature, also inheres in petitioner’s interpretation, unless one gives “under a Federal law” a meaning it simply will not bear. That is to say, if one interprets the phrase to refer to only a single section or even subsection of federal law, it is hard to understand why the fact that that section or subsection happens to regulate drugs should bring within § 271(e)(1) other products that it also regulates; and it does not seem within the range of permissible meaning to interpret “a Federal law” to mean only isolated portions of a single section or subsection. The answer to this, presumably, is that Congress would not expect two products to be dealt with in the same section or subsection—but that also is not terribly convincing.

As far as the text is concerned, therefore, we conclude that we have before us a provision that somewhat more naturally reads as the Court of Appeals determined, but that is not plainly comprehensible on anyone’s view. Both parties seek to enlist legislative history in support of their interpretation, but that sheds no clear light. We think the Court of Appeals’ interpretation is confirmed, however, by the structure of the 1984 Act taken as a whole.

B

Under federal law, a patent “grant[s] to the patentee, his heirs or assigns, for the term of seventeen years, . . . the right to exclude others from making, using, or selling the invention throughout the United States.” 35 U. S. C. § 154. Except as otherwise provided, “whoever without authority makes, uses or sells any patented invention, within the United States during the term of the patent therefor, infringes the patent.” § 271(a). The parties agree that the 1984 Act was designed to respond to two unintended distortions of the 17-year patent term produced by the requirement that certain products must receive premarket regulatory approval. First, the holder of a patent relating to such products would as a practical matter not be able to reap any financial rewards during the early years of the term. When an inventor makes a potentially useful discovery, he ordinarily protects it by applying for a patent at once. Thus, if the discovery relates to a product that cannot be marketed without substantial testing and regulatory approval, the “clock” on his patent term will be running even though he is not yet able to derive any profit from the invention.

The second distortion occurred at the other end of the patent term. In 1984, the Court of Appeals for the Federal Circuit decided that the manufacture, use, or sale of a patented invention during the term of the patent constituted an act of infringement, see § 271(a), even if it was for the sole purpose of conducting tests and developing information necessary to apply for regulatory approval. See Roche Products, Inc. v. Bolar Pharmaceutical Co., 733 F. 2d 858, cert. denied, 469 U. S. 856 (1984). Since that activity could not be commenced by those who planned to compete with the patentee until expiration of the entire patent term, the patentee’s de facto monopoly would continue for an often substantial period until regulatory approval was obtained. In other words, the combined effect of the patent law and the premarket regulatory approval requirement was to create an effective extension of the patent term.

The 1984 Act sought to eliminate this distortion from both ends of the patent period. Section 201 of the Act established a patent-term extension for patents relating to certain products that were subject to lengthy regulatory delays and could not be marketed prior to regulatory approval. The eligible products were described as follows:

“(1) The term ‘product’ means:
“(A) A human drug product.
“(B) Any medical device, food additive, or color additive subject to regulation under the Federal Food, Drug, and Cosmetic Act.
“(2) The term ‘human drug product’ means the active ingredient of a new drug, antibiotic drug, or human biological product (as those terms are used in the Federal Food, Drug, and Cosmetic Act and the Public Health Service Act) including any salt or ester of the active ingredient, as a single entity or in combination with another active ingredient.” 35 U. S. C. § 156(f).

Section 201 provides that patents relating to these products can be extended up to five years if, inter alia, the product was “subject to a regulatory review period before its commercial marketing or use,” and “the permission for the commercial marketing or use of the product after such regulatory review period [was] the first permitted commercial marketing or use of the product under the provision of law under which such regulatory review period occurred.” 35 U. S. C. § 156(a).

The distortion at the other end of the patent period was addressed by § 202 of the Act. That added to the provision prohibiting patent infringement, 35 U. S. C. § 271, the paragraph at issue here, establishing that “[i]t shall not be an act of infringement to make, use, or sell a patented invention . . . solely for uses reasonably related to the development and submission of information under a Federal law which regulates the manufacture, use, or sale of drugs.” § 271(e)(1). This allows competitors, prior to the expiration of a patent, to engage in otherwise infringing activities necessary to obtain regulatory approval.

Under respondent’s interpretation, there may be some relatively rare situations in which a patentee will obtain the advantage of the § 201 extension but not suffer the disadvantage of the § 202 noninfringement provision, and others in which he will suffer the disadvantage without the benefit. Under petitioner’s interpretation, however, that sort of disequilibrium becomes the general rule for patents relating to all products (other than drugs) named in § 201 and subject to premarket approval under the FDCA. Not only medical devices, but also food additives and color additives, since they are specifically named in § 201, see 35 U. S. C. § 156(f), receive the patent-term extension; but since the specific provisions requiring regulatory approval for them, though included in the FDCA, are not provisions requiring regulatory approval for drugs, they are (on petitioner’s view) not subject to the noninfringement provision of § 271(e)(1). It seems most implausible to us that Congress, being demonstrably aware of the dual distorting effects of regulatory approval requirements in this entire area—dual distorting effects that were roughly offsetting, the disadvantage at the beginning of the term producing a more or less corresponding advantage at the end of the term—should choose to address both those distortions only for drug products; and for other products named in § 201 should enact provisions which not only leave in place an anticompetitive restriction at the end of the monopoly term but simultaneously expand the monopoly term itself, thereby not only failing to eliminate but positively aggravating distortion of the 17-year patent protection. It would take strong evidence to persuade us that this is what Congress wrought, and there is no such evidence here.

Apart from the reason of the matter, there are textual indications that §§ 201 and 202 are meant generally to be complementary. That explains, for example, § 202's exception for “a new animal drug or veterinary biological product (as those terms are used in the Federal Food, Drug, and Cosmetic Act and the Act of March 4, 1913).” 35 U. S. C. § 271(e)(1). Although new animal drugs and veterinary biological products are subject to premarket regulatory licensing and approval under the FDCA, see 21 U. S. C. § 360b (new animal drugs), and the Act of March 4, 1913, see 21 U. S. C. §§ 151, 154 (veterinary biological products)—each “a Federal law which regulates the manufacture, use, or sale of drugs”—neither product was included in the patent-term extension provision of § 201. They therefore were excepted from § 202 as well. Interpreting § 271(e)(1) as the Court of Appeals did here appears to create a perfect “product” fit between the two sections. All of the products eligible for a patent term extension under § 201 are subject to § 202, since all of them— medical devices, food additives, color additives, new drugs, antibiotic drugs, and human biological products—are subject to premarket approval under various provisions of the FDCA, see 21 U. S. C. § 360e (medical devices); § 348 (food additives); § 376 (color additives); § 355 (new drugs); § 357 (antibiotic drugs), or under the PHS Act, see 42 U. S. C. § 262 (human biological products). And the products subject to premarket approval under the FDCA and the Act of March 4, 1913, that are not made eligible for a patent term extension under § 201—new animal drugs and veterinary biological products—are excluded from § 202 as well.

III

According to petitioner, “[t]he argument for a broad construction of Section 271(e)(1) is refuted by the companion Sections (e)(2) and (e)(4).” Brief for Petitioner 17. The latter provide:

“(2) It shall be an act of infringement to submit an application under section 505(j) of the Federal Food, Drug, and Cosmetic Act or described in section 505(b)(2) of such Act for a drug claimed in a patent or the use of which is claimed in a patent, if the purpose of such submission is to obtain approval under such Act to engage in the commercial manufacture, use, or sale of a drug claimed in a patent or the use of which is claimed in a patent before the expiration of such patent.
“(4) For an act of infringement described in paragraph (2)-
“(A) the court shall order the effective date of any approval of the drug involved in the infringement to be a date which is not earlier than the date of the expiration of the patent which has been infringed,
“(B) injunctive relief may be granted against an infringer to prevent the commercial manufacture, use, or sale of an approved drug, and
“(C) damages or other monetary relief may be awarded against an infringer only if there has been commercial manufacture, use, or sale of an approved drug.
“The remedies prescribed by subparagraphs (A), (B), and (C) are the only remedies which may be granted by a court for an act of infringement described in paragraph (2), except that a court may award attorney fees under section 285.” 35 U. S. C. §§ 271(e)(2), (4).

Petitioner points out that the protections afforded by these provisions are conferred exclusively on the holders of drug patents. They would, petitioner contends, have been conferred upon the holders of other patents if Congress had intended the infringement exemption of § 271(e)(1) to apply to them as well.

That is not so. The function of the paragraphs in question is to define a new (and somewhat artificial) act of infringement for a very limited and technical purpose that relates only to certain drug applications. As an additional means of eliminating the de facto extension at the end of the patent term in the case of drugs, and to enable new drugs to be marketed more cheaply and quickly, § 101 of the 1984 Act amended § 505 of the FDCA, 21 U. S. C. § 355, to authorize abbreviated new drug applications (ANDA’s), which would substantially shorten the time and effort needed to obtain marketing approval. An ANDA may be filed for a generic drug that is the same as a so-called “pioneer drug” previously approved, see § 355(j)(2)(A), or that differs from the pioneer drug in specified ways, see § 355(j)(2)(C). The ANDA applicant can substitute bioequivalence data for the extensive animal and human studies of safety and effectiveness that must accompany a full new drug application. Compare § 355(j)(2) (A)(iv) with § 355(b)(1). In addition, § 103 of the 1984 Act amended § 505(b) of the FDCA, § 355(b), to permit submission of a so-called paper new drug application (paper NDA), an application that relies on published literature to satisfy the requirement of animal and human studies demonstrating safety and effectiveness. See § 355(b)(2). Like ANDA’s, paper NDA’s permit an applicant seeking approval of a generic drug to avoid the costly and time-consuming studies required for a pioneer drug.

These abbreviated drug-application provisions incorporated an important new mechanism designed to guard against infringement of patents relating to pioneer drugs. Pioneer drug applicants are required to file with the FDA the number and expiration date of any patent which claims the drug that is the subject of the application, or a method of using such drug. See § 355(b)(1). ANDA’s and paper NDA’s are required to contain one of four certifications with respect to each patent named in the pioneer drug application: (1) “that such patent information has not been filed,” (2) “that such patent has expired,” (3) “the date on which such patent will expire,” or (4) “that such patent is invalid or will not be infringed by the manufacture, use, or sale of the new drug for which the application is submitted.” §§ 355(b)(2)(A), 355(j)(2)(A)(vii).

This certification is significant, in that it determines the date on which approval of an ANDA or paper NDA can be made effective, and hence the date on which commercial marketing may commence. If the applicant makes either the first or second certification, approval can be made effective immediately. See §§ 355(c)(3)(A), 355(j)(4)(B)(i). If the applicant makes the third certification, approval of the application can be made effective as of the date the patent expires. See §§ 355(c)(3)(B), 355(j)(4)(B)(ii). If the applicant makes the fourth certification, however, the effective date must depend on the outcome of further events triggered by the Act. An applicant who makes the fourth certification is required to give notice to the holder of the patent alleged to be invalid or not infringed, stating that an application has been filed seeking approval to engage in the commercial manufacture, use, or sale of the drug before the expiration of the patent, and setting forth a detailed statement of the factual and legal basis for the applicant’s opinion that the patent is not valid or will not be infringed. See §§ 355(b)(3)(B), 355(j)(2)(B)(ii). Approval of an ANDA or paper NDA containing the fourth certification may become effective immediately only if the patent owner has not initiated a lawsuit for infringement within 45 days of receiving notice of the certification. If the owner brings such a suit, then approval may not be made effective until the court rules that the patent is not infringed or until the expiration of (in general) 30 months, whichever first occurs. See §§ 355(c)(3)(C), 355(j)(4)(B)(iii).

This scheme will not work, of course, if the holder of the patent pertaining to the pioneer drug is disabled from establishing in court that there has been an act of infringement. And that was precisely the disability that the new 35 U. S. C. § 271(e)(1) imposed with regard to use of his patented invention only for the purpose of obtaining premarketing approval. Thus, an act of infringement had to be created for these ANDA and paper NDA proceedings. That is what is achieved by § 271 (e)(2)—the creation of a highly artificial act of infringement that consists of submitting an ANDA or a paper NDA containing the fourth type of certification that is in error as to whether commercial manufacture, use, or sale of the new drug (none of which, of course, has actually occurred) violates the relevant patent. Not only is the defined act of infringement artificial, so are the specified consequences, as set forth in subsection (e)(4). Monetary damages are permitted only if there has been “commercial manufacture, use, or sale.” § 271(e)(4)(C). Quite obviously, the purpose of subsections (e)(2) and (e)(4) is to enable the judicial adjudication upon which the ANDA and paper NDA schemes depend. It is wholly to be expected, therefore, that these provisions would apply only to applications under the sections establishing those schemes—which (entirely incidentally, for present purposes) happen to be sections that relate only to drugs and not to other products.

* * *

No interpretation we have been able to imagine can transform § 271(e)(1) into an elegant piece of statutory draftsmanship. To construe it as the Court of Appeals decided, one must posit a good deal of legislative imprecision; but to construe it as petitioner would, one must posit that and an implausible substantive intent as well.

The judgment of the Court of Appeals is affirmed, and the case is remanded for further proceedings consistent with this opinion.

So ordered.

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

Justice Kennedy,

with whom Justice White joins, dissenting.

Petitioner contends that respondent infringed its patents by testing and marketing a medical device known as a cardiac defibrillator. The Court holds that 35 U. S. C. § 271(e)(1) (1982 ed., Supp. II), a provision of the patent law, may give respondent a defense to this charge. It rules, in particular, that § 271(e)(1) will excuse respondent if it acted for the sole purpose of developing information necessary to obtain marketing approval for the device under § 515 of the Federal Food, Drug, and Cosmetic Act (FDCA), 90 Stat. 552, 21 U. S. C. § 360e. I dissent because I find the Court’s decision contrary to the most plausible reading of the: statutory language.

The applicable version of § 271(e)(1) states:

“It shall not be an act of infringement to make, use, or sell a patented invention (other than a new animal drug or veterinary biological product (as those terms are used in the Federal Food, Drug, and Cosmetic Act and the Act of March 4, 1913)) solely for uses reasonably related to the development and submission of information under a Federal law which regulates the manufacture, use, or sale of drugs.” 35 U. S. C. § 271(e)(1) (1982 ed., Supp. II).

The Court says that Congress used the phrase “a Federal law which regulates the manufacture, use, or sale of drugs” to refer to the entirety of any Act, at least some portion of which regulates drugs. The FDCA fits this description. As a result, even though respondent sought marketing approval under the FDCA for a medical device instead of a drug, the Court concludes that § 271(e)(1) may serve as a defense to patent infringement. I disagree.

Section 271(e)(1), in my view, does not privilege the testing of medical devices such as the cardiac defibrillator. When § 271(e)(1) speaks of a law which regulates drugs, I think that it does not refer to particular enactments or implicate the regulation of anything other than drugs. It addresses the legal regulation of drugs as opposed to other products. Thus, while the section would permit a manufacturer to use a drug for the purpose of obtaining marketing approval under the FDCA, it does not authorize a manufacturer to use or sell other products that, by coincidence, the FDCA also happens to regulate. Respondent, in consequence, has no defense under § 271(e)(1).

The Court asserts that Congress could have specified this result in a clearer manner. See ante, at 667-668. That is all too true. But we do not tell Congress how to express its intent. Instead, we discern its intent by assuming that Congress employs words and phrases in accordance with their ordinary usage, In this case, even if Congress could have clarified § 271(e)(1), the Court ascribes a most unusual meaning to the existing language. Numerous statutory provisions and court decisions, from a variety of jurisdictions, use words almost identical to those of § 271(e)(1), and they never mean what the Court says they mean here.

For instance, in delineating the scope of pre-emption by the Employee Retirement Income Security Act of 1974 (ERISA), Congress stated that “nothing in this title shall be construed to exempt or relieve any person from any law of any State which regulates insurance, banking, or securities.” 88 Stat. 897, 29 U. S. C. § 1144(b)(2)(A) (emphasis added). Interpreting this language as the Court interprets § 271(e)(1) would imply that Congress intended to give the States a free hand to enact any law that conflicts with ERISA so long as some portion of the state enactment regulates insurance, banking, or securities. No one would contend for this result. The Texas Legislature, in a like manner, has said that “a person shall pay $1 as a court cost on conviction of any criminal offense . . . except that a conviction arising under any law that regulates pedestrians or the parking of motor vehicles is not included.” Tex. Govt. Code Ann. § 56.001(b) (Supp. 1990) (emphasis added). I do not think that Texas intended by this language to exclude all convictions that might arise under an Act, such as a traffic code, that regulates speeding in addition to pedestrians and parking. And, when the Missouri Legislature specified that “[n]o governmental subdivision or agency may enact or enforce a law that regulates or makes any conduct in the area [of gambling] an offense,” Mo. Rev. Stat. § 572.100 (1986) (emphasis added), I doubt that it meant to invalidate local enactments in their entirety whenever some portion of them regulates gambling. Countless other examples confound the Court’s method of reading the operative language in this case. See, e. g., N. C. Gen. Stat. § 42-37.1 (1984) (prohibiting retaliatory eviction by landlords for complaints about violations of any “[s]tate or federal law that regulates premises used for dwelling purposes”) (emphasis added); Cochran v. Peeler, 209 Miss. 394, 408, 47 So. 2d 806, 809 (1950) (“[T]he violation of a law which regulates human conduct in the operation of vehicles on the roads becomes, by legislative fiat, negligence”) (emphasis added); Local 456 Int’l Brotherhood of Teamsters v. Cort- landt, 68 Misc. 2d 645, 653, 327 N. Y. S. 2d 143, 153 (1971) (“[U]nder the home rule power to enact local laws, a town may enact a law which regulates the powers, duties, qualifications, [etc.] of its officers and employees’’) (emphasis added); see also U. S. Const., Arndt. 14, § 1 (“No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States”) (emphasis added). Unless we assume that these examples do not reflect ordinary usage, which I see no basis for doing, we cannot hold that § 271(e)(1) refers to the entirety of the FDCA or any other Act which regulates drugs. Instead, I would conclude, the section refers only to the actual regulation of drugs and does not exempt the testing of a medical device from patent infringement.

Congress did not act in an irrational manner when it drew a distinction between drugs and medical devices. True, like medical devices, some drugs have a very high cost. See ante, at 673, n. 5. Testing a patented medical device, however, often will have greater effects on the patent holder’s rights than comparable testing of a patented drug. As petitioner has asserted, manufacturers may test generic versions of patented drugs, but not devices, under abbreviated procedures. See 21 U. S. C. § 355(j). These procedures, in general, do not affect the market in a substantial manner because manufacturers may test the drugs on a small number of subjects, who may include healthy persons who otherwise would not buy the drug. See § 355(j)(7)(B) (stating the requirements of a showing of the “bioequivalence” of drugs). By contrast, as in this case, manufacturers test and market medical devices in clinical trials on patients who would have purchased the device from the patent holder. See App. 39-42; see also 21 CFR § 812.7(b) (1989) (permitting manufacturers to recover their costs in clinical trials). Although the Court gives examples of high cost drug dosages, it does not demonstrate that the testing of these drugs detracts from a patent holder’s sales. Congress could have determined that the differences in testing or some other difference between drugs and devices justified excluding the latter from the ambit of § 271(e)(1). See 879 F. 2d 849, 850, n. 4 (CA Fed. 1989) (Newman, J., dissenting from the denial of rehearing en banc). For these reasons, I dissent.

       Unless otherwise specified, references to sections of the United States Code are to those sections as they existed upon the effective date of the 1984 Act.

       Petitioner’s principal argument is that the legislative history of § 202 mentions only drugs—which is quite different, of course, from its saying (as it does not) that only drugs are included. “It is not the law that a statute can have no effects which are not explicitly mentioned in its legislative history . . . .” Pittston Coal Group v. Sebben, 488 U. S. 106, 115 (1988). As respondent notes, even the legislative history of § 201—whose text explicitly includes devices—contains only scant references to devices.

       Petitioner suggests that it was “the 1984 Roche decision which prompted enactment of [§ 202],” Brief for Petitioner 20, n. 13, which should therefore be regarded as quite independent of the simultaneously enacted patent-term extension of § 201. Undoubtedly the decision in Roche prompted the proposal of § 202; but whether that alone accounted for its enactment is quite a different question. It seems probable that Congress—for the reasons we discuss in text—would have regarded § 201 and § 202 as related parts of a single legislative package, as we do.

       We cannot readily imagine such situations (and petitioner has not described any), except where there is good enough reason for the difference. Petitioner states that disequilibrium of this sort will often occur because the § 271(e)(1) noninfringement provision applies “whether the patent term is extended or not,” and even with respect to “patents which cannot qualify for a term extension.” Reply Brief for Petitioner 11. But if the patent term is not extended only because the patentee does not apply, he surely has no cause for complaint. And the major reason relevant patents will not qualify for the term extension is that they pertain to “follow-on” drug products rather than “pioneer” drug products, see §§ 156(a)(5)(A), 156 (f)(2); Fisons pic v. Quigg, 876 F. 2d 99 (CA Fed. 1989). For these, however, the abbreviated regulatory approval procedures established by Title I of the 1984 Act, 98 Stat. 1585, see 21 U. S. C. §§ 355(b)(2), (j), eliminate substantial regulatory delay at the outset of the patent term and thus eliminate the justification for the § 156 extension.

       Petitioner argues that there was good reason for Congress to establish an infringement exemption with respect to drugs but not devices, since testing of the latter does much greater economic harm to the paten-tee. Devices, petitioner contends, are much more expensive than drugs ($17,000 apiece for respondent’s allegedly infringing defibrillators); and many have only a small number of potential customers, who will purchase only a single device each, so that depleting the market through testing may do substantial harm. Brief for Petitioner 30-31. These concerns, however, apply with respect to certain drugs as well. According to one source, a year’s dosage of Cyclosporine (used to suppress rejection of new organs) costs from $5,000 to $7,000; of AZT (used to treat AIDS) $8,000; of Monoclate (used to speed blood clotting in hemophiliacs) $25,000; and of Growth Hormone (used to treat dwarfism) $8,000 to $30,000. A. Pollack, The Troubling Cost of Drugs That Offer Hope, N. Y. Times, Feb. 9, 1988, p. A1, col. 3. Another new drug, Tissue Plasminogen Activator, used in the treatment of heart attacks to dissolve blood clots, costs $2,200 per dose and is prescribed for only a single dose. Ibid. Moreover, even if the factors petitioner mentions could explain the omission from § 271(e)(1) of medical devices, they could not explain the omission of food additives and color additives.

       It is true that § 202, if interpreted to apply to all products regulated by the FDCA and other drug-regulating statutes, has a product coverage that includes other products, in addition to new animal drugs and veterinary biological products, not numbered among the specifically named products in § 201—for example, food, infant formulas, cosmetics, pesticides, and vitamins. But for the § 202 exemption to be applicable, the patent use must be “reasonably related to the development and submission of information under” the relevant law. New animal drugs and veterinary biological products appear to be the only additional products covered by drug-regulating statutes for which the requirement of premarket approval—and hence the need for “development and submission of information”—existed. With respect to food, infant formulas, cosmetics, and pesticides, for example, the FDCA merely established generally applicable standards that had to be met. See, e. g., 21 U. S. C. § 341 (food); § 350a (infant formula); § 361 (cosmetics); § 346a (pesticides); cf. § 350 (vitamins).
      It must be acknowledged that the seemingly complete product correlation between § 201 and § 202 was destroyed in 1986, when, without adding “new infant formula” to the defined products eligible for the patent-term extension under § 156, Congress established a premarket approval requirement for that product, and thus automatically rendered it eligible for the § 271(e)(1) exemption from patent infringement. See Pub. L. 99-570, § 4014(a)(7), 100 Stat. 3207-116, codified at 21 U. S. C. § 350a(d). That subsequent enactment does not change our view of what the statute means. That isolated indication of lack of correlation between § 156 and § 271(e)(1) is in any event contradicted by the 1988 amendment that added most new animal drugs and veterinary biological products to § 156 and simultaneously deleted from § 271(e)(1) the infringement exception for those products. See Generic Animal Drug and Patent Term Restoration Act, 102 Stat. 3971, 3984-3989.

       Although petitioner has not challenged § 271(e)(1) on constitutional grounds, it argues that we should adopt its construction because of the “serious constitutional question under the takings clause of the Fifth Amendment . . . [that would arise] if the statute is interpreted to authorize the infringing use of medical devices.” Brief for Petitioner 31. We do not see how this consideration makes any difference. Even if the competitive injury caused by the noninfringement provision is de minimis with respect to most drugs, surely it is substantial with respect to some of them—so the “serious constitutional question” (if it is that) is not avoided by petitioner’s construction either.


source: Caselaw Access Project

license: Public Domain

text:
    No. 89-198.
    No. 89-562.
    National Treasury Employees Union v. United States Nuclear Regulatory Commission et al.; and Federal Labor Relations Authority v. National Treasury Employees Union et al.
   C. A. 4th Cir. Certiorari granted, judgment vacated, and cases remanded for further consideration in light of Fort Stewart Schools v. FLRA, 495 U. S. 641 (1990). Reported below: 879 F. 2d 1225.


text:
    No. 89-736.
    Federal Labor Relations Authority v. Fort Knox Dependent Schools et al.
   C. A. 6th Cir. Certiorari granted, judgment vacated, and case remanded for further consideration in light of Fort Stewart Schools v. FLRA, 495 U. S. 641 (1990).


text:
    No. 89-1101.
    United States v. Cunningham.
   C. A. 9th Cir. Motion of respondent for leave to proceed informa pauperis granted. Certiorari granted, judgment vacated, and case remanded for further consideration in light of Taylor v. United States, 495 U. S. 575 (1990).


text:
    No. 89-1177.
    11126 Baltimore Blvd., Inc., t/a Warwick Books v. Prince George’s County, Maryland.
   C. A. 4th Cir. Certiorari granted, judgment vacated, and case remanded for further consideration in light of FW/PBS, Inc. v. Dallas, 493 U. S. 215 (1990).


text:
    No. 89-5743.
    Payton v. United States.
   C. A. 8th Cir. Motion of petitioner for leave to proceed in forma pauperis granted. Certiorari granted, judgment vacated, and case remanded for further consideration in light of Taylor v. United States, 495 U. S. 575 (1990).


text:
    No. 89-5938.
    Garcia v. United States.
   C. A. 5th Cir. Motion of petitioner for leave to proceed in forma pauperis granted. Certiorari granted, judgment vacated, and case remanded for further consideration in light of Taylor v. United States, 495 U. S. 575 (1990).


text:
    No. 89-6995.
    Jordan v. United States.
   C. A. 8th Cir. Motion of petitioner for leave to proceed in forma pauperis granted. Certiorari granted, judgment vacated, and case remanded for further consideration in light of Taylor v. United States, 495 U. S. 575 (1990).


text:
    No. ---.
    No. ---.
    Allustiarte et ux. v. Cooper; and Boyle et al. v. Rogers Distributing Corp. et al.
   Motions to direct the Clerk to file petitions for writs of certiorari out of time denied.


text:
    No. A-720.
    Hishmeh v. New Jersey Division of Motor Vehicles.
   Application for stay, addressed to The Chief Justice and referred to the Court, denied.


text:
    No. D-833.
    In re Disbarment of Laird.
    [For earlier order herein, see 493 U. S. 961.]
   Disbarment entered.


text:
    No. D-855.
    In re Disbarment of Rivas.
    [For earlier order herein, see 493 U. S. 1053.]
   Disbarment entered.


text:
    No. D-874.
    In re Disbarment of Peiper.
    [For earlier order herein, see 494 U. S. 1015.]
   Disbarment entered.


text:
    No. D-892.
    In re Disbarment of Shorter.
    [For earlier order herein, see 494 U. S. 1076.]
   Disbarment entered.


text:
    No. D-897.
    In re Disbarment of Hersh.
   Alan Mark Hersh, of Beverly Hills, Cal., having requested to resign as a member of the Bar of this Court, it is ordered that his name be stricken from the roll of attorneys admitted to practice before the Bar of this Court. The rule to show cause, heretofore issued on April 23, 1990 [495 U. S. 902], is hereby discharged.


text:
    No. D-904.
    In re Disbarment of Root.
   It is ordered that Thomas Lawrence Root, of Washington, D. 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-905.
    In re Disbarment of Hanna.
   It is ordered that Larry L. Hanna, of Myrtle Beach, S. 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. 109,
    Orig.
    Oklahoma et al. v. New Mexico.
    [For earlier order herein, see, e. g., 493 U. S. 929.]
   Motion of the Special Master for allowance of compensation and reimbursement of expenses granted, and the Special Master is awarded $61,292.54 for the period September 1, 1989, through January 31, 1990, one-third to be paid by each party.


text:
    No. 89-532.
    Peat Marwick Main & Co. v. Holloway et al.,
   494 U. S. 1014. Motion of respondents to retax costs denied.


text:
    No. 89-839.
    Arizona v. Fulminante.
   Sup. Ct. Ariz. [Ceriorari granted, 494 U. S. 1055.] Motion of Americans for Effective Law Enforcement, Inc., et al. for leave to file a brief as amici curiae granted. Motion of the Solicitor General for leave to participate in oral argument as amicus curiae and for divided argument granted.


text:
    No. 89-1145.
    McCracken v. City of College Park, Georgia, et al.,
   494 U. S. 1028. Motion of respondents for attorney’s fees denied.


text:
    No. 89-1421.
    Powell et al. v. National Football League et al.
   C. A. 8th Cir. The Solicitor General is invited to file a brief in this case expressing the views of the United States.


author: Justice Brennan and Justice Marshall,

text:
    No. 89-7043.
    No. 89-7170.
    Kudler v. Judicial Council of the Second Circuit. Jenga et ux. v. Deveaux.
   C. A. 2d Cir.; and

Super. Ct. Ga., Fulton County. Motions of petitioners for leave to proceed in forma pauperis denied. Petitioners are allowed until June 25, 1990, within which to pay the docketing fee required by Rule 38(a) and to submit petitions in compliance with Rule 33 of the Rules of this Court.

Justice Brennan and Justice Marshall,

dissenting.

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


text:
    No. 89-7423.
    No. 89-7452.
    In re Seitu; and In re Wilson.
   Petitions for writs of habeas corpus denied.


text:
    No. 89-7008.
    No. 89-7350.
    In re Carson; and In re Swentek.
   Petitions for writs of mandamus denied.


text:
    No. 89-6889.
    In re McFadden.
   Petition for writ of mandamus and/or prohibition denied.


text:
    No. 89-1332.
    McNary, Commissioner of Immigration and Naturalization, et al. v. Haitian Refugee Center, Inc., et al.
   C. A. 11th Cir. Certiorari granted.


text:
    No. 89-1416.
    Air Courier Conference of America v. American Postal Workers Union, AFL-CIO, et al.
   C. A. D. C. Cir. Certiorari granted.


text:
    No. 89-1598.
    Eastern Airlines, Inc. v. Floyd et al.
   C. A. 11th Cir. Certiorari granted.


text:
    No. 89-1452.
    No. 89-1453.
    Mobil Oil Exploration & Producing Southeast, Inc., et al. v. United Distribution Cos. et al.; and Federal Energy Regulatory Commission v. United Distribution Cos. et al.
   C. A. 5th Cir. Certiorari granted, cases consolidated, and a total of one hour allotted for oral argument. Reported below: 885 F. 2d 209.


text:
    No. 89-7024.
    McCleskey v. Zant, Superintendent, Georgia Diagnostic and Classification Center.
   C. A. 11th Cir. Motion of petitioner for leave to proceed in forma pawperis granted. Certiorari granted. In addition to the questions presented by the petition, the parties are requested to brief and argue the following question: “Must the State demonstrate that a claim was deliberately abandoned in an earlier petition for a writ of habeas corpus in order to establish that inclusion of that claim in a subsequent habeas petition constitutes abuse of the writ?”


text:
    No. 88-1885.
    Leonard v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 88-7307.
    Carter v. United States.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 88-7398.
    Schoenborn v. United States.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 88-7509.
    Lopez Quintero v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 89-1293.
    W. C. Garcia & Associates, Inc. v. Miceli, District Director, Internal Revenue Service.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 89-1295.
    Connecticut v. Lonergan.
   Sup. Ct. Conn. Certiorari denied.


text:
    No. 89-1415.
    Lindsey et al. v. Ferris Faculty Assn. et al.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 89-1426.
    Laykin v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 89-1444.
    Shriners Hospitals for Crippled Children v. First Security Bank of Utah, N. A., Personal Representative of the Estate of Jones, et al.
   Sup. Ct. Wyo. Certiorari denied.


text:
    No. 89-1450.
    Northern Telecom, Inc. v. Taylor, Commissioner of Revenue of Tennessee, et al.
   Sup. Ct. Tenn. Certiorari denied.


text:
    No. 89-1539.
    North Carolina v. Davis.
   Sup. Ct. N. C. Certiorari denied.


text:
    No. 89-1542.
    Caribbean Marine, Inc., aka Bizcap, Inc. v. Olive, Director of Virgin Islands Bureau of Internal Revenue, et al.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 89-1559.
    Estes v. City of Moore, Oklahoma, et al.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 89-1568.
    Chambless et ux. v. Masters, Mates & Pilots Pension Plan et al.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 89-1576.
    Travelers Indemnity Co. v. Avondale Industries, Inc., et al.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 89-1577.
    Hooper v. Gill et al.
   Ct. Sp. App. Md. Certiorari denied.


text:
    No. 89-1578.
    Moore v. City of Costa Mesa et al.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 89-1581.
    United States Fidelity & Guaranty Co. v. Ureta.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 89-1586.
    Bates v. Alabama.
   Ct. Crim. App. Ala. Certiorari denied.


text:
    No. 89-1589.
    Alpha Wire Corp. et al. v. Siegel.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 89-1594.
    Legg v. North Carolina Board of Law Examiners.
   Sup. Ct. N. C. Certiorari denied.


text:
    No. 89-1596.
    Sumner v. Alabama.
   Ct. Crim. App. Ala. Certiorari denied.


text:
    No. 89-1597.
    General Accident Fire & Life Assurance Corp. Ltd. v. ITT General Corp. et al.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 89-1601.
    Fuller, Individually and dba Party Time Productions v. Mayor and Aldermen of the City of Savannah, Georgia.
   Ct. App. Ga. Certiorari denied.


text:
    No. 89-1610.
    Mori v. McCrane et al.
   Super. Ct. N. J., App. Div. Certiorari denied.


text:
    No. 89-1612.
    Irby et al. v. Virginia State Board of Elections et al.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 89-1613.
    Bastian et al. v. Petren Resources Corp. et al.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 89-1621.
    McManama v. Oregon.
   Ct. App. Ore. Certiorari denied.


text:
    No. 89-1635.
    Northwest Advancement, Inc., et al. v. Oregon Bureau of Labor et al.
   Ct. App. Ore. Certiorari denied.


text:
    No. 89-1636.
    Montenegro v. Arizona Department of Economic Security et al.
   Ct. App. Ariz. Certiorari denied.


text:
    No. 89-1650.
    Kaplan v. County of Los Angeles.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 89-1666.
    J M Smith Corp., dba Smith Data Processing v. pc I Corp. et al.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 89-1706.
    I-Point AB et al. v. Zeta Associates et al.
   C. A. D. C. Cir. Certiorari denied.


text:
    No. 89-1709.
    Patterson v. Commissioner of Internal Revenue.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 89-1722.
    Gibson v. United States.
   Ct. Mil. App. Certiorari denied.


text:
    No. 89-1732.
    Sanders v. United States.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 89-1740.
    Stanko v. United States Parole Commission et al.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 89-1755.
    Dobard v. City of Oakland et al.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 89-5282.
    Dombrowski v. United States.
   C. A. 7th

Cir. Certiorari denied.


text:
    No. 89-5807.
    Sanders v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 89-5890.
    Merritt v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 89-5962.
    Taylor v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 89-6101.
    Twomey v. United States.
   C. A. 1st Cir. Certiorari denied.


text:
    No. 89-6215.
    Fuller v. United States.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 89-6375.
    Avila-Iscoa v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 89-6540.
    Starks v. Collins, Director, Texas Department of Criminal Justice, Institutional Division.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 89-6648.
    Erikson v. California.
   Ct. App. Cal., 2d App. Dist. Certiorari denied.


text:
    No. 89-6693.
    Yager et al. v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 89-6722.
    Gallagher v. Goldhart et al.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 89-6750.
    Silkwood v. United States.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 89-6786.
    Keener v. United States.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 89-6793.
    Brown v. United States.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 89-6849.
    Jones v. Illinois.
   App. Ct. Ill., 1st Dist. Certiorari denied.


text:
    No. 89-6896.
    Harris v. Illinois.
   Sup. Ct. Ill. Certiorari denied.


text:
    No. 89-6929.
    Millman v. United States.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 89-6966.
    Arroyo-Plaud v. United States.
   C. A. 1st Cir. Certiorari denied.


text:
    No. 89-6971.
    Ferenc v. Tuggle et al.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 89-7095.
    McFadden v. Commissioner of Internal Revenue.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 89-7122.
    Fanniel v. Her Majesty Queen Elizabeth II et al.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 89-7154.
    Samuel v. Morrison Inc., dba Morrison Food Services.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 89-7157.
    Simpson v. Kentucky et al.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 89-7159.
    Butzin v. Wood, Warden, et al.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 89-7160.
    Fansler v. Corrections Cabinet et al.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 89-7163.
    Southerland v. Wofford et al.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 89-7164.
    Boyd v. Louisiana.
   Ct. App. La., 2d Cir. Certiorari denied.


text:
    No. 89-7165.
    Sammons v. Harrison et al.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 89-7167.
    Awkakewakeyes v. Sutton et al.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 89-7172.
    Martinez v. Kerby, Warden, et al.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 89-7173.
    Kelley v. International Total Services, Inc., et al.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 89-7179.
    Barnes v. Martinez, Governor of Florida, et al.
   Sup. Ct. Fla. Certiorari denied.


text:
    No. 89-7180.
    Mindek v. Pennsylvania (two cases).
   Super. Ct. Pa. Certiorari denied.


text:
    No. 89-7181.
    Miranda v. Office of Personnel Management.
   C. A. Fed. Cir. Certiorari denied.


text:
    No. 89-7184.
    Lawson v. Wallace et al.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 89-7186.
    Marsh v. Ford Motor Co. et al.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 89-7187.
    Robinson v. Meyer et al.
   Ct. App. Ohio, Stark County. Certiorari denied.


text:
    No. 89-7190.
    Parker v. Board of Review et al.
   Super. Ct. N. J., App. Div. Certiorari denied.


text:
    No. 89-7193.
    Coades v. Vaughn, Superintendent, State Correctional Institution.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 89-7199.
    Brown v. Sullivan, Superintendent, Woodbourne Correctional Facility, et al.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 89-7202.
    Benoist v. Department of Defense.
   C. A. Fed. Cir. Certiorari denied.


text:
    No. 89-7205.
    Donald v. United States Department of Education.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 89-7207.
    Parez v. San Diego County Social Services.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 89-7212.
    Everson v. Ott et al.
   Ct. App. Ga. Certiorari denied.


text:
    No. 89-7213.
    Ford et al. v. Rutledge et al.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 89-7219.
    Boatwright v. Barton, Superintendent, Florida State Prison.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 89-7220.
    Brown v. Wainwright et al.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 89-7237.
    Aguilar v. Collins, Director, Texas Department of Criminal Justice, Institutional Division.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 89-7240.
    Johnson v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 89-7265.
    Schubert v. New Jersey.
   Super. Ct. N. J., App. Div. Certiorari denied.


text:
    No. 89-7267.
    Cantrell v. Kelley, Warden.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 89-7301.
    DeWilliams v. United States.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 89-7310.
    Dugan v. Wisconsin.
   Ct. App. Wis. Certiorari denied.


text:
    No. 89-7317.
    Telk v. National Labor Relations Board et al.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 89-7318.
    Young v. Smith et al.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 89-7327.
    Kinloch v. Brady, Secretary of the Treasury.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 89-7369.
    Covington v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 89-7379.
    Colbert v. United States.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 89-7385.
    Egan v. Sowders, Warden.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 89-7391.
    Peoples v. Grayson, Warden, et al.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 89-7396.
    LaFraugh v. United States.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 89-7398.
    Foster v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 89-7399.
    Acosta v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 89-7447.
    Lee v. Latourelle, Superintendent, Ogdensburg Correctional Facility, et al.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 88-1031.
    Citibank, N. A. v. Trinh.
   C. A. 6th Cir. Motion of New York Clearing House Association et al. for leave to file a brief as amici curiae granted. Certiorari denied.


text:
    No. 89-1170.
    Texas v. Chambers.
   Ct. Crim. App. Tex. Motion of respondent for leave to proceed in forma pauperis granted. Certiorari denied.


text:
    No. 89-1574.
    No. 89-1587.
    General Motors Corp. et al. v. Department of Revenue of Alabama; and Reynolds Metals Co. v. Sizemore, Commissioner of Revenue of Alabama.
   Sup. Ct. Ala. Motions of Committee on State Taxation of the Council of State Chambers of Commerce and Tax Executives Institute, Inc., for leave to file briefs as amici curiae granted. Certiorari denied. Reported below: 558 So. 2d 373.


text:
    No. 89-1590.
    New York State Department of Labor et al. v. General Electric Co.
   C. A. 2d Cir. Motions of Building and Construction Trades Department, AFL-CIO, and Joint Industry Board of Electrical Industry for leave to file briefs as amici curiae granted. Certiorari denied.


text:
    No. 89-1599.
    Langan Engineering Associates, Inc. v. 21st Phoenix Corp., fka Hanson Development Co.
   C. A. 10th Cir. Certiorari denied.

Justice White would grant certiorari.


text:
    No. 89-1664.
    New Mexico v. Callaway; and New Mexico v. Molinar.
   Sup. Ct. N. M. Motion of respondents for leave to proceed in forma pauperis granted. Certiorari denied.


text:
    No. 89-6716.
    No. 89-7146.
    Pierce v. Texas. Freeman v. Alabama.
   Ct. Crim. App. Tex.; and

Sup. Ct. Ala. Certiorari denied. Reported below: No. 89-6716, 777 S. W. 2d 399; No. 89-7146, 555 So. 2d 215.

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. 87-6927.
    No. 88-1213.
    No. 88-5986.
    No. 89-1319.
    No. 89-1334.
    No. 89-1341.
    No. 89-1382.
    No. 89-5737.
    No. 89-6302.
    No. 89-6818.
    No. 89-6835.
    No. 89-6869.
    No. 89-6888.
    Hamilton, as Natural Mother and Next Friend of Smith v. Texas, Employment Division, Department of Human Resources of Oregon, et al. v. Smith et al., Osborne v. Ohio, Tarka v. Franklin et al., Rosenthal v. Young et al., Ramirez v. Transamerican Natural Gas Corp. et al., In re Freed, Coleman v. Saffle, Warden, et al., Williams v. Kemp, Warden, In re Hicks, Watts v. Foster et al., Justice v. Ohio et al., Gulati v. United States,
   495 U. S. 923;

494 U. S. 872;

495 U. S. 103;

494 U. S. 1080;

494 U. S. 1080;

494 U. S. 1081;

494 U. S. 1077;

494 U. S. 1090;

494 U. S. 1090;

494 U. S. 1077;

494 U. S. 1088;

494 U. S. 1089; and

494 U. S. 1089. Petitions for rehearing denied.


text:
    No. 86-1964.
    Wallace v. Arizona,
   483 U. S. 1011. Motion of petitioner for leave to proceed further herein in forma pauperis granted. Motion for leave to file petition for rehearing denied.

Justice O’Connor took no part in the consideration or decision of these motions.


text:
    No. 89-5629.
    Wallace v. Arizona,
   494 U. S. 1047. Petition for rehearing denied.

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


text:
    June 8, 1990
    No. 89-1743.
    Bell et al. v. Federal Deposit Insurance Corporation.
   C. A. 10th Cir. Certiorari dismissed under this Court’s Rule 46.


author: Justice Stevens,

text:
    June 11, 1990
    No. 89-5900.
    Rust v. Gunter et al.
   C. A. 8th Cir. [Certiorari granted, 494 U. S. 1055.] Motion of Alvin J. Bronstein, Esq., to withdraw as counsel for petitioner granted. Judgment vacated and case remanded for further consideration in light of the representations made by counsel for petitioner appointed by the Court in his motion to withdraw as counsel filed May 22, 1990, the response to that motion filed by respondent May 30, 1990, and petitioner’s motion for appointment of counsel filed June 4, 1990. Motion of petitioner for appointment of new counsel denied as moot.

Justice Stevens,

concurring.

While I join the Court’s disposition, I believe it is appropriate also to call the Court of Appeals’ attention to our decision in Neitzke v. Williams, 490 U. S. 319 (1989)—a case that it apparently overlooked when it entered its earlier judgment.


text:
    No. 89-510.
    Meachum, Commissioner, Connecticut Department of Corrections v. Alexander.
   C. A. 2d Cir. Certiorari granted, judgment vacated, and case remanded for further consideration in light of Illinois v. Perkins, ante, p. 292.


text:
    No. 89-641.
    Garnett, by and Through his Next Friend, Smith, et al. v. Renton School District No. 403 et al.
   C. A. 9th Cir. Certiorari granted, judgment vacated, and case remanded for further consideration in light of Westside Community Bd. of Ed. v. Mergens, ante, p. 226.

Justice Stevens dissents.


author: Justice Brennan, Justice Stevens,

text:
    No. 89-1320.
    Florida v. Burr.
   Sup. Ct. Fla. Motion of respondent for leave to proceed in forma pauperis granted. Certiorari granted, judgment vacated, and case remanded for further consideration in light of Dowling v. United States, 493 U. S. 342 (1990).

Justice Blackmun dissents.

Justice Brennan,

with whom

Justice Marshall joins, dissenting.

For the reasons stated by Justice Stevens, I agree that the judgment of the Florida Supreme Court should not be vacated. In any event, adhering to my view that the death penalty is in all circumstances cruel and unusual punishment prohibited by the Eighth and Fourteenth Amendments, see Gregg v. Georgia, 428 U. S. 153, 227 (1976), I would direct that the proceedings on remand be circumscribed such that the State may not impose the death sentence.

Justice Stevens,

dissenting.

Respondent was convicted of first-degree murder and robbery with a firearm. To establish respondent’s identity, at the guilt phase of the trial the prosecution relied on “collateral crimes evidence”—three witnesses testified that respondent had committed similar crimes after the fatal shooting involved in this case. At the sentencing phase of his trial, the prosecutor offered no additional evidence; the jury recommended that respondent be sentenced to imprisonment for life with no possibility of parole for 25 years.

The trial judge overrode the jury’s recommendation and sentenced respondent to death. He unequivocally stated that his decision to impose the death sentence was based on the collateral crimes evidence that had been received for the limited purpose of proving respondent’s identity at the guilt phase of the trial.

Respondent was later tried and acquitted of one of the collateral crimes, and the State abandoned its prosecution of a second. Thereafter, in state collateral-review proceedings, respondent sought to set aside his conviction on the ground that the subsequent acquittal of one of the collateral crimes demonstrated that the evidence had been improperly admitted. Over the dissent of Justice Barkett, the Florida Supreme Court rejected that contention; it held that evidence that was properly received at the time it was offered had not been rendered “retroactively inadmissible.” In her dissent, Justice Barkett did not directly challenge that conclusion. She contended, however, that the State Supreme Court should have considered the propriety of the trial judge’s reliance on that evidence at the penalty phase of the trial even though respondent’s counsel had not squarely raised that point. She wrote:

“I believe petitioner is entitled to a new appeal because of the trial court’s application of collateral crimes evidence during the sentencing phase of the trial. Concededly, the issue has only been raised as it relates to the guilt phase, and I disagree with the majority’s conclusions in this regard. However, I am deeply troubled by the effect of this evidence on the sentence, find it contrary to Florida and federal law, and cannot see the sense in waiting for a formal petition for writ of habeas corpus to argue a point I believe should have been argued on direct appeal. Thus, I would call for additional briefs and decide the issue at this time.
“The death penalty was imposed in this case because the trial judge found three aggravating factors that, in his mind, rendered the jury’s recommendation of life imprisonment unreasonable. Two of these factors were derived from evidence of three collateral crimes (although the defendant was acquitted of one and the state nolle prossed another).
“The Williams rule was established not to prove propensity but to prove identity. The sole purpose of allowing evidence of collateral crimes is to show that the defendant indeed is the perpetrator of the charged offense. We accept the inherent risk of prejudice that this type of evidence creates by balancing that prejudice against the relevance of proving that the defendant committed the crime.
“In the conventional use of the Williams rule, the state is not relieved of its obligation to prove beyond a reasonable doubt the facts and circumstances of the crime charged. To permit aggravating factors to be supported by Williams rule evidence not only expands the rule beyond its original purpose, but completely relieves the state of its burden of proving the existence of aggravating factors. Under this novel approach, aggravating factors could be proved merely by showing that they existed in collateral crimes committed by the accused, whether or not they actually existed in the crime charged in the indictment.
“I do not believe this was a conscious holding of this Court on the direct appeal, since it was never argued or addressed. Moreover, I do not believe this is consistent with the requirement of proving aggravating circumstances beyond a reasonable doubt.
“In this case, the judge found the aggravating factors of witness elimination and cold, calculated and premeditated murder based predominantly, if not exclusively, on the Williams rule evidence presented during the guilt phase of the trial.
“Moreover, during the penalty phase, the only material facts in issue are the existence of aggravating and mitigating factors provided by law. The aggravating factors are strictly limited by section 921.141, Florida Statutes. Under section 921.141(5), only one aggravating factor exists that in any way concerns collateral criminal activity, and it expressly is limited to prior convictions of felonies involving violence. See § 921.141(5)(b). To hold that a judge can consider unconvicted criminal conduct in reaching a sentence is to permit the weighing of nonstatutory aggravating factors, contrary to our law. See Elledge v. State, 346 So. 2d 998, 1002-03 (Fla. 1977).” Burr v. State, 518 So. 2d 903, 907-908 (1987).

While respondent’s petition for certiorari was pending in this Court, we decided a case with somewhat similar facts. Johnson v. Mississippi, 486 U. S. 578 (1988). In that case a death sentence had been imposed on the basis of three aggravating circumstances, one of which was a prior New York conviction of a violent felony. In state collateral proceedings, Johnson had challenged his death sentence on the ground that the New York Court of Appeals had subsequently held that the prior conviction was invalid. The Mississippi Supreme Court, over the dissent of three justices, rejected that contention holding, in effect, that the subsequent invalidation of the felony conviction had not made the evidence retroactively inadmissible. See Johnson v. State, 511 So. 2d 1333 (1987). We reversed, concluding that the death sentence could not stand when “the jury was allowed to consider evidence that has been revealed to be materially inaccurate.” 486 U. S., at 590.

Our holding in Johnson did not directly resolve the issue presented in Burr’s pending petition for certiorari; in Johnson the only evidence of the collateral crime that had been received was a certified copy of the invalid conviction, whereas in Burr’s trial a witness had testified about the conduct that was later made the basis of an unsuccessful criminal prosecution. This Court nevertheless concluded that there was enough similarity between the cases to justify a remand of the Burr case to the Florida Supreme Court to reconsider its judgment in the light of our opinion in Johnson. See Burr v. Florida, 487 U. S. 1201 (1988).

As the Court itself demonstrates by its action today, an order remanding a case to a lower court does “not amount to a final determination on the merits,” Henry v. City of Rock Hill, 376 U. S. 776, 777 (1964), but only a conclusion that an intervening decision is sufficiently analogous to make reexamination of the case appropriate. That action was proper after Johnson for three important and independent reasons. First, of course, is the paramount importance of reliability in the determination that death is the appropriate punishment in any capital case. In Johnson, as in this case, that concern was implicated by a post-trial development that cast doubt on the reliability of evidence that played a critical part in the sentencing decision. Johnson made clear, what was apparent before, see Zant v. Stephens, 462 U. S. 862, 887-888, n. 23 (1983); Gardner v. Florida, 430 U. S. 349, 358-359, 362 (1977) (plurality opinion), that a death sentence cannot stand when it is based on evidence that is materially inaccurate. Second, because the case had not yet reached the stage of federal collateral review, it was obvious that its ultimate disposition would be expedited by giving the Florida Supreme Court the first opportunity to consider the impact of Johnson; a different disposition would almost certainly have generated additional collateral proceedings in both state and federal courts. Third, the arguments in Justice Barkett’s dissenting opinion, which were based partly on Florida law and partly on federal law, were buttressed by our reasoning in Johnson and had not been expressly rejected by the State Supreme Court’s opinion which focused on respondent’s contention that the collateral crimes evidence was inadmissible at the guilt phase of his trial.

Following our remand in light of Johnson, the Florida Supreme Court denied Burr’s request for a new trial, but vacated his sentence and remanded the case to the trial court for resentencing. In the portion of its opinion discussing the validity of the conviction, the court stated that the evidence of the collateral act for which Burr received an acquittal “is inadmissible under Johnson.” In another portion of its opinion, that may have rested exclusively on Johnson or may have also been predicated in part on the arguments set forth in Justice Barkett’s earlier dissent, the court vacated the death sentence:

“Our review of the record reveals that the state introduced no evidence at the sentencing phase beyond that established at the guilt phase. There was no evidence of two of the three aggravating factors other than the collateral crimes evidence. The United States Supreme Court held in Johnson that the eighth amendment requires a stringent review of death sentences based in part on improper aggravating circumstances.
“In overriding the jury recommendation of life, the trial judge found as aggravating circumstances that the murder was committed to avoid arrest; that it was committed during the course of a robbery; and, that it was committed in a cold, calculated, and premeditated manner without any pretense of moral or legal justification. The aggravating factors of witness elimination to avoid arrest and cold, calculated, and premeditated were established almost entirely on the collateral crimes evidence. We cannot say, beyond a reasonable doubt, that the consideration of this evidence did not contribute to the sentence, particularly in light of the jury’s recommendation of life.
“Nor can we determine whether the one improperly admitted instance of collateral conduct was determinative of the outcome.” 550 So. 2d 444, 446 (1989) (footnotes omitted).

The court’s holding left the trial judge who had heard all the evidence free to rely on the evidence of two of the three collateral crimes—even though that evidence had not been offered or received for the purpose of proving aggravating circumstances at the penalty hearing. Instead of allowing the new sentencing hearing to go forward, however, the Florida attorney general decided to request this Court to correct the state court’s arguably improper application of Johnson to this case.

The Court today accedes to that request, remanding the case once again to the Florida Supreme Court, this time in the light of our more recent decision in Dowling v. United States, 493 U. S. 342 (1990). Its action is ill advised for several reasons. First, our opinion in Dowling sheds absolutely no light on the question whether a post-trial acquittal should render collateral crimes evidence inadmissible at a sentencing hearing in a capital case. Dowling merely decided, as a matter of federal law, that a pretrial acquittal did not render relevant collateral crimes evidence inadmissible at the guilt phase of a noncapital case. As a matter of state law, the Supreme Court of Florida several years ago reached a contrary (and in my opinion, a correct) conclusion on that issue. But, in any event, Dowling did not decide the admissibility of such evidence at the penalty phase of a capital case. Respect for this Court’s legal acumen is not enhanced by asking a state court to reconsider a claim in the light of a patently irrelevant precedent.

Second, even if this Court’s real purpose in remanding the case is to suggest that the state court may have extended Johnson beyond its precise holding, the action is nevertheless unwarranted because that extension is both completely consistent with the reasoning in Johnson and with the reasoning in relevant state-court cases. The state court’s statement that evidence of the collateral act was “inadmissible under Johnson”—although not strictly accurate—was a reasonable application of that precedent, especially in light of the Florida rule that acquitted conduct is generally excepted from the rule allowing collateral crimes evidence to be used to establish identity. And, with respect to sentence, the state court’s reliance on Johnson for the proposition that the death sentence could not stand when it was based on evidence that had been rendered unreliable was entirely correct. When a state supreme court, in compliance with our mandate, has applied an intervening decision in a permissible fashion, we should respect its decision even if we might detect a slight flaw in its opinion.

Third, the Court’s action today can only prolong the termination of this litigation. I have previously noted the costs in litigation occasioned by the jury override system in those few States in which such a system is used. See Schiro v. Indiana, 493 U. S. 910, 914 (1989) (opinion respecting denial of certiorari). That delay is exacerbated by ill-advised decisions like this one. A prompt new sentencing hearing would have eliminated the basis for substantial attacks on respondent’s sentence. That hearing has already been delayed by the attorney general’s petition to this Court and, depending on the action the State Supreme Court may take after this second remand, may require further collateral proceedings in both the state and federal systems. The interest in avoiding unnecessary delay would surely be served by a prompt resentencing.

Finally, I must once again express my concern about the Court’s unseemly use of its discretionary docket to provide assistance to the prosecution—particularly in capital cases. In this case, a jury that heard all of the evidence recommended against a death sentence, and the trial judge’s contrary decision was based in part on testimony about a crime of which Burr was later acquitted. When one considers the fact that the State has not yet come forward with a response to the points made in Justice Barkett’s dissent, it is pellucidly clear that the Florida Supreme Court acted wisely in ordering a new sentencing hearing. Of course, the state court may after reconsideration adhere to its decision remanding for resentencing, just as it might have adhered, with additional explanation, to its original decision upholding the sentence after we vacated for reconsideration in light of Johnson. There is no good reason, however, for making the state court go through the exercise. I remain firmly convinced that “although this Court now has the power to review decisions defending federal constitutional rights, the claim of these cases on our docket is secondary to the need to scrutinize judgments disparaging those rights.” Delaware v. Van Arsdall, 475 U. S. 673, 697 (1986) (dissenting opinion). Surely the State’s attenuated interest in enforcing a trial judge’s decision to override a jury’s recommendation against the imposition of the death sentence in a marginal case like this does not justify the summary action the Court has taken today.

I respectfully dissent.

       See Pet. for Cert. 34-35, quoting Tr. 319-320. He observed “ ‘that if the Williams Rules testimony admitted during this trial is found to have been improperly admitted then the sentence I impose today will be academic.’” The “Williams Rul[e]” refers to the rule announced in Williams v. State, 110 So. 2d 654 (Fla.), cert. denied, 361 U. S. 847 (1959), a case holding that evidence of other crimes is admissible in a criminal trial if relevant to prove anything other than the bad character of the defendant or his propensity to commit the crime charged. In a later case, State v. Perkins, 349 So. 2d 161 (1977), the Florida Supreme Court held that the Williams rule did not apply to evidence of collateral crimes for which a defendant had been acquitted.

       If the acquittal had preceded the trial in this case, the evidence would have been inadmissible under Florida law. See State v. Perkins, supra.

       “With the exception of the collateral crimes issue, no new information has been made available to this Court which would warrant a revisitation of those issues.
      “However, Burr has argued that his subsequent acquittal of one of the crimes to which witnesses testified at his trial, and the nolle pros of another renders the evidence of those acts inadmissible. This Court has held that evidence of collateral offenses which have been nolle prossed is admissible. Holland v. State, 466 So. 2d 207 (Fla. 1985). As to the subsequent acquittal, clearly, at the time the Williams rule evidence was admitted, it was not error to do so. This much had been settled on direct appeal. There is no reason to suggest that the subsequent acquittal changes that admissibility subsequent to the trial. This Court will not render evidence retroactively inadmissible.” Burr v. State, 518 So. 2d 903, 905 (1987) (footnote omitted).

       “The fundamental respect for humanity underlying the Eighth Amendment’s prohibition against cruel and unusual punishment gives rise to a special ‘“need for reliability in the determination that death is the appropriate punishment”’ in any capital case. See Gardner v. Florida, 430 U. S. 349, 363-364 (1977) (quoting Woodson v. North Carolina, 428 U. S. 280, 305 (1976)) (plurality opinion). Although we have acknowledged that ‘there can be “no perfect procedure for deciding in which cases governmental authority should be used to impose death,”’ we have also made it clear that such decisions cannot be predicated on mere ‘caprice’ or on ‘factors that are constitutionally impermissible or totally irrelevant to the sentencing process.’ Zant v. Stephens, 462 U. S. 862, 884-885, 887, n. 24 (1983). The question in this case is whether allowing petitioner’s death sentence to stand although based in part on a reversed conviction violates this principle.” Johnson v. Mississippi, 486 U. S. 578, 584-585 (1988).

       Because the original jury had recommended a life sentence, the State Supreme Court concluded that there was no need to empanel a new jury.

       550 So. 2d 444, 446 (1989).

       The question presented by the State’s certiorari petition reads as follows: “ON REMAND FROM THIS COURT IN BURR v. FLORIDA, [487 U. S. 1201] (1988), THE FLORIDA SUPREME COURT ERRONEOUSLY APPLIED JOHNSON v. MISSISSIPPI, [486 U. S. 578] (1988), IN VACATING THE DEATH SENTENCE AND ORDERING A NEW SENTENCING PROCEEDING.” Pet. for Cert. i.

       See also Mello, Taking Caldwell v. Mississippi Seriously: The Unconstitutionality of Capital Statutes That Divide Sentencing Responsibility Between Judge and Jury, 30 Boston College L. Rev. 283, 290 (1989) (noting that between two-thirds and three-fourths of all life overrides reviewed by the Florida Supreme Court have been vacated and remanded for imposition of a life sentence, resentencing, or retrial); Radelet, Rejecting the Jury: The Imposition of the Death Penalty in Florida, 18 U. C. D. L. Rev. 1409, 1422-1424 (1986).


text:
    No. D-807.
    In re Disbarment of Cally.
   It having been reported to the Court that James J. Cally has died, the rule to show cause, heretofore issued on September 25, 1989 [492 U. S. 941], is hereby discharged.


text:
    No. D-858.
    In re Disbarment of Louden.
    [For earlier order herein, see 493 U. S. 1066.]
   Disbarment entered.


text:
    No. D-884.
    In re Disbarment of Sanna.
    [For earlier order herein, see 494 U. S. 1053.]
   Disbarment entered.


text:
    No. D-886.
    In re Disbarment of McCann.
    [For earlier order herein, see 494 U. S. 1064.]
   Disbarment entered.


text:
    No. D-888.
    In re Disbarment of Raben.
    [For earlier order herein, see 494 U. S. 1064.]
   Disbarment entered.


text:
    No. D-906.
    In re Disbarment of Erickson.
   It is ordered that Jonathan Erickson, of Corning, 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-907.
    In re Disbarment of Richman.
   It is ordered that Irvin F. Richman, of Chicago, Ill., be suspended from the practice of law in this Court and that a rule issue, returnable within 40 days, requiring him to show cause why he should not be disbarred from the practice of law in this Court.


text:
    No. D-908.
    In re Disbarment of Neistein.
   It is ordered that Bernard S. Neistein, of Chicago, Ill., be suspended from the practice of law in this Court and that a rule issue, returnable within 40 days, requiring him to show cause why he should not be disbarred from the practice of law in this Court.


text:
    No. D-909.
    In re Disbarment of Martin.
   It is ordered that Clyde P. Martin, Jr., of New Orleans, La., 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-910.
    In re Disbarment of Hendrickson.
   It is ordered that Fredric Fedje Hendrickson, of Sioux Falls, S. D., 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-911.
    In re Disbarment of Badalian.
   It is ordered that John M. Badalian, of Shaker Heights, Ohio, 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. 89-907.
    County of Los Angeles et al. v. Cabrales,
   494 U. S. 1091. Motion of respondent for award of attorney’s fees denied without prejudice to renewal of the motion in the United States District Court for the Central District of California.


text:
    No. 89-1027.
    No. 89-1028.
    Norfolk & Western Railway Co. et al. v. American Train Dispatchers Assn. et al.; and CSX Transportation, Inc. v. Brotherhood of Railway Carmen et al.
   C. A. D. C. Cir. [Certiorari granted, 494 U. S. 1055.] Further consideration of motion of respondents American Train Dispatchers Association et al. to dismiss deferred for 120 days. Further briefing in this case suspended for 120 days.


text:
    No. 89-7268.
    No. 89-7313.
    In re Green; and In re Green.
   Petitions for writs of mandamus denied.


text:
    No. 88-1847.
    Ford Motor Credit Co., Inc. v. Department of Revenue, State of Florida.
   Appeal from Dist. Ct. App. Fla., 1st Dist. Probable jurisdiction noted.


text:
    No. 89-680.
    James B. Beam Distilling Co. v. Georgia et al.
   Sup. Ct. Ga. Certiorari granted.


text:
    No. 89-1217.
    Lehnert et al. v. Ferris Faculty Assn. et al.
   C. A. 6th Cir. Certiorari granted.


text:
    No. 89-1436.
    United States v. R. Enterprises, Inc., et al.
   C. A. 4th Cir. Certiorari granted.


text:
    No. 89-1646.
    United States et al. v. Smith et al.
   C. A. 9th Cir. Certiorari granted.


text:
    No. 89-1326.
    Crowder, Individually and as Independent Executrix of the Estate of Crowder v. Sinyard et al.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 89-1378.
    Klavan v. Klavan.
   Sup. Jud. Ct. Mass. Certiorari denied.


text:
    No. 89-1405.
    Temengil et al. v. Trust Territory of the Pacific Islands et al.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 89-1461.
    Gilmore Steel Corp., dba Oregon Steel Mills, Inc. v. National Labor Relations Board.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 89-1462.
    Haas v. United States.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 89-1471.
    Bell et al. v. United States.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 89-1476.
    Seattle-First National Bank v. National Labor Relations Board et al.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 89-1486.
    Ackroyd v. Federal Deposit Insurance Corporation, as Receiver for Indian Springs State Bank.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 89-1518.
    Mather, Trustee of the Estate in Bankruptcy of Watson, et al. v. Weaver et al.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 89-1602.
    International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, AFL-CIO v. United States.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 89-1606.
    Model Magazine Distributors, Inc. v. United States et al.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 89-1618.
    Buckley Broadcasting Corporation of California, dba Station KKHI v. National Labor Relations Board.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 89-1619.
    Raft, aka Rafatdjah v. California.
   Ct. App. Cal., 2d App. Dist. Certiorari denied.


text:
    No. 89-1625.
    City of Burlington et al. v. Kaplan et al.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 89-1628.
    Sheffield v. Johnson Seed Co., Inc.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 89-1631.
    Wrenn v. Walinski, Judge, United States District Court for the Northern District of Ohio.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 89-1637.
    Schindelar v. Zawadzki et al.
   Super. Ct. N. J., App. Div. Certiorari denied.


text:
    No. 89-1644.
    Taylor v. New York.
   App. Div., Sup. Ct. N. Y., 4th Jud. Dept. Certiorari denied.


text:
    No. 89-1645.
    Mendel et al. v. Silver.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 89-1653.
    Hemmerle v. Bramalea, Inc., fka Bramalea Development U. S., Ltd.
   Dist. Ct. App. Fla., 4th Dist. Certiorari denied.


text:
    No. 89-1665.
    Kirkland v. Northside Independent School District.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 89-1689.
    O’Malley et al. v. O’Neill et al.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 89-1694.
    Dura-Corp. v. STS D’Appolonia, Ltd.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 89-1713.
    Lindell v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 89-1748.
    Oregon Natural Resources Council v. Mohla, Supervisor, Mt. Hood National Forest, et al.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 89-1753.
    Gardner v. Commissioner of Internal Revenue.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 89-1767.
    Wilk et al. v. Joint Commission on Accreditation of Hospitals et al.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 89-1785.
    LaRouche et al. v. United States.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 89-6581.
    Vincent v. California.
   Ct. App. Cal., 3d App. Dist. Certiorari denied.


text:
    No. 89-6715.
    Ringstaff v. Howard, Warden, et al.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 89-6757.
    Boles v. Michigan.
   Ct. App. Mich. Certiorari denied.


text:
    No. 89-6795.
    McCarter v. California.
   Ct. App. Cal., 4th App. Dist. Certiorari denied.


text:
    No. 89-6832.
    Crawford v. United States.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 89-6872.
    Daly v. United States.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 89-6927.
    Owens-El v. O’Brien et al.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 89-6964.
    Arterburn v. United States.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 89-6986.
    Alexander v. United States.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 89-6990.
    Herrero et al. v. United States.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 89-7003.
    Clemmons v. United States.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 89-7087.
    Parez v. State Bar of California et al.
   Sup. Ct. Cal. Certiorari denied.


text:
    No. 89-7210.
    Demos v. United States District Court for the Eastern District of Washington (two cases).
   C. A. 9th Cir. Certiorari denied.


text:
    No. 89-7222.
    Callis v. Murray, Director, Virginia Department of Corrections.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 89-7223.
    Anderson v. Morris, Superintendent, Southern Ohio Correctional Facility.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 89-7224.
    Downs v. Collins, Director, Texas Department of Criminal Justice, Institutional Division.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 89-7225.
    Brown v. Hughes et al.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 89-7226.
    Cooper v. Dugger, Secretary, Florida Department of Corrections.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 89-7229.
    Quintanilla v. Texas.
   Ct. Crim. App. Tex. Certiorari denied.


text:
    No. 89-7230.
    Perveler v. San Luis Obispo County Superior Court.
   Ct. App. Cal., 2d App. Dist. Certiorari denied.


text:
    No. 89-7232.
    Ritzie v. City University of New York et al.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 89-7233.
    Turner v. Kirkland et al.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 89-7235.
    Peterson v. Tansy, Warden, et al.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 89-7239.
    Amiri v. District of Columbia et al.
   C. A. D. C. Cir. Certiorari denied.


text:
    No. 89-7250.
    Wiley v. McGriff.
   Ct. App. Ind. Certiorari denied.


text:
    No. 89-7258.
    Scott v. Office of Personnel Management.
   C. A. Fed. Cir. Certiorari denied.


text:
    No. 89-7262.
    Bagby v. Sowders, Warden.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 89-7264.
    Van Straten v. Milwaukee Journal Newspaper Publisher et al.
   Ct. App. Wis. Certiorari denied.


text:
    No. 89-7273.
    Jackson et ux. v. Dixon-Bookman.
   Sup. Ct. Tex. Certiorari denied.


text:
    No. 89-7285.
    Cochran v. Turner, Warden.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 89-7295.
    Leecan v. Lopes, Commissioner of Correction of Connecticut.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 89-7297.
    Crow v. Smith et al.
   Sup. Ct. Tex. Certiorari denied.


text:
    No. 89-7312.
    Cochrane v. United States.
   C. A. 1st Cir. Certiorari denied.


text:
    No. 89-7377.
    Wexler v. Department of the Interior.
   C. A. Fed. Cir. Certiorari denied.


text:
    No. 89-7378.
    Dozier v. Department of Education.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 89-7386.
    Washington v. Coughlin et al.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 89-7388.
    Archer v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 89-7392.
    Gray v. United States.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 89-7393.
    Delap v. Dugger, Secretary, Florida Department of Corrections.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 89-7397.
    Johnson v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 89-7403.
    Ware v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 89-7408.
    Saturley v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 89-7409.
    Ware v. United States.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 89-7412.
    Roache v. United States.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 89-7421.
    Goodalle v. United States.
   Ct. App. D. C. Certiorari denied.


text:
    No. 89-7433.
    Dowdy v. United States.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 89-7437.
    Gonzalez v. United States.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 89-7438.
    Colbert et al. v. United States.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 89-7441.
    Barroso v. United States.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 89-7448.
    McCollin v. United States.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 89-7462.
    Clarke v. United States.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 89-7463.
    Padilla v. United States.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 89-7465.
    Daniels v. United States.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 89-7485.
    Roberts v. United States.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 89-1300.
    Smith v. Louisiana.
   Ct. App. La., 4th Cir. Certiorari denied.

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