author: Justice O’Connor Justice White,

text:
    SULLIVAN, SECRETARY OF HEALTH AND HUMAN SERVICES v. HUDSON
    No. 88-616.
    Argued April 17, 1989
    Decided June 12, 1989

      O’Connor, J., delivered the opinion of the Court, in which Brennan, Marshall, Blackmun, and Stevens, JJ., joined. White, J., filed a dissenting opinion, in which Rehnquist, C. J., and Scalia and Kennedy, JJ., joined, post, p. 893.

      Edwin S. Kneedler argued the cause for petitioner. On the briefs were former Solicitor General Fried, Acting Solicitor General Bryson, Assistant Attorney General Bolton, Deputy Solicitor General Merrill, Harriet S. Shapiro, and William Ranter.

      James E. Coleman, Jr., argued the cause for respondent. With him on the brief were Joseph E. Killory, Jr., and Richard J. Ebbinghouse.

   Justice O’Connor

delivered the opinion of the Court.

The issue before us in this case is whether a Social Security claimant is entitled to an award of attorney’s fees under the Equal Access to Justice Act for representation provided during administrative proceedings held pursuant to a district court order remanding the action to the Secretary of Health and Human Services.

I

Respondent Elmer Hudson filed an application for the establishment of a period of disability and for disability benefits under the Social Security Act, 49 Stat. 620, as amended, 42 U. S. C. § 401 et seq. (1982 ed. and Supp. V) on September 9,1981. On the same day, she filed an application for supplemental security income under Title XVI of the Act. Respondent, now 50, submitted medical evidence indicating obesity, limitations in movement, and lower back pain. Her application for benefits was administratively denied, and that position was upheld on reconsideration by the Social Security Administration. Respondent requested and received a hearing before an Administrative Law Judge (ALJ), where she was represented by a Legal Services Corporation paralegal. At the hearing, respondent testified that she suffered from back pain, depression, and nervousness. Respondent was in a state of anxiety and cried throughout the hearing. The ALJ ordered a posthearing psychiatric examination by Dr. Anderson, a psychiatrist, and respondent’s representative chose to have her undergo an additional evaluation by Dr. Myers, a clinical psychologist. Dr. Anderson’s report indicated that respondent suffered from mild to moderate dysthymic disorder and a histrionic personality disorder. He concluded that respondent’s psychological condition would not interfere with her ability to work in the domestic services area, where most of her past work experience lay. Dr. Myers found that respondent was moderately to severely depressed, suffered from insomnia, fatigue, psychomotor retardation, tearfulness, and anxiety. He concluded that her psychological problems, coupled with her mild physical disabilities and back pain, rendered her unemployable absent exhaustive rehabilitative efforts.

Based on these two reports, the ALJ rendered her decision finding that respondent was not disabled because she was capable of performing work similar to that she had done in the past. The ALJ’s decision was approved by the Social Security Appeals Council, thus becoming the final decision of the Secretary concerning respondent’s applications. Respondent then brought an action in the District Court for the Northern District of Alabama under 42 U. S. C. § 405(g) seeking judicial review of the Secretary’s decision denying benefits. The District Court found that the Secretary’s decision was supported by substantial evidence and affirmed the denial of benefits. App. to Pet. for Cert. 43a-44a. The Court of Appeals for the Eleventh Circuit reversed. It vacated the Secretary’s decision and instructed the District Court to remand the case to the Secretary for reconsideration. Hudson v. Heckler, 755 F. 2d 781 (1985). The Court of Appeals agreed with respondent that “the Secretary did not follow her own regulations” in making the disability determination in respondent’s case. Id., at 785. The court found that those regulations required the Secretary to consider the cumulative effect of impairments even where no individual ailment considered in isolation would be disabling. Ibid. In respondent’s case the ALJ had never considered the combined effect of respondent’s physical and psychological afflictions. Nor had the ALJ given any reasons for her rejection of Dr. 'Myers’ evaluation of the combined effects of respondent’s physical and psychological conditions. Id., at 785-786.

Following the District Court’s remand order, the Social Security Appeals Council vacated its earlier denial of respondent’s request for review and returned the case to an ALJ for further proceedings. App. to Pet. for Cert. 30a. The Appeals Council instructed the ALJ to provide respondent with an opportunity to testify at a supplemental hearing and to adduce additional evidence. Id., at 31a. The Appeals Council also indicated that the ALJ might wish to obtain the services of a medical adviser to evaluate respondent’s psychiatric impairment during the period at issue. Ibid. Finally, the Appeals Council instructed the ALJ to apply the revised regulations for determining disability due to mental disorders, which had been published by the Secretary in 1985 pursuant to statutory directive. Ibid. On remand, the ALJ found that respondent had been disabled as of May 15, 1981, as she had originally maintained in her initial applications for benefits. Respondent was represented before the ALJ in the remand proceedings by the same counsel who had represented her before the District Court and the Court of Appeals.

On October 22, 1986, the Appeals Council adopted the ALJ’s recommended decision and instructed the Social Security Administration to pay respondent disability and supplemental income benefits. Id., at 21a-23a. On December 11, 1986, the District Court, pursuant to the Secretary’s motion, dismissed respondent’s action for judicial review, finding that after the remand order respondent had obtained all the relief prayed for in her complaint. The District Court retained jurisdiction over the action for the limited purpose of considering any petition for the award of attorney’s fees. Respondent then filed the instant petition for an award of attorney’s fees under the Equal Access to Justice Act (EAJA), Pub. L. 96-481, 94 Stat. 2328, as amended, 28 U. S. C. § 2412(d) (1982 ed., Supp. V). The District Court denied respondent’s fee application in toto, finding that the position taken by the Secretary in the initial denial of benefits to respondent was “substantially justified.” App. to Pet. for Cert. 17a-20a. The Court of Appeals again reversed. Hudson v. Secretary of Health and Human Services, 839 F. 2d 1453 (CA11 1988). The Court of Appeals noted that in its earlier opinion it had found that the Secretary had violated her own regulations by failing to consider the cumulative effect of respondent’s ailments, and that the ALJ had failed to give her reasons for rejection of Dr. Myers’ testimony concerning the cumulative effects of respondent’s ailments. Id., at 1457-1458. The Secretary’s defense of the denial of benefits to respondent “on those two grounds was not substantially justified.” Id., at 1458. Having concluded that an award of attorney’s fees was proper under the EAJA, the court went on to consider whether the award could include attorney’s fees for work done at the administrative level after the cause was remanded to the Secretary by the District Court. The Court of Appeals rejected the Secretary’s argument that 5 U. S. C. §§504(a)(1) and 504(b)(1)(C) (1982 ed., Supp. V) limited a court’s power to award attorney’s fees for administrative proceedings to those situations “in which the position of the United States is represented by counsel or otherwise. ...” While recognizing that the Secretary was not represented by counsel in the remand proceedings at issue here, the Court of Appeals found that “the critical determination is whether the Secretary has staked out a position.” 839 F. 2d, at 1460. Since the Secretary had taken an adversarial position in the proceedings for judicial review prior to the remand, the Court of Appeals found that the proceedings were no less “adversarial” on remand before the agency, and therefore a fee award encompassing work performed before the agency on remand was proper. Ibid.

Because the Court of Appeals’ decision granting attorney’s fees for representation in administrative proceedings on remand from judicial review of a Social Security benefits determination conflicts with the decisions of other Courts of Appeals, see, e. g., Cornella v. Schweiker, 728 F. 2d 978, 988-989 (CA8 1984), we granted the Secretary’s petition for certiorari. Sub nom. Bowen v. Hudson, 488 U. S. 980 (1988).

In 1980, Congress passed the EAJA in response to its concern that persons “may be deterred from seeking review of, or defending against, unreasonable governmental action because of the expense involved in securing the vindication of their rights.” 94 Stat. 2325. As the Senate Report put it:

“For many citizens, the costs of securing vindication of their rights and the inability to recover attorney fees preclude resort to the adjudicatory process. . . . When the cost of contesting a Government order, for example, exceeds the amount at stake, a party has no realistic choice and no effective remedy. In these cases, it is more practical to endure an injustice than to contest it.” S. Rep. No. 96-253, p. 5 (1979).

The EAJA was designed to rectify this situation by providing for an award of a reasonable attorney’s fee to a “prevailing party” in a “civil action” or “adversary adjudication” unless the position taken by the United States in the proceeding at issue “was substantially justified” or “special circumstances make an award unjust.” That portion of the Act applicable to “civil actions” provides, as amended, in relevant part that

“[ejxcept as otherwise specifically provided by statute, a court shall award to a prevailing party other than the United States fees and other expenses . . . incurred by that party in any civil action . . . including proceedings for judicial review of agency action, brought by or against the United States in any court having jurisdiction of that action, unless the court finds that the position of the United States was substantially justified or that special circumstances make an award unjust.” 28 U. S. C. § 2412(d)(1)(A) (1982 ed., Supp. V).

Application of this provision to respondent’s situation here requires brief consideration of the structure of administrative proceedings and judicial review under the Social Security Act. Once a claim has been processed administratively, judicial review of the Secretary’s decision is available pursuant to § 205(g) of the Social Security Act, 42 U. S. C. § 405(g), which provides in pertinent part:

“Any individual, after any final decision of the Secretary made after a hearing to which he was a party, . . . may obtain a review of such decision by a civil action .... The court shall have the power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Secretary, with or without remanding the cause for a rehearing. . . . The court may, on motion of the Secretary for good cause shown before he files his answer, remand the case to the Secretary for further action by the Secretary, and it may at any time order additional evidence to be taken before the Secretary, but only upon a showing that there is new evidence which is material and that there is good cause for the failure to incorporate such evidence into the record in a prior proceeding; and the Secretary shall, after the case is remanded, and after hearing such additional evidence if so ordered, modify or affirm his findings of fact or his decision, or both, and shall file with the court any such additional and modified findings of fact and decision, and a transcript of the additional record and testimony upon which his action in modifying or affirming was based.”

As provisions for judicial review of agency action go, § 405(g) is somewhat unusual. The detailed provisions for the transfer of proceedings from the courts to the Secretary and for the filing of the Secretary’s subsequent findings with the court suggest a degree of direct interaction between a federal court and an administrative agency alien to traditional review of agency action under the Administrative Procedure Act. As one source puts it:

“The remand power places the courts, not in their accustomed role as external overseers of the administrative process, making sure that it stays within legal bounds, but virtually as coparticipants in the process, exercising ground-level discretion of the same order as that exercised by ALJs and the Appeals Council when they act upon a request to reopen a decision on the basis of new and material evidence.” J. Mashaw, C. Goetz, F. Goodman, W. Schwartz, P. Verkuil, & M. Carrow, Social Security Hearings and Appeals 133 (1978).

Where a court finds that the Secretary has committed a legal or factual error in evaluating a particular claim, the district court’s remand order will often include detailed instructions concerning the scope of the remand, the evidence to be adduced, and the legal or factual issues to be addressed. See, e. g., Cooper v. Bowen, 815 F. 2d 557, 561 (CA9 1987). Often, complex legal issues are involved, including classification of the claimant’s alleged disability or his or her prior work experience within the Secretary’s guidelines or “grids” used for determining claimant disability. See, e. g., Cole v. Secretary of Health and Human Services, 820 F. 2d 768, 772-773 (CA6 1987). Deviation from the court’s remand order in the subsequent administrative proceedings is itself legal error, subject to reversal on further judicial review. See, e. g., Hooper v. Heckler, 752 F. 2d 83, 88 (CA4 1985); Mefford v. Gardner, 383 F. 2d-748, 758-759 (CA6 1967). In many remand situations, the court will retain jurisdiction over the action pending the Secretary’s decision and its filing with the court. See Ahghazali v. Secretary of Health and Human Services, 867 F. 2d 921, 927 (CA6 1989) (remanding action to District Court with instructions to retain jurisdiction during proceedings on remand before the agency); Taylor v. Heckler, 778 F. 2d 674, 677, n. 2 (CA11 1985) (“[T]he district court retains jurisdiction of the case until the proceedings on remand have been concluded”); accord, Brown v. Secretary of Health and Human Services, 747 F. 2d 878, 883-885 (CA3 1984). The court retains the power in such situations to assure that its prior mandate is effectuated. See Ford Motor Co. v. NLRB, 305 U. S. 364, 373 (1939).

Two points important to the application of the EAJA emerge from the interaction of the mechanisms for judicial review of Social Security benefits determinations and the EAJA. First, in a case such as this one, where a court’s remand to the agency for further administrative proceedings does not necessarily dictate the receipt of benefits, the claimant will not normally attain “prevailing party” status within the meaning of § 2412(d)(1)(A) until after the result of the administrative proceedings is known. The situation is for all intents and purposes identical to that we addressed in Hanrahan v. Hampton, 446 U. S. 754 (1980). There we held that the reversal of a directed verdict for defendants on appeal did not render the plaintiffs in that action “prevailing parties” such that an interim award of attorney’s fees would be justified under 42 U. S. C. § 1988. We found that such “procedural or evidentiary rulings” were not themselves “matters on which a party could ‘prevail’ for purposes of shifting his counsel fees to the opposing party under § 1988.” Id., at 759. More recently in Texas State Teachers Assn. v. Garland Independent School Dist., 489 U. S. 782 (1989), we indicated that in order to be considered a prevailing party, a plaintiff must achieve some of the benefit sought in bringing the action. Id., at 791-793. We think it clear that under these principles a Social Security claimant would not, as a general matter, be a prevailing party within the meaning of the EAJA merely because a court had remanded the action to the agency for further proceedings. See Hewitt v. Helms, 482 U. S. 755, 760 (1987). Indeed, the vast majority of the Courts of Appeals have come to this conclusion. See, e. g., Paulson v. Bowen, 836 F. 2d 1249, 1252 (CA9 1988); Swedberg v. Bowen, 804 F. 2d 432, 434 (CA8 1986); Brown v. Secretary of Health and Human Services, supra, at 880-881.

Second, the EAJA provides that an application for fees must be filed with the court “within thirty days of final judgment in the action.” 28 U. S. C. §2412(d)(1)(B) (1982 ed., Supp. V). As in this case, there will often be no final judgment in a claimant’s civil action for judicial review until the administrative proceedings on remand are complete. See Guthrie v. Schweiker, 718 F. 2d 104, 106 (CA4 1983) (“[T]he procedure set forth in 42 U. S. C. § 405(g) contemplates additional action both by the Secretary and a district court before a civil action is concluded following a remand”). The Secretary concedes that a remand order from a district court to the agency is not a final determination of the civil action and that the district court “retains jurisdiction to review any determination rendered on remand.” Brief for Petitioner 16, 16-17.

Thus, for purposes of the EAJA, the Social Security claimant’s status as a prevailing party and the final judgment in her “civil action . . . for review of agency action” are often completely dependent on the successful completion of the remand proceedings before the Secretary. Moreover, the remanding court continues to retain jurisdiction over the action within the meaning of the EAJA and may exercise that jurisdiction to determine if its legal instructions on remand have been followed by the Secretary. Our past decisions interpreting other fee-shifting provisions make clear that where administrative proceedings are intimately tied to the resolution of the judicial action and necessary to the attainment of the results Congress sought to promote by providing for fees, they should be considered part and parcel of the action for which fees may be awarded.

In Pennsylvania v. Delaware Valley Citizens’ Council, 478 U. S. 546 (1986), we considered whether the costs of representation before federal and state administrative agencies in defense of the provisions of a consent decree entered under the Clean Air Act were compensable under the fee-shifting provision of that statute. Section 304(d) of the Clean Air Act provides for the award of a reasonable attorney fee in conjunction with “any final order in any action brought pursuant to” certain provisions of the Act. 42 U. S. C. § 7604(d). In Delaware Valley, we rejected the contention that the word “action” in the fee-shifting provision should be read narrowly to exclude all proceedings which could be plausibly characterized as “nonjudicial.” We indicated that

“[although it is true that the proceedings [at issue] were not ‘judicial’ in the sense that they did not occur in a courtroom or involve ‘traditional’ legal work such as examination of witnesses or selection of jurors for trial, the work done by counsel in these two phases was as necessary to the attainment of adequate relief for their client as was all of their earlier work in the courtroom which secured Delaware Valley’s initial success in obtaining the consent decree.” 478 U. S., at 558.

Similarly, in New York Gas Light Club, Inc. v. Carey, 447 U. S. 54 (1980), we held that under the fee-shifting provision of Title VII of the Civil Rights Act of 1964, 42 U. S. C. §2000e-5(k), a federal court could award attorney’s fees for services performed in state administrative and judicial enforcement proceedings. We noted that the words of the statute, authorizing “the court” to award attorney’s fees “[i]n any action or proceeding under this title,” could be read to include only federal administrative or judicial proceedings. 447 U. S., at 60-61. Looking to the entire structure of Title VII, we observed that Congress had mandated initial resort to state and local remedies, and that “Congress viewed proceedings before the Equal Employment Opportunity Commission and in federal court as supplements to available state remedies for employment discrimination.” Id., at 65. Given this interlocking system of judicial and administrative avenues to relief, we concluded that the exclusion of state and local administrative proceedings from the fee provisions would clearly clash with the congressional design behind the statutory scheme whose enforcement the fee-shifting provisions was designed to promote. Ibid. See also Webb v. Dyer County Board of Education, 471 U. S. 234, 243 (1985) (work performed in administrative proceedings that is “both useful and of a type ordinarily necessary to advance civil rights litigation” may be compensable under 42 U. S. C. § 1988); North Carolina Dept. of Transportation v. Crest Street Community Council, Inc., 479 U. S. 6, 15 (1986).

We think the principles we found persuasive in Delaware Valley and Carey are controlling here. As in Delaware Valley, the administrative proceedings on remand in this case were “crucial to the vindication of [respondent’s] rights.” Delaware Valley, supra, at 561. No fee award at all would have been available to respondent absent successful conclusion of the remand proceedings, and the services of an attorney may be necessary both to ensure compliance with the District Court’s order in the administrative proceedings themselves, and to prepare for any further proceedings before the District Court to verify such compliance. In addition, as we did in Carey, we must endeavor to interpret the fee statute in light of the statutory provisions it was designed to effectuate. Given the “mandatory” nature of the administrative proceedings at issue here, and their close relation in law and fact to the issues before the District Court on judicial review, we find it difficult to ascribe to Congress an intent to throw the Social Security claimant a lifeline that it knew was a foot short. Indeed, the incentive which such a system would create for attorneys to abandon claimants after judicial remand runs directly counter to long established ethical canons of the legal profession. See American Bar Association, Model Rules of Professional Conduct, Rule 1.16, pp. 53-55 (1984). Given the anomalous nature of this result, and its frustration of the very purposes behind the EAJA itself, Congress cannot lightly be assumed to have intended it. See Christiansburg Garment Co. v. EEOC, 434 U. S. 412, 418-419 (1978). Since the judicial review provisions of the Social Security Act contemplate an ongoing civil action of which the remand proceedings are but a part, and the EAJA allows “any court having jurisdiction of that action” to award fees, 28 U. S. C. § 2412(d)(1)(A), we think the statute, read in light of its purpose “to diminish the deterrent effect of seeking review of, or defending against, governmental action,” 94 Stat. 2325, permits a court to award fees for services performed on remand before the Social Security Administration. Where a court finds that the Secretary’s position on judicial review was not substantially justified within the meaning of the EAJA, see Pierce v. Underwood, 487 U. S. 552, 563-568 (1988), it is within the court’s discretion to conclude that representation on remand was necessary to the effectuation of its mandate and to the ultimate vindication of the claimant’s rights, and that an award of fees for work performed in the administrative proceedings is therefore proper. See Delaware Valley, supra, at 561; Webb, supra, at 243.

The Secretary mounts two interrelated challenges to this interpretation of § 2412(d)(1)(A). While the Secretary’s contentions are not without some force, neither rises to the level necessary to oust what we think is the most reasonable interpretation of the statute in light of its manifest purpose. First, the Secretary argues that plain meaning of the term “civil action” in § 2412(d)(1)(A) excludes any proceedings outside of a court of law. Brief for Petitioner 12-13; Reply Brief for Petitioner 8-9. Of course, if the plain language of the EAJA evinced a congressional intent to preclude the interpretation we reach here, that would be the end of the matter. In support of this proposition, the Secretary points out that the “‘[t]erm [action] in its usual legal sense means a suit brought in a court; a formal complaint within the jurisdiction of a court of law.’” Brief for Petitioner 13, n. 7, quoting Black’s Law Dictionary 26 (5th ed. 1979). Second, the Secretary notes that Congress did authorize EAJA fee awards under 5 U. S. C. §504(a)(1) (1982 ed., Supp. V) where an agency “conducts an adversary adjudication,” and that an adversary adjudication is defined in § 504(b)(1)(C) as “an adjudication ... in which the position of the United States is represented by counsel or otherwise.” Under 28 U. S. C. §2412(d)(3) (1982 ed., Supp. V) a court is empowered to award fees for representation before an agency to a party who prevails in an action for judicial review to “the same extent authorized in [5 U. S. C. § 504(a)].” Thus, the Secretary concludes that since benefits proceedings before the Secretary and his designates are nonadversarial, and a court is explicitly empowered to award fees for agency proceedings where such proceedings satisfy the requirements of § 504(a)(1), the principle of expressio unius est exclusio alterius applies, and a court may never award fees for time spent in nonadversarial administrative proceedings. See Brief for Petitioner 12-18; Reply Brief for Petitioner 7-12.

We agree with the Secretary that for purposes of the EAJA Social Security benefit proceedings are not “adversarial” within the meaning of § 504(b)(1)(C) either initially or on remand from a court. See Richardso?i v. Perales, 402 U. S. 389, 403 (1971). The plain language of the statute requires that the United States be represented by “counsel or otherwise,” and neither is true in this context. Nonetheless, we disagree with the conclusion the Secretary would draw from this fact. First, as Delaware Valley, Webb, and Carey indicate, administrative proceedings may be so intimately connected with judicial proceedings as to be considered part of the “civil action” for purposes of a fee award. This is particularly so in the Social Security context where “a suit [has been] brought in a court,” and where “a formal complaint within the jurisdiction of a court of law” remains pending and depends for its resolution upon the outcome of the administrative proceedings. Second, we disagree with the Secretary’s submission that a negative implication can be drawn from the power granted a court to award fees based on representation in a prior adversary adjudication before an agency. Section 2412(d)(8) provides that “[i]n awarding fees and other expenses under this subsection to a prevailing party in any action for judicial review of an adversary adjudication,” the court may award fees to the same extent that they would have been available before the agency itself under § 504(a)(1). On its face, the provision says nothing about the power of a court to award reasonable fees for representation in a non-adversarial adjudication which is wholly ancillary to a civil action for judicial review. That Congress carved the world of EAJA proceedings into “adversary adjudications” and “civil actions” does not necessarily speak to, let alone preclude, a reading of the term “civil action” which includes administrative proceedings necessary to the completion of a civil action.

We conclude that where a court orders a remand to the Secretary in a benefits litigation and retains continuing jurisdiction over the case pending a decision from the Secretary which will determine the claimant’s entitlement to benefits, the proceedings on remand are an integral part of the “civil action” for judicial review, and thus attorney’s fees for representation on remand are available subject to the other limitations in the EAJA. We thus affirm the judgment of the Court of Appeals on this issue and remand the case to that court for further proceedings consistent with this opinion.

It is so ordered.

Justice White,

with whom The Chief Justice, Justice Scalia, and Justice Kennedy join,

dissenting.

In 1985, Congress reenacted the Equal Access to Justice Act (EAJA), 99 Stat. 183, authorizing awards of attorney’s fees to parties that prevail in litigation against the United States unless the position taken by the United States is substantially justified or the award unjust. Fees can be awarded only when “incurred ... in any civil action . . . brought. . . in any court having jurisdiction of that action,” 28 U. S. C. §2412(d)(1)(A) (1982 ed., Supp. V), or when incurred in connection with an “adversary adjudication” conducted by an agency, 5 U. S. C. § 504(a)(1) (1982 ed., Supp. V). Congress refused to extend the EAJA to fees incurred in proceedings before the Social Security Administration, which are non-adversarial, leaving supporters of such an extension “a fight which will have to be fought another day.” 131 Cong. Rec. 20350 (1985) (remarks of Sen. Heflin). The majority today awards those supporters a partial victory in that fight without either side having stepped into the legislative ring. Because this judicial TKO ignores the plain language of the EAJA as well as its legislative history, I dissent.

The majority correctly rejects the reasoning of the Court of Appeals that once the Secretary took a position in District Court, by arguing that respondent was not entitled to benefits, the case became an “adversary adjudication” and respondent was entitled under § 504(a)(1) to attorney’s fees incurred on remand. As the majority concludes, this interpretation of § 504(a)(1) is flatly contrary to 5 U. S. C. §504(b)(1)(C) (1982 ed., Supp. V), which defines “adversary adjudication” as one in which the “position of the United States is represented by counsel or otherwise.” Proceedings before the Social Security Administration, even on remand from a district court, do not satisfy this requirement, as the majority recognizes. Ante, at 891.

Instead, the majority looks to § 2412(d)(1)(A), the provision of the EAJA dealing with fees incurred in “civil actions,” as the basis for authorizing the award of fees at issue here. The majority reasons that “[s]ince the judicial review provisions of the Social Security Act contemplate an ongoing civil action of which the remand proceedings are but a part, and the EAJA allows ‘any court having jurisdiction of that action’ to award fees, 28 U. S. C. § 2412(d)(1)(A), . . . the statute . . . permits a court to award fees for services performed on remand before the Social Security Administration. ” Ante, at 890. In so construing § 2412, however, the majority has committed the same error that the Court of Appeals committed in construing § 504 — in its effort to reach the result it desires, it ignores the plain language of the statute it is construing.

Section 2412(d)(1)(A), by its terms, does not authorize the recovery of fees incurred in proceedings on remand before the Social Security Administration. That section provides in relevant part that “a court shall award to a prevailing party other than the United States fees and other expenses ... incurred by that party in any civil action . . . , including proceedings for judicial review of agency action, brought by or against the United States in any court having jurisdiction of that action. ” (Emphasis added.) The plain meaning of “civil action” is a proceeding in a court, see Black’s Law Dictionary 26, 222 (5th ed. 1979); Fed. Rules Civ. Proc. 2, 3, and any argument to the contrary is foreclosed by the statute itself— the civil action must be one -brought “in any court having jurisdiction.” Clearly, the Social Security Administration is not a court, see 28 U. S. C. § 451 (defining “court of the United States”), and so § 2412 does not apply to fees incurred in proceedings before the Social Security Administration.

Other language in § 2412(d)(1)(A) reinforces this conclusion. The section includes within the meaning of “civil action” the “judicial review of agency action.” Congress thus was perfectly capable of distinguishing between judicial review by the courts and action by administrative agencies, such as the remand proceedings in this case. Section 2412 contains no similar authorization for recovery of fees for “agency action,” whether or not on remand and regardless of how essential the proceeding might be to the claimant’s ultimate recovery. In addition, the section makes liability for fees depend on the United States taking a position that is not substantially justified. But in proceedings before the Social Security Administration, the United States does not take any position (such proceedings are not adversarial, as the majority agrees), and so the majority’s reading of the statute makes fee liability depend on a non sequitur.

Section 504, not § 2412, is the provision of the EAJA that governs the recovery of fees in proceedings before administrative agencies; indeed, Congress was careful to place § 504 in Title 5 of the United States Code, which governs procedures before administrative agencies, while placing § 2412 in Title 28, which governs procedures before the courts. The lack of any authorization in § 504(a)(1) for fees under the present circumstances provides further confirmation of the plain meaning of the EAJA. As the majority holds, the fee authorization in § 504(a)(1) is limited to adversary administrative adjudications, which do not include the nonadversary proceedings before the Social Security Administration. Applying the maxim of statutory construction expressio unius est exclusio alterius, the express congressional authorization for recovery of fees in adversary agency adjudications coupled with the lack of authorization for recovery of fees in nonadversary adjudications indicates Congress’ intent not to authorize recovery of fees in nonadversary agency adjudications. See TVA v. Hill, 437 U. S. 153, 188 (1978).

The majority’s dismissal of these arguments misses the mark. First, the majority takes the position that a “civil action” includes remand proceedings before the Social Security Administration because a formal complaint remains pending in court and depends on the outcome of the administrative proceeding for its resolution. Ante, at 892. But the mere retention of jurisdiction while the case is on remand before the agency does not transform fees incurred before the agency into fees incurred before the court. It was the Social Security Administration that conducted the proceedings on remand, and it was the Social Security Administration that ultimately made the award of benefits in this case, not the District Court. All the District Court did was to dismiss respondent’s petition for judicial review once the agency had made its award on remand, which surely is not enough to characterize the agency proceedings as part of an ongoing civil action in court.

In this regard, the majority’s reliance on Pennsylvania v. Delaware Valley Citizens’ Council, 478 U. S. 546 (1986), and New York Gas Light Club, Inc. v. Carey, 447 U. S. 54 (1980), see ante, at 880-890, is misplaced. In Delaware Valley, we interpreted § 304(d) of the Clean Air Act, 42 U. S. C. § 7604(d), which allows the “court” to award fees “in issuing any final order in any action brought pursuant to” § 304(a) of the Act, as allowing recovery of fees incurred in enforcing a consent decree in administrative proceedings. But that Act applied to fee awards in “any action” brought under the Act, and did not expressly limit the award to fees “incurred ... in any civil action . . . brought... in any court,” as the statute does here. Moreover, the legislative history of the Clean Air Act equated “action” with “proceeding,” suggesting a broader meaning to the term, and certainly did not expressly reject the construction we gave to the statute. Cf. infra, at 897-899. The same is true of Carey, in which this Court construed 42 U. S. C. §2000e-5(k), authorizing “the court” to award fees “[i]n any action or proceeding under this title,” as well as Webb v. Dyer County Bd. of Education, 471 U. S. 234, 243 (1985) (construing 42 U. S. C. §1988), and North Carolina Dept. of Transportation v. Crest Street Community Council, Inc., 479 U. S. 6, 15 (1986) (same), also cited by the majority. In short, these decisions have no application to the EAJA because its plain language indicates otherwise, as even the Court of Appeals in this case recognized. 839 F. 2d 1453, 1459 (CA11 1988).

Second, the majority rejects any negative implication from the express coverage of adversary agency adjudications by the statute. The majority reasons that the fact that “Congress carved the world of EAJA proceedings into ‘adversary adjudications’ and ‘civil actions’ does not necessarily speak to, let alone preclude, a reading of the term ‘civil action’ which includes administrative proceedings necessary to the completion of a civil action.” Ante, at 892. But of course that necessarily is what the statute does. Maxims of statutory construction tell us what Congress ordinarily means when it expresses itself in certain ways. When Congress “carved the world of EAJA proceedings into ‘adversary [agency] adjudications’ and ‘civil actions,’” excluding non-adversary agency adjudications, it meant that nonadversary agency adjudications, including remand proceedings before the agency, are not covered by the EAJA. The majority’s argument is no more than fancy footwork.

I find the statutory language plainly and unambiguously to preclude the construction given the EAJA by the majority. But even if the language of the statute might somehow be seen as ambiguous, its legislative history makes unmistakably clear that Congress did not intend fees to be awarded under the EAJA for work done in proceedings on remand before the Social Security Administration.

Little need be said because the legislative history is so straightforward. That history makes clear that in reenacting the EAJA, Congress considered and rejected a provision that would have extended the EAJA to administrative proceedings before the Social Security Administration, including those on remand from district court. An early version of the 1984 bill reenacting the EAJA defined adversary adjudications to include “hearings pursuant to section 205 and section 1631 of the Social Security Act.” S. Rep. No. 98-586, pp. 16, 33 (1984). This version was rejected by the House, 130 Cong. Rec. 24828-24829 (1984) (remarks of Rep. Morrison), and not included in the bill as passed by Congress, id., at 29280 (remarks of Sen. Heflin), which was ultimately vetoed by the President. The bill that was passed by Congress in 1985 and ultimately signed into law likewise did not contain that language. Senator Heflin, an active supporter of the provision extending the EAJA to Social Security proceedings, acknowledged that this effort failed because of “institutional opposition.” He stated: “While I believe this is an area ripe for protection, political realities dictate otherwise. And this seems to be a fight which will have to be fought another day.” 131 Cong. Rec. 20350 (1985).

There is no suggestion in the legislative history that remand proceedings were somehow included elsewhere in the EAJA. To the contrary, the House Report on the 1985 reenactment expressly states that fees cannot be recovered under the EAJA in precisely the situation facing the Court. The House Report reads as follows:

“The court will usually decline to make an award upon the remand decision because the remand order did not yet make the applicant a ‘prevailing party’ and therefore eligible under the EAJA. . . . [T]he remand decision is not a ‘final judgment,’ nor is the agency decision after remand. Instead, the District Court should enter an order affirming, modifying, or reversing the final HHS decision, and this will usually be the final judgment that starts the 30 days running. . . . As . . . courts have found the only fees which will be available will be for those activities undertaken in connection with the initial proceedings and not those associated with the administrative proceeding.” H. R. Rep. No. 99-120, pt. 1, pp. 19-20 (1985) (emphasis added).

This discussion does not, as respondent asserts, refer only to the initial administrative proceeding and not the proceeding on remand. Instead, this language affirms what the language of the EAJA likewise makes plain: that the EAJA does not authorize recovery of fees incurred in remand proceedings before the Social Security Administration.

Our duty is to apply statutes as they were enacted by Congress, not to take it upon ourselves to overcome the “political realities” that blocked what we might consider to be good legislation. However desirable it might be as a matter of policy for Social Security claimants to be able to recover attorney’s fees for proceedings on remand before the agency, that is not the statute that Congress enacted. Therefore, I dissent.


source: Caselaw Access Project

author: Justice Scalia Justice Stevens, Justice Marshall,

license: Public Domain

text:
    LORANCE et al. v. AT&T TECHNOLOGIES, INC., et al.
    No. 87-1428.
    Argued March 20, 1989
    Decided June 12, 1989

      Scalia, J., delivered the opinion of the Court, in which Rehnquist, C. J., and White, Stevens, and Kennedy, JJ., joined. Stevens, J., filed a concurring opinion, post, p. 913. Marshall, J., filed a dissenting opinion, in which Brennan and Blackmun, JJ., joined, post, p. 913. O’Connor, J., took no part in the consideration or decision of the case.

      Barry Goldstein argued the cause for petitioners. With him on the briefs were Julius LeVonne Chambers, Bridget Arimond, and Patrick O. Patterson.

      Charles A. Shanor argued the cause for the United States et al. as amici curiae urging reversal. With him on the brief were Solicitor General Fried, Deputy Solicitor General Ayer, Richard J. Lazarus, Gwendolyn Young Reams, and Donna J. Brusoski.

      David W. Carpenter argued the cause for respondents. With him on the brief were Rex E. Lee, Patrick S. Casey, Gerald D. Skoning, Charles C. Jackson, Michael Hi Gottesman, Robert M. Weinberg, Joel A. DAlba, and Stephen J. Feinberg.

        Robert E. Williams, Douglas S. McDowell, and Katrina Grider filed a brief for the Equal Employment Advisory Council as amicus curiae urging affirmance.

   Justice Scalia

delivered the opinion of the Court.

Respondent AT&T Technologies, Inc. (AT&T), manufactures electronics products at its Montgomery Works plant. The three petitioners, all of whom are women, have worked as hourly wage employees in that facility since the early 1970’s, and have been represented by respondent Local 1942, International Brotherhood of Electrical Workers, AFL-CIO. Until 1979 all hourly wage earners accrued competitive seniority exclusively on the basis of years spent in the plant, and a worker promoted to the more highly skilled and better paid “tester” positions retained this plantwide seniority. A collective-bargaining agreement executed by respondents on July 23, 1979, altered the manner of calculating tester seniority. Thenceforth a tester’s seniority was to be determined not by length of plantwide service, but by time actually spent as a tester (though it was possible to regain full plantwide seniority after spending five years as a tester and completing a prescribed training program). The present action arises from that contractual modification.

Petitioners became testers between 1978 and 1980. During a 1982 economic downturn their low seniority under the 1979 collective-bargaining agreement caused them to be selected for demotion; they would not have been demoted had the former plantwide seniority system remained in place. Claiming that the present seniority system was the product of an intent to discriminate on the basis of sex, petitioners filed complaints with the Equal Employment Opportunity Commission (EEOC) in April 1983. After the EEOC issued right-to-sue letters, petitioners in September 1983 filed the present lawsuit in the District Court for the Northern District of Illinois, and sought certification as class representatives for women employees of AT&T’s Montgomery Works plant who had lost plantwide seniority or whom the new system had deterred from seeking promotions to tester positions. Their complaint alleged that among hourly wage earners the tester positions had traditionally been held almost exclusively by men, and nontester positions principally by women, but that in the 1970’s an increasing number of women took the steps necessary to qualify for tester positions and exercised their seniority rights to become testers. They claimed that the 1979 alteration of the rules governing tester seniority was the product of a “conspir[acy] to change the seniority rules, in order to protect incumbent male testers and to discourage women from promoting into the traditionally-male tester jobs,” and that “[t]he purpose and the effect of this manipulation of seniority rules has been to protect male testers from the effects of the female testers’ greater plant seniority, and to discourage women from entering the traditionally-male tester jobs.” App. 20, 21-22.

On August 27, 1986, before deciding whether to certify the proposed class, the District Court granted respondents’ motion for summary judgment on the ground that petitioners had not filed their complaints with the EEOC within the applicable limitations period. 44 FEP Cases 1817, 1821. A divided panel of the Court of Appeals for the Seventh Circuit affirmed, concluding that petitioners’ claims were time barred because “the relevant discriminatory act that triggers the period of limitations occurs at the time an employee becomes subject to a facially neutral but discriminatory seniority system that the employee knows, or reasonably should know, is discriminatory.” 827 F. 2d 163, 167 (1987). We granted certiorari, 488 U. S. 887 (1988), to resolve a Circuit conflict on when the limitations period begins to run in a lawsuit arising out of a seniority system not alleged to be discriminatory on its face or as presently applied. Compare, e. g., case below with Cook v. Pan American World Airways, 771 F. 2d 635, 646 (CA2 1985), cert. denied, 474 U. S. 1109 (1986).

Section 706(e) of Title VII of the Civil Rights Act of 1964, 78 Stat. 260, as amended, provides that “[a] charge . . . shall be filed [with the EEOC] within [the applicable period] after the alleged unlawful employment practice occurred.” 42 U. S. C. §2000e-5(e). Assessing timeliness therefore “requires us to identify precisely the ‘unlawful employment practice’ of which [petitioners] complai[n].” Delaware State College v. Ricks, 449 U. S. 250, 257 (1980). Under § 703(a) of Title VII, it is an “unlawful employment practice” for an employer

“(1) ... to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin; or
“(2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s race, color, religion, sex, or national origin.” 42 U. S. C. §2000e-2(a).

Petitioners’ allegation of a disparate impact on men and women would ordinarily suffice to state a claim under § 703 (a)(2), since that provision reaches “practices that are fair in form, but discriminatory in operation,” Griggs v. Duke Power Co., 401 U. S. 424, 431 (1971); see Connecticut v. Teal, 457 U. S. 440, 446 (1982). “[Seniority systems,” however, “are afforded special treatment under Title VII,” Trans World Airlines, Inc. v. Hardison, 432 U. S. 63, 81 (1977), by reason of § 703(h), which states:

“Notwithstanding any other provision of this sub-chapter, it shall not be an unlawful employment practice for an employer to apply different standards of compensation, or different terms, conditions, or privileges of employment pursuant to a bona fide seniority . . . system, . . . provided that such differences are not the result of an intention to discriminate because of race, color, religion, sex, or national origin . . . .” 42 U. S. C. § 2000e-2(h).

We have construed this provision to mean that “absent a discriminatory purpose, the operation of a seniority system cannot be an unlawful employment practice even if the system has some discriminatory consequences.” Hardison, supra, at 82; see American Tobacco Co. v. Patterson, 456 U. S. 63, 65, 69 (1982). Thus, for liability to be incurred “there must be a finding of actual intent to discriminate on [statutorily proscribed] grounds on the part of those who negotiated or maintained the [seniority] system.” Pullman-Standard v. Swint, 456 U. S. 273, 289 (1982).

Petitioners do not allege that the seniority system treats similarly situated employees differently or that it has been operated in an intentionally discriminatory manner. Rather, they claim that its differential impact on the sexes is unlawful because the system “ha[d] its genesis in [sex] discrimination.” Teamsters v. United States, 431 U. S. 324, 356 (1977). Specifically, the complaint alleges that respondents “conspired to change the seniority rules, in order to protect incumbent male testers,” and that the resulting agreement effected a “manipulation of seniority rules” for that “purpose.” See App. 20-22 (emphasis added). This is in essence a claim of intentionally discriminatory alteration of their contractual rights. Seniority is a contractual right, Aaron, Reflections on the Legal Nature and Enforceability of Seniority Rights, 75 Harv. L. Rev. 1532, 1533 (1962), and a competitive seniority system establishes a “hierarchy [of such rights] ... according to which . . . various employment benefits are distributed,” Franks v. Bowman Transportation Co., 424 U. S. 747, 768 (1976). Under the collective-bargaining agreements in effect prior to 1979, each petitioner had earned the right to receive a favorable position in the hierarchy of seniority among testers (if and when she became a tester), and respondents eliminated those rights for reasons alleged to be discriminatory. Because this diminution in employment status occurred in 1979 — well outside the period of limitations for a complaint filed with the EEOC in 1983 — the Seventh Circuit was correct to find petitioners’ claims time barred under § 706(e).

We recognize, of course, that it is possible to establish a different theoretical construct: to regard the employer as having been guilty of a continuing violation which “occurred,” for purposes of § 706(e), not only when the contractual right was eliminated but also when each of the concrete effects of that elimination was felt. Or it would be possible to interpret § 703 in such fashion that when the proviso of § 703(h) is not met (“provided that such differences are not the result of an intention to discriminate because of race, color, religion, sex, or national origin”) and that subsection’s protection becomes unavailable, nothing prevents suits against the later effects of the system on disparate-impact grounds under § 703(a)(2). The answer to these alternative approaches is that our cases have rejected them.

The continuing violation theory is contradicted most clearly by two decisions, Delaware State College v. Ricks, 449 U. S. 250 (1980), and United Air Lines, Inc. v. Evans, 431 U. S. 553 (1977). In Ricks, we treated an allegedly discriminatory denial of tenure — rather than the resulting nondiscriminatory termination of employment one year later — as the act triggering the limitations period under § 706(e). Because Ricks did not claim that “the manner in which his employment was terminated differed discriminatorily from the manner in which the College terminated other professors who also had been denied tenure,” we held that “the only alleged discrimination occurred — and the filing limitations periods therefore commenced — at the time the tenure decision was made and communicated to Ricks.” 449 U. S., at 258. “That is so,” we found, “even though one of the effects of the denial of tenure — the eventual loss of a teaching position — did not occur until later.” Ibid, (emphasis in original). We concluded that “ ‘[t]he proper focus is upon the time of the discriminatory acts, not upon the time at which the consequences of the acts became most painful.’” Ibid, (emphasis in original); accord, Chardon v. Fernandez, 454 U. S. 6, 8 (1981) (per curiam).

In Evans, United Air Lines had discriminatorily dismissed the plaintiff after she had worked several years as a flight attendant, and when it rehired her some years later, gave her no seniority credit for her earlier service. Evans conceded that the discriminatory dismissal was time barred, but claimed that the seniority system impermissibly gave “present effect to a past act of discrimination.” 431 U. S., at 558. While agreeing with that assessment, we concluded under § 703(h) that “a challenge to a neutral system may not be predicated on the mere fact that a past event which has no present legal significance has affected the calculation of seniority credit, even if the past event might at one time have justified a valid claim against the employer.” Id,., at 560. Like Evans, petitioners in the present case have asserted a claim that is wholly dependent on discriminatory conduct occurring well outside the period of limitations, and cannot complain of a continuing violation.

The second alternative theory mentioned above would view § 703(h) as merely providing an affirmative defense to a cause of action brought under § 703(a)(2), rather than as making intentional discrimination an element of any Title VII action challenging a seniority system. The availability of this affirmative defense would not alter the fact that the claim asserted is one of discriminatory impact under § 703(a)(2), causing the statute of limitations to run from the time that impact is felt. As an original matter this is a plausible, and perhaps even the most natural, reading of § 703(h). (We have construed § 703(e), 42 U. S. C. §2000e-2(e) — which deals with bona fide occupational qualifications — in this fashion. See Dothard v. Rawlinson, 433 U. S. 321, 333 (1977).) But such an interpretation of § 703(h) is foreclosed by our cases, which treat the proof of discriminatory intent as a necessary element of Title VII actions challenging seniority systems. At least as concerns seniority plans, we have regarded subsection (h) not as a defense to the illegality described in subsection (a)(2), but as a provision that itself “delineates which employment practices are illegal and thereby prohibited and which are not.” Franks, 424 U. S., at 758. Thus, in American Tobacco Co. we determined § 703(h) to mean that “the fact that a seniority system has a discriminatory impact is not alone sufficient to invalidate the system; actual intent to discriminate must be proved.” 456 U. S., at 65 (emphasis added). “To be cognizable,” we held, “a claim that a seniority system has discriminatory impact must be accompanied by proof of a discriminatory purpose.” Id., at 69 (emphasis added); accord, Pullman-Standard, 456 U. S., at 277, 289; Hardison, 432 U. S., at 82. Indeed, in California Brewers Assn. v. Bryant, 444 U. S. 598 (1980), after deciding that a challenged policy was part of a seniority system, we noted that on remand to the District Court the plaintiff would “remain free to show that . . . the seniority system ... is not ‘bona fide’ or that the differences in employment conditions that it has produced are ‘the result of an intention to discriminate because of race,’” id., at 610-611. Thus, petitioners’ claim depends on proof of intentionally discriminatory adoption of the system, which occurred outside the limitations period.

That being the case, Machinists v. NLRB, 362 U. S. 411 (1960), establishes that the limitations period will run from the date the system was adopted (at least where the adoption occurred after the effective date of Title VII, and a cause of action against it was available). Machinists was a decision under the National Labor Relations Act (NLRA), but we have often observed that the NLRA was the model for Title VII’s remedial provisions, and have found cases interpreting the former persuasive in construing the latter. See Ford Motor Co. v. EEOC, 458 U. S. 219, 226, n. 8 (1982); Teamsters, 431 U. S., at 366; Franks, supra, at 768-770; Albemarle Paper Co. v. Moody, 422 U. S. 405, 419 (1975). Such reliance is particularly appropriate in the context presented here, since the highly unusual feature of requiring an administrative complaint before a civil action can be filed against a private party is common to the two statutes. The NLRA’s statute of limitations — which provides that “no complaint shall issue based upon any unfair labor practice occurring more than six months prior to the filing of the charge with the Board,” 29 U. S. C. § 160(b) — is even substantively similar to § 706(e) — which states that “[a] charge . . . shall be filed [with the EEOC] within one hundred and eighty days after the alleged unlawful employment practice occurred,” 42 U. S. C. §2000e-5(e). In Zipes v. Trans World Airlines, Inc., 455 U. S. 385 (1982), we specifically relied on cases construing the NLRA’s timely filing requirement in determining whether § 706(e) — the very provision we construe here — constituted a waivable statute of limitations or rather a jurisdictional prerequisite to a Title VII action. “Because the time requirement for filing an unfair labor practice charge under the National Labor Relations Act operates as a statute of limitations subject to recognized equitable doctrines and not as a restriction of the jurisdiction of the National Labor Relations Board,” we said, “the time limitations under Title VII should be treated likewise.” 455 U. S., at 395, n. 11 (citations omitted).

Machinists considered and rejected an approach to the limitations period identical to that advanced here. The suit involved the timeliness of an unfair labor practice complaint directed at a so-called “union security clause,” which required all employees to join the union within 45 days of the contract’s execution. Under the NLRB’s precedents, agreeing to such a clause when the union lacked majority status constituted an unfair labor practice, as did continued enforcement of the clause. 362 U. S., at 413-414. The agreement at issue in Machinists had been adopted more than six months before the complaint issued (outside the limitations period), but had been enforced well within the period of limitations. “Conceding that a complaint predicated on the execution of the agreement here challenged was barred by limitations,” the NLRB contended that “its complaint was nonetheless timely since it was ‘based upon’ the parties’ continued enforcement, within the period of limitations, of the union security clause.” Id., at 415 (emphasis in original). We found, however, that “the entire foundation of the unfair labor practice charged was the Union’s time-barred lack of majority status when the original collective-bargaining agreement was signed,” and that “[i]n the absence of that fact enforcement of this otherwise valid union security clause was wholly benign.” Id., at 417. “[W]here a complaint based upon that earlier event is time-barred,” we reasoned, “to permit the event itself” “to cloak with illegality that which was otherwise lawful” “in effect results in reviving a legally defunct unfair labor practice.” Ibid. This analysis is squarely in point here. Because the claimed invalidity of the facially nondiscriminatory and neutrally applied tester seniority system is wholly dependent on the alleged illegality of signing the underlying agreement, it is the date of that signing which governs the limitations period.

In holding that, when a seniority system is nondiscriminatory in form and application, it is the allegedly discriminatory adoption which triggers the limitations period, we respect not only §706(e)’s general “Value judgment concerning the point at which the interests in favor of protecting valid claims are outweighed by the interests in prohibiting the prosecution of stale [claims],’” Ricks, 449 U. S., at 260 (citation omitted), but also the considerations underlying the “special treatment” accorded to seniority systems under § 703(h), see Hardison, 432 U. S., at 81. This “special treatment” strikes a balance between the interests of those protected against discrimination by Title VII and those who work — perhaps for many years — in reliance upon the validity of a facially lawful seniority system. There is no doubt, of course, that a facially discriminatory seniority system (one that treats similarly situated employees differently) can be challenged at any time, and that even a facially neutral system, if it is adopted with unlawful discriminatory motive, can be challenged within the prescribed period after adoption. But allowing a facially neutral system to be challenged, and entitlements under it to be altered, many years after its adoption would disrupt those valid reliance interests that § 703(h) was meant to protect. In the context of the present case, a female tester could defeat the settled (and worked-for) expectations of her co-workers whenever she is demoted or not promoted under the new system, be that in 1983, 1993, 2003, or beyond. Indeed, a given plaintiff could in theory sue successively for not being promoted, for being demoted, for being laid off, and for not being awarded a sufficiently favorable pension, so long as these acts — even if nondiscriminatory in themselves — could be attributed to the 1979 change in seniority. Our past cases, to which we adhere today, have declined to follow an approach that has such disruptive implications.

* * *

For the foregoing reasons, the judgment of the Court of Appeals is

Affirmed.

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

Justice Stevens,

concurring.

Although I remain convinced that the Court misconstrued Title VII in American Tobacco Co. v. Patterson, 456 U. S. 63 (1982), see id., at 86-90 (dissenting opinion), and in Delaware State College v. Ricks, 449 U. S. 250 (1980), see id., at 265-267 (dissenting opinion), the Court has correctly applied those decisions to the case at hand. And it is the Court’s construction of the statute — rather than the views of an individual Justice — that becomes a part of the law. See Johnson v. Transportation Agency, Santa Clara County, 480 U. S. 616, 644 (1987) (Stevens, J., concurring); Dougherty County Bd. of Education v. White, 439 U. S. 32, 47 (1978) (Stevens, J., concurring). Accordingly, I join the Court’s opinion.

Justice Marshall,

with whom Justice Brennan and Justice Blackmun join,

dissenting.

The majority holds today that, when it is alleged that an employer and a union have negotiated and adopted a new seniority system with the intention of discriminating against women in violation of Title VII, 42 U. S. C. §2000e et seq., the limitations period set forth in § 706(e), §2000e-5(e), begins to run immediately upon the adoption of that system. Ante, at 909-911. This is so even if the employee who subsequently challenges that system could not reasonably have expected to be demoted or otherwise concretely harmed by the new system at the time of its adoption, and, indeed, even if the employee was not working in the affected division of the company at the time of the system’s adoption. This severe interpretation of § 706(e) will come as a surprise to Congress, whose goals in enacting Title VII surely never included conferring absolute immunity on discriminatorily adopted seniority systems that survive their first 300 days. Because the harsh reality of today’s decision, requiring employees to sue anticipatorily or forever hold their peace, is so glaringly at odds with the purposes of Title VII, and because it is compelled neither by the text of the statute nor our precedents interpreting it, I respectfully dissent.

The facts of this case illustrate the austere practical consequences of the majority’s holding. On the day AT&T’s seniority system was adopted, there was no reason to believe that a woman who exercised her plantwide seniority to become a tester would ever be demoted as a result of the new system. Indeed, under the new system, after five years a woman tester would regain her plantwide seniority; only in the intervening five years was she potentially endangered. Patricia Lorance, who was already a tester when the new system was adopted, almost made it; only after four years as a tester was she demoted under the terms of the new system. That the new system would concretely harm petitioners Janice Kang and Carol Bueschen was even more speculative. They became testers several months after the seniority system was modified, and like Lorance, they were not adversely affected by the restructured seniority system until 1982. (Indeed, absent the nationwide recession in the early 1980’s, the petitioners might never have been affected.) Today, however, the majority concludes that these women are barred from bringing this suit because they failed to anticipate, within 300 days of the new system’s adoption, that these contingencies would one day place them among the new system’s casualties.

Nothing in the text of Title VII compels this result. On the contrary, even the majority concedes that a plausible reading of Title VII would regard the employer as having violated § 703(a)(1), 42 U. S. C. § 2000e-2(a)(l), the disparate-treatment wing of the statute, not only at the time of the system’s adoption, but also when each concrete effect of that system is felt. Ante, at 906; see also 827 F. 2d 163,166 (CA7 1987) (describing this interpretation as “logically appealing”). Under this continuing violation theory, each time a discriminatory seniority system is applied, like each time a discriminatory salary structure is applied, an independent “unlawful employment practice” under § 703(a)(1) takes place, triggering the limitations period anew. See Bazemore v. Friday, 478 U. S. 385, 395-396 (1986) (“Each week’s paycheck that delivers less to a black than to a similarly situated white is a wrong actionable under Title VII”); cf. Havens Realty Corp. v. Coleman, 455 U. S. 363, 380 (1982) (“Where the challenged violation is a continuing one, the staleness concern disappears”). Viewing each application of a discriminatory system as a new violation serves the equal opportunity goals of Title VII by ensuring that victims of discrimination are not prevented from having their day in court.

Today’s decision is the latest example of how this Court, flouting the intent of Congress, has gradually diminished the application of Title VII to seniority systems. First, the Court held that § 703(h), 42 U. S. C. §2000e-2(h), requires special treatment for bona fide seniority systems under Title VII so that “absent a discriminatory purpose, the operation of a seniority system cannot be an unlawful employment practice even if the system has some discriminatory consequences.” Trans World Airlines, Inc. v. Hardison, 432 U. S. 63, 82 (1977); see also Pullman-Standard v. Swint, 456 U. S. 273, 289 (1982). Then, the Court held by a narrow margin that § 703(h) protects even those seniority systems put into place after the passage of Title VII. American Tobacco Co v. Patterson, 456 U. S. 63, 71 (1982).

The majority contends that the result it reaches today is dictated by these and other ill-advised precedents involving seniority systems, but in my view, today’s decision compounds the Court’s prior decisional errors by giving them unnecessarily broad scope. This extension is particularly inappropriate because it forces the Court to reach such a bizarre and impractical result. Never have we held or even intimated that, in the context of a statute of limitations inquiry, one must evaluate challenges to a seniority system born of discriminatory intent as of the moment of its adoption. Indeed, had we so held, the majority’s concession that a worker may at any time challenge a facially discriminatory seniority plan under § 703(a)(1) would be flatly contradicted by precedent. Ante, at 912. The discriminatory intent that goes into the creation of even a facially flawed seniority plan is, after all, no different than the discriminatory intent that informs the creation of a facially neutral one. To impute ongoing intent in the former situation but not in the latter is untenable. The distinction the majority erects today serves only to reward those employers ingenious enough to cloak their acts of discrimination in a facially neutral guise, identical though the effects of this system may be to those of a facially discriminatory one.

Neither United Air Lines Inc. v. Evans, 431 U. S. 553 (1977), nor Delaware State College v. Ricks, 449 U. S. 250 (1980), on which the majority premises its rejection of the continuing violation theory, compels today’s result. In Evans, unlike the instant case, the plaintiff never alleged that the seniority system itself was set up in order to discriminate. Indeed, we observed that Evans “does not attack the bona fides of United’s seniority system” and “makes no charge that the system is intentionally designed to discriminate.” 431 U. S., at 560; see also id., at 557. The sole discrimination alleged in Evans was in the plaintiff’s prior discharge, the impact of which, she alleged, had been enhanced upon ! ,er return to work by the failure of the seniority system to accord her credit for time she would have served had she not been discharged. In denying her challenge to that system, we held that “a challenge to a neutral system may not be predicated on the mere fact that a past event [Evan’s prior discharge] which has no present legal significance has affected the calculation of seniority credit.” Id., at 560. That holding is plainly inapposite here, where the very essence of petitioners’ claim is that AT&T’s discriminatorily adopted seniority system is not neutral. Thus, the majority’s conclusion that the “past event” cited in this case — the discriminatory adoption of the very seniority system under legal challenge — has “‘no present legal significance,’” ibid., quoted ante, at 908, is ipse dixit.

Ricks is likewise inapposite. The allegedly discriminatory denial of tenure in that case served notice to the plaintiff that his termination a year later would come as a “delayed, but inevitable consequence,” 449 U. S., at 257-258 (emphasis added). It was thus appropriate, as in so many areas involving statutes of limitations doctrine, to set the limitations clock running upon the plaintiff’s discovery of harm to herself. Petitioners Lorance, King, and Bueschen, however, were given no such advance warning. For them, the majority holds, the limitations clock began running, and ran out, long before it was apparent that they would be demoted by AT&T’s discriminatory system. Like Evans, Ricks stands for the proposition that neutral employment practices that passively perpetuate the consequences of prior, time-barred discrimination but are not themselves bred of discriminatory intent do not constitute actionable wrongs under Title VII. Neither case suggests that the operation of a seniority system set up in order to discriminate should be treated the same way as a legitimate seniority (or tenure) system, born of nondiscriminatory motives, which in a particular case may have the effect of passively reinforcing prior time-barred acts of discrimination.

Nor, finally, is it correct to say that Machinists v. NLRB, 362 U. S. 411 (1960), “establishes that the limitations period will run from the date the system was adopted,” ante, at 909, and therefore controls this case. Initially, it bears mention that Machinists arose under a different statute, the National Labor Relations Act (NLRA), 29 U. S. C. §§151-169, and that Machinists did not involve a seniority system, but instead a union security clause which, it was alleged, had been defectively adopted. Significant though the role of the NLRA was as a model for Title VII’s remedial provisions, these are hardly the indicia of a controlling precedent. Moreover, sound reasons support the finding of a time bar in Machinists, but no time bar here. In Machinists, as in Ricks, the enforcement of the challenged security clause was the inevitable consequence of its execution. The clause affected all nonunion employees alike, and from its very inception there was no mystery about which employees would be affected and about the impact it would have on them. By contrast, in this case, the very essence of petitioners’ claim is that AT&T’s new seniority system was designed to have a long-range discriminatory impact, hurting women employees as a group but, as of the time of its inception, only theoretically hurting particular woman employees. Unlike Machinists, there is no indication that anyone employed at AT&T was, during the limitations period chosen by the majority, so tangibly affected by the new plan as to create any incentive to sue.

The majority today continues the process of immunizing seniority systems from the requirements of Title VII. In addition to the other hurdles previously put in place by the Court, employees must now anticipate, and initiate suit to prevent, future adverse applications of a seniority system, no matter how speculative or unlikely these applications may be. This Court’s observation that “limitations periods should not commence to run so soon that it becomes difficult for a layman to invoke the protection of the civil rights statutes,” Ricks, supra, at 262, n. 16, has an increasingly hollow ring. Because I do not believe that Congress, in framing Title VII, even remotely contemplated putting employees into the predicament which the majority today makes inevitable, I dissent.

       The type of seniority at issue here is not “benefit seniority,” which is used to “compute noncompetitive benefits earned under the contract of employment,” Franks v. Bowman Transportation Co., 424 U. S. 747, 766 (1976) (emphasis added), but “competitive seniority,” which is “used to allocate entitlements to scarce benefits” such as promotion or nondemotion, id., at 766-767.

       Under 42 U. S. C. § 2000e-5(e), a charge must be filed with the EEOC within 180 days of the alleged unfair employment practice unless the complainant has first instituted proceedings with a state or local agency, in which case the period is extended to a maximum of 300 days. Neither the District Court nor the Court of Appeals ruled on the applicable limitations period in the present case, since both courts concluded that petitioners’ claims were time barred even if the applicable period was 300 days. See 827 F. 2d 163, 165, and n. 2 (CA7 1987). We may for the same reason avoid ruling on that point here.

       The dissent attempts to distinguish Delaware State College v. Ricks on the ground that there “[t]he allegedly discriminatory denial of tenure . . . served notice to the plaintiff that his termination a year later would come as a ‘delayed, but inevitable, consequence.’” Post, at 917 (emphasis in original; citation omitted). This builds on its earlier criticism that “[o]n the day AT&T’s seniority system was adopted, there was no reason to believe that a woman who exercised her plantwide seniority to become a tester would ever be demoted as a result of the new system,” so that at that point the prospect of petitioners’ suffering “concrete] harm” was “speculative.” Post, at 914 (emphasis in original). Of course the benefits of a seniority system, like those of an insurance policy payable upon the occurrence of a noninevitable event, are by their nature speculative — if only because they depend upon the employee’s continuing desire to work for the particular employer. But it makes no more sense to say that no “concrete harm” occurs when an employer provides a patently less desirable seniority guarantee than what the law requires, than it does to say that no concrete harm occurs when an insurance company delivers an accident insurance policy with a face value of $10,000, when what has been paid for is a face value of $25,000. It is true that the injury to the employee becomes substantially more concrete when the less desirable seniority system causes his demotion, just as the injury to the policyholder becomes substantially more concrete when the accident occurs and the payment is $15,000 less than it should be. But that is irrelevant to whether there was any concrete injury at the outset. What the dissent means by “concrete harm” is what Ricks, 449 U. S., at 258, referred to as the point at which the injury becomes “most painful” — and that case rejected it as the point of reference for liability. Accord, Chardon v. Fernandez, 454 U. S. 6, 8 (1981) (per curiam).

       Like Ricks and United Air Lines, Inc. v. Evans, 431 U. S. 553 (1977), our decision in Machinists v. NLRB also rejected an attempt to cure untimeliness by asserting a continuing violation:
      “The applicability of these principles cannot be avoided here by invoking the doctrine of continuing violation. It may be conceded that the continued enforcement, as well as the execution, of this collective bargaining agreement constitutes an unfair labor practice, and that these are two logically separate violations, independent in the sense that they can be described in discrete terms. Nevertheless, the vice in the enforcement of this agreement is manifestly not independent of the legality of its execution, as would be the case, for example, with an agreement invalid on its face or with one validly executed, but unlawfully administered.” 362 U. S., at 422-423.

       The dissent is mistaken to equate the application of a facially neutral but discriminatorily adopted system with the application of a system that is facially discriminatory. See post, at 916-917. With a facially neutral system the discriminatory act occurs only at the time of adoption, for each application is nondiscriminatory (seniority accrues for men and women on an identical basis). But a facially discriminatory system (e. g., one that assigns men twice the seniority that women receive for the same amount of time served) by definition discriminates each time it is applied. This is a material difference for purposes of the analysis we employed in Evans and Ricks — which focuses on the timing of the discriminatory acts for purposes of the statute of limitations. It is also why the dissent’s citation, post, at 915, of Bazemore v. Friday, 478 U. S. 385 (1986) — in which “[ejach week’s paycheck . . . deliverfed] less to a black than to a similarly situated white,” id., at 395 — is misplaced.

       Or, in the case of a complaint not previously filed with a state or local agency, systems that survive their first 180 days. 42 U. S. C. §2000e-(5)(e); ante, at 903, n. 2.

       It remains astonishing to me that seniority systems are sheltered from disparate-impact claims, see Teamsters v. United States, 431 U. S. 324, 377-394 (1977) (opinion of Marshall, J.). Even the majority concedes that “[a]s an original matter ... a plausible, and perhaps even the most natural, reading of § 703(h)” regards that subsection as merely providing an affirmative defense to a disparate-impact action brought under § 703(a) (2). Ante, at 908.
      But even accepting our precedents, I do not believe, as the majority does, that they prohibit the Court from finding that petitioners have made a timely and colorable claim of disparate impact under § 703(a)(2). 42 U. S. C. § 2000e-2(a)(2). In Trans World Airlines v. Hardison, 432 U. S. 63 (1977), we held only that bona fide seniority systems were exempted by § 703(h) from disparate-impact claims. Accepting as true petitioners’ allegation that AT&T and its union restructured the seniority system for discriminatory reasons, this system should not qualify as a bona fide one entitled to immunity from disparate-impact claims.

       Tellingly, none of the Courts of Appeals presented with a claim of a continuing violation has reached the result the majority today reaches. Indeed, two of the Courts of Appeals have interpreted our precedents to permit claims of continuing violation. Cook v. Pan American World Airways, Inc., 771 F. 2d 635, 646 (CA2 1985); cf. Johnson v. General Electric, 840 F. 2d 132, 135 (CA1 1988). Even the Seventh Circuit, finding petitioners’ claim time barred in the judgment under review, adopted a far narrower interpretation than the majority, under which the limitations period begins to run on the date when the employee first becomes subject to the seniority system. 827 F. 2d 163, 167 (1987).


author: Per Curiam.

text:
    CALIFORNIA et al. v. UNITED STATES et al.
    No. 87-1165.
    Argued November 28, 1988
    Decided June 12, 1989

      Jerome C. Muys argued the cause for petitioners. With him on the briefs were Warren J. Abbott, Fred Vendig, Karen L. Tachiki, James F. Roberts, Justin McCarthy, John K. Van de Kamp, Attorney General of California, R. H. Connett and N. Gregory Taylor, Assistant Attorneys General, and Douglas B. Noble, Deputy Attorney General, Robert K. Corbin, Attorney General of Arizona, and Anthony B. Ching, Solicitor General.

      Edwin S. Kneedler argued the cause for the United States. With him on the brief were Solicitor General Fried, Assistant Attorney General Marzulla, Deputy Solicitor General Wallace, Edward J. Shawaker, and Sarah P. Robinson. Dale T. White argued the cause for the tribal respondents. With him on the brief were William E. Strickland and Scott B. McElroy.

         Richard Dauphinais filed a brief for the Klamath Tribe et al. as amici curiae urging affirmance.

   Per Curiam.

The judgment below is affirmed by an equally divided Court.

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


text:
    April 3, 1989
    No. 88-1036.
    Hodes et ux. v. Lauro Lines s.r.l. et al.
   C. A. 3d Cir. Certiorari dismissed under this Court’s Rule 53.


text:
    No. 87-2118.
    Rojas et al. v. Victoria Independent School District et al.
   Affirmed on appeal from D. C. S. D. Tex.

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


text:
    No. 88-1340.
    Wishart et ux. v. Bates et al.
   Appeal from Sup. Ct. Fla. dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for writ of certiorari, certiorari denied.


text:
    No. 87-255.
    Zohdi et al. v. Federal Savings and Loan Insurance Corporation, as Receiver of Sun Belt Federal Bank, F. S. B., et al.
   C. A. 5th Cir. Certiorari granted, judgment vacated, and case remanded for further consideration in light of Coit Independence Joint Venture v. FSLIC, 489 U. S. 561 (1989).


text:
    No. 87-1706.
    Jenkins, Superintendent of District of Columbia Public Schools, et al. v. Jones.
   C. A. D. C. Cir. Certiorari granted, judgment vacated, and case remanded for further consideration in light of Skinner v. Railway Labor Executives’ Assn., 489 U. S. 602 (1989), and Treasury Employees v. Von Raab, 489 U. S. 656 (1989). Justice Stevens would deny certiorari.


text:
    No. 88-557.
    Michigan v. Leigh.
   Ct. App. Mich. Motion of respondent for leave to proceed informa pauperis granted. Certiorari granted, judgment vacated, and case remanded for further consideration in light of Arizona v. Youngblood, 488 U. S. 51 (1988).

Justice Stevens would deny certiorari.


text:
    No. 88-1121.
    Bradley et al. v. United States.
   C. A. 3d Cir. Certiorari granted, judgment vacated, and case remanded for further consideration in light of the position presently asserted by the Acting Solicitor General in the Brief for the United States filed March 8, 1989.

The Chief Justice, Justice White, Justice Scalia, and Justice Kennedy would deny certiorari.


text:
    No. 88-1350.
    Smith et al. v. Sowers.
   C. A. 3d Cir. Certiorari granted, judgment vacated, and case remanded for further consideration in light of DeShaney v. Winnebago County Dept. of Social Services, 489 U. S. 189 (1989).


text:
    No. A-761.
    Gargallo v. Quick & Reilly Clearing et al.
   D. C. S. D. Ohio. Application for stay, addressed to Justice Blackmun and referred to the Court, denied.


text:
    No. 87-1965.
    Zinermon et al. v. Burch.
   C. A. 11th Cir. [Certiorari granted, 489 U. S. 1064.] Motion of petitioners to dispense with printing the joint appendix granted.


text:
    No. 88-309.
    Wyoming v. United States et al.
   Sup. Ct. Wyo. [Certiorari granted, 488 U. S. 1040.] Motion of the Acting Solicitor General for divided argument granted.


text:
    No. 88-412.
    Hoffman, Trustee v. Connecticut Department of Income Maintenance et al.
   C. A. 2d Cir. [Certiorari granted, 488 U. S. 1003.] Motion of the Acting Solicitor General for divided argument granted.


text:
    No. 88-599.
    Washington et al. v. Harper.
   Sup. Ct. Wash. [Certiorari granted, 489 U. S. 1064.] Motion for appointment of counsel granted, and it is ordered that Brian Reed Phillips, Esq., of Everett, Wash., be appointed to serve as counsel for respondent in this case.


text:
    No. 88-605.
    Webster, Attorney General of Missouri, et al. v. Reproductive Health Services et al.
   C. A. 8th Cir. [Probable jurisdiction noted, 488 U: S. 1003.] Motion of Robert Packwood et al. for leave to participate in oral argument as amici curiae, for divided argument, and for additional time for oral argument denied.


text:
    No. 88-5890.
    In re McDonald.
   Motion of petitioner for reconsideration of order denying leave to proceed informa pauperis [489 U. S. 180] denied.


author: Justice Brennan and Justice Marshall,

text:
    No. 88-6855 (A-773).
    In re Campbell.
   Application for stay of execution of sentence of death, presented to Justice O’Con-nor, and by her referred to the Court, denied. Petition for writ of mandamus and/or prohibition denied.

Justice Brennan and Justice Marshall,

dissenting.

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


text:
    (See also No. 87-980, ante, at 41, n. 15.)
    No. 88-931.
    Crandon et al. v. United States; and Boeing Co., Inc. v. United States.
    No. 88-938.
   C. A. 4th Cir. Certiorari granted, cases consolidated, and a total of one hour allotted for oral argument.


text:
    No. 88-1182.
    Baltimore City Department of Social Services v. Bouknight; and Maurice M. v. Bouknight.
    No. 88-6651.
   Ct. App. Md. Motion of respondent Jacqueline Bouknight for leave to proceed in forma pauperis granted. Certiorari granted limited to the following questions:

“1. Does a court order directing a parent to produce her previously abused infant son compel incriminating testimony in violation of the parent’s Fifth Amendment privilege against self-incrimination?
“2. Even if the Fifth Amendment privilege is implicated by a court order to produce a child, is the privilege overcome by the important societal interest in protecting children in jeopardy of serious injury?”

Cases consolidated and a total of one hour allotted for oral argument.


text:
    (See also No. 88-1340, supra.)

    No. 87-452.
    Federal Savings and Loan Insurance Corporation, as Receiver for Beverly Hills Savings & Loan Assn. v. Murdock-SC Associates et al.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 88-66.
    Copeland v. Philadelphia Police Department et al.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 88-250.
    Lazar v. United States; and Friedman v. United States.
    No. 88-278.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 88-645.
    Alverado et al. v. Washington Public Power Supply System et al.
   Sup. Ct. Wash. Certiorari denied.


text:
    No. 88-659.
    Federal Savings and Loan Insurance Corporation, as Receiver of Empire Savings & Loan Assn. v. Glen Ridge I Condominiums, Ltd., et al.
   Ct. App. Tex., 5th Dist. Certiorari denied.


text:
    No. 88-706.
    Policemen’s Benevolent Association of New Jersey, Local 318, et al. v. Township of Washington, New Jersey, et al.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 88-732.
    Helmsley et ux. v. United States.
   C. A. 2d

Cir. Certiorari denied.


text:
    No. 88-888.
    Poindexter et al. v. United States.
   C. A. D. C. Cir. Certiorari denied.


text:
    No. 88-1049.
    Grange Insurance Assn. v. Washington et al.
   Sup. Ct. Wash. Certiorari denied.


text:
    No. 88-1055.
    Yeauger v. United States.
   Ct. Mil. App. Certiorari denied.


text:
    No. 88-1072.
    Tennessee et al. v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 88-1119.
    Messiah Baptist Church et al. v. Jefferson County, Colorado, et al.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 88-1144.
    Penthouse International, Ltd., et al. v. Dominion Federal Savings & Loan Assn. et al.; and Dominion Federal Savings & Loan Assn. v. Penthouse International, Ltd., et al.
    No. 88-1339.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 88-1160.
    Cornelius, Personal Representative of the Estate of McDonald v. Commissioner of Internal Revenue.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 88-1161.
    Dornhofer v. United States.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 88-1166.
    Lowe v. United States.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 88-1170.
    Boise-Kuna Irrigation District et al. v. United States et al.
   Sup. Ct. Idaho. Certiorari denied.


text:
    No. 88-1173.
    Pendley, Administrator of the Estate of Cassutt v. United States.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 88-1187.
    Winkler et al. v. Spinnato, Commissioner of the Fire Department of the City of New York, et al.
   Ct. App. N. Y. Certiorari denied.


text:
    No. 88-1253.
    Busacca v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 88-1310.
    Brent v. National Railroad Passenger Corporation, dba Amtrak, et al.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 88-1311.
    Allstate Insurance Co. v. Bourland, Individually and as Administrator of the Estate of Bourland.
   Sup. Ct. Ark. Certiorari denied.


text:
    No. 88-1313.
    Ghosh v. Ohio University et al.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 88-1315.
    Wu v. Board of Trustees of the University of Alabama et al.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 88-1316.
    Compressed Gas Corp. v. United States Steel Corp. et al.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 88-1320.
    Wonderwheel et al. v. Brady et al.
   Ct.

App. Cal., 1st App. Dist. Certiorari denied.


text:
    No. 88-1322.
    City of Whittier, California v. Walnut Properties, Inc.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 88-1325.
    Paxson Electric Co. et al. v. United States; and Dynalectric Co. et al. v. United States.
    No. 88-1328.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 88-1330.
    Getty Petroleum Corp. v. Salem Heat & Petroleum Corp. et al.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 88-1332.
    Gekas, Trustee of Met-L-Wood Corp. v. Pipin et al.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 88-1333.
    Robinson v. Pennsylvania.
   Super. Ct. Pa. Certiorari denied.


text:
    No. 88-1335.
    Getty Petroleum Corp. v. Bartco Petroleum Corp. et al.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 88-1337.
    Soifer v. Bankers Trust Co. et al.; and Rhoades et al. v. Bankers Trust Co. et al.
    No. 88-1351.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 88-1341.
    San Fernando Valley Neighborhood Legal Services, Inc., as Counsel for Dubose, et al. v. Kemp, Secretary of Housing and Urban Development, et al.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 88-1356.
    Constant v. Advanced Micro-Devices, Inc., et al.
   C. A. Fed. Cir. Certiorari denied.


text:
    No. 88-1390.
    Lowery v. Lowery.
   Ct. App. Ohio, Sandusky

County. Certiorari denied.


text:
    No. 88-1405.
    Brown v. Mississippi.
   Sup. Ct. Miss. Certiorari denied.


text:
    No. 88-1410.
    Kondrat v. Moyer et al.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 88-1413.
    Fitzgerald v. Sullivan, Secretary, United States Department of Health and Human Services.
   C.- A. 4th Cir. Certiorari denied.


text:
    No. 88-1422.
    Wolfson v. United States.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 88-1429.
    DeVoe v. Commissioner of Internal Revenue.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 88-1442.
    Nally et ux. v. Grace Community Church of the Valley et al.
   Sup. Ct. Cal. Certiorari denied.


text:
    No. 88-1443.
    Billhimer v. Maryland Administrative Board of Election Laws.
   Ct. App. Md. Certiorari denied.


text:
    No. 88-1487.
    Rogers v. First National Bank of Peoria et al.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 88-1489.
    Wolpert et ux., Individually and Guardians of Wolpert et al. v. United States.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 88-6204.
    Branion v. Gramly, Warden.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 88-6211.
    Streater v. United States.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 88-6401.
    Martin v. Commonwealth National Bank et al.
   Super. Ct. Pa. Certiorari denied.


text:
    No. 88-6457.
    Smith v. Fairman, Warden, et al.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 88-6511.
    Wright v. Bogan, Warden, et al.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 88-6520.
    Poling v. Indiana.
   Sup. Ct. Ind. Certiorari denied.


text:
    No. 88-6527.
    Erickson v. Erickson, Warden, et al.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 88-6532.
    Larson v. Texas.
   Ct. App. Tex., 14th Dist. Certiorari denied.


text:
    No. 88-6539.
    Malloy v. Alabama.
   Ct. Crim. App. Ala. Certiorari denied.


text:
    No. 88-6540.
    Pratt v. Nevada.
   Sup. Ct. Nev. Certiorari denied.


text:
    No. 88-6541.
    Hensley v. North Carolina.
   Ct. App. N. C. Certiorari denied.


text:
    No. 88-6543.
    Yagow v. Melroe et al.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 88-6547.
    Leonard v. Illinois.
   App. Ct. Ill., 2d Dist. Certiorari denied.


text:
    No. 88-6548.
    Wilson v. Illinois.
   App. Ct. Ill., 1st Dist. Certiorari denied.


text:
    No. 88-6549.
    Kuku v. Immigration and Naturalization Service.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 88-6550.
    Shuster v. Martinez, Governor of Florida, et al.
   Sup. Ct. Fla. Certiorari denied.


text:
    No. 88-6553.
    Nollsch v. Wyoming.
   Sup. Ct. Wyo. Certiorari denied.


text:
    No. 88-6557.
    Marshall v. Pennsylvania.
   Super. Ct. Pa. Certiorari denied.


text:
    No. 88-6560.
    Henderson v. Greer, Warden, et al.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 88-6564.
    Holguin v. Dorsey, Warden, et al.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 88-6571.
    Hillman v. City of Spokane.
   Super. Ct. Wash., Spokane County. Certiorari denied.


text:
    No. 88-6575.
    Landes v. Yost, Commandant, United States Coast Guard.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 88-6590.
    Weber v. State Bar of California.
   Sup.

Ct. Cal. Certiorari denied.


text:
    No. 88-6591.
    Woodfin v. Virginia.
   Sup. Ct. Va. Certiorari denied.


text:
    No. 88-6592.
    Pennock v. Arthur F. Schultz Co. et al.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 88-6593.
    Petrarca v. Picerne et al.
   C. A. 1st Cir. Certiorari denied.


text:
    No. 88-6594.
    Maghe v. Wallman, Warden.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 88-6596.
    Wood v. Veterans Administration et al.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 88-6599.
    Mason v. Parke, Warden.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 88-6601.
    Clem v. County of San Diego et al.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 88-6606.
    Mizell v. Michigan.
   Ct. App. Mich. Certiorari denied.


text:
    No. 88-6607.
    McShan v. Lynaugh, Director, Texas Department of Corrections.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 88-6637.
    Dawn et ux. v. Richmond et al.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 88-6643.
    Johns v. Department of the Interior.
   C. A. Fed. Cir. Certiorari denied.


text:
    No. 88-6648.
    Mazar v. Rison, Warden.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 88-6661.
    Thornberg v. United States.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 88-6663.
    Harris v. United States.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 88-6672.
    Donald v. Georgia.
   Ct. App. Ga. Certiorari denied.


text:
    No. 88-6679.
    Fuller v. Maryland.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 88-6681.
    Manning v. United States.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 88-6703.
    Batin v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 88-6705.
    Sugiyama v. Territory of Guam.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 88-6707.
    Bogden v. United States.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 88-6708.
    Velasco v. United States.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 88-6710.
    Laurenco v. Sullivan, Secretary, Department of Health and Human Services.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 88-6712.
    Yarborough v. United States.
   Ct. App. D. C. Certiorari denied.


text:
    No. 88-6715.
    Johnson v. United States.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 88-6724.
    Amyx v. Ohio.
   Ct. App. Ohio, Hamilton County. Certiorari denied.


text:
    No. 88-6727.
    Cooksley v. United States.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 88-6739.
    Sutton v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 88-6741.
    Haile v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 88-6757.
    Lovingood v. United States.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 88-6775.
    Braxton, Administratrix ad Prosequendum of the Estate of Braxton, and on Behalf of Herself v. Blanks et al.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 88-6780.
    Govan v. Workers’ Compensation Appeals Board et al.
   Ct. App. Cal., 2d App. Dist. Certiorari denied.


text:
    No. 88-833.
    Mariani v. United States.
   C. A. 2d Cir. Certiorari denied.

Justice White would grant certiorari.


text:
    No. 88-1336.
    Jiminez et al. v. BP Oil, Inc.
   C. A. 4th Cir. Certiorari denied.

Justice White would grant certiorari.