CRS Report for Congress
Supreme Court Opinions
October 1998 Term
July 15, 1999
George Costello
Legislative Attorney
American Law Division

Congressional Research Service ˜ The Library of Congress

This report provides a reference guide for Supreme Court opinions issued during the Court's
1998-99 Term, which ended June 23, 1999. It contains brief summaries of all cases decided
by signed opinion, and of a few additional per curiam decisions. Voting alignments of
Justices are identified, and a subject index is appended.

Supreme Court Opinions: October 1998 Term
This report contains synopses of Supreme Court decisions issued from the
beginning of the October 1998 Term through the end of the Term on June 23, 1999.
The purpose is to provide a quick reference guide for identification of cases of
interest. These synopses are created throughout the Term and entered into the CRS
Home Page on the Internet, and into the Scorpio database. The report supersedes an
earlier cumulation issued as a general distribution memorandum dated March 12,
1999. Included are all cases decided by signed opinion and selected cases decided per
curiam. Not included are other cases receiving summary disposition and the many
cases in which the Court denied review. Each synopsis contains a summary of the
Court's holding, and most contain a brief statement of the Court's rationale. In
addition, the date of decision is indicated, and cites to United States Law Week and
West's Supreme Court Reporter are provided if available. Following each synopsis
the vote on the Court's holding is indicated in bold typeface, and authors of the
Court's opinion and of any concurring and dissenting opinions, along with the Justices
who joined those opinions, are identified. Cases are listed alphabetically, and a
subject index is appended.

Supreme Court Opinions: October 1998 Term
Albertson’s Inc. v. Kirkingburg 119 S. Ct. 2162, 67 USLW 4560 (6-22-99)
ADA, waivable federal safety regulation: The Americans with Disabilities Act
of 1990 (ADA) does not require an employer to justify dismissal of an employee
for failure to meet an applicable federal safety regulation, even if the regulation
may be waived in an individual case. In this case the petitioner supermarket
chain fired the respondent, a truck driver with monocular vision who failed to
meet basic DOT vision standards for commercial drivers. The driver had applied
to DOT for a waiver, but was fired before the waiver was granted. Persons with
monocular vision who wish to invoke the ADA must prove a “disability” by
establishing that their vision impairment “substantially limits” a major life activity
such as seeing or working. Mitigating measures must be taken into account, and
there is no principled basis for distinguishing between measures undertaken with
artificial aids and measures undertaken by the body’s own systems. Existence
of the DOT’s waiver program does not alter an employer’s ability to impose the
safety standard as a job qualification without having to justify its application on
a case-by-case basis. The waiver program did not purport to modify the
substance of the safety standard, but instead was designed as an experiment to
gather data for use in determining the feasibility of relaxing the standard. The
ADA does not require an employer to justify de novo an applicable government
safety regulation.
9-0. Opinion of Court by Souter, unanimous in part (as to employer’s imposition
of safety regulation), and joined by Rehnquist, O’Connor, Scalia, Kennedy,
Thomas, and Ginsburg in separate part (relating to proof of disability).
Concurring opinion by Thomas.
Alden v. Maine 119 S. Ct. 2240, 67 USLW 4601 (6-23-99)
Federalism, state sovereign immunity: Congress lacks the authority, in
exercise of Article I powers, to subject non-consenting states to private suits for
damages in state courts. The history and structure of the Constitution make
clear that States retain a “residual and inviolable sovereignty” under the
Constitution. Fair Labor Standards Amendments of 1974 violate this principle
of sovereign immunity by subjecting non-consenting states to suits for damages
brought by employees in state courts. “Behind the words of the constitutional
provisions are postulates which limit and control.” The original Constitution’s
silence about state immunity is explained by the fact that no one at the time
suggested that “the document might strip the States of [sovereign] immunity.”
The Eleventh Amendment’s narrow terms, applicable only to cases brought in
federal courts, did not by implication eliminate state sovereign immunity in state
courts; that immunity derives not from the Eleventh Amendment, but from the
structure of the original Constitution itself. Neither the Supremacy Clause nor
the Necessary and Proper Clause authorizes Congress to override state
sovereign immunity in exercise of Article I powers. To recognize such an

would wield greater power in the state courts than in its own judicial
5-4. Opinion of Court by Kennedy, joined by Rehnquist, O’Connor, Scalia, and
Thomas. Dissenting opinion by Souter, joined by Stevens, Ginsburg, and Breyer.
American Manufacturers Mut. Ins. Co. v. Sullivan 119 S. Ct. 977, 67 USLW 4158
State action; Due Process, workers' compensation benefits: Private insurers
who withhold payments under Pennsylvania's workers' compensation law while
availing themselves of procedures for determining whether the underlying
medical treatment was reasonable and necessary to treat the employee's
condition are not state actors (persons acting "under color of" state law) subject
to suit under 42 U.S.C. § 1983. The State authorizes but does not require
insurers to withhold payments for disputed medical treatment. "Such permission
of a private choice cannot support a finding of state action." The Due Process
Clause of the Fourteenth Amendment does not require the insurers to pay the
disputed bills prior to a determination that the medical treatment was reasonable
and necessary. An employee obtains a protected property interest in the medical
benefits only after two hurdles are met: the employer's initial liability must be
established and any disputes over the reasonableness and necessity of particular
treatment must be resolved. Only the first of these hurdles has been met in this

8-1. Opinion of Court by Rehnquist, joined in part by O'Connor, Scalia, Kennedy,

Souter, Thomas, and Breyer; and joined in separate part by O'Connor, Kennedy,
Thomas, and Ginsburg. Concurring opinions by Ginsburg and by Breyer, joined
by Souter. Concurring and dissenting opinion by Stevens.
Amoco Production Co. v. Southern Ute Tribe 119 S. Ct. 1719, 67 USLW 4397 (6-7-


Public lands, patents, “coal” reservation: Reservation to the United States of
“all coal” in lands patented pursuant to the Coal Lands Acts of 1909 and 1910
did not also reserve coalbed methane gas (CBM). Although CBM gas,
generated during the formation of coal and retained in the coal, may be
considered to be a constituent of coal, Congress did not so regard it in 1909 and

1910. Unless otherwise defined, statutory words are given their “ordinary,

contemporary, common meaning.” Dictionaries of the day defined coal as a
solid rock substance, and “marsh gas” (one of the names by which CBM gas was
known) as a distinct substance contained in or given off by coal. Congress
viewed CBM gas not as a fuel resource, but as a dangerous waste product that
necessitated ventilation safety standards for mines. Coal companies at that time
made no effort to capture or preserve CBM gas. The limited nature of the
reservation of “all coal” is confirmed by subsequent enactments containing
broader reservations of “oil and gas” (1912) and of “coal and other minerals”
(1916). The argument that Congress would not have intended to create such
split estates, with coal and CBM gas in separate ownership, is unpersuasive;
including coal and CBM gas under the same ownership would have led to a split
gas estate “at least as difficult to administer,” with ownership of CBM gas and
“natural gas” being separated.

7-1. Opinion of Court by Kennedy, joined by Rehnquist, Stevens, O’Connor,

Scalia, Souter, and Thomas. Dissenting opinion by Ginsburg. Breyer did not


Taxation, State; federal contractors; Native Americans: The general rule
announced in United States v. New Mexico (1982) that a state may impose a
nondiscriminatory tax upon a private company's proceeds from a contract with
the Federal Government applies when a private, non-Indian federal contractor
has rendered its services on an Indian reservation. The Arizona Court of
Appeals erred in applying a balancing test to conclude that federal laws
regulating the welfare of Indians implicitly preempted the State's tax. "The need
to avoid litigation and to ensure efficient tax administration counsels in favor of
a bright-line standard for taxation of federal contracts, regardless of whether the
contracted-for activity takes place on Indian reservations."

9-0. Opinion for unanimous Court by Thomas.

AT&T Corp. v. Iowa Utilities Bd. 119 S. Ct. 721, 67 USLW 4104 (1-25-99)
Telecommunications Act of 1996, regulation of local competition: The FCC
has authority under section 201(b) of the Communications Act of 1934 to
prescribe rules and regulations governing the restructuring of local telephone
markets in accordance with the Telecommunications Act of 1996. The 1996 Act
amends, and hence is part of, the 1934 Act; section 201(b) of the 1934 Act
authorizes the Commission to "prescribe such rules and regulations as may be
necessary in the public interest to carry out the provisions of this Act." Section
2(b) of the 1934 Act, which provides that "nothing in this Act shall be construed
to apply or to give the Commission jurisdiction with respect to . . . intrastate
communication service," does not restrict the Commission's jurisdiction to make
rules governing matters to which the 1996 Act applies. The Commission has
jurisdiction to design a pricing methodology that states must use in setting rates,
and to promulgate rules regarding state review of interconnection agreements,
rural exemptions, and dialing parity. The Commission's "unbundling" rules
reasonably apply the Act's "network element" definition, but do not adequately
take into account the Act's requirement that, in determining which network
elements an incumbent carrier must provide to a requesting carrier, the
Commission consider whether access is "necessary" and whether failure to
provide access would "impair" the requesting carrier's ability to provide service.
Two other aspects of the "unbundling" rules are upheld. The "all elements" rule,
which allows competitors to rely completely on elements in an incumbent's
network without owning any facilities themselves, is not unreasonable. Rule
315(b), which prohibits an incumbent from separating already-combined network
elements before leasing them to a competitor, is a reasonable interpretation of
ambiguous statutory language. The FCC's "pick and choose" rule, which "tracks
the pertinent statutory language almost exactly," is upheld.

5-3 (jurisdiction generally); 8-0 (network element definition, "all elements" rule,

rule 315(b), "pick and choose" rule); 7-1 ("necessary and impair" standards).
Opinion of Court by Scalia, joined in part by Rehnquist, Stevens, Kennedy,
Souter, Thomas, Ginsburg, and Breyer; joined in separate part by all of the above
except Souter; and joined in separate part by Stevens, Kennedy, Souter, and
Ginsburg. Opinion by Souter, concurring in part and dissenting in part. Opinion
by Thomas, concurring in part and dissenting in part, joined by Rehnquist and
Breyer. Opinion by Breyer, concurring in part and dissenting in part. O'Connor
did not participate.

1411, 67 USLW 4275 (5-3-99)

Bankruptcy, reorganization, priorities: A reorganization plan under which a
debtor’s pre-bankruptcy equity holders are allowed the exclusive opportunity to
contribute new capital and receive ownership interests in the reorganized entity
is inconsistent with 11 U.S.C. § 1129(b)(2)(B)(ii), which provides that a plan is
not fair and equitable if a junior claim holder receives any property “on account
of such junior claim.” In this case it is unnecessary to determine whether the
“absolute priority rule” protected by the statutory language carries with it a “new
value corollary.” Under the new value corollary as it had developed prior to
revision of the Bankruptcy Code, “old equity” holders who made a new
contribution after reorganization could receive a participation reasonably
equivalent to their contribution. Even assuming existence of this new value
corollary, however, the current reorganization plan falls within the prohibition
of § 1129(b)(2)(B)(ii) because it provides junior interest holders with “exclusive
opportunities free from competition and without benefit of market valuation.”

8-1. Opinion of Court by Souter, joined by Rehnquist, O’Connor, Kennedy,

Ginsburg, and Breyer. Concurring opinion by Thomas. Dissenting opinion by
Buckley v. American Constitutional Law Foundation 119 S. Ct. 636, 67 USLW 4043
First Amendment, conditions on ballot initiatives: Three conditions that
Colorado placed on the petition process for ballot initiatives impermissibly
restrict political speech in violation of the First and Fourteenth Amendments.
The requirement that petition circulators be registered voters drastically reduces
the number of persons available to circulate petitions, and is not warranted.
Other requirements — that circulators be state residents and that they verify their
addresses by affidavit — adequately protect the State's interest in insuring that
circulators will be amenable to state process if they break the law. The
requirement that petition circulators wear identification badges also restrains
speech unnecessarily. By compelling identification "at the precise moment when
the circulator's interest in anonymity is greatest," the requirement restrains
speech more severely than did the prohibition on distribution of anonymous
campaign literature struck down in McIntyre v. Ohio Elections Comm'n (1995).
Here again, the affidavit requirement adequately serves the State's interest.
Disclosure requirements are valid insofar as they require initiative sponsors to
reveal the amount of money they have spent, but are invalid in requiring
identification of paid circulators and the amounts paid to each.

9-0 (identification badges); 6-3 (registration and disclosure requirements).

Opinion of Court by Ginsburg, joined by Stevens, Scalia, Kennedy, and Souter.
Concurring opinion by Thomas. Opinion by O'Connor, joined by Souter,
concurring in part and dissenting in part. Dissenting opinion by Rehnquist.
Calderon v. Coleman 119 S. Ct. 500, 67 USLW 3390 (12-14-98)
Death penalty, jury instruction: The Ninth Circuit erred in failing to apply the
harmless error analysis of Brecht v. Abrahamson (1990) to determine whether
to grant habeas corpus relief to a prisoner sentenced to death following an
erroneous jury instruction about the power of California's governor to commute
a sentence of life without possibility of parole. Under Brecht, relief may be
granted only if the unconstitutional instruction had a "substantial and injurious

that a state will not be put to the "arduous task" of retrial "based on mere
speculation that the defendant was prejudiced by trial error." Instead of pursuing
the Brecht inquiry, the Ninth Circuit applied Boyde v. California (1990) to
determine whether there was a "reasonable likelihood that the jury has applied
the challenged instruction in a way that prevents the consideration of
constitutionally relevant evidence." This Boyde analysis "is not a harmless-error
test at all," but merely asks whether constitutional error has occurred.
5-4. Per curiam. Dissenting opinion by Stevens, joined by Souter, Ginsburg, and
California Dental Ass’n v. FTC 119 S. Ct. 1605, 67 USLW 4365 (5-25-99)
Federal Trade Commission, jurisdiction: The Federal Trade Commission has
jurisdiction over the California Dental Association (CDA), a nonprofit
association that provides substantial economic benefits to its for-profit members.
The Federal Trade Commission Act gives the FTC jurisdiction over
“corporations,” and defines “corporation” to include an association organized
to carry on business for profit of its members. The CDA contributes to the
profits of its members in a variety of ways that are proximate and apparent. The
“logic and purpose” of the FTC Act, as well as its legislative history, support the
conclusion that the FTC has jurisdiction over such nonprofit entities. The Court
of Appeals erred, however, when it concluded that “quick-look” analysis was an
appropriate basis for concluding that the CDA’s restrictions on price and quality
advertising by its members were anticompetitive. “Quick-look” analysis under
the rule of reason is appropriate only if the likelihood of anticompetitive effects
is obvious. The CDA’s advertising restrictions might plausibly be thought to
have a pro-competitive rather than an anticompetitive effect. In any event,
restrictions on professional advertising that arguably protect patients from
misleading or irrelevant claims “call for more than cursory treatment.”

9-0 (jurisdiction); 5-4 (merits). Opinion of Court by Souter, unanimous in part,

and joined in separate part by Rehnquist, O’Connor, Scalia, and Thomas.
Concurring and dissenting opinion by Breyer, joined by Stevens, Kennedy, and
California Pub. Employees' Retirement Sys. v. Felzen 119 S. Ct. 720, 67 USLW 4090
Appeals, derivative shareholder action: The decision of the U.S. Court of
Appeals for the Seventh Circuit, holding that shareholders who have appeared
in response to a notice provided under Federal Rule of Civil Procedure 23.1 in
order to provide objections to a proposed dismissal or settlement of a derivative
action, but who have not formally intervened as parties, have no right to appeal
an adverse decision, is affirmed by equally divided vote.

4-4. Per curiam. Justice O'Connor did not participate.


IDEA, "related services" and "medical services": A state that accepts federal
funding under the Individuals with Disabilities Education Act (IDEA) must
provide continuous, one-on-one nursing care to a ventilator-dependent student.
IDEA requires provision of a free appropriate public education and "related
services," and defines "related services" to include various supportive services
that enable a child to remain in school during the day, but to exclude "medical
services" that are not diagnostic or evaluative. Continuous nursing care clearly
falls within the general terms of "related services," and does not fit within the
regulatory understanding of "medical services." In Irving Indep. Sch. Dist. v.
Tatro (1984), the Court upheld as reasonable an administrative determination
that "medical services" means services that must be performed by a physician,
and does not apply to procedures such as catheterization that can performed by
school health personnel. None of the services required by the respondent in this
case need be performed by a physician, and consequently none are "medical."
The combined and continuous character of the required care may make care
more costly and may require additional school personnel, but does not transform
the care into "medical services."

7-2. Opinion of Court by Stevens, joined by Rehnquist, O'Connor, Scalia, Souter,

Ginsburg, and Breyer. Dissenting opinion by Thomas, joined by Kennedy.
Central State Univ. v. American Ass’n of Univ. Professors 119 S. Ct. 1162, (3-22-99)
Equal Protection, preclusion of collective bargaining: An Ohio law directing
state universities to develop standards for faculty workloads to emphasize
undergraduate instruction, and exempting such standards from collective
bargaining, does not violate the Equal Protection Clause of the Fourteenth
Amendment. Depriving state-employed professors of the right, otherwise
available to public employees, to bargain collectively over their workload
implicates neither fundamental rights nor suspect classifications, so the rational
basis test applies. Imposition of the faculty workload policy was intended to
increase the amount of time that professors spend in the classroom, and
exempting the policy from collective bargaining was “an entirely rational step to
accomplish this objective.” The legislature rationally could have concluded that
their objective “would have been undercut and likely varied if it were subject to
collective bargaining.”
8-1. Per curiam. Concurring opinion by Ginsburg, joined by Breyer. Dissenting
opinion by Stevens.
City of Chicago v. Morales 119 S. Ct. 1849, 67 USLW 4415 (6-10-99)
Due Process, anti-loitering ordinance: Chicago’s Gang Congregation
Ordinance, which prohibits “criminal street gang members” from “loitering” with
one another or with other persons in any public place after being ordered by a
police officer to disperse, violates the Due Process Clause of the Fourteenth
Amendment. “Loitering” is defined as “remain[ing] in any one place with no
apparent purpose.” The ordinance directs the police, if they reasonably believe
that at least one of the congregating persons is a street gang member, to order
“all” of the persons to disperse, without first making any inquiries about their
possible purposes. The broad sweep of the ordinance violates the requirement
that a legislature establish minimal guidelines for law enforcement. The
ordinance reaches a substantial amount of innocent conduct. Also, the Court is

conferring “absolute discretion” on police officers to determine what activities
constitute loitering. The ordinance requires no harmful purpose, and applies to
non-gang members as well as to suspected gang members. The ordinance also
excludes from coverage much of the intimidating conduct that motivated its
enactment, since it has no application to loiterers whose purpose is apparent —
even if that purpose is threatening or illicit.

6-3. Opinion of Court by Stevens, joined by O’Connor, Kennedy, Souter,

Ginsburg, and Breyer. Separate part of Stevens opinion joined by Souter and
Ginsburg. Concurring opinions by O’Connor, joined by Breyer; by Kennedy; and
by Breyer. Dissenting opinions by Scalia; and by Thomas, joined by Rehnquist
and Scalia.
City of Monterey v. Del Monte Dunes at Monterey, Ltd. 67 USLW 4345 (5-24-99)
Regulatory taking, § 1983 action, right to jury trial: Respondent’s regulatory
takings claim, brought under 42 U.S.C. § 1983, was properly submitted to the
jury. Section 1983 does not itself confer a right to jury trial, but the Seventh
Amendment does for such actions. The Seventh Amendment applies not only
to “common law” causes of action, but also to statutory actions analogous to
common law actions that in late 18th century England were tried in courts of law
rather than in courts of equity or in admiralty courts. A section 1983 action
seeking “legal relief” is an action at law within the meaning of the Seventh
Amendment. Section 1983 actions “sound in tort,” and a claim for just
compensation seeks “legal relief,” since as a general rule monetary relief is legal.
The particular issue of liability presented in this case — whether a landowner has
been deprived of all economically viable use of his property — was proper for
determination by the jury. The “rough proportionality” test of Dolan v. City of
Tigard (1994), previously applied only in the context of property exactions, is
inappropriate for cases such as this.

5-4 (Seventh Amendment); 9-0 (proportionality) . Opinion of Court by Kennedy,

unanimous in part, and joined in separate part by Rehnquist, Stevens, Scalia, and
Thomas. Separate part of Kennedy opinion joined only by Rehnquist, Stevens, and
Thomas. Concurring opinion by Scalia. Concurring and dissenting opinion by
Souter, joined by O’Connor, Ginsburg, and Breyer.
City of West Covina v. Perkins 119 S. Ct. 678, 67 USLW 4058 (1-13-99)
Due Process, seizure of property, notice of remedies: The Due Process Clause
of the Fourteenth Amendment does not require that police, when they have
lawfully seized property, notify the property owners about state procedures for
the return of the seized property. Law enforcement agents who seize property
must take reasonable steps to notify the owner that the property has been taken,
but need not provide the owner with additional information about state law
remedies. In cases such as this, when the owner is not present when property
is seized, notice of the seizure is necessary to inform the owner about what has
happened to the missing property. No similar rationale requires notice of
remedies; information about remedies is generally available in published form as
state statutes and case law. The notice required by the appeals court in this case
lacks support in Supreme Court precedent and "far exceeds that which the States
and the Federal Government have traditionally required." The appeals court's
analysis would render constitutionally inadequate, for example, the notice
mandated by Federal Rule of Criminal Procedure 41(d), which requires that

for the property.

9-0. Opinion of Court by Kennedy, joined by Rehnquist, Stevens, O'Connor,

Souter, Ginsburg, and Breyer. Concurring opinion by Thomas, joined by Scalia.
Cleveland v. Policy Management Systems Corp. 67 USLW 4375 (5-24-99)
SSDI, ADA, compatibility of claims: Pursuit and receipt of Social Security
Disability Insurance (SSDI) benefits does not automatically estop the recipient
from pursuing a claim under the Americans With Disabilities Act (ADA). Nor
do the claims inherently conflict to the point where courts should apply a special
negative presumption. There are many situations in which an SSDI claim and
an ADA claim can coexist. While the ADA defines a “qualified individual” to
include a disabled person who can perform the essential functions of her job
“with reasonable accommodation,” the total disability determination under SSDI
takes no account of the possibility of a “reasonable accommodation.” In other
cases, however, an earlier SSDI claim may turn out to conflict with an ADA
claim. For this reason, an ADA plaintiff may not simply ignore the apparent
contradiction, but must explain her earlier SSDI claim. To defeat summary
judgment, that explanation must be sufficient to warrant a reasonable juror’s
conclusion that, assuming the truth of, or the plaintiff’s good-faith belief in, the
earlier SSDI claim, the plaintiff could nonetheless perform the essential functions
of her job, with or without accommodation.

9-0. Opinion for unanimous Court by Breyer.

Clinton v. Goldsmith 119 S. Ct. 1538, 67 USLW 4302 (5-17-99)
All Writs Act, Court of Appeals for the Armed Forces: The Court of Appeals
for the Armed Forces (CAAF) lacked jurisdiction to enjoin the President and
various military officers from dropping the respondent from the rolls of the Air
Force. The respondent had been court-martialed, and his conviction became
final after the Air Force Court of Criminal Appeals (AFCCA) affirmed and he
sought no review in the CAAF. When the Air Force notified respondent that it
was taking action to drop him from its rolls, he challenged that action in the
AFCCA, and, following dismissal for lack of jurisdiction, appealed to the CAAF.
The CAAF relied on the All Writs Act in enjoining the President and the Air
Force officers from proceeding against the respondent. The All Writs Act
authorizes issuance of extraordinary writs only “in aid of” the issuing court’s
jurisdiction. The CAAF’s jurisdiction is limited to review of specified sentences
imposed by courts-martial. The Air Force’s action to drop the respondent was
an executive action, not a finding or sentence that was or could have been
imposed in a court-martial proceeding, so the action was beyond the CAAF’s
jurisdiction and hence also beyond the “aid” of the All Writs Act. Even if the
CAAF had jurisdiction, resort to the All Writs Act would still have been
unjustifiable because it was neither “necessary” nor “appropriate.” Both the
federal courts and various administrative bodies in the military would have
authority to review the challenged action.

9-0. Opinion for unanimous Court by Souter.

College Savings Bank v. Florida Prepaid Postsecondary Educ. Expense Bd. 119 S.
Ct. 2219, 67 USLW 4590 (6-23-99)
State sovereign immunity, abrogation by Congress, trademarks: The
Trademark Remedy Clarification Act (TRCA), which amended the Lanham Act

abrogate state sovereign immunity, and Florida in this case has not waived its
immunity. Congress may abrogate state sovereign immunity in exercise of its
power to enforce the Fourteenth Amendment, but the TRCA is not such an
enforcement action. The assertion that the TRCA was enacted to remedy and
prevent state deprivations of property rights is “without merit.” Neither the right
to be free from a business competitor’s false advertising nor a more generalized
right to be secure in one’s business interests qualifies as a “property” right
protected by the Due Process Clause. The essence of a property right is the
right to exclude others, yet the Lanham Act’s false advertising provisions bear
no relationship to a right to exclude. Analogies to equity jurisdiction and to the
common-law tort of unfair competition are unpersuasive. Business assets are
property, but the activity of doing business — the only aspect of property
impinged upon by a competitor’s false advertising — is not property in the
ordinary sense. Florida did not waive its immunity from Lanham Act suits by
selling and advertising in interstate commerce a for-profit educational investment
vehicle. Parden v. Terminal Ry. (1964), which recognized a constructive waiver
of immunity, has been limited by subsequent decisions, and is now expressly
overruled. Parden was premised on the now-discredited notion that state
sovereign immunity is not constitutionally based.
5-4. Opinion of Court by Scalia, joined by Rehnquist, O’Connor, Kennedy, and
Thomas. Dissenting opinions by Stevens; and by Breyer, joined by Stevens,
Souter, and Ginsburg.
Conn v. Gabbert 119 S. Ct. 1292, 67 USLW 4219 (4-5-99)
Due Process, right to practice profession: An attorney’s Fourteenth
Amendment right to practice his profession is not impaired when the prosecutor
requires that the attorney be searched at the same time that his client is testifying
before a grand jury, even if the search was calculated to annoy or to prevent the
attorney from consulting with his client. Cases in which the Court has
recognized a right to choose and follow one’s field of private employment have
all dealt with a complete prohibition of that right, and not with the sort of brief
interruption that occurred here. The attorney has no standing to allege
infringement of his client’s right to assistance of counsel during the grand jury
proceeding. The attorney may challenge the reasonableness of the timing of the
search, but this is a Fourth Amendment issue rather than a Due Process issue.

9-0. Opinion of Court by Rehnquist, joined by O’Connor, Scalia, Kennedy,

Souter, Thomas, Ginsburg, and Breyer. Concurring opinion by Stevens.
Cunningham v. Hamilton County 119 S. Ct. 1915, 67 USLW 4458 (6-14-99)
Appeals, “final decision”: An order imposing sanctions on an attorney pursuant
to Federal Rule of Civil Procedure 37(a)(4) for failure to comply with discovery
orders is not a “final decision” appealable under 28 U.S.C. § 1291 prior to final
judgment in the underlying action. The Rule 37 sanction did not end the
litigation or leave the district court with only the task of executing its judgment.
Nor does the sanction fit within the small category of orders that are appealable
even though they do not terminate litigation. The order was conclusive, but
cannot be separated completely from the merits of the case. Also, the order is
not effectively unreviewable on appeal from a final judgment on the merits. The
congruence of interests between attorneys and clients “counsels against treating
attorneys like other nonparties for purposes of appeal.” To permit an immediate

protect courts and opposing parties from delaying or harassing tactics during the
discovery process. The same rule applies when the attorney no longer represents
a party in the case. The efficiency interests served by limiting immediate appeals
“far outweigh” any costs that sanctioned attorneys might bear in monitoring the
progress of the litigation.

9-0. Opinion for unanimous Court by Thomas. Concurring opinion by Kennedy.

Davis v. Monroe County Bd. of Educ. 119 S. Ct. 1661, 67 USLW 4329 (5-24-99)
Title IX, “student-on-student” sexual harassment: A recipient of federal
educational funds can be held liable under Title IX of the Education
Amendments of 1972 in a private damages action arising from student-on-
student sexual harassment. Funding recipients are properly held liable, however,
only if they are “deliberately indifferent to sexual harassment, of which they have
actual knowledge, that is so severe, pervasive, and objectively offensive that it
can be said to deprive the victims of access to the educational opportunities or
benefits provided by the school.” Earlier cases have established that private
damages actions are available only if funding recipients had adequate notice that
they can be held liable, and only if their own actions or indifference effectively
caused the “discrimination” at issue and therefore constituted an intentional
violation of Title IX. Such an intentional violation can occur even when the
harasser is a student rather than a teacher, so long as the funding recipient
“exercises substantial control over both the harasser and the context in which the
known harassment occurs.” This is the case when student-on-student sexual
harassment occurs during school hours and on school grounds, and the alleged
harasser is under the school’s disciplinary authority. A further limitation is that
funding recipients will be deemed to be “deliberately indifferent” only if their
response or lack of response to alleged harassment “is clearly unreasonable in
light of the known circumstances.” And the recipient’s indifference is actionable
only when the alleged harassment is so severe, pervasive, and objectively
offensive as to effectively deprive the victim of the educational opportunities
provided by the school.
5-4. Opinion of Court by O’Connor, joined by Stevens, Souter, Ginsburg, and
Breyer. Dissenting opinion by Kennedy, joined by Rehnquist, Scalia, and Thomas.
Department of Commerce v. United States House of Representatives
Clinton v. Glavin 119 S. Ct. 765, 67 USLW 4090 (1-25-99)
Standing to sue; Census Act: Plaintiffs in Clinton v. Glavin, consolidated with
the House of Representative's suit for purposes of review, had standing to sue
to challenge the use of statistical sampling in the Department's proposed Census
2000 plan. An Indiana citizen had standing because of the "virtual certainty" that
Indiana would lose a seat in the House under the Department's plan, and citizens
of several counties had standing by virtue of the likelihood that their counties
would suffer vote dilution as a result of census-based redistricting for state,
local, and congressional elections. The Census Act does not permit the use of
statistical sampling in calculating the population for purposes of apportioning
Representatives among the states. Section 195 of the Act, as amended in 1976,
provides that, "except for the determination of population for purposes of
apportionment of Representatives . . . , the Secretary shall, if he considers it
feasible, authorize the use of the statistical method known as `sampling.'"
General language added in 1976 authorizes the Secretary to take the decennial

sampling procedures." The broad grant of authority in section 141 is limited "by
the narrower and more specific §195," and section 195 must be interpreted in the
broader context of a 200-year-long prohibition on the use of statistical sampling.
Because the Census Act prohibits the use of sampling in calculating population
for purposes of apportionment, it is unnecessary to consider the constitutionality
of sampling. Because the disposition of Clinton v. Glavin also resolves the
substantive issues presented in the House of Representatives' action, that case
(98-404) is dismissed as no longer presenting a substantial federal question.
9-0 (standing); 5-4 (Census Act). Opinion of Court by O'Connor, joined in part
by Rehnquist, Scalia, Kennedy, Thomas, and Breyer, and joined in separate part
by Rehnquist, Scalia, Kennedy, and Thomas. Separate part of O'Connor opinion
joined only by Rehnquist and Kennedy. Opinion by Scalia, joined by Thomas, and
joined in part by Rehnquist and Kennedy, concurring in part. Opinion by Breyer,
concurring in part and dissenting in part. Dissenting opinion by Stevens, joined
in part by Souter and Ginsburg, and joined in separate part by Breyer. Dissenting
opinion by Ginsburg, joined by Souter.
Department of the Army v. Blue Fox, Inc. 119 S. Ct. 687, 67 USLW 4073 (1-20-99)
Sovereign immunity: Section 10(a) of the Administrative Procedure Act, 5
U.S.C. § 702, does not nullify the long-settled rule that sovereign immunity bars
creditors from enforcing liens on Government property. In this case, a
subcontractor on a Government contract, unable to recover from the contractor,
sought an "equitable lien" on any Government funds still available for payment
to the contractor or for completion of the project. Section 702 waives sovereign
immunity for certain claims "seeking relief other than money damages." In this
context, "money damages" means compensatory or substitute relief, and "other
than money damages" refers to specific relief, e.g., enforcement of a statutory
mandate. The goal of the equitable lien sought by the subcontractor in this case
is to attach money held by the Government in order to compensate for the loss
resulting from the default of the contractor. This is a claim for "substitute"
rather than "specific" relief, and therefore amounts to a claim for "money
damages" within the meaning of the APA. The action therefore falls outside of
section 702's waiver of sovereign immunity.

9-0. Opinion for unanimous Court by Rehnquist.

Dickinson v. Zurko 119 S. Ct. 1816, 67 USLW 4445 (6-10-99)
Patents and trademarks, standard of review: The Federal Circuit, when it
reviews findings of fact made by the Patent and Trademark Office (PTO), must
apply the “arbitrary, capricious, [or] abuse of discretion [or] unsupported by
substantial evidence” standards set forth in section 706 of the Administrative
Procedure Act (APA), and not the “clearly erroneous” standard set forth in
Federal Rule of Civil Procedure 52(a) for appellate court review of lower court
decisions. A reviewing court must apply the APA standard in the absence of an
exception authorized by section 559, which provides that the APA does “not
limit or repeal additional requirements . . . recognized by law.” The “clearly
erroneous” standard was not “recognized by law” when the APA was enacted
in 1946. The 89 pre-APA cases involving judicial review of a PTO
administrative decision do not reflect a well-established “court/court” standard
of judicial review. Use of such terms as “clear case of error” or “manifest error”
is not conclusive, since the “relevant linguistic conventions were less firmly
established before adoption of the APA.” The Supreme Court’s 1884 decision

Rather, the Court, in determining the appropriate standard for review of Patent
Office decisions, rejected reliance on the then-governing standard for an
appellate court’s review of a lower court’s factual findings.

6-3. Opinion of Court by Breyer, joined by Stevens, O’Connor, Scalia, Souter,

and Thomas. Dissenting opinion by Rehnquist, joined by Kennedy and Ginsburg.
El Al Israel Airlines v. Tsui Yuan Tseng 119 S. Ct. 662, 67 USLW 4036 (1-12-99)
Warsaw Convention, preemption: The Warsaw Convention precludes a
passenger from maintaining an action for personal injury damages under local
law when her claim does not satisfy the conditions for liability under the
Convention. The plaintiff in this action alleged that she suffered emotional
distress, but no bodily injury, from an intrusive airport security search conducted
before she boarded an El Al flight. The Convention does not permit recovery
for emotional distress unaccompanied by bodily injury. Article 24 of the
Convention provides that "cases covered by Article 17" may only be brought
subject to the conditions and limits set out by the Convention. Article 17 creates
a cause of action for personal injuries suffered as a result of an "accident . . . in
the course of any of the operations of embarking or disembarking." Although
the security search was not an "accident" within the meaning of Article 17,
Article 24's reference to "cases covered by Article 17" applies generically to all
personal injury cases stemming from occurrences on board an aircraft or in
embarking or disembarking. The "cardinal purpose" of the Convention was "to
achieve uniformity of rules governing claims arising from international air
transportation." Decisions of the courts of other signatory nations support a
broad reading of the Convention's preemptive effect.

8-1. Opinion of Court by Ginsburg, joined by Rehnquist, O'Connor, Scalia,

Kennedy, Souter, Thomas, and Breyer. Dissenting opinion by Stevens.
El Paso Natural Gas Co. v. Neztsosie 119 S. Ct. 1430, 67 USLW 4286 (5-3-99)
Price-Anderson Act, preemption, tribal court exhaustion: The doctrine of
tribal court exhaustion, under which federal district courts abstain from deciding
issues of tribal court jurisdiction until the tribal courts themselves have addressed
them, is inapplicable to suits involving claims under the Price-Anderson Act. In
this case the district court should have decided whether the claims at issue were
Price-Anderson claims. The Act’s “unusual preemption provision,” which gives
federal courts jurisdiction over “any public liability action arising out of . . . a
nuclear incident, provides for removal to federal court if a putative Price-
Anderson action is brought in state court, but is silent about actions brought in
tribal courts. It seems most likely that congressional silence on tribal courts is
due to “inadvertence.” Because there were no nuclear testing labs or reactors
on reservation lands, Congress probably did not foresee the possibility that a
nuclear incident might occur on tribal lands. There is no reason to believe,
however, that Congress would have favored tribal exhaustion in Price-Anderson
suits. The Act, amended in the aftermath of the Three-Mile Island accident,
sought speed and efficiency in managing claims, and authorized a special
caseload management panel to consolidate and expedite claims. The panel,
explained a Senate report, would help avoid inefficiencies resulting from
“duplicative determinations . . . in multiple jurisdictions.” Application of tribal
exhaustion would defeat these purposes.

9-0. Opinion for unanimous Court by Souter.

International Court of Justice, enforcement of order: The Federal Republic
of Germany’s motions for leave to file a complaint, and for issuance of a
preliminary injunction, are denied. Germany sought enforcement of an ex parte
order issued by the International Court of Justice directing the United States to
prevent the execution of Walter LaGrand, a German citizen, by the State of
Arizona. See also Stewart v. LaGrand (1999). The United States has not
waived its sovereign immunity, and it is “doubtful” that Article III, § 2, cl. 2,
which extends jurisdiction to cases affecting ambassadors and consuls, “provides
an anchor” for the action. The Federal Republic’s suit against the State of
Arizona, as was Paraguay’s suit against Virginia in Breard v. Greene (1998), “is
without evident support in the Vienna Convention and in probable contravention
of the Eleventh Amendment.”
7-2. Per curiam. Concurring opinion by Souter, joined by Ginsburg. Dissenting
opinion by Breyer, joined by Stevens.
Florida Prepaid Postsecondary Educ. Expense Bd. v. College Savings Bank 119 S.
Ct. 2199, 67 USLW 4580 (6-23-99)
State sovereign immunity, abrogation by Congress, patents: The Patent and
Plant Variety Protection Remedy Clarification Act’s amendment of the patent
laws to expressly abrogate states’ sovereign immunity from patent infringement
suits cannot be upheld as an exercise of congressional power to enforce the
Fourteenth Amendment’s Due Process Clause. While Congress in exercise of
its enforcement power may abrogate state sovereign immunity, it must do so
through legislation that is “appropriate” within the meaning of § 5 of the 14th
Amendment. The Court’s decision in City of Boerne v. Flores (1997)
established that “appropriate” legislation must be “remedial”: Congress must
identify conduct that violates the Fourteenth Amendment and must tailor its
legislation to remedying or preventing such conduct. In enacting the Patent
Remedy Act, however, Congress identified no pattern of patent infringement by
states. Moreover, Congress barely considered the availability of state remedies
for patent infringement. Patent infringement alone does not constitute a due
process violation; “only where the State provides no remedy, or only inadequate
remedies . . . could a deprivation of property without due process occur.” The
legislative record thus “at best offers scant support” for a conclusion that states
were engaging in due process violations. Consequently, the provisions of the
Act are “so out of proportion to a supposed remedial or preventive object” that
they cannot be upheld as an exercise of Fourteenth Amendment enforcement
5-4. Opinion of Court by Rehnquist, joined by O’Connor, Scalia, Kennedy, and
Thomas. Dissenting opinion by Stevens, joined by Souter, Ginsburg, and Breyer.
Florida v. White 119 S. Ct. 1555, 67 USLW 4311 (5-17-99)
Fourth Amendment, seizure of automobile, contraband forfeiture: The
Fourth Amendment does not require the police to obtain a warrant before seizing
an automobile from a public place when they have probable cause to believe that
the automobile itself is forfeitable contraband. The Court has long recognized
that when law enforcement officers have probable cause to believe than an
automobile contains contraband, the Fourth Amendment does not require them
to obtain a warrant prior to searching the car and seizing the contraband. This

and reflects the need to seize “readily movable contraband before it is spirited
away.” The same principle applies if it is the vehicle itself that is the contraband.
The Court also recognizes that law enforcement officers have “greater latitude
in exercising their duties in public places” than they have when searching private
premises. In this case police officers had observed the respondent using his car
to transport illegal drugs. Several months later, after arresting the respondent
on unrelated charges, the officers, acting under authority of the Florida
Contraband Forfeiture Act, seized respondent’s car from his employer’s parking
lot. No warrant was required under these circumstances.

7-2. Opinion of Court by Thomas, joined by O’Connor, Scalia, Kennedy, Souter,

and Breyer. Concurring opinion by Souter, joined by Breyer. Dissenting opinion
by Stevens, joined by Ginsburg.
Greater New Orleans Broadcasting Ass’n v. United States 119 S. Ct. 1923, 67 USLW

4451 (6-14-99)

First Amendment, commercial speech: 18 U.S.C. § 1304, which prohibits
radio and television broadcasters from carrying advertisements for privately
operated casino gambling regardless of the station’s or casino’s location, may
not constitutionally be applied to prohibit advertising of private casino gambling
broadcast by stations located within a state where such gambling is legal. The
provision fails to satisfy the Central Hudson test for restrictions on commercial
speech. If the commercial speech relates to lawful activity and is not misleading,
restrictions must directly advance a substantial governmental interest and must
not be more extensive than necessary to serve that interest. The government has
identified substantial interests that are served by the prohibition on ads for casino
gambling, but the underlying policy “is now decidedly equivocal.” When section

1304 was enacted in 1934, the federal anti-gambling policy was uniform. Now,

however, with various exemptions for gambling conducted by Indian tribes and
state governments, federal statutes promote both pro-gambling and anti-
gambling policies. “The operation of § 1304 and its attendant regulatory regime
is so pierced by exemptions and inconsistencies that the Government cannot
hope to exonerate it.” Moreover, while there may be valid reasons for regulating
tribal casino gambling more closely than non-tribal casino gambling, there is “no
convincing reason” for restricting the speech of non-tribal owners more than that
of tribal owners.

9-0. Opinion of Court by Stevens, joined by Rehnquist, O’Connor, Scalia,

Kennedy, Souter, Ginsburg, and Breyer. Concurring opinions by Rehnquist and
Grupo Mexicano de Desarollo v. Alliance Bond Fund 119 S. Ct. 1961, 67 USLW
Federal courts, injunctive powers; mootness: A federal district court lacks the
authority, in an action for money damages, to issue a preliminary injunction
preventing the defendant from transferring assets in which no lien or equitable
interest is claimed. The relief sought has no basis in the traditional powers of the
equity courts. It is well established that a general creditor (one without a
judgment) has no cognizable interest, at law or in equity, in the property of his
debtor. There is no analogy to the equitable action known as a “creditor’s bill,”
since that action could be brought only by a creditor who had already obtained
a judgment establishing the debt. The merger of law and equity did not alter

the preliminary injunctive remedy to freeze a debtor’s assets pending
adjudication, the Court lacks authority under the Judiciary Act of 1789 to create
remedies previously unknown to equity jurisprudence. Congress is the
appropriate forum for deciding whether “this formidable power over debtors”
should be created. Appeal of the preliminary injunction in this case was not
rendered moot by decision on the merits and issuance of a permanent injunction.
The basis for arguing that the preliminary injunction was wrongfully issued —
that the court lacked power to restrain use of assets pending a money judgment
— was independent of the breach of contract claim adjudicated on the merits.
5-4 (authority to issue preliminary injunction); 9-0 (mootness). Opinion of Court
by Scalia, unanimous in part, and joined by Rehnquist, O’Connor, Kennedy, and
Thomas in separate part. Dissenting opinion by Ginsburg, joined by Stevens,
Souter, and Breyer.
Haddle v. Garrison 119 S. Ct. 489, 67 USLW 4029 (12-14-98)
Civil rights, conspiracy to deter testimony: Termination of at-will
employment as part of a conspiracy to deter testimony before a federal grand
jury is actionable under 42 U.S.C. § 1985(2) as injuring a citizen "in his person
or property." The Eleventh Circuit was mistaken that a citizen must suffer an
injury to a constitutionally protected interest in order to recover damages under
§ 1985(2). The case is not resolved, therefore, by the fact that loss of at-will
employment is not "property" for purposes of the Due Process Clause. The "gist
of the wrong" at which the provision is directed is not deprivation of property,
but intimidation of witnesses. For this purpose, it is sufficient that interference
with at-will employment has long been compensable under tort law.

9-0. Opinion for unanimous Court by Rehnquist.

Hanlon v. Berger 119 S. Ct. 1706, 67 USLW 4329 (5-24-99)
Fourth Amendment, media “ride-along”, qualified immunity: Fish and
Wildlife Service agents violated the Fourth Amendment when they allowed a
media camera crew to accompany them in executing a warrant to search
respondents’ ranch for evidence of illegal taking of wildlife. The principles
announced in Wilson v. Layne control. The agents are entitled to the defense of
qualified immunity since the right to be free of media intrusion during a search
was not clearly established in 1993 when this search occurred.

9-0. Per curiam.

Holloway v. United States 119 S. Ct. 966, 67 USLW 4148 (3-2-99)
Carjacking, intent: The federal carjacking statute, 18 U.S.C. § 2119, which
prohibits carjacking "with the intent to cause death or serious bodily harm,"
applies to someone who seizes a car with the intent to kill or harm only if
necessary to accomplish the carjacking. The statute applies to both conditional
and unconditional intent to harm the victim, so the trial court did not err in
instructing the jury to find requisite intent upon concluding that the defendant
had intended to cause death or serious bodily harm if the victims had refused to
turn over their cars. A "commonsense" reading of the statute counsels that
Congress intended to criminalize carjacking generally, and did not intend to
enact a "truncated" law applicable only to a limited subset of carjackings in
which the offender intends to harm or kill the driver regardless of whether the
driver surrenders his car. The statute as a whole reflects a deterrent purpose,

conditional and unconditional intent. Also, it is reasonable to presume that
Congress was aware of state court decisions recognizing that specific intent to
commit a crime may be conditional.

7-2. Opinion of Court by Stevens, joined by Rehnquist, O'Connor, Kennedy,

Souter, Ginsburg, and Breyer. Dissenting opinions by Scalia and Thomas.
Hughes Aircraft Co. v. Jacobson 119 S. Ct. 755, 67 USLW 4122 (1-25-99)
ERISA, amendment of defined benefit plan: Hughes did not violate ERISA
by suspending its own contributions to a retirement plan with a large surplus and
by amending the plan to provide for an early retirement program and a
noncontributory benefit structure applicable to new employees and optional for
existing plan members. The existing plan members had no vested interest in the
plan's surplus. The plan was a "defined benefit plan" under which qualified
employees are entitled to a fixed periodic payment and the employer was
obligated to cover any underfunding. Hughes did not violate ERISA's anti-
inurement provision; amending the plan did not create a second plan, and fund
assets were being used to pay benefits to plan participants, not for the benefit of
the employer. ERISA's fiduciary provisions are inapplicable to plan
amendments; this principle, already applied to welfare benefit plans, applies as
well to pension benefit plans. The plan amendments did not work an effective
termination based on the common-law theory of a wasting trust. ERISA's
enormously complex and detailed text should not be supplemented by common-
law remedies, and, in any event, the doctrine is inapplicable by its own terms.

9-0. Opinion for unanimous Court by Thomas.

Humana Inc. v. Forsyth 119 S. Ct. 710, 67 USLW 4085 (1-20-99)
Insurance; RICO compatibility with McCarran-Ferguson: The McCarran-
Ferguson Act does not bar recourse to RICO in a treble damages action for
health insurance fraud in Nevada. In this action beneficiaries of group health
insurance policies alleged that their insurance company and a hospital committed
fraud by agreeing to discounts on the insurance company's 80% share of hospital
charges, thereby increasing the beneficiaries' share above the 20% agreed to in
the insurance contract. Section 2(b) of the McCarran-Ferguson Act permits
application of general federal legislation not specifically directed at insurance
regulation if the law does not "invalidate, impair, or supersede" state laws
regulating insurance. RICO is not a law that specifically relates to the business
of insurance, and it does not "invalidate" or "supersede" Nevada law. The
principal issue is whether RICO "impairs" Nevada law, and this issue depends
on whether application of RICO would "frustrate any declared State policy or
interfere with [the] State's administrative regime." There is no frustration of
state policy or interference with state administration in this case. Instead, RICO
"appears to complement" Nevada's provision of relief. Nevada allows insured
parties to sue for insurance fraud and to obtain punitive damages that may
exceed the treble damages obtainable under RICO.

9-0. Opinion for unanimous Court by Ginsburg.

Hunt v. Cromartie 119 S. Ct. 1545, 67 USLW 4306 (5-17-99)
Congressional districting, summary judgment, proof of racial motivation:
The three-judge district court should not have granted a summary judgment to
the appellees on their claim that North Carolina’s Twelfth Congressional

in violation of the Equal Protection Clause. A redistricting law, facially neutral
as to race, warrants strict scrutiny only if it can be proved to have been
motivated by a racial purpose or object. Assessing a jurisdiction’s motivation
is an “inherently complex endeavor,” requiring a “sensitive inquiry” by the trial
court. In this case there was evidence supporting conflicting inferences — one
that the legislature was primarily motivated by race, the other that the principal
motivation was partisan politics. Summary judgment is appropriate only if there
is no genuine issue of material fact. Because the legislature’s motivation was in
dispute, summary judgment on that issue was inappropriate.
9-0. Opinion of Court by Thomas, joined by Rehnquist, O’Connor, Scalia, and
Kennedy. Concurring opinion by Stevens, joined by Souter, Ginsburg, and Breyer.

Deportation, political persecution: The Court of Appeals for the Ninth Circuit
failed to accord appropriate deference to the determination of the Board of
Immigration Appeals that a person who committed a serious nonpolitical crime
before entering the United States, and whose political opinions would subject
him to persecution in his country of origin, is not entitled to withholding of
deportation. The court should have applied principles announced in Chevron v.
NRDC (1984), and should have deferred to the Board’s interpretation of the
exception for serious nonpolitical crimes. Deference is “especially appropriate
in the immigration context where officials `exercise especially sensitive political
functions that implicate questions of foreign relations.’” The provision in
question, 8 U.S.C. § 1253(h)(2)(C), directs that withholding of deportation does
not apply if the Attorney General finds “serious reasons for considering that the
alien has committed a serious nonpolitical crime . . . prior to [his] arrival.” In
finding that the respondent’s actions in burning buses and vandalizing stores in
Guatemala were “nonpolitical,” the Board (to which the Attorney General had
delegated her authority) determined that the criminal nature of the respondent’s
actions outweighed their political motivation. The Board did not, however,
balance the criminal nature of the respondent’s actions against the persecution
that he would face if he were forced to return to Guatemala. The Board’s
interpretation is a reasonable one that comports with the plain language of the
statute. The fact that this interpretation conflicts with that set forth in a United
Nations handbook that was prepared as guidance for interpreting the treaty that
the statute implements is not dispositive: the handbook “is not binding on the
Attorney General, the [Board], or United States courts.”

9-0. Opinion for unanimous Court by Kennedy.

Jefferson County v. Acker 119 S. Ct. 2069, 67 USLW 4521 (6-21-99)
County occupational tax, application to federal judges: An occupational tax
imposed by Jefferson County, Alabama, on persons working within the county
is not invalid as applied to federal judges. The case was properly removed to
federal court under the federal officer removal statute. The judges made an
“adequate threshold showing that the suit is `for an act under color of office,’”
since the act requires payment of a fee before they engage in their occupation.
The Tax Injunction Act does not bar federal court adjudication of the case. The
Act does not bar collection suits, nor does it prevent taxpayer-defendants in
collection suits from challenging the validity of the tax. The occupation tax
operates as a non-discriminatory tax on judges’ salaries to which the Public
Salary Tax Act of 1939 consents. That Act applies the intergovernmental tax
immunity doctrine, now interpreted to allow one sovereign to tax the salaries of
another sovereign’s employees as long as the tax is not discriminatory. The tax
is a tax on “pay or compensation” within the meaning of the Act, and is not an
invalid licensing measure. Because the tax does not discriminate against federal
judges in particular, or federal officeholders in general, based on the federal
source of their compensation, and the record shows no discrimination between
similarly situated federal and state judges, the tax does not discriminate in
violation of the Act.

5-4 (removal); 9-0 (Tax Injunction Act); 7-2 (intergovernmental immunity).

Opinion of Court by Ginsburg, unanimous in part; joined in part by Stevens,
O’Connor, Kennedy, and Breyer; and joined in separate part by Rehnquist,
Stevens, Scalia, Kennedy, Souter, and Thomas. Opinion by Scalia, concurring in

Breyer, concurring in part and dissenting in part, joined by O’Connor.
Jones v. United States 119 S. Ct. 1215, 67 USLW 4204 (3-24-99)
Carjacking, elements of offense: The federal carjacking statute, 18 U.S.C. §
2119, establishes three separate offenses rather than a single offense with a
choice of three maximum penalties. The section provides that whoever takes a
motor vehicle by force and violence “shall — (1) be fined . . . or imprisoned not
more than 15 years, . . . (2) if serious bodily injury results, be . . . imprisoned not
more than 25 years, and (3) if death results, be . . . imprisoned for any number
of years up to life . . . .” The additional elements added by subsections (2) and
(3) must be charged in the indictment, submitted to a jury, and proven beyond
a reasonable doubt. At first glance, the section’s structure suggests that the
numbered subsections are only sentencing provisions. It is “questionable,”
however, whether specification of facts sufficient to drastically increase a penalty
range was intended to carry none of the safeguards associated with elements of
an offense. Moreover, the first paragraph of the section does not “stand on [its]
own grammatical feet,” as most offense-defining provisions do, because there is
no language such as “shall be guilty of” that completes the sentence. Use of the
word “shall” does not resolve the issue, because the word is not “invariably”
used to separate offense-defining clauses from sentencing provisions. Also, the
provision was enacted against the backdrop of many federal and state criminal
statutes that identify serious bodily injury as an offense element. Most
important, the statute would be open to constitutional doubt if the subsections
were interpreted as sentencing provisions. Precedent under both the Due
Process Clause and the Sixth Amendment can be read as imposing limits on a
legislature’s ability to omit traditional elements from the definition of crimes and
to diminish the jury’s role in making factual determinations on which sentencing
limits are based. The decision last Term in Almendarez-Torres v. United States,
holding that recidivism increasing the maximum penalty need not be charged in
the indictment, is distinguished. Recidivism has traditionally been regarded as
a sentencing factor, whereas infliction of serious bodily injury has not been.
5-4. Opinion of Court by Souter, joined by Stevens, Scalia, Thomas, and
Ginsburg. Concurring opinions by Stevens and Scalia. Dissenting opinion by
Kennedy, joined by Rehnquist, O’Connor, and Breyer.
Jones v. United States 119 S. Ct. 2090, 67 USLW 4508 (6-21-99)
Death penalty, jury instructions on consequences of deadlock: In a
sentencing hearing conducted under the Federal Death Penalty Act of 1994, the
court’s refusal to instruct the jury that the court would impose a sentence of life
imprisonment without possibility of parole if the jury was unable to reach
unanimous agreement on a sentence did not violate the Eighth Amendment. The
Supreme Court declines to exercise its supervisory power to require that an
instruction on the consequences of deadlock be given in every capital case. In
this case the court gave the jury three options: it could by unanimous vote
recommend the death penalty, life imprisonment without possibility of parole,
“or . . . some other lesser sentence.” If the jury recommended “some other
lesser sentence,” the instruction explained, “the court is required to impose a
sentence that is authorized by law.” The instruction did not constitute “plain
error,” even though a “lesser sentence” was not authorized in this case. There
is “no reasonable likelihood that the jury applied the instructions incorrectly.”
The instructions, read in their entirety, were not misleading as to the

over the effect of a lesser sentence recommendation was allayed by the court’s
instruction that the jury should not concern itself with such matters. Loose
drafting of “nonstatutory” aggravating factors was harmless error if it
constituted error at all.

5-4. Opinion of Court by Thomas, joined in part by Rehnquist, O’Connor, Scalia,

and Kennedy, and in separate part by Rehnquist, O’Connor, and Kennedy.
Dissenting opinion by Ginsburg, joined by Stevens and Souter, and joined in part
by Breyer.
Knowles v. Iowa 119 S. Ct. 484, 67 USLW 4027 (12-8-98)
Fourth Amendment, search incident to traffic citation: A search authorized
by an Iowa statute permitting officers to conduct a full-blown search of an
automobile when issuing a traffic citation violates the Fourth Amendment.
Neither of the rationales that justifies a search incident to arrest justifies a full
search of an automobile incident to a traffic citation. The threat to officer safety
is "a good deal less" in the case of a routine traffic stop than it is in the case of
a custodial arrest. The "relatively brief encounter" of a traffic stop contrasts
with an officer's "extended exposure" to a suspect who is placed in custody and
transported to the police station. Officers conducting a routine traffic stop may
order driver and passengers out of the car and may even conduct a patdown
search if there is reasonable suspicion that the driver or any passengers may be
armed and dangerous, but there is no such justification for a full search of the
car. The second justification for a search incident to arrest — the need to
preserve evidence — is "not present at all" in a routine traffic stop.

9-0. Opinion for unanimous Court by Rehnquist.

Kolstad v. American Dental Ass’n 119 S. Ct. 2118, 67 USLW 4552 (6-22-99)
Punitive damages, Title VII of Civil Rights Act: A plaintiff in an action
brought under Title VII of the Civil Rights Act need not show “egregious”
misconduct in order to recover punitive damages. 1991 amendments to Title
VII authorized awards of compensatory and punitive damages in cases of
“intentional misconduct,” and further limited punitive awards to acts undertaken
“with malice or with reckless indifference to . . . federally protected rights.” The
terms “malice” and “reckless” focus on the actor’s state of mind. There is no
additional requirement of egregiousness, although egregious misconduct is often
associated with the award of punitive damages, and may serve as evidence
supporting an inference of the requisite evil motive. Agency principles place
limits on recovery of punitive damages from employers for the acts of
employees. While the Restatement (Second) of Agency provides “a useful
starting point,” its principles must be modified so that an employer may not be
held vicariously liable for discriminatory employment decisions of managerial
agents when those decisions are contrary to the employer’s good-faith efforts to
comply with Title VII.
7-2 (“egregious” standard); 5-4 (agency). Opinion of Court by O’Connor, joined
in part by Stevens, Scalia, Kennedy, Souter, Ginsburg, and Breyer; and joined in
separate part by Rehnquist, Scalia, Kennedy, and Thomas. Opinion concurring
in part and dissenting in part by Rehnquist, joined by Thomas. Opinion
concurring in part and dissenting in part by Stevens, joined by Souter, Ginsburg,
and Breyer.
Kumho Tire Co. v. Carmichael 119 S. Ct. 1167, 67 USLW 4179 (3-23-99)

Dow Pharmaceuticals (1993) for admissibility of opinion testimony by qualified
scientific experts apply as well to testimony based on technical and other
specialized knowledge that is not “scientific.” Federal Rule of Evidence 702,
which allows admission of expert testimony “[i]f scientific, technical, or other
specialized knowledge will assist the trier of fact,” affords no basis for
distinguishing between admissibility of “scientific” knowledge and “technical”
or “other specialized” knowledge. Whatever the specialized discipline, the trial
judge must determine whether the testimony has “a reliable basis in the
knowledge and experience of [the] discipline.” Trial judges need considerable
leeway in making this determination. The Daubert standards are “flexible,”and
do not constitute a mandatory checklist. Whether or not the expert is applying
scientific principles, the trial judge may, if appropriate, consider any of the
specific factors identified in Daubert as possibly bearing on reliability. In this
case, the district court’s decision not to admit the testimony of an expert in
motor vehicle tire failure analysis was reasonable. The court did not question the
expert’s qualifications, but instead found his methodology unreliable as applied
to the facts of this case.

9-0 (general principles); 8-1 (disposition of case). Opinion of Court by Breyer,

joined by Rehnquist, O’Connor, Scalia, Kennedy, Souter, Thomas, and Ginsburg,
and joined in part by Stevens. Concurring opinion by Scalia, joined by O’Connor
and Thomas. Concurring and dissenting opinion by Stevens.
Lilly v. Virginia 119 S. Ct. 1887, 67 USLW 4435 (6-10-99)
Confrontation Clause: The defendant’s Sixth Amendment right to be
confronted with the witnesses against him was violated by admission into
evidence at his trial of a confession made by a non-testifying accomplice. The
accomplice confessed to participating in a burglary, but stated that the defendant
was the one who shot and killed a person whose car they had stolen during their
crime spree. The fact that portions of the confession were “against penal
interest” does not place the non-self-inculpatory portions incriminating the
defendant within a firmly rooted exception to the hearsay rule; the latter portions
are presumptively unreliable. The case is remanded to Virginia courts to
determine whether the violation of the defendant’s Confrontation Clause rights
was harmless beyond a reasonable doubt.

9-0. Opinion of Court by Stevens, one part of which was joined by Scalia, Souter,

Thomas, Ginsburg, and Breyer, and a separate part of which was joined by Scalia,
Souter, Ginsburg, and Breyer. Separate part of Stevens opinion joined by only by
Souter, Ginsburg, and Breyer. Concurring opinions by Rehnquist, joined by
O’Connor and Kennedy; by Scalia; by Thomas; and by Breyer.
Lopez v. Monterey County 119 S. Ct. 693, 67 USLW 4076 (1-20-99)
Voting Rights Act, preclearance: A political subdivision covered by the Voting
Rights Act must seek preclearance before giving effect to voting changes
required by state law, even if the state is not covered by the Act. The Act's plain
meaning and its history of interpretation support this conclusion. Section 5 of
the Voting Rights Act requires preclearance "whenever a [covered] State or
political subdivision . . . shall enact or seek to administer any voting [change]."
The phrase "seek to administer" does not limit preclearance obligations to
discretionary acts of a covered jurisdiction. "Administer" comprehends non-
discretionary acts, and the word "seek" is used merely to make a "temporal

need not be obtained before enactment, but must be before implementation. The
Attorney General's interpretation to the same effect is entitled to deference.
Although the Act intrudes on state sovereignty by requiring federal approval of
state enactments, "the Fifteenth Amendment permits this intrusion."

8-1. Opinion of Court by O'Connor, joined by Stevens, Scalia, Souter, Ginsburg,

and Breyer. Concurring opinion by Kennedy, joined by Rehnquist. Dissenting
opinion by Thomas.
Marquez v. Screen Actors Guild 119 S. Ct. 292, 67 USLW 4001 (11-3-98)
Labor, union security clause: A union does not breach its duty of fair
representation by negotiating a union security clause that uses the language of
§ 8(a)(3) of the National Labor Relations Act without explaining in the
agreement itself the Supreme Court's interpretation of that language. Section
8(a)(3) permits unions to negotiate collective bargaining agreements that require
union "membership" for all employees on or after the 30th day following the
beginning of "such employment." The Court has interpreted this language to
mean merely that the union may require the payment of core fees and dues
necessary to support the union's representational activities. There is no
requirement that these qualifications be spelled out in the security clause; the
clause is enforceable as written because the statutory provisions have become
terms of art that incorporate case law interpretations. The union did not breach
its duty of fair representation; there was no claim of discriminatory conduct in
this case, and the union's negotiation of the security clause was neither arbitrary
nor in bad faith. The District Court lacked jurisdiction over the petitioner's
second claim. That claim, that the security clause violates § 8(a)(3) by providing
that the 30-day grace period begins to run with any employment in the industry
rather than with the particular employment at issue, is at base a statutory issue
within the NLRB's primary jurisdiction.
9-0. Opinion for unanimous Court by O'Connor. Concurring opinion by
Kennedy, joined by Thomas.
Martin v. Hadix 119 S. Ct. 1998, 67 USLW 4500 (6-21-99)
Retroactivity, Prison Litigation Reform Act, attorney’s fees: Section 803(d)
of the Prison Litigation Reform Act (PLRA), which limits the fees that may be
awarded to attorneys who litigate prisoner lawsuits, applies to services that were
performed after the PLRA’s effective date, but not to services performed prior
to that date. Principles announced in Landgraf v. USI Film Products (1994)
govern the retroactivity issue. The statute does not address “the temporal reach”
of the provision. The language of the provision sets substantive limits, and “falls
short of demonstrating a `clear congressional intent’ favoring retroactive
application of the fees limitations.” The structure and history of the PLRA
should not be read to mean that the fees limitations are inapplicable to pending
cases. Section 802, governing “appropriate remedies” in prison litigation,
explicitly provides that it applies to pending cases, while section 803 is silent in
this regard. Because, however, sections 802 and 803 “address wholly distinct
subject matters,” no negative inference should be made about section 803's
application to pending cases. The fact that the fees limitations were moved out
of section 802 and placed in section 803 during congressional consideration does
not mean that Congress intended the provisions to apply to pending cases, since
there could have been “a variety of other reasons” for the move. In the absence

case is whether application to fees for postjudgment monitoring would be
“inconsistent with the usual rule that legislation is deemed to be prospective.”
Application to monitoring performed before the effective date would be contrary
to the rule, since it would “attach new legal consequences to completed
conduct.” Application to monitoring performed after the PLRA’s effective date
creates no such retroactivity problem, because enactment of the PLRA put
attorneys on notice that their hourly rate had been adjusted.

7-2. Opinion of Court by O’Connor, joined by Rehnquist, Kennedy, Souter,

Thomas, and Breyer; joined in part by Scalia; and joined in separate part by
Stevens and Ginsburg. Concurring opinion by Scalia. Opinion by Ginsburg,
joined by Stevens, concurring in part and dissenting in part.
Maryland v. Dyson 119 S. Ct. 2013, 67 USLW 3770 (6-21-99)
Fourth Amendment, automobile search: The Fourth Amendment does not
require police to obtain a search warrant before searching a vehicle that they
have probable cause to believe contains illegal drugs. Under established
precedent, the “automobile exception” to the warrant requirement has no
separate exigency requirement. The Court held in United States v. Ross (1982)
that a search of an automobile is not unreasonable, even though a warrant has
not been obtained, if the search is based on facts that would support a warrant.
Per curiam. Dissenting opinion by Breyer, joined by Stevens.
Minnesota v. Carter 119 S. Ct. 469, 67 USLW 4017 (12-1-98)
Fourth Amendment, persons protected in home: A person present in
someone else's apartment for a few hours for the purpose of bagging cocaine for
later sale is not entitled to Fourth Amendment protection. In some
circumstances a person in someone else's house has a legitimate expectation of
privacy, and hence is entitled to Fourth Amendment protection. The Court has
extended protection, for example, to overnight guests. At the other extreme,
persons who are merely "legitimately on the premises" are not entitled to
protection. The purely commercial nature of the transaction here, the relatively
brief period of time on the premises, and the lack of any previous connection
with the householder make the respondent's situation in this case closer to that
of one simply permitted on the premises. Because the respondent had no
legitimate expectation of privacy in the apartment, there is no need to decide
whether a police officer's observations through a window constituted a "search."

5-4 (Fourth Amendment protection); 6-3 (result). Opinion of Court by Rehnquist,

joined by O'Connor, Scalia, Kennedy, and Thomas. Concurring opinions by
Scalia, joined by Thomas; by Kennedy; and by Breyer (concurring in result, but
agreeing with dissent on Fourth Amendment coverage). Dissenting opinion by
Ginsburg, joined by Stevens and Souter.
Minnesota v. Mille Lacs Band of Chippewa Indians 119 S. Ct. 1187, 67 USLW 4189
Native Americans, treaty rights: Several Bands of Chippewa Indians retain
rights guaranteed by an 1837 Treaty “during the pleasure of the President” to
hunt, fish, and gather rice on lands ceded to the United States. These
usufructuary rights were not eliminated by an 1850 Executive Order, by an 1855
Treaty, or by admission of Minnesota into the Union in 1858. The 1850
Executive Order purported to revoke these hunting, fishing, and gathering
“privileges granted temporarily to the Chippewa Indians,” but the Order was

exceeded the President’s authority. Neither the Removal Act nor the Treaty
itself authorized the President to order removal of the Indians. The portion of
the Executive Order revoking the usufructuary rights is not severable from the
invalid removal order because “it is clear that President Taylor intended the 1850
order to stand or fall as a whole.” The 1855 Treaty, by which the Indians
“relinquish[ed] and convey[ed] . . . any and all right, title, and interest [in]
lands,” relinquished lands, not usufructuary rights. Minnesota’s enabling act
does not abrogate the 1837 Treaty, nor does the “equal footing doctrine.”
Statehood by itself is insufficient to extinguish Indian treaty rights to hunt, fish,
and gather, because such treaty rights are still subject to reasonable and non-
discriminatory state conservation regulations. The contrary interpretation of the
equal footing doctrine in Ward v. Race Horse (1896) is rejected.
5-4. Opinion of Court by O’Connor, joined by Stevens, Souter, Ginsburg, and
Breyer. Dissenting opinions by Rehnquist, joined by Scalia, Kennedy, and
Thomas; and by Thomas.
Mitchell v. United States 119 S. Ct. 1307, 67 USLW 4230 (4-5-99)
Self-incrimination: A guilty plea does not waive the privilege against self-
incrimination at the sentencing phase of a federal trial. Incrimination is not
complete once guilt has been adjudicated. Rather, a defendant may have a
legitimate fear of adverse consequences from testimony at sentencing. The
Court has already held that the privilege against self-incrimination applies in a
capital sentencing hearing, and there is no reason not to apply the principle to
non-capital sentencing hearings as well. A district court’s explanation, pursuant
to Rule 11, that a defendant who pleads guilty will lose the right to remain silent
at trial, does not suggest to a defendant that he could also lose the right to
remain silent at sentencing. The rule applicable at trial that no negative inference
may be drawn from the defendant’s failure to testify applies with equal force at
sentencing. The district court may not make an adverse inference, based on the
defendant’s silence at sentencing, about circumstances and details of the crime
that bear on sentencing — in this case the amount of drugs sold by the
defendant. The Government retains the burden at the sentencing phase of
proving facts relevant to the crime, and may not “enlist the defendant in this
process at the expense of the self-incrimination privilege.”

9-0 (effect of guilty plea); 5-4 (adverse inference). Opinion of Court by Kennedy,

joined by Stevens, Souter, Ginsburg, and Breyer. Opinions concurring in part and
dissenting in part by Scalia, joined by Rehnquist, O’Connor, and Thomas; and by
Murphy Bros. v. Michetti Pipe Stringing, Inc. 119 S. Ct. 1322, 67 USLW 4238 (4-5-


Removal, timing, service of process: The 30-day period established by 28
U.S.C. § 1446(b) for removal of actions from state to federal court does not
begin to run until formal service of process, even if the defendant has already
received a copy of the complaint. Section 1446(b) provides that notice of
removal “shall be filed within thirty days after the receipt by the defendant,
through service or otherwise, of a copy of the initial pleading.” In this case the
plaintiff filed a complaint in an Alabama court and 3 days later faxed a file-
stamped copy of the complaint to the defendant; the defendant was not formally
served until two weeks later. The defendant’s notice of removal, filed 30 days
after service of process and 44 days after receipt of the complaint, complied with

responsive action by the party named as a defendant. Nothing in the legislative
history of enactment of the modern version of the section indicates that Congress
intended to dispense with this historic function. Rather, the accompanying
Senate report explained that the measure was intended to correct a problem that
could occur in New York and other states, in which the period for removal
might end before the defendant obtained access to the complaint. Similar
language in Federal Rule of Civil Procedure 81, governing the time allowed a
defendant to answer a complaint, has been interpreted to afford the defendant
the specified number of days after service of process.

6-3. Opinion of Court by Ginsburg, joined by Stevens, O’Connor, Kennedy,

Souter, and Breyer. Dissenting opinion by Rehnquist, joined by Scalia and
Murphy v. United Parcel Service 119 S. Ct. 2133, 67 USLW 4549 (6-22-99)
ADA, “regarded as” disabled: An individual fired from his job as a mechanic
because of high blood pressure that prevented him from receiving DOT
certification to drive a commercial vehicle – an essential function of this
particular mechanic’s job – is not “regarded as” disabled within the meaning of
the ADA definition of “disability.” As the Court determined in Sutton v. United
Airlines, the initial issue of whether the petitioner was “disabled” should be
determined with reference to the mitigating measures he employs. A person is
“regarded as” disabled if a covered employer believes that the person’s actual,
nonlimiting impairment substantially limits one or more major life activities. No
such showing was made in this case. The petitioner established that he is
regarded as unable to perform the job of mechanic only when that job requires
driving a commercial motor vehicle, but it is undisputed that he is generally
employable as a mechanic. At most, the petitioner is regarded as unable to
perform only a particular job – not an entire class or broad range of jobs.

7-2. Opinion of Court by O’Connor, joined by Rehnquist, Scalia, Kennedy,

Souter, Thomas, and Ginsburg. Dissenting opinion by Stevens, joined by Breyer.

Inspector General Act, employee examinations, FSLMRS: An investigator
employed in NASA’s Office of Inspector General can be considered a
“representative” of NASA when examining a NASA employee, and consequently
the right to union representation guaranteed by the Federal Service Labor-
Management Relations Statute, 5 U.S.C. § 7114(a)(2)(B), applies. By its terms,
the provision is not limited to agency investigators representing an “entity”
within the agency that collectively bargains with the employee’s union. Neither
the fact that the relevant language is contained in a larger section addressing
collective bargaining rights, nor the fact that the phrase “representative of the
agency” is used elsewhere in the statute to refer to management representatives
responsible for collective bargaining requires a different reading. Moreover,
there is no basis in the history and purpose of the FSLMRS to give §
7114(a)(2)(B) a narrow construction that covers some, but not all, interviews
by agency representatives. Nor does the Inspector General Act (IGA) require
a limiting construction. Rather, the IGA provides that Inspectors General “shall
report to and be under the general supervision of the head of the establishment
involved,” and also refers to the agency “within which [an IG’s] Office is
established.” Although enforcing § 7114(a)(2)(B) may lessen an Inspector
General’s ability to maintain the confidentiality of its investigations, the provision
“vindicates obvious countervailing federal policies” favoring fair treatment of
employees under investigation.
5-4. Opinion of Court by Stevens, joined by Kennedy, Souter, Ginsburg, and
Breyer. Dissenting opinion by Thomas, joined by Rehnquist, O’Connor, and
National Fed'n of Fed. Employees v. Department of the Interior 119 S. Ct. 1003, 67
USLW 4170 (3-3-99)
Labor, federal employees, midterm bargaining: The Federal Service Labor-
Management Relations Statute is ambiguous as to the duty of federal employers
to bargain midterm (i.e., while the basic collective bargaining agreement is in
effect) over matters not included in the basic agreement. The statute, 5 U.S.C.
§ 7114(a)(4), simply provides that the federal agency employer and the union
representative "shall meet and negotiate in good faith for the purposes of arriving
at a collective bargaining agreement." The "arriving at" language is not
dispositive, because there is nothing in the circular definition of "collective
bargaining agreement" to exclude a midterm agreement. The statutory
ambiguity is consistent with the conclusion that Congress delegated to the
Federal Labor Relations Authority the power to determine whether, where, and
when midterm bargaining is required. The statute also grants the Authority
power to determine whether an agency must bargain "endterm" over including
in the basic collective bargaining agreement a clause requiring midterm
5-4. Opinion of Court by Breyer, joined by Stevens, Kennedy, Souter, and
Ginsburg. Dissenting opinion by O'Connor, joined by Rehnquist, and joined in
part by Scalia and Thomas.

Sex discrimination, Title IX, scope of coverage: Receipt of dues from member
colleges and universities that receive federal funds does not bring the National
Collegiate Athletic Association (NCAA) within the scope of Title IX of the
Education Amendments of 1972. A private action based on this theory, and
challenging application of NCAA rules governing postgraduate eligibility for
participation in intercollegiate athletics, cannot be maintained. Title IX prohibits
sex discrimination in "any education program or activity receiving Federal
financial assistance," and a regulation defines a "recipient" of such assistance as
any entity "to whom Federal financial assistance is extended directly or through
another recipient." Federal assistance is received "through another recipient" if
it is earmarked for such payments, as is the case with a college that enrolls
students who receive federal funds earmarked for college expenses. There is no
allegation, however, that NCAA member institutions pay their dues with federal
funds earmarked for the purpose of paying NCAA dues. Entities such as the
NCAA that merely benefit economically from federal assistance are not
"recipients" covered by Title IX.

9-0. Opinion for unanimous Court by Ginsburg.

Neder v. United States 119 S. Ct. 1827, 67 USLW 4404 (6-10-99)
Harmless error; fraud statutes, materiality: The district court’s error in failing
to submit to the jury the issue of materiality in a tax fraud case was “harmless
error.” The error at issue — a jury instruction that omits an element of the
offense — differs markedly from the constitutional violations that have been held
to defy harmless-error review. Errors that require reversal affect the framework
in which the trial proceeds, and “necessarily render a trial fundamentally unfair.”
An instruction that omits an element of an offense does not necessarily render
a criminal trial fundamentally unfair or unreliable. In this case, in which the
defendant failed to report over $5 million in income and filed false returns, the
evidence supporting materiality was “overwhelming,” and the court’s failure to
submit the materiality issue to the jury was harmless error. Materiality of
falsehood is an element of a “scheme or artifice to defraud” under the federal
mail fraud, wire fraud, and bank fraud statutes. Under a natural reading of the
statutory text itself, materiality would not be an element of the fraud statutes.
However, where Congress uses terms that have accumulated a settled meaning
under the common law, a court must infer, unless the statute dictates otherwise,
that Congress intended to incorporate the established meaning. The well-settled
meaning of “fraud” required a misrepresentation or concealment of a material
fact. Nothing in the fraud statutes dictates a different conclusion, so it is
presumed that Congress intended to incorporate materiality.

6-3 (harmless error); 9-0 (materiality). Opinion of Court by Rehnquist,

unanimous on materiality issue, and joined by O’Connor, Kennedy, Thomas, and
Breyer on harmless error issue. Concurring opinion by Stevens. Opinion by
Scalia, concurring in part and dissenting in part, joined by Souter and Ginsburg.
Nynex Corp. v. Discon, Inc. 119 S. Ct. 493, 67 USLW 4031 (12-14-98)
Antitrust, group boycotts: The rule that group boycotts are illegal per se does
not apply to a buyer's decision to buy from one seller instead of another,
whenever that decision cannot be justified in terms of ordinary competitive
objectives. In this case, a purchaser of telephone removal services allegedly
switched purchases from the respondent to a competitor because the respondent

group boycott per se rule is limited to cases involving horizontal agreements
among direct competitors. This case does not involve any horizontal agreement,
but instead involves a "vertical" agreement between supplier and customer.
There is no special feature of this case to distinguish it from precedents limiting
the per se rule.

9-0. Opinion for unanimous Court by Breyer.

Olmstead v. L.C. 119 S. Ct. 2176, 67 USLW 4567 (6-22-99)
ADA, mentally disabled, community placement: The ADA’s general
prohibition on discrimination against disabled persons in the provision of public
services requires placement of persons with mental disabilities in community
settings rather than institutions if the state’s treatment professionals have
determined that community placement is appropriate, if the transfer is not
opposed by the affected individual, and if the placement can be reasonably
accommodated, taking into account the resources available to the state.
Unjustified institutionalization is properly regarded as discrimination by reason
of disability. The Department of Justice regulations requiring public entities to
administer services in “the most integrated setting appropriate” are entitled to
deference under Chevron v. NRDC (1984). Moreover, congressional findings
in the ADA explicitly identify unjustified “segregation” of disabled persons as a
form of “discrimination.”
6-3. Opinion of Court by Ginsburg, joined by Stevens, O’Connor, Souter, and
Breyer. Separate part of Ginsburg opinion joined by O’Connor, Souter, and
Breyer. Concurring opinions by Stevens; and by Kennedy, joined in part by
Breyer. Dissenting opinion by Thomas, joined by Rehnquist and Scalia.
Ortiz v. Fibreboard Corp. 119 S. Ct. 2295, 67 USLW 4632 (6-23-99)
Class actions, asbestos settlement: Applicants for certification of a mandatory
settlement class on a limited fund theory under Federal Rule of Civil Procedure
23(b)(1)(B) must show that the settlement fund is limited by more than the
agreement of the parties, and will be allocated to claimants belonging within the
class by a process addressing any conflicting interests of class members. The
record on which the district court in this case rested its class certification did not
support these essential premises of mandatory limited fund actions. There is
good reason to treat these limited fund characteristics as “presumptively
necessary,” since the Advisory Committee that developed Rule 23 did not
contemplate that the mandatory class action codified in subdivision (b)(1)(B)
would be used to aggregate unliquidated tort claims on a limited fund rationale,
and since serious constitutional concerns (jury trial and due process rights of
absent class members) are implicated. There was no evaluation of the amount
of insurance money that would be available to pay claims, and consequently
there was no adequate demonstration of the fund’s upper limit. There was also
inadequate consideration of the inclusiveness of the class and of equity among
class members. Several groups, including persons who had previously settled
but retained the right to sue again upon development of asbestos-related
malignancy, plaintiffs with claims pending at the time of an initial settlement
agreement, and “inventory” plaintiffs, were excluded from the class. There was
no division of plaintiffs between holders of present and future claims, and thus
there was inadequate protection against conflicting interests of counsel. The
class also did not accommodate the different interests of plaintiffs whose claims

the insurance was discontinued. Another departure from “limited fund
antecedents” is that Fibreboard’s net worth was not taken into account in
determining the size of the fund.

7-2. Opinion of Court by Souter, joined by Rehnquist, O’Connor, Scalia,

Kennedy, Thomas, and Ginsburg. Concurring opinion by Rehnquist, joined by
Scalia and Kennedy. Dissenting opinion by Breyer, joined by Stevens.
O’Sullivan v. Boerckel 119 S. Ct. 1728, 67 USLW 4389 (6-7-99)
Habeas corpus, exhaustion of state remedies: Before a federal court may
grant habeas relief to a state prisoner, that prisoner must exhaust his remedies
in state court, and this required exhaustion includes petitioning a state court of
last resort that has discretionary control over its docket. The governing statute,
28 U.S.C. § 2254(c), provides that a habeas petitioner shall not be deemed to
have exhausted his state remedies “if he has the right under [state law] to raise,
by any available procedure, the question presented.” This does not require state
prisoners to invoke every possible avenue of state review, but it does require that
prisoners give state courts “one full opportunity to resolve any constitutional
issues by invoking one complete round of the State’s appellate review process.”
Because the respondent raised three issues in his federal habeas petition that he
had not raised in his petition for leave to appeal to the Illinois Supreme Court,
and because the time for filing in Illinois had long passed, he procedurally
defaulted on those claims.

6-3. Opinion of Court by O’Connor, joined by Rehnquist, Scalia, Kennedy,

Souter, and Thomas. Concurring opinion by Souter. Dissenting opinions by
Stevens, joined by Ginsburg and Breyer; and by Breyer, joined by Stevens and
Peguero v. United States 119 S. Ct. 961, 67 USLW 4154 (3-2-99)
Habeas corpus, harmless error: A district court's failure to advise a defendant
of his right to appeal his sentence, as required by Federal Rule of Criminal
Procedure 32(a)(2), does not provide a basis for habeas corpus relief if the
defendant was aware of his right to appeal when the trial court failed to give the
advice. Because the defendant was aware of his right to appeal, he suffered no
prejudice from the trial court's omission.
9-0. Opinion for unanimous Court by Kennedy. Concurring opinion by
O'Connor, joined by Stevens, Ginsburg, and Breyer.
Pfaff v. Wells Electronics, Inc. 119 S. Ct. 304, 67 USLW 4009 (11-10-98)
Patents, invention "on sale" more that a year: A product can be "on sale"
within the meaning of section 102(b) of the Patent Act of 1952, 35 U.S.C. § 102
(b), if it has been offered for sale, even if it has not yet been reduced to practice.
Section 102(b) provides that an "invention" may not be patented if it has been
"on sale" for more than one year before the patent application was filed. An
"invention" is an inventor's conception rather than a physical embodiment of that
idea. It is well settled that an invention may be patented before it is reduced to
practice. Two conditions must be satisfied before an invention is "on sale."
First, the product must be the subject of a commercial sale. In this case, the
product had been offered for sale more than a year prior to patent application.
Second, the invention must be ready for patenting. This latter condition may be
satisfied in at least two ways — by proof of reduction to practice, or by proof

that were sufficiently specific to enable a person skilled in the art to practice the
invention. Here, the second condition was satisfied by drawings that the
inventor had provided to a manufacturer before the critical date.

9-0. Opinion for unanimous Court by Stevens.

Reno v. American-Arab Anti-Discrimination Comm. 119 S. Ct. 936, 67 USLW 4133
Immigration, deportation, judicial review, selective enforcement: Provisions
of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996
(IIRIRA) limiting judicial review apply to certain types of challenges to
deportation proceedings that were ongoing at the time of enactment of IIRIRA.
The "supposed tension" between 8 U.S.C. § 309(c)(1), which sets a general rule
of inapplicability to pending cases, and § 306(c)(1), which provides that
§1252(g) applies to pending cases, is resolved by a "narrow reading" of the latter
provision. 8 U.S.C. §1252(g) should be read as barring judicial review, prior to
a final deportation order, of a limited subset of claims challenging three discrete
types of actions by the Attorney General — commencing proceedings,
adjudicating cases, or executing removal orders. The instant case, involving a
claim that respondents were targeted for deportation because of their affiliation
with a politically unpopular group, fits squarely within the first category as a
challenge to the commencement of proceedings. The three categories should not
be treated as all-encompassing. Nowhere in the U.S. Code is precise and narrow
language of this nature used as a shorthand means of imposing a general
jurisdictional limitation. Also, there is "good reason" for Congress to insulate
these particular actions from judicial review, since each involves a stage at which
the Attorney General may exercise nonreviewable discretion to abandon
deportation proceedings. The doctrine of constitutional doubt is inapplicable
because there is no constitutional right implicated. "As a general matter . . . an
alien unlawfully in this country has no constitutional right to assert selective
enforcement as a defense against his deportation."
8-1. Opinion of Court by Scalia, joined by Rehnquist, O'Connor, Kennedy, and
Thomas, and joined in part by Ginsburg and Breyer. Concurring opinion by
Ginsburg, joined in part by Breyer. Concurring opinion by Stevens. Dissenting
opinion by Souter.
Richardson v. United States 67 USLW 4381 (6-1-99)
Jury unanimity, “continuing criminal enterprise”: A jury in a case brought
under 18 U.S.C. § 848, which forbids any person from engaging in a “continuing
criminal enterprise,” must unanimously agree not only that the defendant
committed some “continuing series of violations,” but also which specific
violations make up that continuing series. It is well settled that a federal jury
may convict only if it finds unanimously that the Government has proved each
element of an offense. A jury may, however, disagree as to which of several
possible means the defendant used to commit an element of the crime. For
purposes of section 848, each violation making up a “series of violations” should
be considered to be a separate “element” of the offense, and not merely the
possible “means” by which the offense was committed. The statute provides that
a person is engaged in a continuing criminal enterprise if he violates any
provision of the federal drug laws, and if “such violation is a part of a continuing
series of violations.” Use of the word “violation” suggests that each “violation”

the breadth of possible drug law violations that could comprise a “series” means
that, absent a unanimity requirement, there could be wide disagreement among
jurors as to just what the defendant did or did not do. Finally, the statute should
be construed so as to avoid possible constitutional issues that could be raised
under the alternative construction.

6-3. Opinion of Court by Breyer, joined by Rehnquist, Stevens, Scalia, Souter,

and Thomas. Dissenting opinion by Kennedy, joined by O’Connor and Ginsburg.
Roberts v. Galen of Virginia, Inc. 119 S. Ct. 685, 67 USLW 4062 (1-13-99)
Emergency Medical Treatment and Active Labor Act: Recovery in an action
brought under the Emergency Medical Treatment and Active Labor Act for a
hospital's failure to provide necessary stabilizing treatment for an emergency
medical condition is not contingent upon proof of improper motive. Section
1395dd(b) of the Act requires hospitals to provide "for such further medical
examination and such treatment as may be required to stabilize the medical
condition." The provision is not qualified by a requirement of "appropriateness,"
and cannot "reasonably be read to require an improper motive."

9-0. Per curiam.

Ruhrgas AG v. Marathon Oil Co. 119 S. Ct. 1563, 67 USLW 4315 (5-17-99)
Federal courts, priority of jurisdictional issues: There is “no unyielding
jurisdictional hierarchy” in cases removed from state to federal court, or in cases
originating in federal court. Federal district courts have discretion to dismiss a
removed case for lack of personal jurisdiction without reaching the issue of
subject matter jurisdiction. The principles that require a court to find subject
matter jurisdiction before proceeding to the merits do not necessarily require a
set sequencing of jurisdictional issues. The possibility of issue preclusion in
subsequent state-court litigation merits consideration, but is not dispositive. In
most instances, “both expedition and sensitivity to state courts’ coequal stature”
should impel the federal court to consider subject matter jurisdiction before
personal jurisdiction. However, if the court has a “straightforward” issue of
personal jurisdiction that presents “no complex question of state law,” and if the
alleged defect in subject matter jurisdiction raises a “difficult and novel
question,” the court does not abuse its discretion by first addressing personal

9-0. Opinion for unanimous Court by Ginsburg.

Saenz v. Roe 119 S. Ct. 1518, 67 USLW 4291 (5-17-99)
Right to travel, durational residency requirement for welfare: A provision
of the California Welfare and Institutions Code limiting new residents, for the
first year they live in California, to the level of welfare benefits that they would
have received in the state of their prior residence, abridges the right to travel in
violation of the Fourteenth Amendment. The right to travel is “firmly embedded
in our jurisprudence.” A component of the right to travel is the right of a newly
arrived citizen to the same privileges and immunities enjoyed by other citizens
of that state. Privileges and immunities of citizenship are protected under Article
IV by virtue of the new arrival’s status as a state citizen, and under the
Fourteenth Amendment by virtue of her status as a citizen of the United States.
The Court recognized in the Slaughter-House Cases in 1873 that the Fourteenth
Amendment’s Privileges or Immunities Clause guarantees that United States

rights as other citizens of that state. Classification based upon the period of
residency in California and the location of prior residence penalizes the citizen’s
right to be treated equally in her new state of residence. Such penalties may not
be judged by mere rationality or by an “intermediate” standard of review;
instead, the standard must be “no less strict” than the compelling governmental
interest test applied in Shapiro v. Thompson (1969). The Court in Shapiro held
that the purpose of deterring welfare applicants from migrating into a state is
impermissible. Here, California’s professed purpose of saving money is
legitimate, but cannot justify its discrimination among equally eligible citizens.
Federal approval of such durational residency requirements in the Personal
Responsibility and Work Opportunity Reconciliation Act of 1996 cannot
resuscitate the constitutionality of California’s law. Congress may not authorize
the states to violate the Fourteenth Amendment. Article I powers may not be
exercised in a manner that violates other specific provisions of the Constitution,
and congressional enforcement power under section 5 of the Fourteenth
Amendment encompasses no power to restrict, abrogate, or dilute the
Amendment’s guarantees.

7-2. Opinion of Court by Stevens, joined by O’Connor, Scalia, Kennedy, Souter,

Ginsburg, and Breyer. Dissenting opinions by Rehnquist, joined by Thomas; and
by Thomas, joined by Rehnquist.
South Central Bell Tel. Co. v. Alabama 119 S. Ct. 1180, 67 USLW 4186 (3-23-99)
Commerce Clause; Taxation, State: Alabama’s franchise tax law discriminates
against foreign corporations in violation of the Commerce Clause. The law
establishes a domestic corporation’s tax base as the par value of its capital stock,
a value that the corporation may set at whatever level it chooses. The tax base
of a foreign corporation, on the other hand, contains balance sheet items that the
corporation cannot so manipulate. Denial to foreign corporations of the ability
afforded domestic corporations to reduce their tax liability constitutes facial
discrimination against interstate commerce and can be upheld only if the State
offers sufficient justification. Alabama has not justified the discrimination. The
tax is not a “compensatory” tax that offsets the tax burden imposed on domestic
corporations. The burdens on foreign and domestic corporations are neither
“roughly approximate” nor similar in substance, the one being a tax on the
decision to do business in the state, the other being a tax on ownership of a
certain form of property. The Eleventh Amendment does not deprive the
Supreme Court of appellate jurisdiction over cases such as this arising from state
courts. Nor may Alabama apply “res judicata” principles to deny relief simply
because the same issue had been decided by the Alabama Supreme Court in an
earlier case involving different parties.
9-0. Opinion for unanimous Court by Breyer. Concurring opinions by O’Connor
and Thomas.
Stewart v. LaGrand 119 S. Ct. 1018, 67 USLW 3557 (3-3-99)
Habeas corpus, waiver of challenge to execution by lethal gas: A convicted
murderer who was sentenced to death and who exercised his option under
Arizona law to be executed by lethal gas rather than by lethal injection has
waived any objection he might have had to the constitutionality of execution by
gas. The prisoner in this case also procedurally defaulted by failing to raise this
claim on direct appeal after having been sentenced to death by lethal gas prior

prisoner's direct appeal (1987) there had been sufficient debate about the
constitutionality of lethal gas executions that he cannot show cause for his failure
to raise the issue on appeal.

8-1. Per curiam. Concurring opinion by Souter, joined by Ginsburg and Breyer.

Dissenting opinion by Stevens.
Strickler v. Greene 119 S. Ct. 1936, 67 USLW 4477 (6-17-99)
Prosecutorial misconduct; habeas corpus, procedural default: Virginia did
not violate the rule derived from Brady v. Maryland (1963) that suppression by
the prosecution of evidence favorable to an accused violates due process where
the evidence is material either to guilt or to punishment. In this case the
prosecution withheld an initial statement made to police by a prosecution
witness. The statement, much less definite about the defendant’s role in the
crime than her later testimony, could have been used by the defendant to
impeach her credibility. Petitioner’s procedural default in not raising this Brady
claim in state courts is excused by an adequate showing of cause and prejudice;
the petitioner had relied on the prosecution’s “open file” policy and on
assurances that “everything known to the government” had been disclosed.
Petitioner could not, however, establish the underlying Brady violation. Two of
the three components of a violation were established: the evidence was favorable
to the accused and was suppressed by the State. The petitioner failed, however,
to demonstrate the prejudice necessary to establish “materiality” because he
failed to show that there is a reasonable probability that his conviction or
sentence would have been different if the materials had been disclosed. Even if
the one witness had been “severely impeached,” there was other evidence in the
record lending “strong support” for the conclusion that the petitioner still would
have been convicted and sentenced to death. Moreover, the testimony in
question did not relate to the petitioner’s eligibility for the death sentence, and
was not relied upon by the prosecution in its closing argument during the penalty
phase of the trial.
7-2 (Brady violation); 9-0 (excusal of procedural default). Opinion of Court by
Stevens, joined by Rehnquist, O’Connor, Scalia, Ginsburg, and Breyer, and joined
in part by Kennedy, Souter, and Thomas. Opinion by Souter, joined by Kennedy,
concurring in part and dissenting in part.
Sutton v. United Airlines 119 S. Ct. 2139, 67 USLW 4537 (6-22-99)
ADA, definition of “disability”: The determination of whether an individual
is “disabled” for purposes of the Americans with Disabilities Act of 1990 (ADA)
should be made with reference to corrective measures that mitigate the
individual’s impairment, including, for instance, eyeglasses and contact lenses.
The ADA defines “disability” as “a physical or mental impairment that
substantially limits one or more of [that individual’s] major life activities.” No
agency has been delegated the authority to interpret the term “disability.” EEOC
guidelines, however, define “major life activities” to include “working,” and also
provide that individuals are to be evaluated in their hypothetical uncorrected
state. This latter EEOC interpretation is “impermissible.” The present indicative
verb form of the statutory definition (“substantially limits”) requires that the
individual be presently – not potentially – limited by an impairment. The
evaluation as to disability must be individualized, but focus on an uncorrected
impairment would require instead that persons be judged as members of a group

declare that “some 43,000,000 Americans have one or more physical or mental
disabilities.” This figure is inconsistent with a definition of disability that would
treat all impairments in their uncorrected form; estimates available in 1990
produced a significantly larger number (approximately 160 million) for a
nonfunctional “health conditions” approach to defining disability. Because it is
included in the ADA’s text, the congressional finding “gives content to the
ADA’s terms, specifically the definition of disability.” A second aspect of the
statutory definition includes individuals who are “regarded as” having a
disability. The petitioners in this case, individuals whose corrected vision was
20/20 or better, were rejected for employment as airline pilots because their
uncorrected vision did not meet the airline’s minimum requirement of 20/100
uncorrected vision. The ADA allows employers to establish physical criteria for
jobs. The fact that petitioners were rejected for employment in one particular
job does not establish that the employer regarded them as having an impairment
“substantially limiting” their ability to work. The definition requires an allegation
that an individual’s impairment makes her unable to work in a “broad class of
jobs.” There are a number of other positions – such as regional pilot and pilot
instructor – utilizing petitioners’ skills.

7-2. Opinion of Court by O’Connor, joined by Rehnquist, Scalia, Kennedy,

Souter, Thomas, and Ginsburg. Concurring opinion by Ginsburg. Dissenting
opinions by Stevens, joined by Breyer; and by Breyer.
United States v. Haggar Apparel Co. 119 S. Ct. 1392, 67 USLW 4249 (4-21-99)
Administrative law, deference to agency interpretation: A Customs Service
regulation is subject to analysis under principles set forth in Chevron v. NRDC
(1984). The statute grants importers a partial exemption from customs duties
for manufactured articles that are assembled abroad and that have not been
enhanced in value “except by being assembled and except by operations
incidental to the assembly process.” The regulation deems permapressing
operations to be an additional step in manufacturing of textiles, and not an
incidental part of the assembly process. The regulation is not limited in
application to customs officers who classify imported merchandise, but applies
to refund suits in the Court of International Trade. “The tariffs do not mean one
thing for customs officers and another for importers.” Statutes authorizing the
Court of International Trade to conduct de novo review do not displace the
customary Chevron deference to agency interpretations. “De novo proceedings
presume a foundation of law,” and deference may be given to the regulations
without impairing the court’s authority to make factual determinations de novo
or to apply the regulations to those determinations. The case is remanded for
determination of whether the regulation is entitled to deference under application
of Chevron principles.
9-0; 7-2. Opinion of Court by Kennedy, unanimous with respect to whether
Chevron principles apply, and joined by Rehnquist, O’Connor, Scalia, Souter,
Thomas, and Breyer on the remand issue. Opinion by Stevens, joined by
Ginsburg, concurring in part and dissenting in part.
United States v. Rodriguez-Moreno 119 S. Ct. 1239, 67 USLW 4219 (3-30-99)
Venue, using firearm during crime of violence: Venue in a prosecution for
using or carrying a firearm “during and in relation to any crime of violence,” in
violation of 18 U.S.C. § 924(c)(1), is proper in any district where the crime of
violence was committed, even if the firearm was used or carried only in one

Texas and continued with transportation of the victim to New Jersey and then
to Maryland; in Maryland the defendant used a gun to threaten the victim.
Venue was proper in New Jersey even though there was no evidence that the
defendant used a gun in New Jersey. Section 924(c)(1) is not a point-in-time
offense that can only be committed in the place where the underlying violent
crime and the gun use coincide. Rather, where a crime consists of distinct parts
that have different localities, the whole may be tried where any part can be
proved to have been done. Venue is appropriate for the section 924(c)(1)
offense wherever venue is appropriate for the underlying crime of violence.

7-2. Opinion of Court by Thomas, joined by Rehnquist, O’Connor, Kennedy,

Souter, Ginsburg, and Breyer. Dissenting opinion by Scalia, joined by Stevens.
United States v. Sun-Diamond Growers 119 S. Ct. 1402, 67 USLW 4265 (4-27-99)
Illegal gratuity statute: The illegal gratuity statute, 18 U.S.C. § 201(c)(1)(A),
which prohibits giving “anything of value” to a public official “for or because of
any official act performed or to be performed by such public official,” requires
a showing beyond the mere fact that a gratuity was given because of the
recipient’s official position. Under the “more natural reading” of this language,
an indictment is defective if it does not allege a specific connection between the
gratuities and some official act. The provision could have been worded more
simply and directly if the aim had been to proscribe all gifts for or because of
official position. Broad prohibitions on gift giving found elsewhere in the Code
are “more precise and more administrable.” Moreover, the Government’s
position could produce “peculiar results,” such as prohibiting a sports team
visiting the White House from giving the President a replica jersey, or prohibiting
a farmers group before whom the Secretary of Agriculture is speaking from
offering him a complimentary lunch in connection with his speech. The illegal
gratuity statute is but “one strand of an intricate web of regulations” that
includes many “precisely targeted prohibitions.” Given this statutory context,
the Court will not “expand . . . one piece of the regulatory puzzle so dramatically
as to make many other pieces misfits.”

9-0. Opinion for unanimous Court by Scalia.

Unum Life Ins. Co. v. Ward 119 S. Ct. 1380, 67 USLW 4243 (4-20-99)
ERISA, preemption: California’s “notice-prejudice” rule, under which an
insurer may avoid liability for an untimely claim only by establishing that a
claimant’s delay in filing was prejudicial, is a “law . . . which regulates insurance”
within the meaning of ERISA’s saving clause, and therefore is not preempted as
a law that “relate[s] to any employee benefit plan.” The notice-prejudice rule fits
a common-sense understanding of insurance regulation. The rule applies to
insurance contracts, and is not a general principle applicable outside the
insurance context. Moreover, the rule is grounded in policy concerns specific
to the insurance industry. Two of the three criteria used to determine whether
a state law regulates “the business of insurance” within the meaning of the
McCarran-Ferguson Act are also met — the rule serves as “an integral part of
the policy relationship between the insurer and the insured,” and it is “limited to
entities within the insurance industry.” California’s Elfstrom rule, under which
the employer could be deemed to be the agent of the insurer (and by application
of which the notice in this case would have been timely), is preempted as a law

employer the agent of the insurer “would have a marked effect on plan

9-0. Opinion for unanimous Court by Ginsburg.

West v. Gibson 119 S. Ct. 1906, 67 USLW 4462 (6-14-99)
Title VII, compensatory damages in administrative proceedings: The Equal
Employment Opportunity Commission (EEOC) possesses the authority to
require federal agencies to pay compensatory damages when they discriminate
in employment in violation of Title VII of the Civil Rights Act of 1964. Section
717(b), added in 1972, grants the EEOC authority to enforce the Act “through
appropriate remedies, including reinstatement or hiring of employees with or
without back pay.” Section 717(c) authorizes an employee or job applicant to
“file a civil action.” A Compensatory Damages Amendment (CDA) enacted in
1991 authorized award of compensatory damages “[i]n an action brought under
section . . . 717.” “Read literally,” the language of the statutes is consistent with
a grant of authority to the EEOC to award compensatory damages. After
enactment of the CDA in 1991, award of compensatory damages is a remedy
that is “appropriate.” The meaning of “appropriate” was not frozen as of 1972;
rather, the meaning of the word permits its scope to expand or contract to reflect
later changes in the law. Recognizing this authority in the EEOC is consistent
with the purposes of the 1972 amendments to encourage administrative
resolution of discrimination complaints. While the CDA made no mention of the
EEOC, and use of the word “action” often refers to judicial cases and not to
administrative proceedings, Congress could have referenced section 717(c) had
it desired to limit the remedy to court actions. Conferral of a right to a jury trial
(unavailable in an EEOC proceeding) if a complaining party seeks compensatory
damages does not preclude a holding that the EEOC may award compensatory
damages; the provision merely makes a jury trial available if a complaining party
brings a court action under § 717(c). Finally, the provision meets the standard
for waiver of sovereign immunity. “[T]he statutory language, taken together
with statutory purposes, history, and the absence of any convincing reason for
denying the EEOC the relevant power, produce evidence of a waiver that
satisfies the [appropriate] standard.”
5-4. Opinion of Court by Breyer, joined by Stevens, O’Connor, Souter, and
Ginsburg. Dissenting opinion by Kennedy, joined by Rehnquist, Scalia, and
Wilson v. Layne 67 USLW 4322 (5-24-99)
Fourth Amendment, media “ride-along”, qualified immunity: Police officers
violate the Fourth Amendment by bringing members of the media or other third
parties into a home during the execution of a warrant if the presence of the third
parties in the home was not in aid of the execution of the warrant. Respect for
privacy of the home lies at the “core” of the Fourth Amendment; absent exigent
circumstances, a warrant is required before officers may enter a home to search
or to make an arrest. Moreover, police actions in execution of a warrant must
be related to the objectives of the authorized intrusion. In this case the reporters
were not present to identify stolen property or otherwise to assist in execution
of the warrant, and consequently their presence in the home was not related to
the objectives of the authorized intrusion. Generalized interests in furthering law
enforcement objectives and publicizing crime-fighting efforts do not suffice to

from media intrusion during a search of the home was not “clearly established”
at the time of the search in this case, the law enforcement officers (deputy federal
marshals and local sheriff’s deputies) are entitled to “qualified immunity.” A
reasonable officer could have believed that it was legal to bring media observers
along during the execution of an arrest warrant in the home. At that time (1992)
media “ride-alongs” were common, and there were no court decisions holding
the practice unlawful. Also, the policy of the U.S. Marshal’s Service explicitly
contemplated the practice.
9-0 (Fourth Amendment); 8-1 (qualified immunity). Opinion of Court by
Rehnquist, unanimous in part, and joined in separate part by O’Connor, Scalia,
Kennedy, Souter, Thomas, Ginsburg, and Breyer. Opinion by Stevens concurring
in part and dissenting in part.
Wright v. Universal Maritime Service Corp. 119 S. Ct. 391, 67 USLW 4009 (11-16-


Labor, arbitration clause, ADA: A generally worded arbitration clause in a
collective bargaining agreement, providing only for arbitration of "matters under
dispute," does not require a covered employee to use the arbitration procedure
for an alleged violation of the Americans with Disabilities Act. The presumption
of arbitrability derived from section 301 of the Labor Management Relations Act
is inapplicable; that presumption applies only to disputes about the applicability
or interpretation of a collective bargaining agreement, and the underlying dispute
here involves interpretation of the ADA. A union's waiver of the rights of
represented employees to a judicial forum for claims of employment
discrimination must be "clear and unmistakable." The collective bargaining
agreement in this case does not meet that standard. The arbitration clause is
"very general," and the agreement contains no antidiscrimination language,
statutory or otherwise. General language to the effect that no provision shall be
violative of federal or state law is inadequate to constitute a clear waiver of
ADA rights, especially when contrasted with specific language stating that
OSHA requirements "shall be binding on both Parties."

9-0. Opinion for unanimous Court by Scalia.

Wyoming v. Houghton 119 S. Ct. 1297, 67 USLW 4225 (4-5-99)
Fourth Amendment, search of auto passenger’s belongings: Police officers
with probable cause to search a car may search a passenger’s personal
belongings inside the car if those belongings are capable of concealing the object
of the search, even if it is the driver and not the passenger who is under
suspicion. The initial step in evaluating the constitutionality of a search is to
determine whether the search would have been regarded as unlawful under the
common law at the time the Fourth Amendment was adopted. There is a long
history that allows officers with probable cause but without a warrant to search
for contraband in a vessel, and the same principle has been applied to allow
search of containers within motor vehicles. Cases allowing such searches have
expressed no qualification based on ownership of the containers. A second
inquiry is the reasonableness of the search, and this is determined by balancing
the intrusion on individual privacy against the governmental interests at stake.
This balancing “must be conducted with an eye to the generality of cases.”
Passengers “possess a reduced expectation of privacy with regard to the
property that they transport in cars,” and a search of such property is far less

interest in effective law enforcement is “substantial,” and the “ready mobility”
of cars often makes obtaining a warrant impractical. Also impractical is
requiring police officers to determine whether property belongs to the driver or
to a passenger, whether the driver and passenger are confederates in crime, and
whether the driver may have hidden contraband among a passenger’s
possessions without the passenger’s knowledge.

6-3. Opinion of Court by Scalia, joined by Rehnquist, O’Connor, Kennedy,

Thomas, and Breyer. Concurring opinion by Breyer. Dissenting opinion by
Stevens, joined by Souter and Ginsburg.
Your Home Visiting Nurse Servs. v. Shalala 119 S. Ct. 930, 67 USLW 4127 (2-23-99)
Medicare Act; Administrative law, judicial review of agency action: A
provider of Medicare services has no right to judicial review of a fiscal
intermediary's refusal to reopen an annual determination of the amount of
reimbursement to which the provider is entitled. The Medicare Act gives a
provider the right to an administrative appeal within 180 days of the
intermediary's original determination, and the Provider Reimbursement Review
Board's decision is subject to review in federal district court. The provider may
also, within three years, request the intermediary to reopen the reimbursement
determination, and any new decision is subject to review. The regulation says
nothing, however, about a refusal to reopen. The Medicare Act authorizes a
hearing before the Board if the provider is dissatisfied with an intermediary's
"final determination . . . as to the amount" of reimbursement. The Secretary's
interpretation of this language to mean that a refusal to reopen is not a "final
determination . . . as to the amount," but rather a refusal to make such a
determination, is a reasonable interpretation entitled to deference under Chevron
v. NRDC (1984). These review provisions, authorizing direct appeal and a
request for reopening, are not inconsistent with a separate statutory directive
that regulations provide for making "suitable" retroactive corrective adjustments.

9-0. Opinion for unanimous Court by Scalia.

Administrative law
APA, scope of waiver of sovereign immunity......................11
deference to agency interpretation, Customs regulation..............34
deference to agency interpretation, deportation....................18
deference to agency interpretation, Medicare......................38
FCC's regulatory authority under Communications Act...............3
standard of review, FTC Act...................................5
standard of review, patents and trademarks cases...................12
restriction on ads for casino gambling, First Amendment.............14
FTC Act, "quick look" analysis of anticompetitive effects..............5
vertical agreements not per se group boycott......................27
derivative shareholder action...................................5
final decision, Rule 37 sanctions for discovery violations.............10
Asbestos settlement
class action procedures......................................28
fees, limits on, retroactive application............................22
interference with representation, due process.......................9
reorganization priorities, "old equity" holders.......................4
3 separate offenses, not 1 offense with 3 sentencing provisions........19
intent to kill or harm........................................16
Census Act
statistical sampling, use for apportionment........................11
Civil rights
state action, private insurers who use state procedures................2
termination of at-will employment actionable under § 1985(2).........15
Title VII, award of compensatory damages by EEOC...............36
Title VII, punitive damages...................................20
Class actions
asbestos settlement, mandatory class............................28
Commerce Clause
discriminatory Alabama franchise tax............................32
Confrontation Clause
confession by non-testifying accomplice..........................21
Congressional districting
proof of racial motivation, summary judgment.....................17
Congressional power
no Art. I power to abrogate state immunity in state courts.............1
no power to abrogate state immunity, patent infringement............13
no power to abrogate state immunity, trademark actions..............9
no power to authorize states to violate 14th Amendment.............32
duties, partial exemption, goods assembled abroad..................34
Death penalty
habeas relief, harmless error, jury instruction.......................5

jury instructions on consequences of deadlock.....................19
waiver of challenge to method of execution (gas)...................33
Disabilities law
ADA, "regarded as" disabled..................................25
ADA, definition of "disability," correctable vision..................33
ADA, job dismissal, waivable federal safety regulation................1
ADA, labor agreement, waiver of rights..........................37
ADA, mentally disabled, community placement....................28
compatibility of ADA claim with claim for SSDI benefits..............8
IDEA, "medical services" as not including continuous nursing..........6
Due Process
prosecutorial misconduct, suppression of evidence, materiality.........33
right to practice profession.....................................9
seizure of property, notice of remedies not required..................7
workers' compensation benefits, property interest lacking..............2
ballot initiatives, restrictions on petition circulators..................4
Eleventh Amendment
suit against state by foreign nation..............................13
Supreme Court jurisdiction, cases from state courts.................32
Emergency Medical Treatment and Active Labor Act
improper motive not required to sustain action.....................31
Equal Protection
preclusion of collective bargaining, faculty workload.................6
amendment of defined benefit plan..............................16
preemption, exception, laws regulating insurance...................35
expert testimony, admissibility.................................21
Executive Orders
severability ................................................ 24
Federal courts
injunctive powers, debtor's assets...............................15
jurisdiction, order of consideration, subject-matter & personal.........31
Federal Trade Commission
jurisdiction, nonprofit association................................5
First Amendment
ballot initiatives, restrictions on petition circulators..................4
commercial speech, ban on broadcast ads for casino gambling.........14
seizure of contraband, no warrant required........................14
Fourth Amendment
automobile search, contraband forfeiture.........................14
automobile search, exception to warrant requirement................23
automobile search, passenger's belongings........................38
guest in home for commercial transaction not protected..............23
media “ride-along”.......................................16, 37
search incident to traffic citation...............................20
Government contracts
equitable lien on Government property unavailable..................11
Gratuities, illegal

Habeas corpus
exhaustion of state remedies, discretionary state review..............29
habeas corpus, procedural default, excuse for......................33
harmless error analysis, jury instruction in capital case................5
harmless error, failure of court to advise of right to appeal............29
waiver of challenge to execution by lethal gas.....................33
Harmless error
tax fraud, materiality........................................27
House of Representatives
apportionment of Representatives, challenge to Census Act...........11
deportation, political persecution...............................18
deportation, selective enforcement challenge......................30
Immunity from suit
law enforcement officers, media "ride-alongs"..................16, 37
Inspector General Act
employee interviews, OIG as "representative" of agency.............26
McCarran-Ferguson, RICO action for health insurance fraud..........17
International Court of Justice
Supreme Court jurisdiction to enforce order.......................13
Jury trial
need for unanimity, violations in continuing criminal enterprise........30
right to, § 1983 action, challenge to regulatory taking................7
federal employees, midterm bargaining...........................26
general arbitration clause does not waive employee's ADA rights.......37
OIG officer as agency "representative" under FSLMRS..............26
union security clause incorporating statutory language...............22
Chicago’s Gang Congregation Ordinance, due process................6
McCarran-Ferguson Act
does not bar RICO action for health insurance fraud................17
Medicare Act
provider reimbursement procedures.............................38
effect of permanent injunction on appeal of preliminary inj............15
Native Americans
reservation situs, taxation of federal contract proceeds................3
treaty rights to hunt, fish not extinguished........................24
Overruled decisions
Parden v. Terminal Ry. (1964)..................................9
Ward v. Race Horse (1896)...................................24
Patents and trademarks
standard of review, Federal Circuit, PTO factual findings.............12
ERISA, exception for laws regulating insurance....................35
Price-Anderson Act, doctrine of tribal court exhaustion..............13
state taxation of services performed on Indian reservation.............3
Warsaw Convention, personal injury actions......................12
Price-Anderson Act

Privileges and immunities
durational residency requirement for welfare......................31
Public contracts
state tax on proceeds from.....................................3
Public lands
reservation of “coal” does not include coalbed methane gas............2
Punitive damages
Title VII, no "egregious" misconduct predicate....................20
Racial discrimination
congressional districting, summary judgment......................17
timeliness ................................................. 25
guilty plea, effect at sentencing................................24
elements of offense distinguished from sentencing provisions..........19
privilege against self-incrimination, application at sentencing..........24
Sex discrimination
student-on-student harassment actionable under Title IX.............10
Title IX, application to NCAA.................................26
Social Security
claim for disability benefits, compatibility with ADA claim.............8
Sovereign immunity
bars enforcement of lien on Government property..................11
Standing to sue
Census Act, apportionment of Representatives.....................11
immunity from suit in state courts...............................1
sovereign immunity, patent infringement actions...................13
sovereign immunity, trademark actions............................9
Statutes, interpretation
"nothing in this Act" construed.................................3
carjacking, "commonsense" reading of congressional intent...........16
constitutional doubt doctrine applied.........................19, 31
constitutional doubt doctrine inapplicable.........................30
dictionary definitions, ordinary meaning...........................2
elements of offense vs. sentencing provisions......................19
flexible language, meaning that can change as conditions change.......36
general authority to prescribe rules and regulations..................3
harmonizing of seemingly conflicting provisions....................30
reliance on legislative history..................................25
statutory context, illegal gratuities..............................35
terms of art, established common law meaning.....................27
Taking of property
regulatory taking, § 1983 action, right to jury trial...................7
Taxation, State
county occupational tax, application to federal judges...............18
discrimination against commerce, Ala. franchise tax.................32
intergovernmental tax immunity, non-discriminatory tax..............18
proceeds from federal contract performed on Indian reservation.........3
Telecommunications Act of 1996

no congressional power to abrogate state immunity from suit...........9
Travel, right to
durational residency requirement, welfare.........................31
Unconstitutional Federal laws
Communications Act of 1934, sec. 316, 18 U.S.C. § 1304............14
Fair Labor Standards Amendments of 1974........................1
Patent and Plant Variety Protection Remedy Clarification Act.........13
Trademark Remedy Clarification Act.............................9
Unconstitutional State laws
Alabama’s franchise tax law...................................32
California durational residency requirement for welfare..............31
Colorado restrictions on ballot initiative petition circulators............4
Iowa statute permitting auto search incident to traffic citation.........20
using firearm during crime of violence...........................35
Voting Rights Act
preclearance, county change required by state law..................22
Warsaw Convention
personal injury actions, preemption of local law....................12
durational residency requirement, right to travel....................31