REPORT REVIEWING AND ANALYZING
THE CIVIL RIGHTS AND CIVIL LIBERTIES RECORD
OF STEPHEN BREYER
The American Civil Liberties Union
July 1, 1994
During his tenure on the First Circuit Court of Appeals, Judge
Stephen Breyer, President Clinton's nominee to be Associate Justice of the
United States Supreme Court, has authored over 580 opinions as a judge
(including dissenting and concurring opinions). The review of this large
written record resulted in identifying a large number of opinions
addressing civil rights and civil liberties issues, particularly in the
areas of criminal rights and procedure. Therefore, we have focussed on
important cases and themes, rather than attempting to be encyclopedic. We
have also reviewed and discuss where appropriate articles and published
remarks by Judge Breyer.
As with similar reports on past nominees, we have not examined the
many cases in which Judge Breyer joined in a decision (or an en banc
dissent) but did not write.
Despite this limitation, we hope to provide a useful look at Judge
Breyer's perspective on issues of importance to the civil liberties
ACLU REPORT ON THE CIVIL RIGHTS
AND CIVIL LIBERTIES RECORD OF
JUDGE STEPHEN BREYER: AN OVERVIEW
This report summarizes the civil liberties and civil rights record
of Judge Stephen Breyer, who has been nominated by President Clinton to
replace Harry Blackmun as an Associate Justice of the United States
In accordance with ACLU policy, this report does not take a
position on Judge Breyer's nomination. Instead, it presents a review of
Judge Breyer's record on a range of civil rights and civil liberties
issues, and thus parallels the reports prepare d by the ACLU on other
recent Supreme Court nominees.
Judge Breyer has served on the United States Court of Appeals for
the First Circuit since 1980.
Prior to his service on the federal bench, he served as chief
counsel to the Senate Judiciary Committee for two years and, before that,
as a professor at Harvard Law School. He has lectured and written on a
variety of legal topics. He also served as an original member of the
Federal Sentencing Commission.
In short, Judge Breyer has had a long career in both government and
academia. He is, however, better known for his views on antitrust and
administrative law than on civil rights and civil liberties. Although he
has addressed numerous constitutional issues as a federal judge, his
opinions do not reflect an overarching judicial philosophy that can easily
be labeled as either liberal or conservative.
On close questions, Judge Breyer is generally deferential to the
executive and legislative branches of government. A notable exception is
when he believes that a case turns on the interpretation of central
provisions of a statute, in which case he is less willing than many other
federal judges to defer to the views of an administrative agency. More
broadly, his approach to legal decisionmaking often focuses on the
practical consequences of the court's decision. Sometimes this works in
favor of civil liberties interests; other times not.
Like Justice Ginsburg, Judge Breyer has been described as a
consensus builder. If confirmed, he seems likely to reinforce the
increasingly influential middle of the Court. His opinions, thus far, do
not demonstrate the passionate commitment to individual justice that has
become Justice Blackmun's hallmark in recent years.
Indeed, one of the most striking aspects of Judge Breyer's record
on the First Circuit is the frequency with which he has ruled against
civil rights plaintiffs asserting statutory discrimination claims in his
written opinions. Many of these opinions turn on the specific facts, and
the legal rationale necessarily varies depending on the statute involved.
Nevertheless, the degree to which Judge Breyer has sided with the
defendants in these cases is troubling.
On the other hand, Judge Breyer has twice upheld the Boston Police
Department's affirmative action efforts against legal challenge. In the
first case, he rejected the argument that a voluntary affirmative action
plan must be limited to the actual victims of past discrimination. In the
second case, he ruled against a constitutional claim of reverse
discrimination raised by white police officers. He has also ruled that
the federal government has an affirmative obligation to promote the goals
of the Fair Housing Act, and that its failure to do so is judicially
reviewable (although not in a damages action).
To our knowledge, Judge Breyer has not expressed any public view on
the constitutionality of abortion. In a significant dissenting opinion,
he did argue that there was no way that plaintiffs could show that a
Massachusetts statute requiring minors seeking an abortion to obtain
either parental consent or a judicial waiver was unconstitutional. Basing
his opinion on a prior Supreme Court decision that he broadly interpreted
to support the Massachusetts law, Judge Breyer dismissed the significance
o f allegations that the judicial waiver procedure often involved a delay
of several days and could be intimidating. By contrast, before the
Supreme Court's contrary decision in Rust v. Sullivan, Judge Breyer voted
to strike down federal regulations that barred federally funded clinics
from engaging in abortion counselling.
Judge Breyer has not written any opinions on the constitutionality
of the death penalty. His opinions in the criminal law field generally
reflect prevailing Supreme Court law. However, even when Supreme Court
law is not controlling, he is deferential to the police and the needs of
law enforcement. Both on and off the bench, he has staunchly defended the
federal sentencing guidelines against charges that they are too severe and
inflexible, and that they lead to prison overcrowding.
Judge Breyer's instinct toward deference is also reflected in his
opinions concerning the free speech rights of public employees. The
Supreme Court has held that policymaking positions can be filled with
political appointees but that other government employees should not be
penalized for their political views. While accepting that test, Judge
Breyer has been reluctant to engage in an independent evaluation of
whether particular jobs involve policymaking responsibilities. Instead, he
has preferred to rely on job descriptions developed by legislators and
administrators. The result has often been fatal to the First Amendment
claims of public employee plaintiffs. He has not hesitated, however, to
strike down a broadly worded executive order that authorized loyalty
investigations. He also invalidated a travel ban to Cuba that the Supreme
Court later reinstated.
In religion cases, Judge Breyer has emphasized the need to adopt a
"practical" approach that would not strike down government funding schemes
unless they confer a real and meaningful benefit on sectarian
institutions. At the same time, he has argued that pleas for religious
accommodation must take into account the state's legitimate interests. He
has, however, also expressed concern about the state pressing trivial
administrative interests in the face of sincere religious objections. In
general, he seems more prepared to defer to government decisionmakers than
present doctrine would allow, regardless of whether the claim is based on
free exercise or establishment clause grounds. Judge Breyer's limited
record in the church-state field, however, makes it difficult to draw any
confident conclusions about his ultimate views.
On access to justice issues, Judge Breyer has written in opposition
to proposals to restrict federal court jurisdiction, and his rulings on
standing and civil rights attorneys' fees have generally supported access
to federal court. However, once a case has found its way into federal
court, Judge Breyer has frequently invoked a wide assortment of doctrines
-- including ripeness, mootness, exhaustion, abstention, and immunity --
to avoid deciding claims on their merits.
These observations are detailed at greater length in the report
TABLE OF CONTENTS
I. FIRST AMENDMENT.............................
A. Freedom Of Speech.......................
1. Public Employee Speech and
3. Restrictions on Fundraising.........
4. The Scope of Protected Protest
5. Loyalty Checks......................
6. University Recognition of Student
B. Freedom Of Religion.....................
II. FREEDOM OF INFORMATION ACT..................
III. NATIONAL SECURITY...........................
A. Executive Authority.....................
B. Constitutionality of Draft Registration
C. Conscientious Objection.................
IV. EQUAL RIGHTS AND REPRODUCTIVE FREEDOM.......
A. Constitutional Protections..............
1. Race and Affirmative Action.........
2. Gender Discrimination and
3. Rational Basis Review under the
Equal Protection Clause.............
B. Statutory Protections...................
1. Title VII...........................
a. Burdens of Proof................
2. Voting Rights.......................
3. Rights of Disabled Persons..........
4. Age Discrimination..................
5. Fair Housing........................
6. 18 U.S.C. Sec. 242..................
V. CRIMINAL RIGHTS AND PROCEDURE...............
A. Fourth Amendment........................
1. Fourth Amendment Searches...........
2. Fourth Amendment Seizures...........
B. Fifth Amendment.........................
1. Miranda Warnings....................
2. The Privilege against
3. Double Jeopardy.....................
C. The Sixth Amendment.....................
1. Ineffective Assistance of Counsel...
2. Other Sixth Amendment Guarantees....
D. The Eighth Amendment....................
E. Criminal Evidentiary Issues.............
F. Prosecutorial Conduct...................
1. Improper Comments...................
2. Duty to Disclose....................
3. Exercise of Prosecutorial
4. Plea Agreements.....................
G. Habeas Corpus/28 U.S.C. Sec. 2255.......
H. Trial Court Conduct.....................
1. Jury Instructions...................
2. Judicial Comments At Trial..........
3. Bail and Pretrial Detention.........
J. Sentencing Guidelines...................
1. Articles and Public Statements......
2. Legal Opinions......................
VI. DECISIONS UNDER 42 U.S.C. Sec. 1983.........
VIII. ACCESS TO JUSTICE...........................
B. Personal Jurisdiction...................
D. Judicial Review of Agency Action........
E. Private Rights of Action................
F. Attorney's Fees and Sanctions...........
G. Statute of Limitations..................
IX. JUDICIAL FUNCTION...........................
A. Reviewing Agency Decisionmaking.........
C. Consent Orders..........................
D. Statutory Construction..................
1. Judge Breyer Derives Statutory
Meaning from Language, Context,
2. Judge Breyer's Method for
Establishing a Statute's
a. Common Usage and
b. Importance of Context...........
3. Judge Breyer's Sources for
Establishing Congressional Intent...
In the area of First Amendment law, Judge Breyer has addressed the
free speech issues of firing or demotion of public employees for political
reasons, regulation of obscenity, state restrictions on fundraising by
nonprofit organizations, protest activities in public buildings, loyalty
checks and recognition by public universities of student groups, as well
as Free Exercise and Establishment Clause issues. Generally speaking,
Judge Breyer seems prepared to recognize the importance of protecting
First Amendment rights, but will look at them in practical terms and will
not defend what he sees as theoretical concerns that either have no
practical impact or that leave countervailing concerns unaddressed.
Freedom Of Speech
Public Employee Speech and Association
Judge Breyer has written numerous opinions concerning the firing or
demotion of public employees because of their political affiliations or
views. Most of these cases concern the firing or demotion of employees of
government agencies in Puerto Rico following the 1984 gubernatorial
election, in which a candidate of the Popular Democratic Party (PDP)
defeated the incumbent governor, a member of the New Progressive Party
(NPP). PDP appointees fired approximately 600 civil servants from "trust"
or "confidence" positions, roughly 300 of whom brought suit. See
Agosto-de-Feliciano v. Aponte-Roque, 889 F.2d 1209 (1989).
The basic issue in each of the cases was whether the plaintiffs'
former jobs were sufficiently related to policymaking to permit their
discharge or demotion and replacement with PDP members without running
afoul of the First Amendment.1 Judge Breyer wrote that discharge of a
public employee for political reasons is permissible if the employee has
"'at least a modicum of policymaking responsibility.'" Figueroa-Rodriguez
v. Lopez-Rivera, 878 F.2d 1478, 1480 (1st Cir. 1989) (quoting Mendez-Palou
v. Rohena-Betancourt, 813 F.2d 1255, 1259 (1st Cir. 1987)).
Judge Breyer expressed most clearly his analysis of the issues raised
by these firings in his concurring and dissenting opinion in the
Agosto-de-Feliciano case, 889 F.2d at 1223. He explained that, while "the
First Amendment protects a government employee's association with others
in a political party," it is nonetheless the case that "a major reason the
Constitution protects associational interests" is to allow individuals to
band together to elect a government that will enact policies they favor.
Id. at 1224. Therefore, while the First Amendment does protect government
employees from "unwarranted, politically based victimization," Judge
Breyer cautioned that "too much judicial intervention may unjustifiably
interfere with the electorate's ability to see its political aims
translated into action." Id.
In trying to balance these competing interests, Judge Breyer
expressed concern about a standard of review that might cause unwarranted
interference with those decisionmakers closest to the situation. He
worried that federal courts might not be able to determine accurately
which jobs are "politically sensitive" enough to warrant treating them as
patronage positions, id. at 1225, see also Figueroa-Rodriguez, 878 F.2d at
1481, thus creating a danger that courts would impose upon government
officials an unreasonably high standard of proof that the jobs they treat
as political positions truly involve policymaking activities. The result
would be that the elected officials, fearing liability for violating the
rights of the incumbent jobholders, might refrain from making desirable
changes in political institutions in response to the demands of the
electorate. 889 F.2d at 1225.
The solution Judge Breyer consistently adopted, therefore, was to
defer to "the legislators and administrators . . . more familiar with the
issues and subjects that potentially may affix a particular job at a
particular time with a `political charge. '" Figueroa-Rodriguez, 878 F.2d
at 1481. He typically has relied upon government job classifications and
descriptions to determine whether officials should have known that the law
forbids dismissal for political reasons. See id.2
Judge Breyer has authored two opinions involving obscenity issues,
one in dissent, United States v. Guarino, 729 F.2d 864 (1st Cir. 1984) (en
banc), and one for the court, United States v. Gendron, 18 F.3d 955 (1st
Cir. 1994). While neither reveals his views on obscenity law per se, they
illuminate his perspective on the interrelationship of First Amendment and
other constitutional issues in the context of obscenity concerns.
In Guarino, after being presented with three magazines seized from
the defendants that he found to be obscene, a U.S. magistrate issued the
FBI a warrant to search the defendants' truck for materials of similar
nature. Under the procedures that the magistrate established, the FBI
found materials on the truck that it believed to be obscene, detained the
vehicle to inspect its contents, and then had the magistrate review the
The First Circuit court, sitting en banc, reversed the defendants'
convictions (after the panel had initially upheld the convictions), on the
grounds that the warrant did not describe with sufficient particularity
the items to be seized and was not based on sufficient probable cause.
Judge Breyer dissented from those conclusions. 729 F.2d at 872-76.
Judge Breyer speculated that his disagreement with the majority might
arise from the fact that the "majority seems to believe that the Fourth
Amendment takes First Amendment interests into account by giving special
meanings" to the key terms being applied in this case. Id. at 876.
Judge Breyer rejected this approach because it was too "mechanical," and
"threaten[s] unnecessary rigidity and complexity." Id. Instead, he
argued that proper evaluation of whether the search was "reasonable" would
encompass all necessary First Amendment considerations. Id.
In this instance, he concluded that the search was reasonable,
"[t]hat is to say, the magistrate took appropriate account of the first
amendment," id. at 876-77, in light of the two-step procedure employed of
seizure and quick review by the magistrate. While this procedure
resulted in "a few hours of detention" of lawful materials, Judge Breyer
concluded that the procedure was a reasonable effort "to serve the ends of
law enforcement in a manner least likely to restrict legitimate first
amendment activity." Id. at 877. He thought there was little chance of
devising an alternative which, on the one hand, did not prevent all
searches for "as yet unexamined material irrespective of cause" (emphasis
in original), but which, on the other hand, interfered less with First
Amendment rights. Id. Under these circumstances, Judge Breyer concluded
that the search as conducted was reasonable. Id.
In Gendron, the defendant based his appeal upon claims of entrapment.
Judge Breyer wrote the opinion for the court upholding the conviction. In
doing so, he noted in particular that the government had not attempted to
entice the defendant by appealing to lawful motivations, such as free
speech, for purchasing the obscene material. See further discussion of
this decision infra pp. 55-56.
Restrictions on Fundraising
In Shannon v. Telco Communications, Inc., 824 F.2d 150 (1st Cir.
1987), the court considered a challenge to the Massachusetts Charitable
Solicitation Act, which limited compensation for professional solicitors
to twenty-five per cent of the money collected. Writing for the court,
Judge Breyer found that the Massachusetts statute did not differ from
other statutes that the United States Supreme Court previously had held
unconstitutional as improperly interfering with the charitable work of
organizations that combine professional solicitation of funds with
dissemination of ideas, education of the public, and similar functions.
824 F.2d at 152.
The Scope of Protected Protest Activities
In two cases, United States v. Sachs, 679 F.2d 1015 (1st Cir. 1982),
and United States v. Bader, 698 F.2d 553 (1st Cir. 1983), Judge Breyer
considered the scope of protection for protest activities in government
buildings. Both cases arose out of a sit-in protest against draft
registration at the John W. McCormack Post Office and Courthouse in
Boston. In both cases, Judge Breyer found that the First Amendment did
not bar defendants' convictions.
Bader concerned the arrest and conviction of protestors for failure
to obey the directions of federal protective officers and for creating a
disturbance in a federal building. 698 F.2d at 554. Defendants admitted
at trial that they blocked the doorway to the draft registration room.
The officers told the defendants to leave; when the defendants refused,
the officers arrested them. They were convicted, but appealed their
convictions in part on the ground that the convictions violated their
First Amendment rights.
In affirming the convictions, Judge Breyer opined for the court that,
"[i]t is well established that the need to safeguard the normal
functioning of public facilities is a 'substantial government interest'
sufficient to warrant reasonable restriction s on even 'pure speech,' let
alone symbolic conduct." Id. at 555. He noted that under applicable
Supreme Court precedents the government can punish even orderly
demonstrations when defendants physically obstruct a doorway and make it
more difficult for the public to conduct business. Id. at 555. The
government was particularly justified in this case, he explained, because
post office and courthouse buildings are not customarily open for use for
demonstrations or similar speech-related purposes. Id. a t 556.
Judge Breyer also upheld the validity of the statute requiring
compliance with the directions of Federal protective officers. He
reasoned that the statute is aimed not at speech but at "ordinary conduct
legitimately subject to regulation." Id. The statute was generally
applicable to situations not involving speech, and Judge Breyer concluded
that it could not be made substantially more precise without
"significantly impeding" the government's ability to regulate for
legitimate purposes. Id.
In Sachs, the defendant was convicted of engaging in conduct that
unreasonably obstructed the usual use of elevators in a federal building,
in violation of federal statutes and regulations. Sachs did not raise a
First Amendment defense at trial, but attempted to raise it on appeal.
Writing for the court, Judge Breyer found that no special circumstances
justified departure from the rule that defenses must be raised at time of
trial or the defendant waives them. Id. at 1018.
Judge Breyer considered the legality of loyalty investigations in
Ozonoff v. Berzak, 744 F.2d 224 (1st Cir. 1984). Ozonoff concerned
loyalty checks that the U.S. government performed in connection with an
agreement with the World Health Organization (WHO) before WHO would offer
a job to an American citizen. The relevant executive order implementing
the agreement required full background investigations and "advisory
determinations" about loyalty when preliminary background checks suggested
the possibility of disloyalty. Among other things, an applicant was
subject to in-depth investigation when preliminary checks revealed
advocacy of revolution or participation in groups the aim of which is to
overthrow the government. 744 F.2d at 226.
Writing for the court, Judge Breyer held that these loyalty checks
violated the First Amendment rights of job applicants. Because the
investigations and reports could chill the applicants' exercise of
protected rights of speech and association, Judge Breyer found that the
executive order's language on what constitutes disloyalty was too vague
and general. Id. at 228.
On the other hand, in Hovan v. United Bd. of Carpenters and Joiners
of Amer., 704 F.2d 641 (1st Cir. 1983), Judge Breyer, writing for the
court, allowed a loyalty oath to remain in place, not based on its
propriety but because he refused to find state action in a union's denial
of admission to an applicant. The applicant would not take an oath
swearing that he was unconnected with a "Revolutionary Organization." For
reasons of tradition, policy and judicial competence, Judge Breyer stated
that he d id not believe that all union functions should be
constitutionalized. 704 F.2d at 642. "Our conclusion," he wrote, "is
consistent with the Constitution's vision of politics and society." Id.
University Recognition of Student Groups
In Aman v. Handler, 653 F.2d 41 (1st Cir. 1981), Judge Breyer
considered whether the refusal by the University of New Hampshire to give
official recognition to a group with ties to Reverend Sun Myung Moon and
the Unification Church violated the First Amendment rights of the group's
members. This refusal meant the group could not use campus facilities.
The district court had refused to grant the group's request for a
preliminary injunction requiring the university to recognize it, and the
Judge Breyer noted that "First amendment rights whether of speech or
religion are plainly at stake." The vice president of the university
testified that the group's philosophy or views had played a role in his
decision to deny recognition. 653 F.2 d at 44. Judge Breyer also noted
that the university had recognized many other organizations, representing
a variety of religious and political views, and that the group in question
had filed an application for recognition that conformed to university
requirements. Id. Thus, Judge Breyer concluded that the university
carried a heavy burden to justify its rejection of the application. Id.
According to Judge Breyer, the record did not clearly indicate that
the university's asserted justification for rejecting the application was
based on concerns about conduct unprotected by the constitution rather
than protected speech. Nor did the record show that the university gave
the group "a significant opportunity at the campus level to know, and to
respond to, the allegations made against it." Id. at 46.
Thus, while Judge Breyer acknowledged that the court is "ordinarily
reluctant to disturb a district court decision not to issue a preliminary
injunction. . . . [W]here restraints on speech or religion are at issue,
appropriately speedy action design ed to protect the exercise of
constitutional rights is required." Id. Accordingly, Judge Breyer's
opinion vacated the judgment denying the preliminary injunction. However,
because the record offered some reason to believe the university might be
able to support its claim that recognition of the group was validly
denied, the decision did not order issuance of the preliminary injunction,
and instead remanded the matter to the district court for further
evidentiary hearings. Id.
Freedom Of Religion
Judge Breyer has written three opinions concerning Free Exercise and
Establishment Clause issues that deal with interactions between the state
and religious schools. In these cases, Judge Breyer seemed to apply
something akin to a reasonableness standard, and appeared to be tolerant
of limited state regulation of, and assistance to, religious schools.
In Members of the Jamestown Sch. Comm. v. Schmidt, 699 F.2d 1 (1st
Cir. 1983), cert. denied, 464 U.S. 851 (1983), several federal, state, and
local taxpayers, Americans United for Separation of Church and State, and
the ACLU brought suit challenging a Rhode Island statute providing bus
transportation to private school children across the lines of public
school transportation districts, while providing busing generally to
public school students only within those districts. 699 F.2d at 3.
The First Circuit struck down a portion of the statute that gave the
State Commissioner of Education discretion to approve busing of a private
school student outside her transportation zone, based upon the
Commissioner's determination of whether the sectarian school that the
student wished to attend is "similar" to a school located within the
student's zone. The court held that the provision violated the
Establishment Clause by requiring the Commissioner "to examine the content
and curricula of religious programs in order to determine whether they
are similar." Id. at 130. The court severed that clause and upheld the
balance of the statute.
In a concurring opinion, Judge Breyer expressed agreement with the
holding of the court, opining that the statutory provision charging the
Commissioner with evaluating religious schools created excessive
entanglement of church and state. Id. at 17 ( Breyer, J. concurring).
However, he wrote separately in order to state his belief that "the
Establishment Clause calls for a more 'practical' approach to this type of
problem than the comparatively 'theoretical' approach taken by . . . the
majority of this panel." Id. at 13-14.
First, Judge Breyer noted that, because transportation districts were
drawn with public schools in mind, those districts do not necessarily
correspond to the attendance zones of the religious schools at issue. He
argued that "theoretical inequality" cannot arise merely because the
busing plan takes some private school students across transportation
district lines. He said that the record revealed no practical advantage
accruing to religious schools because of the program.
Judge Breyer also pointed out that the difference in per-pupil
transportation expenditures for private as opposed to public school
students was "de minimis," and that "the state's figures could reflect far
greater disparities before they came close t o the type of favoritism"
that would cause constitutional problems. Id. at 15. In his view, the
differences in expenditures would have to be great enough to make it
"apparent that the transportation provided to the public school youngster
was merely a ruse to confer a benefit to the sectarian school pupil"
before the plan would be constitutionally questionable. Id. (quoting
Springfield Sch. Dist. v. Department of Educ., 397 A.2d 1154, 1164 n.9
Second, Judge Breyer stated that taking a "theoretical" approach to
Establishment Clause jurisdiction would lead to irrational requirements
for busing of nonpublic school students. For instance, he asserted that
such an approach would effectively prevent the state from making
constitutionally-permissible expenditures on busing for the sake of child
Third, Judge Breyer argued that the court should not invalidate
statutes based on theoretical preferences that might be gleaned by reading
the statute before the court in combination with other statutes.
"The problems engendered by combining
different statutes and then asking whether, in
theory, the combination gives Catholic
students something their public school
counterparts are denied are not ones that rise
in this case to a constitutional level."
699 F.2d at 17. The court should conclude that a statute like Rhode
Island's ran afoul of the Establishment Clause, he argued, only if it
actually led to significant differentials in expenditures favoring
religious schools in practice.
In short, Judge Breyer concluded that "the question of
constitutionality in such a case is primarily a question of practical
effect, measured in terms of costs incurred by the state and actual
benefit conferred on the parochial school student." Id.
In New Life Baptist Church Academy v. City of East Longmeadow, 885
F.2d 940 (1st Cir. 1989), cert. denied, 494 U.S. 1066 (1990), the First
Circuit considered the question of whether the First Amendment permits a
religious group to refuse to comply with state regulations concerning the
secular portion of the education provided by religious schools. The state
sought reports on the school's curriculum, teacher credentials, length of
academic day, and the like, and further sought to make one visit to the
school to observe teaching practices.
Although the school administration expressed willingness to provide
such information to the local committee on a voluntary basis, and to allow
the committee to make visits to the school, it refused to perform these
functions as part of an "approval procedure," because of the religious
group's belief that the state had no authority to approve or disapprove
its educational program. 885 F.2d at 943. The school administration
argued that the state approval procedures were invalid on Free Exercise
grounds, but proposed having the school's students voluntarily take
annual standardized examinations, providing the School Committee with the
results, and arranging "follow-up" sessions for students who scored
Judge Breyer, writing for the court, acknowledged the school's
concern that the approval procedures could lead the school to violate its
religious principles. Id. at 944. Nonetheless, he ruled that the Free
Exercise Clause does not prohibit the state from requiring approval of
the school's secular education program. Id. Judge Breyer noted that, "if
it is too easy for religious groups with different religious beliefs to
force . . . differing . . . administrative accommodations with too little
reason rooted in their religious faiths," the state would be unreasonably
restrained from pursuing compelling state interests like education. Id.
at 947. Thus, "the Free Exercise Clause must give the state some degree
of administrative leeway in achieving compelling interests." Id.
Accordingly, Judge Breyer concluded that the competing considerations
at stake in this case required the court to "determine in a practical way
whether or not 'standardized testing' is a constitutionally mandated 'less
burdensome' alternative" to the approval procedures at issue. Id. He
found that the alternative testing procedure involved the school in the
same type of approval process as that to which the school was objecting,
and that the testing procedure would not, in any event, substantially
alter the burdens placed on free exercise of religion by the existing
statute. Id. at 949-50. Since the alternative that the school was
proposing was not less restrictive, Judge Breyer concluded that the state
was not constitutionally compelled to substitute that procedure for the
one it wished to use.
Additionally, Judge Breyer considered whether the
information-gathering activities required for state evaluation of the
school foster excessive entanglement of church and state. He explicitly
assumed that the State School Committee "will implement its procedures
reasonably," and that it would not base its decisions on evaluations of
religious teaching. Id, at 952. He concluded that, under such
circumstances, any resulting entanglement of church and state would not be
"excessive," and therefore would not violate the Establishment Clause.
In Universidad Central de Bayamon v. National Labor Relations Bd.,
793 F.2d 383 (1st Cir. 1986) (en banc), the court considered the question
of whether the National Labor Relations Board (NLRB) had jurisdiction over
the faculty at a university controlled by the Dominican Order of the
Roman Catholic Church. A panel of the court had previously granted
enforcement of the Board's order requiring the university to bargain
collectively with the faculty, largely on the basis of the finding that,
in its general character, the university was more secular than sectarian.
793 F.2d at 387.
Upon rehearing en banc, the court was evenly divided, with the result
that it could not grant the NLRB's request to enforce its order. Judge
Breyer wrote an opinion in which he argued that granting the NLRB
jurisdiction over university-faculty relations would promote excessive
entanglement of church and state. Id. at 398-99.
Judge Breyer found that the Dominican Order controlled the
university, and that the filing of an unfair labor practice claim might
force the NLRB to render decisions about the clergy-administrators'
good-faith expressions of the school's religious mission. Id. at
400-401. He further found that the NLRB might excessively interfere with
religion in that it would have to make special distinctions and exceptions
among clergy and non-clergy members of the faculty. Id. at 402-03.
Finally, in one additional Free Exercise Clause case, Judge Breyer,
dissenting from the majority, supported those objecting to government
action that they said impinged on their First Amendment rights. In
Alexander v. Trustees of Boston University, 766 F.2d 630 (1st Cir. 1985),
three theological students who were concededly exempt from the draft were
denied federal financial aid assistance because they refused to answer
questions as to their draft registration status on an aid application form
that Department of Education regulations prescribed. 766 F.2d at 631.
The district court had issued an injunction against the denial of aid.
Id. On appeal, a majority of the panel reversed.
The majority concluded that the regulation was reasonably related to
the enabling statute. It also concluded that the burden on plaintiffs'
First Amendment rights was at worst "slight," particularly since providing
the information did not, itself, violate the plaintiffs' religious
tenets; indeed, they had provided similar information on other forms. Id.
at 644. Rather, the plaintiffs objected to the underlying policy served
by the particular request for information. Id. at 644. The court ruled t
hat, under those circumstances, the governmental interest in
administrative convenience prevailed, particularly because the
government's constitutional power to raise and support an army was
implicated. Id. at 644-45.
In dissent, Judge Breyer argued strongly that the court should have
taken an alternative route that would have allowed it to avoid this "clash
of 'bureaucratic v. religious' principles." Id. at 646. Because the
plaintiffs had provided the necessary information in other places and on
other forms, Judge Breyer would have found that they were in "substantial
compliance" with the regulations and that therefore it was arbitrary and
capricious for the agency to deny financial aid. Id. at 648-50.
In so concluding, however, Judge Breyer questioned the propriety and
the wisdom of government insisting on administrative niceties in the face
of sincerely-held religious beliefs. He conceded that, "As a general
matter, the government has a strong administrative interest in insisting
that applicants fill out forms properly." Id. at 648. However, for Judge
Breyer, the issue did not end there:
But, are there not stronger reasons for the
government simply to overlook so trifling a
deviation from the bureaucratic norm, at least
where the applicants have a genuine religious
or ideological scruple that prohibits their
supplying the information on one form but not
on another, equally useful one? To deny this,
in a nation as diverse as ours, housing so
many strongly held but differing points of
view, is to exacerbate conflict where it could
be muted. It is also to threaten an
unnecessary weakening of judicial authority
insofar as that authority rests on judicial
reluctance to intervene in ideological
disputes unless and until they focus upon
differences over matters of substance.
Id. at 648.
FREEDOM OF INFORMATION ACT
Judge Breyer has written two opinions involving extended treatment of
Freedom of Information Act (FOIA) issues. In both cases, which involved
interpretation of statutory exemptions to FOIA, Judge Breyer found in
favor of the government agency seeking to avoid making its documents
In Irons v. FBI, 880 F.2d 1446 (1st Cir. 1989) (en banc), historians
researching the McCarthy Era sought information contained in the FBI's
Smith Act prosecutions file, including records of what FBI informants, who
later testified at the trials of alleged Communists, had told the FBI
privately. The FBI invoked FOIA exemption 7(D), which permits the
government to withhold information compiled in connection with a criminal
law or national security intelligence investigation when that information
"could reasonably be expected to disclose . . . information furnished by
a confidential source." A panel of the First Circuit had held that the
FBI informants had waived the protection of the exemption with respect to
both the information they actually reveal ed when testifying and the
information that would have fallen within the hypothetical scope of
cross-examination at the trials. 880 F.2d at 1447.
The First Circuit, en banc, reconsidered the issue of waiver of the
exemption for the information falling within the category of "hypothetical
cross-examination." Recognizing that the circuits were divided on the
issue, Judge Breyer, writing for a majority of the en banc court, held
that the panel's broad view of the principle of waiver was an
impermissible interpretation of FOIA exemption 7(D). Id. at 1447.
Judge Breyer found that the information at issue fell within the
"literal language" of the 7(D) exemption. Id. at 1448. He explained that
the phrase "furnished by a confidential source" in Section 7(D) should be
read to mean not that the information or the identity of the informant
must be secret, but merely that the information was originally provided in
confidence. Id. Thus, Judge Breyer concluded, even if the informants'
identities and the substance of their testimony in the Smith Act trials w
ere matters of public knowledge and public record, the information they
provided to the FBI that was not revealed at trial could be kept
As further support for this conclusion, Judge Breyer noted that the
legislative history revealed that Congress intended a literal
interpretation of the 7(D) exemption, even where such an interpretation
significantly limited the reach of FOIA. Id. at 1449. Judge Breyer found
it reasonable for Congress to have believed that an unduly narrow
exemption to the Act could dissuade confidential sources from talking to
law enforcement officials, for fear of reprisals. Id. at 1446.
In Aronson v. IRS, 973 F.2d 962 (1st Cir. 1992), Judge Breyer
addressed the relationship between statutory provisions prohibiting
disclosure and the FOIA presumption in favor of disclosure. At issue was
the section of the Tax Code that forbids the IRS from disclosing any tax
return or tax return information. That section includes an exception that
permits the IRS to disclose certain taxpayer information to the press in
order to help contact people entitled to tax refunds who cannot otherwise
be located. See 26 U.S.C. Section 6103. Aronson, the plaintiff, was a
lawyer who sought, under the FOIA, names, last-known addresses, and
taxpayer identification numbers of taxpayers owed unclaimed refunds. The
IRS refused to reveal that information, invoking the terms of the Tax
Code and FOIA exemption 3, which permits withholding information if
another statute prohibits disclosure. 973 F.2d at 963.
In an opinion for the court, Judge Breyer held that Aronson was not
entitled to the information because it clearly fell within the terms of
exemption 3. The opinion focused on the standard of review that should be
applied in challenges to an agency' s interpretation of a statute
Judge Breyer noted that under the FOIA, a court is to determine de
novo whether the agency's refusal to release information was appropriate.
Id. at 965. However, he asserted that when a statute falling under FOIA
exemption 3 is at issue, "ordinary, deferential principles of
administrative law, not the FOIA's special, de novo principles, govern
review." Id. Moreover, in this case, Judge Breyer found that de novo
review would distort Congress' intent in enacting both FOIA and the tax
law. While the FOIA represented a general endorsement of disclosure,
Congress had decided that, in the case of tax returns, confidentiality
rather than openness was necessary in order not to undermine taxpayer
confidence or encourage noncompliance with the tax laws. Id. at 966.
In two opinions, Judge Breyer has expressly considered the extent and
limits of executive power in the areas of national security and foreign
policy. In both cases, Judge Breyer was able to avoid addressing the
question of the inherent powers of the President by relying on the
additional imprimatur provided by congressional authorization of the
President's actions. In one of the cases, in fact, he wrote separately
with the apparent intent to avoid considering the question of the
President's inherent power unassisted by congressional action, about
which he appeared to have some doubts in the particular circumstances
In that case, Chas. T. Main Int'l, Inc. v. Khuzestan Water & Power
Auth., 651 F.2d 800 (1st Cir. 1981), the plaintiff challenged executive
agreements and federal regulations made in conjunction with Iran's release
of American hostages.3 It sought a declaratory judgment that the executive
agreements exceeded the President's constitutional and statutory
authority, and sought compensation for a government "taking" of Main's
property in violation of the Fifth Amendment. 651 F.2d at 805. The First
Circuit held that the President did not exceed his statutory or
constitutional authority in ordering transfer of the blocked assets or in
settling claims by American plaintiffs, id. at 807-08, 810-11, and further
held that the plaintiff's claim to compensation from the U.S. government
was neither ripe for review nor properly presented, id. at 815.
Judge Breyer wrote a concurrence in which he argued that it was
unnecessary for the court to reach the question of whether the President,
acting solely under the authority of his Article II powers, could have
suspended and settled Main's suit because , under the terms of the
International Emergency Economic Powers Act, 50 U.S.C. Section 1702(a)(1)
(IEEPA), Congress had granted the President such power. Judge Breyer
adopted the typology of Justice Jackson's concurrence in Youngstown Sheet
& Tube Co. v. Sawyer, 343 U.S. 579 (1952), which considered, in part,
whether the President was acting on his own or with congressional
authorization. Judge Breyer found that, in the case before him, the
President was acting with full congressional authorization. Thus, the
President's authority was at its height, and Judge Breyer concluded that
his actions were clearly permissible under those circumstances. 651 F.2d
at 815, 817.
Judge Breyer also expressly suggested that the court's recitation of
the long history of similar Presidential action taken on the President's
own authority, though accurate as a historical matter, might no longer be
dispositive. He pointed to change s in international law during the
twentieth century, including the adoption of the Foreign Sovereign
Immunities Act, 28 U.S.C. Sections 1330, 1602 et seq. (FSIA), in which the
defense of sovereign immunity for foreign entities is denied when those
entities are acting in commercial capacities. Judge Breyer reasoned that
the FSIA "suggests that the government is not the President alone." 651
F.2d at 817. Although the President may have the power to settle claims
in a crisis, Judge Breyer suggested that the court may have to consider,
"depend[ing] upon the nature of the emergency facing the President,
whether Congress is actively opposed and whether compensation is granted,"
in deciding whether that power exists in peace time. Id. He suggested as
well t hat such judicial endorsement of the President's exercise of this
authority might unnecessarily grant "enormous inherent power in the
President to regulate international commercial dealings" and to permit
delegation of that power to lesser officials in the executive branch.
Id. at 817-18.
In his other opinion in this area, Wald v. Regan, 708 F.2d 794 (1st
Cir. 1983), rev'd, 468 U.S. 224 (1984), Judge Breyer wrote for the court
in a case involving a challenge to Treasury Department prohibitions on the
expenditure of money for travel costs and travel-related expenses by
Americans visiting Cuba. He concluded that the court did not have to
reach constitutional questions because the regulations at issue were not
promulgated in accordance with the procedures requiring consultation with
Congress that the IEEPA mandated.
In reaching that conclusion, Judge Breyer noted in part that "this
case involves travel which the Supreme Court has held to be 'a
constitutional right closely related to' those activities that the Bill of
Rights protects from infringement by Congress ," 708 F.2d at 800 (quoting
Aptheker v. Secretary of State, 378 U.S. 500, 517 (1964)), and that "the
Supreme Court has explicitly instructed us to 'construe narrowly all
delegated powers that curtail or dilute' the right to travel." 708 F.2d at
800 (quoting Kent v. Dulles, 357 U.S. 116, 129 (1958)).
He also expressly rejected the notion that the court should consider
the impact on foreign policy of requiring the Executive Branch to apply
the IEEPA procedures. "The question of whether it is desirable for the
President to declare an emergency and to consult with Congress when
imposing restrictions on (previously unrestricted) travel would seem to be
a matter for the Executive and Legislative branches, not this court." 708
F.2d at 803.4
Constitutionality of Draft Registration Program
In Detenber v. Turnage, 701 F.2d 233 (1st Cir. 1983), Judge Breyer,
writing for the court, held that the government's draft registration
program neither deprived plaintiffs of liberty without due process nor
violated their right to privacy. 701 F.2 d at 234. He invoked the
Supreme Court's instruction to accord a "healthy deference" to legislative
and executive judgments regarding military affairs, id. (citing Rostker v.
Goldberg, 435 U.S. 57, 66 (1981)), and found that the mildness of the
restriction on individual freedom involved in registering for the draft,
combined with appropriate deference to the judgment of the President and
Congress that registration is warranted, sufficed to support the
constitutionality of the draft. 701 F.2d at 234-35.
In Hager v. Secretary of the Air Force, 938 F.2d 1449 (1st Cir.
1991), Judge Breyer displayed his concern that proper deference and
latitude be shown by reviewing courts to those inferior bodies charged
with decisionmaking in the first instance, but found a way to rule for the
plaintiff despite that deference.
In Hager, the First Circuit reversed the district court's denial of
the plaintiff's application for discharge as a conscientious objector.
Judge Breyer wrote a concurrence, "to underscore two key legal
considerations that influence our result." 938 F.2d at 1462. On the one
hand, he noted the Supreme Court's directive that "the military
authorities, not the courts, are to make determinations of credibility"
and of the sincerity of applicants for conscientious objector status. Id.
(citing Witmer v. United States, 348 U.S. 375, 382 (1955)). On the other
hand, he pointed to the Supreme Court's prior holding that, in the absence
of other evidence, "suspicion and speculation" is inadequate to support
denial of an application for conscientious objector status. Id. at 1462
(citing Dickinson v. United States, 346 U.S. 389, 396-97 (1953)).
In this instance, Judge Breyer noted that the military had not found
Hager to be incredible or insincere, but had found only that his beliefs
were not "sufficiently 'deep' or 'profound.'" Id. at 1462. Having thus
concluded that "we cannot simply reject Dr. Hager's claim on the ground
that the military found him insincere," id., Judge Breyer went on to
explain why he believed that the record did not support the military's
conclusion. He concluded that "nothing but 'suspicion and speculation'"
contradicted Hager's position. Id. at 1463.5
EQUAL RIGHTS AND REPRODUCTIVE FREEDOM
Judge Breyer has written a number of opinions that touch on
constitutional issues of equal rights and reproductive freedom. His
record on these issues is a mixed one. However, the body of evidence on
these subjects is not extensive enough to draw any clear conclusions.
Race and Affirmative Action
Judge Breyer's only decisions directly addressing questions of racial
discrimination arose in the context of jury selection and touch only
tangentially on constitutional issues of race. United States v. Campbell,
766 F.2d 26 (1st Cir. 1985), address ed the issue of racial discrimination
in the use of peremptory challenges. In this case decided before the
Supreme Court's decision (but after the Court had granted certiorari) in
Batson v. Kentucky, 476 U.S. 79 (1986), the defendant alleged that the
prosecutor's use of peremptory challenges to strike the only two black
members of the jury panel violated his rights to a fair trial guaranteed
by the Sixth and Fourteenth Amendments. The district court had applied a
rebuttable presumption of racial motivation when all blacks on the panel
were struck, and had required the prosecutor to explain his challenges.
While Judge Breyer suggested that prosecutorial use of race-based
peremptory challenges might be judged by a more exacting standard than
established by then-existing Supreme Court precedent, which required a
showing of systematic use of such peremptory challenges over time, see
Swain v. Alabama, 380 U.S. 202 (1965), he concluded that the district
court's procedures were sufficient. Judge Breyer found that the "district
court . . . investigated the 'racial' allegation in as much detail and
with as much sensitivity as any revision of Swain's restrictive rule is
likely to require." (This turned out to be an accurate prediction of the
Supreme Court's later holding in Batson.)
Sanders v. Fair, 728 F.2d 557 (1st Cir.), cert. denied, 467 U.S. 1254
(1984), arose from a habeas corpus petition in which a black defendant
convicted of raping a white woman challenged the state judge's refusal to
allow his attorney to question prospective jurors about possible racial
prejudice. The defendant did not claim a federal right to question the
jurors on this issue.6 Rather, the defendant argued that the United States
Constitution required the Massachusetts courts to apply retroactively the
conclusion in the state appeal of his case that in the future such
questioning should be allowed in interracial rape cases. 728 F.2d at 558.
Judge Breyer, following the Supreme Court's opinion in Great Northern Ry.
v. Sunburst Oil & Refining Co., 28 7 U.S. 358, 364-5 (1932), held that the
question of whether to apply judicial decisions purely prospectively was a
matter left to the discretion of the state courts. 728 F.2d at 558-59.
Judge Breyer has written an opinion in only one case involving direct
allegations that affirmative action requirements amounted to
unconstitutional "reverse discrimination." Stuart v. Roache, 951 F.2d 446
(1st Cir. 1991), cert. denied, 112 S.Ct. 194 8 (1992), involved claims by
white officers in the Boston police department that a consent decree
requiring the department to promote minority officers solely on the basis
of their race was unconstitutional following the Supreme Court's decision
in City o f Richmond v. J.A. Croson Co., 488 U.S. 469 (1989). Judge
Breyer distinguished Croson and upheld the police department's policy,
finding that it was narrowly tailored to the state's compelling interest
in remedying past race-conscious employment practice s. 951 F.2d at
450-55. Judge Breyer relied on a significant statistical disparity
between the number of blacks eligible for promotion and the actual number
of black sergeants (4.5% versus .45%) as proof of past discrimination.
Id. at 451. See also infra pp. 29-30 (discussing attack under Title VII
on consent degree).
Gender Discrimination and Reproductive
Judge Breyer has written only two opinions touching on Constitutional
protections relating to gender discrimination and reproductive rights.
Judge Breyer refused to overturn a jury verdict in a gender
discrimination case brought under 42 U.S.C. Sections 1983 and 1985(3) in
Stathos v. Bowden, 728 F.2d 15 (1st Cir. 1984). He rejected the
defendants' contention that because they were all officers of the same
governmental body they were incapable as a matter of law of conspiring,
holding that the "intracorporate" conspiracy exception had limited utility
outside the antitrust context. 728 F.2d at 21. He also took an expansive
view of the right to recover attorneys' fees.
In Planned Parenthood League of Mass. v. Bellotti, 868 F.2d 459 (1st
Cir. 1989), the majority vacated and remanded the district court's
decision to abstain from review of the constitutionality of a
Massachusetts statute that required parental consent or judicial waiver
before a minor could obtain an abortion. Judge Breyer, dissenting, agreed
that federal court abstention was not required, but he would not have
remanded because he believed that there was no way that plaintiffs could
show under existing Supreme Court precedent that the statute as
implemented was unconstitutional.
Planned Parenthood sought in Bellotti to establish that the
procedures for judicial waiver of parental notification inhibited minors
from seeking abortion, created an unconstitutional burden because it
involved several days delay, and were not reason ably related to
governmental interests because nearly all petitions for judicial approval
were granted. Judge Breyer asserted that, in light of the Supreme Court's
earlier decision generally approving of the Massachusetts system of
judicial waiver in Planned Parenthood v. Bellotti, 443 U.S. 622 (1979),
even if the plaintiffs were able to establish the facts they alleged, the
Massachusetts system would not have been unconstitutional. In arguing
that the complaint should simply be dismissed, Judge Breyer reasoned that
it must have been obvious to the Supreme Court that "even expeditious
judicial proceedings might take several days [and] that their very
existence might intimidate minors," and Planned Parenthood had not
"explain[ed] how their proposed factual showing is designed to bring
about a 'judicial approval system' that is significantly less intimidating
or more useful." 868 F.2d at 471-2.7
Rational Basis Review under the Equal
Following Supreme Court precedent, Judge Breyer has shown deference
to legislative judgments in reviewing Equal Protection claims that do not
involve a protected class. In Usher v. Schweiker, 666 F.2d 652 (1st Cir.
1981), he wrote the court's opinion reversing the district court and
holding that a Social Security regulation which reduced SSI benefits when
the recipient received below-market rent was "rationally related to
reasonable and identifiable government objectives." 666 F.2d at 659.
The district court had found that the regulation was irrational
because it discriminated between SSI recipients with and without written
leases (any recipient with a written lease was presumed to be paying a
fair market rent) and because low income assistance in the form of
"Section 8 housing" was not included in calculating the reduction in
benefits. Judge Breyer agreed that a distinction between written and
unwritten leases would "raise a suspicion of arbitrary agency action," id.
at 660, but found, based on oral argument, that the district court had
misinterpreted this provision of the regulation. Judge Breyer also
rejected plaintiff's claims that the discrimination in favor of Section 8
recipients was irrational, given the objectives of Section 8:
[T]here is no requirement that all, or
several, government programs, when viewed as a
totality, must operate so as to create a
completely fair or rational distribution of
their total package of benefits among all who
arguably suffer equivalent need. . . If
Congress cannot constitutionally offer
intended beneficiaries of Program A any
special advantages unless it also offers it to
those who are outside Program A, it might
simply choose not to offer the special benefit
- a result that would work to no one's
Id. at 661.
Although Judge Breyer has not written many opinions under the various
civil rights statutes, his opinions have supported defendants' positions
more often than not.
In Judge Breyer's handful of Title VII decisions, he has consistently
concluded that the plaintiff had failed to prevail (twice affirming the
lower court and once reversing), but he has also expressed concern that
remedies for discrimination be truly adequate.
Burdens of Proof
ATEO S7=60 S11=55 V1 M0 X1 AT S0=0
+++ In Dragon v. Rhode Island Dept. of
Mental Health, 936 F.2d 32 (1st
Cir. 1991), Judge Breyer held that merely establishing a prima facie case
of discrimination -- that the plaintiff was a member of a protected class,
that she was qualified, and that she did not receive the job -- was not
sufficient on its own to send a case to the jury. Because he agreed that
no reasonable jury could have found that gender played a role in the
decision not to offer the plaintiff a job, and that there was no evidence
that the defendants' justifications were pretexts, he held that the
district court correctly granted a directed verdict for the defendant.
936 F.2d at 36.
In Lamphere v. Brown University, 875 F.2d 916 (1st Cir. 1989), a
female professor challenged Brown's failure to offer her a tenured chair.
Brown previously had entered into a consent decree that had the effect of
shifting the normal burdens of proof in a disparate impact case as
established in Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248
(1981). Pursuant to the consent decree, the burden was on Brown to show
by clear and convincing evidence that it had not discriminated. 875 F.2d
at 9 20. Despite the burdens shifted by the consent decree, Judge Breyer
affirmed the district court's holding that Brown had proved that its
decision was made free from sex discrimination. Id. at 922.
Judge Breyer also rejected the plaintiff's claim that it was improper
for the university to use her failure to hold a tenured chair at another
university against her in its selection criteria. While Judge Breyer
accepted the fact that using prior tenure as a criterion might have a
disparate impact upon women because universities in the past were more
likely to grant tenure to men, he held that, despite the language of the
consent decree, Brown was not required to prove clearly and convincingly
that no "tenure-blind" selection process would work as well. Rather,
Judge Breyer interpreted the consent decree to require Brown to prove only
absence of pretext by clear and convincing evidence, not the absence of
any conceivable alternative to its selection criteria. Id. at 920.
Because prior tenure reflected peer recognition, Judge Breyer concluded
that its use as a selection criterion was permissible. Id. at 921.
Judge Breyer showed a reluctance to rely on statistical proof of
discrimination in Fudge v. Providence Fire Dept., 766 F.2d 650 (1st Cir.
1985), a Title VII race discrimination case. Fudge, a black applicant to
the Providence Fire Department, successfully argued in the district court
that the city's written examination and hiring procedures had a disparate
and adverse impact on black applicants. The Court of Appeals reversed on
the grounds that Fudge's proof consisted solely of different rates of
acceptance for black applicants (4%) and white applicants (13%). 766 F.2d
at 656. Judge Breyer concurred, emphasizing that the sample size used in
gathering evidence of disparate impact, 248 applicants in one year, was
insufficient to prove discrimination. "[W]here the likelihood of pure
'chance' bulks as large, as here, I agree with the court that the
plaintiff must present some reason to believe that the explanation is not
'fairness plus pure chance.'" Id. at 659.
Judge Breyer showed substantial concern for providing effective
remedies in Massachusetts Assoc. of Afro-American Police, Inc. v. Boston
Police Dept., 780 F.2d 5 (1st Cir. 1985), cert. denied, 478 U.S. 1020
(1986).8 White Boston police officers attempted to intervene in this case
in order to challenge a consent decree that contained affirmative action
provisions in a lawsuit brought by black police officers. The white
officers claimed that the consent degree's provisions were proper only if
the employees treated favorably by the affirmative action had themselves
been the actual victims of past discrimination. They also argued that the
consent decree exceeded what the law permitted because it provided for
affirmative action, yet did not contain a concession that the police
department had violated Title VII. 780 F.2d at 6.
Applying First Circuit precedents, Judge Breyer held that the failure
of the police to acknowledge a violation of Title VII was not dispositive
and that affirmative action that benefited those who have not been
personally injured by discrimination did not violate the Constitution.
Id. at 7. See also supra pp. 24-25 (discussing constitutional attack on
In Latino Political Action Committee, Inc. v. City of Boston, 784
F.2d 409 (1st Cir. 1986), nonprofit organizations representing several
minority groups challenged, under the Voting Rights Act of 1982, 42 U.S.C.
Section 1973(b), and several federal civil rights statutes, 42 U.S.C.
Sections 1981, 1983, and 1985(3), Boston's districting plan for election
of members of the City Council and the School Committee. The plaintiffs
claimed that the city plan "packed" some minority voters into two
districts while diluting much of Boston's remaining minority population
by spreading it among several other districts. 784 F.2d at 411.
Judge Breyer rejected the plaintiffs' argument that the Voting Rights
Act of 1982 should be construed to require that voting lines be drawn in
the way which gave minorities the most voting power. Id. at 412. He
found that the record supported the district judge's findings that there
was no evidence of discriminatory intent, and held that voting districts
containing more than 80% minorities were not "automatically unreasonable."
Id. at 413. Because plaintiffs could not "demonstrate the ready avail
ability of a practical alternative plan that would significantly increase
the 'effectiveness' of minority votes without interfering with other
legitimate line drawing considerations," id. at 414, Judge Breyer
concluded that the district court appropriately had found that the voting
scheme did not deny minorities equal access to the polls and thus did not
violate the statute.
Rights of Disabled Persons
Judge Breyer consistently has took a position that was restrictive of
the rights of disabled people in several cases decided prior to the
passage of the Americans with Disabilities Act (ADA), including once in
dissent. He has not written an opinion in a post-ADA case.
In Ward v. Skinner, 943 F.2d 157 (1st Cir. 1991), cert. denied, 112
S.Ct. 1558 (1992), Judge Breyer, writing for the court, held that the
Department of Transportation did not violate Section 504 of the
Rehabilitation Act of 1974, 29 U.S.C. Section 79 4, when it refused to
provide an interstate trucking license to a man with epilepsy who had not
suffered seizures in seven years (and even then had only nocturnal
convulsions that were effectively controlled by medication). While Judge
Breyer found that the decision not to grant the plaintiff a waiver was
reviewable, he held that under the Rehabilitation Act DOT was not required
to make "an individualized determination" of Ward's qualifications to
drive a truck, and could instead rely on the conclusions of a DOT Task
Force that epileptics taking anti-convulsants should be denied licenses
because of the possibility that they might forget to take their
medication. 943 F.2d at 162-64.
In another case challenging DOT regulation of truck drivers, Judge
Breyer, writing for the court sitting en banc, held that a deaf truck
driver did not have a private right of action against the government under
the Rehabilitation Act to challenge a DOT rule that deaf people could not
obtain interstate trucking licenses. Cousins v. United States Dept. of
Transportation, 880 F.2d 603 (1st Cir. 1989) (en banc). Because the
Rehabilitation Act grants a private right of action against "any recipient
of Federal assistance or Federal Provider of assistance," but is silent
about a right of action against government regulators, Judge Breyer held
that the drafters of the Act intended plaintiffs to seek review of
government regulatory action via the Administrative Procedure Act (APA)
rather than by means of a private right of action. Id. at 605.
In so ruling, however, Judge Breyer made a point of noting that
review under the APA would not have the adverse consequences that the
plaintiff apparently feared, because, Judge Breyer reasoned, DOT action
that violated the Rehabilitation Act would be reviewable under the APA as
"not in accordance with law." Id. at 608-10. Nor would DOT's
interpretation of the Rehabilitation Act in that regard be entitled to
deference, Judge Breyer stated, because that agency had no special
expertise in disability law. Id.
In Wynne v. Tufts University School of Medicine, 932 F.2d 19 (1st
Cir. 1991) (en banc), the district court had granted summary judgment to
Tufts, holding that the Rehabilitation Act did not require the school to
provide an alternative to written multiple choice examinations for a
medical student whose dyslexia caused him to fail such exams. A majority
of the court of appeals sitting en banc voted to reverse the district
court, holding that factual issues existed as to whether the school had
showed t hat it had considered alternatives to multiple choice exams. Id.
at 27. Judge Breyer, with two other judges, dissented.
Judge Breyer would have found that the school satisfied the
requirements of the Rehabilitation Act because, "in the judgment of
medical educators who set Tufts' academic standards and requirements, the
demands of medicine are best tested by a multiple choice exam." Id. at
30 (internal quotation omitted). Judge Breyer would have held that Tufts
need not accommodate dyslexia because "it is closely related to the kind
of characteristic, namely an inability to learn to become a good doctor to
which Tufts reasonably, and lawfully, need not accommodate." He also
would have deferred to Tufts' judgment about the need for multiple choice
exams because, "the designing of tests aimed at screening out those who
will not become good doctors is a quintessential academic task, close to
the heart of a professional school's basic mission." Id. at 30-31.
Finally, in a disability case brought under a provision of the
Massachusetts Constitution that prohibits discrimination "solely on the
basis" of a disability, Mass. Const. amend. art. CXIV, Judge Breyer wrote
the court's opinion affirming summary judgment for an employer sued by an
employee who alleged that he was terminated because of alcoholism, as
opposed to a particular incident of drunkenness. Sexton v. Gulf Oil
Corp., 809 F.2d 167 (1st Cir. 1987). Judge Breyer affirmed the district
court's decision not to give a "reasonable accommodation" instruction
because the plaintiff had not pursued Gulf's offer to enroll him in a
"Troubled Employees" program and because the employee could not point to
other possible reasonable accommodations. Id. at 16 9.
In statutory age discrimination cases, as in the other civil rights
statutory cases discussed in this section, Judge Breyer's opinion-writing
record is sparse, but he has not sided with the plaintiff in those cases
in which he did write.
In Schuler v. Polaroid Corp., 848 F.2d 276 (1st Cir. 1988), Judge
Breyer wrote for the court in upholding the district court's grant of
summary judgment to Polaroid in an age discrimination suit brought by a
former employee. Polaroid had eliminated 400 employees as part of a
company-wide reorganization. Under those circumstances, Judge Breyer held
that the plaintiff's statistical evidence of discrimination was
insufficient to permit a rational jury to find discrimination. 848 F.2d
In his one other age discrimination opinion, Judge Breyer broadly
interpreted an exception in the Age Discrimination in Employment Act
(ADEA), 29 U.S.C. Section 621 et seq., which permits refusal to hire law
enforcement officers because of their age. See 29 U.S.C. Section 623(i)
(Supp. IV 1986). In EEOC v. Massachusetts, 864 F.2d 933 (1st Cir. 1988),
Judge Breyer agreed with the district court that motor vehicle examiners
were encompassed within the ADEA's "law enforcement" exception. He wrote
for a majority in upholding summary judgment and in concluding that the
EEOC had no need for additional discovery where the Commonwealth had
responded to all discovery requests on the record, and where the EEOC was
unable to come forward with facts sufficient to rebut the defendant's
affidavits concerning the examiners' law enforcement duties. 864 F.2d at
935-37. Judge Coffin, dissenting, criticized Judge Breyer and the
majority for "failing to indulge all reasonable inferences from facts in
favor of the p arty opposing summary judgment." Id. at 939.
In NAACP v. Secretary of HUD, 817 F.2d 149 (1st Cir. 1987), Judge
Breyer rejected plaintiffs' claim that the Federal Fair Housing Act (Title
VIII of the Civil Rights Act of 1968), 42 U.S.C. Section 3601, provided a
private right of action against the Secretary of Housing and Urban
Development (HUD) for failure to enforce constitutional and statutory fair
housing requirements. 817 F.2d at 152-154. Plaintiffs were not left
without a remedy, however. Judge Breyer held that Title VIII imposed an
affirmative obligation on HUD to do more than simply refrain from
discriminating and from purposely aiding discrimination, and he also held
that HUD's administration of grant programs was not "committed to the
agency's discretion by law" and thus was not protected from review under
the Administrative Procedure Act (APA), 5 U.S.C. Section 706(2)(A). 817
F.2d at 160. Therefore, HUD's failure to fulfill its Title VIII
obligations was reviewable under the APA as arbitrary, capricious, and an
abuse of discretion . Id.
18 U.S.C. Section 242
Finally, Judge Breyer narrowly interpreted 18 U.S.C. Section 242, the
criminal analogue of Section 1983, in United States v. Maravilla, 907 F.2d
216 (1st Cir. 1990). Maravilla, a customs officer who kidnapped and
killed a Dominican money courier, was convicted of violating Section 242,
which makes it a felony to deprive "the inhabitant of any State, Territory
or District" of rights, privileges, or immunities secured or protected by
the Constitution or laws of the United States. Judge Breyer wrote the
opinion of the court reversing the conviction. While he agreed that
Congress intended the scope of Section 242 to be broad, Judge Breyer still
concluded that the courier, who did not intend to spend even one night in
the United States, was not "an inhabitant" protected by the statute. 907
F.2d at 224. Judge Torruella dissented, arguing, based on the legislative
history of Section 242, that Congress meant to protect all persons within
the jurisdiction of the United States. Id. at 230.
CRIMINAL RIGHTS AND PROCEDURE
Consistent with the court's docket, Judge Breyer has written many
opinions in the area of criminal rights and procedure. Usually, they
involve situations in which his analysis simply tracks prevailing United
States Supreme Court precedent. However, to the degree precedent has left
him with flexibility, he generally here, as elsewhere, has shown deference
-- in this context, to the police and the needs of law enforcement.
On Fourth Amendment issues, Judge Breyer generally has been inclined
to afford substantial deference to the judgments made by police officers.
See United States v. Guarino, 729 F.2d 864, 873 (1st Cir. 1984) (Breyer,
J., dissenting); United States v. Timpani, 665 F.2d 1, 3 (1st Cir. 1981).
In the only case that Judge Breyer wrote in this area in which he
supported the defendant's position, he applied recent Supreme Court
precedent in a straightforward manner. See United States v. Beltran, 917
F.2d 641 (1st Cir. 1990) (warrantless arrest at defendant's home not
justified when police were fully capable of obtaining warrant ahead of
time).9 When the facts were ambiguous, Judge Breyer has been most
comfortable deferring to the perceptions of the law enforcement officials
on the scene. Moreover, Judge Breyer's analysis of constitutional issues
involving both searches and seizures has reflected this underlying
Fourth Amendment Searches
Judge Breyer displayed his deference to the conduct of police
officers in United States v. Irizarry, 673 F.2d 554 (1st Cir. 1982). In
Irizarry, the majority opinion applied the general prohibition against
warrantless searches absent exigent circumstances to invalidate a search
of an area above a hotel room's ceiling panels. 673 F.2d at 559-60.
Judge Breyer dissented from that conclusion.
The Irizarry court held that a warrantless security sweep of the
hotel room looking for suspects and guns was justified under the Fourth
Amendment because of the need to protect officer safety and to secure the
room. Id. at 558. However, the court found that the safety rationale
that justified the initial sweep of the room did not extend to a search of
the area above a displaced bathroom ceiling panel, and therefore the court
held that aspect of the search was unconstitutional. Id. at 559.
Judge Breyer disagreed. Id. at 562. In Judge Breyer's view, the
court needed to balance the government's need to search against the
defendant's interest in privacy. Id. Judge Breyer believed that this
balancing test favored the government under the circumstances presented
by the case. Id. at 565.
On the one hand, Judge Breyer asserted that an individual's interest
in a hotel room, in general, and the space above the ceiling panels, in
particular, was limited. Id. at 564. He reasoned that the room that the
defendants had rented was not a home and that the defendants had no
legitimate privacy interest in the space above the ceiling panels. Id. at
On the other hand, Judge Breyer asserted that the government had a
strong interest in police safety. Judge Breyer accorded great weight to
the officers' perception of the situation. Thus, he was willing to infer
danger from not only the objective circumstances, but also the subjective
opinions of the officers. See id. at 566 n.1.
Moreover, Judge Breyer noted that the police exercised restraint by
limiting their search to the area above the bathroom ceiling and not
rummaging through drawers or closets in the room. Id. at 564. Judge
Breyer believed that because the police off icers conducted the
warrantless search in a reasonable manner, their actions complied with the
Fourth Amendment. Id. at 565.10
In Arruda v. Fair, 710 F.2d 886 (1st Cir. 1983), Judge Breyer again
took a deferential approach to the conduct of searches -- this time for a
panel majority over a dissenting opinion. Arruda involved the search of
prison inmates by prison officials, and Judge Breyer's decision extended
the Supreme Court's holding in Bell v. Wolfish, 441 U.S. 520 (1979).
In Wolfish, the Supreme Court held that routine strip and body-cavity
searches of prison inmates were reasonable under the Fourth Amendment when
conducted after contact visits with outside guests. 441 U.S. at 558.
Judge Breyer's opinion in Arruda upheld the use of strip and body-cavity
searches on all trips to and from the prison library, hospital, and
visitation rooms. 710 F.2d at 886. Judge Breyer wrote that these
searches were justified both in light of Wolfish, and because a court must
accord great deference to a prison administrator's good-faith judgments.
Id. at 887.
Judge Maletz, in dissent, believed that the court should not have
extended Wolfish to searches occurring after intra-prison contacts. He
asserted that guards should be required to have some particular suspicion
before subjecting the inmate to searches in those circumstances. Id. at
889-91 (Maletz, J. concurring in part, dissenting in part).
Fourth Amendment Seizures
In his opinions written in seizure cases under the Fourth Amendment,
Judge Breyer has taken a narrow view of what constitutes a "seizure" and
an expansive view of the governmental interests that may justify a
Judge Breyer has set a high threshold for finding that a seizure
subject to the Fourth Amendment has taken place. In United States v.
Berryman, 717 F.2d 651, rev'd en banc, 717 F.2d 650 (1st Cir. 1983), the
court addressed the question of whether police officers had "seized" the
defendant within the meaning of the Fourth Amendment when they questioned
him after his arrival at Boston's Logan Airport from Fort Lauderdale.
Judge Breyer dissented from a panel decision that found the Fourth
Amendment to be applicable to the treatment of the defendant. (The
majority of the en banc court later adopted Judge Breyer's dissent to the
original panel decision.)
The majority of the panel and Judge Breyer agreed on the legal
standard: Whether a reasonable person under the facts and circumstances
would have felt free to leave. Id. at 655; id. at 661 (Breyer, J.
dissenting). Under this standard, the panel majority found that the
defendant had been "seized" within the meaning of the Fourth Amendment.
Id. at 655. The panel stressed the fact that one officer said he would
have kept the defendant from leaving, and the majority concluded that this
officer had conveyed this message effectively to the defendant. Id.
In his dissent, Judge Breyer concluded that the defendant had not
been "seized" within the meaning of the Fourth Amendment. Judge Breyer
thought that the facts demonstrated that the defendant had voluntarily
complied with the agents' questioning. I d. at 662. He emphasized that
the defendant testified to his willingness to speak with the officers, and
that the agents did not actually prevent the defendant from leaving. Id.
Moreover, Judge Breyer discounted the testimony of the agent who said he
would have prevented the defendant from leaving. Judge Breyer instead
pointed out that another agent had testified that the defendant was free
to leave. Id.
In United States v. Ramos-Morales, 981 F.2d 625 (1st Cir. 1992),
Judge Breyer, writing for a panel majority, upheld the seizure of the
defendant's automobile, on the ground that the seizure reflected the
government's legitimate interest in reducing car theft and vandalism.
981 F.2d at 627. Judge Breyer asserted that the case was controlled by
Colorado v. Bertine, 479 U.S. 367 (1987), and did not expand upon prior
Supreme Court precedent. 981 F.2d at 627. However, Bertine addressed
only an inventory search of an impounded van, not the underlying seizure
of the vehicle, and relied upon the governmental interest in protecting
the defendant's property while in police custody and in ensuring against
claims of loss or theft by the defendant. 479 U.S. at 372. Judge
Breyer's characterization of the interest at stake in Ramos-Morales to
justify seizure of the vehicle appears broader. See 981 F.2d at 627.
In his written opinions concerning custodial police interrogations,
Judge Breyer seemed to walk a middle path, neither reaching out to extend
the protections offered by Miranda nor appearing to look for ways to limit
For instance, in United States v. Eaton, 890 F.2d 511 (1st Cir.
1989), Judge Breyer wrote for the majority, over a dissent, in concluding
that a defendant had waived his rights to remain silent and to have an
attorney present during police questioning. In Eaton, after the police
informed the defendant of his Miranda rights, an officer asked Eaton
whether he was willing to waive his rights and answer questions. 890 F.2d
at 513. Eaton responded that "it would depend on the questions." Id.
The officer then proceeded to ask Eaton questions. Eaton later sought to
suppress his answers on the ground that he had not waived his rights. Id.
Judge Breyer concluded that Eaton's statement amounted to a valid,
selective waiver and that Eaton could have reasserted his right to
silence at any point (which he never did). Id. at 514.
Writing in dissent, Judge Reinhardt argued that Eaton's statement was
equivocal and ambiguous, giving the police no indication as to the extent
that he sought to invoke or waive his rights. Id. at 515. For a waiver
to be valid, Judge Reinhardt wrote, it must be voluntary and clear, which
Eaton's was not.11 Id. at 515-16, 518. Nor could Eaton have been held to
have waived his rights merely because he answered questions rather than
remaining silent. Id. at 516-17.12
In other cases, Judge Breyer has rejected arguments grounded in
Miranda for a variety of reasons. Echoing his decision on the question of
"seizure" in Berryman, see supra pp. 39-40, Judge Breyer concluded in
several cases that Miranda protections did not apply because the person
was not in police "custody" at the time that the interrogation took place.
For instance, in Podlaski v. Butterworth, 677 F.2d 8 (1st Cir. 1982),
Breyer wrote for the court in holding that a suspect was not in custody
during police questioning that occurred on the suspect's back porch, even
though the police might have arrested the suspect had he attempted to
leave. Id. at 10.
In one reported case, however, Judge Breyer did conclude that the
police violated a defendant's Miranda rights. In United States v. Doe,
878 F.2d 1546 (1st Cir. 1989), the defendants were charged under a statute
making it illegal for a U.S. citizen to possess marijuana while on board a
vessel in international waters. After the defendants had been arrested,
Coast Guard officers asked the defendants their nationality without first
informing them of their Miranda rights. 878 F.2d at 1550. The defend
ants later moved to suppress their answers, which disclosed that they were
U.S. citizens. Id.
Judge Breyer, writing for a divided panel, held for the defendants.
Id. at 1552. The dissent argued that routine booking questions, such as
asking a defendant his name and address, did not fall within Miranda's
protections. Id. at 1554. Judge Breyer disagreed, concluding that even
if an exception to Miranda exists for routine booking questions, it did
not apply here because the nationality of the defendants was an element of
their offense, and therefore the question was not merely routine. Id. a t
The Privilege against Self-Incrimination
In the Fifth Amendment self-incrimination cases in which he has
written, Judge Breyer rejected defendants' claims that their rights had
been violated, for a variety of reasons generally consistent with (or
correctly anticipating) Supreme Court precedent.
In re Grand Jury Proceedings (Ranauro), 814 F.2d 791 (1st Cir. 1987),
for instance, Judge Breyer dissented from a First Circuit panel that took
a broad view of the privilege against self-incrimination. The defendant
in the case, William Ranauro, had refused to sign a consent form
authorizing a Singapore bank to release records pertaining to accounts
Ranauro may have kept at the bank, and Ranauro claimed that he could not
be compelled to sign the consent form. 814 F.2d at 792. The First
Circuit agreed with Ranauro. The Circuit concluded that Ranauro's
signature on the form might help the prosecution incriminate Ranauro by
proving that bank accounts existed in Ranauro's name or that Ranauro
controlled such accounts. Id. at 793.
Judge Breyer based his dissent, id. at 797, on his view that the
consent form was not testimonial because the form said nothing about
whether bank accounts in Ranauro's name existed, and therefore a jury
could draw no inferences from the consent form as to the authenticity of
any records the bank might release. Id. at 797-98. As a result, Judge
Breyer concluded, the form could not be used to incriminate Ranauro and
therefore Ranauro could be compelled to sign it. Id. at 797. The Supreme
Court sub sequently adopted Judge Breyer's analysis of the application of
the Fifth Amendment to this issue. See Doe v. United States (Doe II), 487
U.S. 201 (1988).
In Judge Breyer's opinions concerning the Double Jeopardy Clause, he
again has applied relevant Supreme Court precedent in a "pragmatic"
For example, in United States v. Larouche Campaign, 866 F.2d 512 (1st
Cir. 1989), several months after a fraud trial began, the defendants asked
the trial court to excuse five jurors for hardship. The court excused
them, leaving ten jurors. 866 F.2 d at 513-14. When the defendants would
not stipulate to trial by less than a jury of twelve, the court declared a
mistrial. Id. The government then proceeded to bring a new prosecution
against the defendants. Id. at 514. The defendants asserted that this
prosecution was barred by the Double Jeopardy Clause. Id.
The First Circuit, in an opinion by Judge Breyer, affirmed the lower
court's holding that the Double Jeopardy Clause did not bar the second
trial. Id. at 518. Under Supreme Court precedent, he noted, the Double
Jeopardy Clause does not ordinarily bar retrial when defendants move for
a mistrial. Oregon v. Kennedy, 456 U.S. 667 (1982); United States v.
Perez, 9 Wheat. 579 (1824). Judge Breyer concluded that, although the
defendants had not formally moved for a mistrial, they had requested that
the five jurors be excused, which the defendants reasonably knew would
result in a mistrial, and therefore, the Double Jeopardy Clause did not
bar retrial. 866 F.2d at 515.
On the other hand, in Lydon v. Justices of the Boston Municipal
Court, 698 F.2d 1 (1st Cir. 1982), Judge Breyer, writing for the court
over a dissent, held that the structure of Massachusetts' "two-tier"
criminal trial system violated the Double Jeopardy Clause. Under the
Massachusetts system, a criminal defendant could choose a bench trial
rather than a jury trial. 698 F.2d at 2. If convicted, the defendant
then had a right to a jury trial de novo. Id. Appellate review occurred
only after the second trial. Id. at 3.
Judge Breyer reasoned that this two-tier process undermined the rule
that the Double Jeopardy Clause bars retrial if an appellate court has
concluded that a conviction rested on insufficient evidence. See Burks v.
United States, 437 U.S. 1 (1978). Judge Breyer concluded that this rule
required appellate review of the sufficiency of the evidence at the bench
trial prior to a second, jury trial. As Judge Breyer noted, a finding
that there was insufficient evidence to support conviction in the bench
trial would bar the second trial and thus end the prosecution. 698 F.2d
The Sixth Amendment
Ineffective Assistance of Counsel
Judge Breyer's opinions usually have rejected claims of ineffective
assistance of counsel, generally finding that the defendants were seeking
to second-guess reasonable tactical decisions, or that the alleged
missteps had not affected the outcome of the trial.14
In his only non-unanimous Sixth Amendment opinion, Anderson v.
Butler, 858 F.2d 16 (1st Cir. 1988), Judge Breyer dissented from a finding
of ineffective assistance of counsel. The majority found that there had
been ineffective assistance of counsel based on an attorney's failure to
present expert psychiatric testimony after telling the jury in the opening
statement that such evidence would be presented. Judge Breyer conceded
that this was a tactical mistake, but argued that treating it as an error
of constitutional dimensions would place undue pressure on defense counsel
to call such a witness even where the course of the trial suggested that
doing so would hurt his or her client. 858 F.2d at 20.
While his opinion suggests that he did not see a basis for a finding
of ineffective assistance of counsel, Judge Breyer concluded that "we
should at least remand this case for a full hearing." Id. at 22. He
noted that he examined a "fair sampling" of ineffective assistance cases
to "check my own judgment that this matter is not so cut and dried as to
be disposed of without a hearing." Id. at 21.
On the other hand, in one decision that Judge Breyer wrote in this
area, he saw some potential merit to an ineffective assistance argument.
In United States v. Giardino, 797 F.2d 30 (1st Cir. 1986), the defendant
claimed that after pleading guilty he learned that his attorney had
misrepresented the strength of the evidence against him and had lied about
confirming the intended testimony of the government's chief witness.
Judge Breyer wrote to vacate the district court's summary denial of the
defendant's motion to set aside his guilty plea. He rejected the lower
court's conclusion that the defendant's claim failed on its face and
ordered further proceedings in the district court. Id. at 32.
Other Sixth Amendment Guarantees
In cases involving prejudicial comments by jurors, Judge Breyer has
concluded that prejudice to the defendant is sufficiently redressed where
the trial court has investigated claims of misconduct and taken responsive
steps. See Tavares v. Holbrook, 779 F.2d 1 (1st Cir. 1985); United States
v. Anello, 765 F.2d 253 (1st Cir.), cert. denied, 476 U.S. 996 (1985).
See also discussion of use of race-based peremptory challenges supra pp.
Judge Breyer has written in few cases alleging violations of the
Sixth Amendment's guarantee of a speedy trial. He has rejected such
claims in every case, but on narrow factual grounds. See United States v.
Vachon, 869 F.2d 653 (1st Cir. 1989); United States v. Porter, 924 F.2d
395 (1st Cir. 1991); cf. United States v. Anello, 765 F.2d 253 (1st Cir.),
cert. denied, 476 U.S. 996 (1985) (applying Speedy Trial Act).
The Eighth Amendment
In the only significant Eighth Amendment case in which he has
written, Judge Breyer concluded that prison officials violated the Eighth
Amendment through their "deliberate indifference" to the safety of a
prisoner. In Cortes-Quinones v. Jimenez-Nettleship, 842 F.2d 556 (1st
Cir. 1988), Judge Breyer upheld an award of damages under 42 U.S.C.
Section 1983 in a case arising out of the death of a prisoner. The
prisoner, William Arenas Cortes, had serious psychological problems. 842
F.2d at 559. Despite prison officials' knowledge of these problems, they
transferred Cortes to an overcrowded district jail. Id. There, fellow
inmates killed Cortes. Id. at 558. Cortes' mother subsequently brought
suit against the prison officials.
Judge Breyer's opinion for the court upheld the jury's award against
the prison officials. Id. at 559. He found that the defendants had
exhibited "deliberate indifference" to Cortes' need for treatment of his
psychological problems. Id. The defendants knew of Cortes' problem and
yet did nothing to provide him treatment. Moreover, they transferred him
to a severely overcrowded prison where Cortes was exposed to an increased
risk of violence from other inmates. Id. Judge Breyer agreed that this
type of neglect could make out a constitutional violation:
[P]rison officials have a duty under the 8th
and 14th amendments to protect prisoners from
violence at the hands of other prisoners. . .
. [W]hen a supervisory official is placed on
actual notice of a prisoner's need for
physical protection or medical care,
administrative negligence can rise to the
level of deliberate indifference.
Id. at 561 (internal citations omitted).
Recently, the United States Supreme Court affirmed this principle in
Farmer v. Brennan, 114 S.Ct. 1970 (1994), and in doing so specifically
quoted from Judge Breyer's opinion in Cortes-Quinones. 114 S.Ct. at
Criminal Evidentiary Issues
Judge Breyer's written record generally suggests a hesitancy to
overturn or remand a criminal conviction on the basis of evidentiary
issues. In most instances, Judge Breyer wrote to affirm the district
court's disposition of evidentiary issues in criminal appeals.15
Judge Breyer has written to turn back challenges based on sufficiency
of the evidence in all but one case.16 In that one case, United States v.
Glenn, 828 F.2d 855 (1st Cir. 1987), he wrote an opinion concluding that
the discrepancy between the broad scope of the indictment and the more
limited evidence supplied at trial violated the defendant's basic rights.
828 F.2d at 860. Judge Breyer also has generally -- but not always --
concluded that it was for the trial court to decide, not an appellate
court to second-guess, whether the probative value of evidence outweighed
its prejudicial effect under Federal Rule of Evidence 403.17
Judge Breyer's deference to the exercise of discretion by the trial
court is similarly reflected in his written decisions concerning the
admissibility of evidence of prior bad acts by the defendant under Federal
Rule of Evidence 404(b). He has consistently turned aside claims that
such evidence should not have been admitted.18 In two of the decisions in
which Judge Breyer wrote for the court to uphold the introduction of this
evidence, Judge Torruella wrote opinions expressing alarm that Rule 404(
b)'s prohibition against the introduction of evidence of prior bad acts
was becoming the exception rather than the rule, unfairly prejudicing
criminal defendants by relieving the government of its burden of proving
beyond a reasonable doubt the essential elements of the crime for which
the defendant was being tried. See United States v. Ferrer-Cruz, 899 F.2d
135, 142 (1st Cir. 1990) (Torruella, J., dissenting); United States v.
Simon, 842 F.2d 552, 556 (1st Cir. 1988) (Torruella, J., concurring).
Finally, in United States v. Vachon, 869 F.2d 653 (1st Cir. 1989),
Judge Breyer wrote the court's opinion turning aside a claim that the
trial court should have excluded certain statements made by the defendant
at the time of his arrest regarding his AIDS condition and his homosexual
lover. Judge Breyer concluded that the statements were relevant to rebut
the defendant's insanity defense, because the statements suggested that
the defendant knew right from wrong and the consequences of his actions,
and demonstrated a rational desire to protect his lover. Judge Breyer
also concluded that the statements were not unreasonably prejudicial. In
effect, he once again deferred to the trial court's balancing of probative
value against potential prejudice.
Judge Breyer has written that one of two conditions must be met
before improper comments by the prosecutor will require a new trial: "To
require a new trial, we must conclude either that, despite the
instruction, the misconduct was likely to have affected the trial's
outcome, . . . or that sanction is needed to deter future prosecutorial
misconduct." United States v. Capone, 683 F.2d 582, 585 (1st Cir. 1982)
(internal citations omitted). Judge Breyer has not written an opinion
finding that either of these two standards was met.
Judge Breyer has relied most frequently on the strength of the
prosecution's case in holding that misstatements did not affect the
outcome of the trial.19 In reaching that conclusion, he also has relied on
the presence of a curative instruction from the trial judge,20 the fact
that the improper comment was an isolated incident,21 the prosecutor's
lack of intent in making the improper comment,22 and the fact that defense
counsel also made improper comments.23 In this context, he has said that
reversal is unnecessary in cases where the improper comments were not
deliberate, Gallagher, 735 F.2d at 644, Capone, 683 F.2d at 586, although
he also has determined that this sanction was not warranted in a case in
which the prosecutor deliberately violated the prohibition against
commenting on the defendant's silence. Cox, 752 F.2d at 745.
Duty to Disclose
In cases in which he has written involving the prosecutor's statutory
duties to disclose material facts to the defense, Judge Breyer generally
has deferred to the remedies chosen by the trial court. United States v.
Lau, 828 F.2d 871, 876 (1st Cir. 1987); Quesada-Bonilla, 952 F.2d at 603.
In cases involving the prosecutor's constitutional duty under Brady v.
Maryland, 373 U.S. 83 (1963), to disclose material exculpatory evidence to
the defense, Judge Breyer has found that undisclosed evidence was not
Exercise of Prosecutorial Discretion
In two written opinions, Judge Breyer also has shown a reluctance to
second-guess the exercise of prosecutorial discretion. He has declined to
review the propriety of the bringing of charges through an indictment
rather than a preliminary hearing. Cox, 752 F.2d at 747. He has also
declined to find that a prosecution was vindictive where new charges were
filed after the defense moved to dismiss the original charges. United
States v. Young, 955 F.2d 99, 108 (1st Cir. 1992) (desire to guarantee
that less controversial charges are preserved is legitimate and does not
raise presumption of vindictiveness).
Judge Breyer has shown a concern that defendants be afforded a full
opportunity to demonstrate just cause for revoking plea agreements. He
has written that the defendants should be given a full hearing on their
factual allegations unless those allegations are "inherently incredible."
United States v. Crooker, 729 F.2d 889, 891 (1st Cir. 1984). When writing
on the merits of defendants' claims, however, Judge Breyer has been less
willing to rule in their favor. He has written in several cases and he
has concluded consistently that the prosecution did not breached its plea
Habeas Corpus/28 U.S.C. Section 2255
Judge Breyer has written little addressing habeas corpus and its
federal statutory parallel, 28 U.S.C. Section 2255. On the merits of a
habeas claim, he has stood by the presumption of correctness of state
court findings of fact, in a case where the only evidence in the state
court record for the finding that a jury was not racially biased was the
jurors' own statements. Tavares v. Holbrook, 779 F.2d 1, 2 (1st Cir.
1985). At the same time, Judge Breyer also has shown some concern for the
circumstances and standards under which a claim for relief is considered.
Thus, for example, in one case he found a defendant's procedural default
waived by the state court's consideration of the merits. Doucette v.
Vose, 842 F.2d 538, 540 (1st Cir. 1988). In another case, he took into
account errors made by the trial court in determining what standard the
petitioner must meet to obtain federal court review. Hardy v. United
States, 691 F.2d 39, 42 (1st Cir. 1982) (Section 2255 proceeding; lesser
showing of cause and prejudice sufficient where sentencing court acted
beyond its authority).
Trial Court Conduct
Judge Breyer's opinions indicate that he has required a convincing
case to be made before he would find that an allegedly improper
instruction prejudiced the deliberations of the jury. Thus, for example,
Judge Breyer has declined to find prejudice w here an allegedly improper
instruction did not deal with the material issues for the jury. See
United States v. Doherty, 867 F.2d 47, 58 (1st Cir.), cert. denied, 492
U.S. 918 (1989); Doucette v. Vose, 842 F.2d 538, 542 (1st Cir. 1988). He
also has declined to reverse because of an improper instruction where he
concluded that the potential prejudice was cured by numerous proper
instructions on the same issue. See United States v. Glenn, 828 F.2d 855,
861 (1st Cir. 1987).
Judicial Comments At Trial
Judge Breyer has shown deference to the curative efforts of trial
courts in cases involving comments made by the judge in the course of the
trial. In United States v. Quesada-Bonilla, 952 F.2d 597 (1st Cir. 1991),
for example, defense counsel improperly stated a personal opinion,
telling the jury that he wished there had been film in a surveillance
camera at the bank which the defendant allegedly robbed. The judge
responded by saying, "Well, I am not that sure." 952 F.2d at 600. Judge
Breyer wrote the opinion for the court declining to reverse the
conviction. He found that the judge's comment was unfortunate, but did
not substantially affect the fairness of the trial, in part because the
trial judge had instructed the jury to ignore any comments he had made.
Id. at 600-01.
Bail and Pretrial Detention
In none of his written opinions did Judge Breyer conclude that a
lower court's decision to hold a defendant without bail should be
reversed. He has written opinions upholding determinations to deny bail
because no set of conditions upon release could guarantee the presence of
the defendant at trial,26 and because no set of conditions could guarantee
the safety of the community.27
Judge Breyer has also written opinions that had the effect of
expanding the availability of pretrial detention and limiting the ability
of the defendant to challenge such orders. His opinions have --
-- held that issues involving pretrial release became moot after
conviction, Vachon, 869 F.2d at 656,
-- allowed lower courts to use incompetent evidence, including
evidence which would be subject to the exclusionary rule, in bail
proceedings, Angiulo, 755 F.2d at 974,
-- read the Bail Reform Act to authorize the district court to
order a broad range of conditions upon pretrial release, including
electronic monitoring, United States v. Tortora, 922 F.2d 880, 894 (1st
Cir. 1990) (Breyer, J., concurring), and
-- rebuffed a due process attack against a provision of the Bail
Reform Act which creates a rebuttable presumption of flight for defendants
charged with drug offenses, Jessup, 757 F.2d at 385.
In United States v. Gendron, 18 F.3d 955 (1st Cir. 1994), Judge
Breyer wrote the court's opinion upholding, against an entrapment
challenge, a conviction for receipt of child pornography. He found that
the evidence was sufficient to support the jury 's determinations that the
defendant was not improperly induced by the government to receive the
pornography and that the defendant was predisposed to commit the crime.
His analysis linked the two prongs in the question he thought underlay the
issue before the court: "Was the defendant `predisposed' to respond
affirmatively to a proper, not to an improper lure?" 18 F.3d at 962.
In finding that the level of inducement was not improper, Judge
Breyer found it relevant that the government agents had not attempted to
entice the defendant by appealing to lawful motivations, such as free
speech, for purchasing the obscene material , and did not graduate the
offers from innocent appeals to more explicit descriptions. In finding
that the defendant was predisposed to commit the crime, Judge Breyer noted
that the defendant actively sought the pornography, and in his responses
to the government agents the defendant did not mention any other motive
than the desire to see child pornography. Id. at 964.
Judge Breyer was an original member of the U.S. Sentencing
Commission, and is reported to be one of the more staunch defenders of the
Sentencing Guidelines that were produced by the Commission. Judge Breyer
was one of three judges sitting on the Commission from 1985 to 1989, and
he was a vocal advocate of the Guidelines before Congress. The legal
community seems to view Judge Breyer as largely responsible for the final
structure and content of the sentencing guidelines, garnering him both
praise an d criticism.28
Articles and Public Statements
Judge Breyer has written and spoken widely about the Federal
Sentencing Guidelines. Many of his articles and lectures are explanatory,
instructing practitioners in the proper application of the guidelines,29
while other of his articles attempt to d e-politicize and defend both the
Commission's approach and the results.30
Judge Breyer has defended the Guidelines as offering more objective
and "better protection than the status quo" to criminal defendants.31 In
response to accusations that the Guidelines are too inflexible, he has
emphasized that judges may depart fro m the Guidelines as long as they
give clear written explanations.32 At the same time, Judge Breyer has
portrayed the Sentencing Guidelines as strict and conservative, but also
as more consistent and fair to defendants.33
Judge Breyer reportedly has noted favorably that the Guidelines would
send white collar criminals to jail more frequently and limit their
ability to get probation for significant crimes.34 He has stressed the
Commission's deliberate choice of some minimum standard of confinement
for white collar criminals, except in the "least serious cases," and he
has defended this choice by emphasizing the need for sentences of
"comparable severity" for white collar and blue collar crimes involving
the same amounts of money. He also has noted that a "short but definite
period of confinement may deter future crime more effectively than
sentences with no confinement."35
In congressional testimony, Judge Breyer has acknowledged the threat
of prison overcrowding, but he has insisted that the minimum sentencing
requirements found in the Guidelines would probably not increase prison
populations by more than 6% - 10%.36 To the degree he has acknowledged the
role of the Guidelines in potentially increasing prison populations, he
has pointed to the Commission's enabling statute, which instructs the
Commission to imprison three time offenders for lengthy periods.37
At the same time, Judge Breyer also reportedly has attacked mandatory
minimum sentencing statutes as random and ultimately ineffective because
prosecutors, judges and juries consistently ignore them if the minimum
sentence is perceived as unjust.38 He has noted that "long mandatory
sentences in the new drug law, as well as the `special offender'
provisions in the new sentencing statutes, will increase prison population
significantly. And, the problem is a serious one."39
Judge Breyer also has advocated exploring alternate forms of
punishment in order to expand sentencing options within the criminal
justice system.40 For instance, when asked on one occasion what steps the
Commission should take to improve the sentencing guideline system, he
responded, "to maintain a cost-effective system of punishment, it should
examine efforts to develop alternatives to traditional prison confinement,
such as `shock incarceration,'. . . detention centers with work release,
and other s."41
In his opinions, Judge Breyer has shown faith in both the Sentencing
Guidelines themselves and the ability of the district judges to apply them
fairly. In all of the opinions that Judge Breyer has written involving
the normal application of the Unit ed States Sentencing Guidelines, he has
affirmed the sentencing decisions of the district court judges, often
noting that those decisions should be granted deference and reviewed only
for plain error.42 Judge Breyer has shown similar respect for district
court decisions involving the question of whether to depart from the
Guidelines. In all but three of the opinions Judge Breyer has written on
this topic, he has affirmed the decisions of the district courts.43
In one case in which Judge Breyer did write an opinion remanding a
district court sentencing decision, United States v. Rivera, 994 F.2d 942
(1st Cir. 1993), he explained his views as to when departures from the
Guidelines are proper and when close scrutiny of district court opinions
is required. Judge Breyer first explained that the requirement in the
Guidelines that district courts explicitly state their reasons for any
sentence which departs from the applicable range, 18 U.S.C. Section
3742(f)(2) , is a necessary part of the partnership which he believes
gives the Guidelines procedure its vitality. 994 F.2d at 949-50.
District court judges first draw on their unique perspective to make
initial departure decisions and to provide the mandatory explanation. Id.
at 950. The appellate courts, in turn, state the reasons for their
decisions on review. Id. The Sentencing Commission then uses all of the
information in further development of the Guidelines. Id.
Judge Breyer indicated that appellate courts need to give plenary
review to a sentencing decision when the sentencing judge departs from the
Guidelines using reasons that are forbidden, or when the judge uses
discouraged factors and fails to explain why the circumstances are
extraordinary enough to justify using those factors. Id. at 951. Plenary
appellate review is also appropriate when a court must perform the
"quintessentially legal function" of interpreting the language of an
individual guideline to determine if a case falls outside the typical
cases considered by the Commission. Id.
Otherwise, Judge Breyer opined that appellate courts should review
sentencing decisions with great deference and respect. Id. at 952. The
sentencing decisions are based on the experience of the district court
judges, who are in a better position to appreciate all of the
circumstances presented by the case before them and who see more cases
that are treated in an ordinary manner under the Guidelines (and which
presumably the appellate courts never see on appeal). Id. at 951. For
these reasons, Judge Breyer asserted, the district courts have an
advantage over appellate courts in determining if particular circumstances
warrant departure, and therefore those judgments ordinarily should not be
second-guessed. Id. at 951-52.
DECISIONS UNDER 42 U.S.C. Section 1983
In Section 1983 cases where he has addressed the merits, Judge Breyer
has applied what appears to be an evenhanded approach that does favor
either plaintiffs or defendants. Judge Breyer has written opinions
upholding lower court decisions in favor o f plaintiffs alleging
discrimination by the government and claiming that prison authorities
failed to protect a prisoner.44 Judge Breyer also has upheld lower court
rulings in favor of defendants,45 and has reversed a lower court decision
denying summary judgment to a defendant who claim qualified immunity in a
Section 1983 case.46
As in other areas of the law, Judge Breyer has carefully limited
appellate review in Section 1983 cases to avoid what he sees as undue
interference with proceedings in inferior forums. In two Section 1983
cases, Judge Breyer wrote separately in order to consider "[w]hat set of
facts should an appellate court assume when it hears an interlocutory
appeal from a denial of summary judgment in a Section 1983 case." Bonitz
v. Fair, 804 F.2d 164 (Breyer, J. concurring); Unwin v. Campbell, 863 F.2d
124 (1s t Cir. 1988) (Breyer, J. dissenting). His analysis reflects an
unwillingness to reach out to decide fact questions on an interlocutory
appeal. His reasoning combines elements found elsewhere in his opinions:
(1) a careful analysis of the language of a Supreme Court precedent, see
Mitchell v. Forsyth, 472 U.S. 511 (1985), and (2) consideration of the
practical problems that appellate courts face in resolving certain
fact-intensive interlocutory appeals. Campbell, 863 F.2d at 138-41.
Judge Breyer's attention to procedure that cabins in judicial
authority at least until administrative agency authority and expertise had
been exercised is also demonstrated in Kercado-Melendez v. Aponte-Roque,
829 F.2d 255 (1st Cir. 1987), cert. denied, 486 U.S. 1044 (1988). There,
Judge Breyer, in dissent, argued that, under the doctrine of abstention,
the court should have overturned a jury verdict in favor of a Section 1983
plaintiff. The plaintiff was a tenured teacher who allegedly had been
discharged for her political views. Under Puerto Rico law, after
receiving the notice of discharge, plaintiff had the right to seek redress
in a state administrative hearing. Focusing on the details of the Puerto
Rico law, Judge Breyer concluded that the initial discharge and the
administrative review constituted a single proceeding with which the
federal courts should not interfere until the state administrative review
was completed. The majority disagreed, finding the discharge and the
review were separate proceedings.
Judge Breyer's decisions on immigration and asylum issues are very
limited. Their outcomes suggest a willingness to ensure that the
procedural protections of the statutes are upheld, without a similar
willingness to read broadly the substantive provisions of the immigration
and asylum laws.
In Ananeh-Firempong v. INS, 766 F.2d 621 (1st Cir. 1985), for
instance, Judge Breyer, writing for the court, held that the Attorney
General abused his discretion in failing to reopen deportation proceedings
so that petitioner could argue her claim for withholding of deportation
pursuant to the Immigration and Nationality Act, Section 243(h). The
petitioner submitted her own affidavit, an affidavit from an academic
expert on African politics, and several magazine and newspaper articles to
help prove "the house arrest of [petitioner's] parents, the beating of her
nephew, the seizure of the family's bank account, the persecution of [her]
tribe, social class, and political persuasion." Id. at 622, 626.
Although he recognized the "need to require an alien who seeks Section
243(h) relief to offer reasonably specific information showing a real
threat of individual persecution," Judge Breyer concluded that the facts
alleged were sufficient to make out a prima facie Section 243(h) case.
Id. at 627.
At the same time, in Novoa-Umania v. INS, 896 F.2d 1 (1st Cir. 1990),
Judge Breyer, again writing for the court, held that the INS could
properly deny a request for asylum under Section 211(a) of the Immigration
and Nationality Act where an alien had shown no more than general unrest
in his country of origin. Judge Breyer observed:
The government does not, and could not, claim
that petitioner's deportation lacks risks of
hardship, injury, even death. But neither can
we say that Congress has granted asylum to all
those in El Salvador who currently undergo
the hardships that civil war has imposed upon
them. Rather, Congress has limited its grant
of asylum to those who show a "well-founded
fear" of persecution for certain specified
reasons, such as "political opinion."
Id. at 5.
ACCESS TO JUSTICE
While a number of Judge Breyer's opinions reflect a general sympathy
with protecting access, he has also expressed a concern for conserving
judicial resources. This latter concern appears to animate many of Judge
Breyer's decisions in this area in which he has addressed doctrines such
as ripeness, mootness, exhaustion, abstention, and immunity.
In a published 1990 lecture, Judge Breyer discussed various proposals
for dealing with the growth in federal appellate case loads.47 Judge
Breyer opposed several common reform proposals that would tend to
constrict litigants' access to federal court s, including the abolition of
diversity jurisdiction and the removal of certain categories of
litigation, such as Social Security cases, from the federal courts. Judge
Breyer also considered and rejected increased "tracking" of cases,
including a "leave to appeal" system like that used in England, and
concluded that the similar practice of staff attorneys screening cases was
already being used to its maximum potential. But see infra pp. 70-71
(discussion in same lecture of some form of "loser pays" fee-shifting).48
Judge Breyer generally has found plaintiffs to have satisfied
standing requirements49, sometimes distinguishing less permissive Supreme
Court case law in doing so. In Sierra Club v. Marsh, 872 F.2d 497 (1st
Cir. 1989), for instance, the Sierra Club sought to enjoin Maine from
proceeding with a construction project for failure to perform an adequate
environmental impact study. The district court declined to enjoin the
project, relying on Amoco Production Co. v. Village of Gambell, 480 U.S.
531 (1987 ), which held (under an analogous environmental statute) that
such an injunction could issue only to prevent environmental injury, and
that it was inappropriate to presume that the plaintiff could assert
standing based on such an injury solely because a statutory procedure was
not followed. Judge Breyer's opinion held that the district judge should
have considered the merits of the plaintiff's claim of a risk of
environmental harm arising from decisionmakers' failure to assess
environmental impact as required by NEPA. 872 F.2d at 503-05.50
Judge Breyer has written two decisions on personal jurisdiction. One
was a potentially significant decision that, had it not later been
reversed by the Supreme Court, would have limited the exposure of
publishers to libel actions.51 In Keeton v. Hustler Magazine, 682 F.2d
33, 34-36 (1st Cir. 1982) rev'd, 465 U.S. 770, 775 (1984), the plaintiff
sued Hustler magazine for libel in New Hampshire (because that was the
only state in which the statute of limitations had not yet run). Judge
Breyer found personal jurisdiction lacking on due-process grounds, based
on: (1) defendant's minimal contacts with the state (because New
Hampshire had only one percent of total circulation of Hustler magazine);
(2) plaintiff's minimal contacts with the state; (3) New Hampshire's
minimal interest in the litigation; and (4) the fact that most of the
damages claimed arose outside New Hampshire. 682 F.2d at 34-36. The
Supreme Court reversed and reinstated the complaint, disagreeing with
Judge Breyer's analysis on a variety of grounds.52
Each of Judge Breyer's four opinions dealing with mootness found the
claim or issue before the court to be moot.53 In Beacon Products. Corp. v.
Reagan, 814 F.2d 1 (1st Cir. 1987), Judge Breyer's opinion held moot the
issue of severability certain provisions of the National Emergency Act
(NEA)54, because while appeal was pending Congress cured the
constitutional defects in the NEA and the President again declared a
national emergency. 814 F.2d at 3-4. Similarly, in Berkshire Cablevision
of Rhode Island, Inc. v. Burke, 773 F.2d 382 (1st Cir. 1985), a First
Amendment challenge to Rhode Island's public access requirements for cable
franchisees, Judge Breyer, writing for the court, held that the case was
moot because the franchise had been awarded to another applicant who did
not object to the public access requirements. 773 F.2d at 384-85.
Judge Breyer's concurring opinion in Allende v. Shultz, 845 F.2d 1111
(1st Cir. 1988), is noteworthy because it departed from the majority's
view on mootness. The case involved the denial of a tourist visa to the
widow of the former Chilean president. Relying on Section 27 of the
Immigration and Nationality Act of 1952, the State Department asserted
that Ms. Allende could be excluded on the ground that she was likely to
engage in activities prejudicial to the foreign policy interests of the
United States. Although the State Department did issue Ms. Allende a visa
while her case was pending, the majority held that her case was not moot
because the underlying policy of the State Department with respect to
issuance of visas had not changed. Id. at 1115 n.7.
Judge Breyer, in a separate concurrence, argued that the action no
longer presented a "case or controversy" because (1) the plaintiff had
received her visa, (2) the State Department had stated that similar
applications "presumably" would be approved in the future, and (3) the law
had been changed to prohibit denial of a visa on the basis of an
applicant's constitutionally-protected beliefs and associations.55 Judge
Breyer also would have concluded that the case was moot as a prudential
matter because it was uncertain whether the State Department would resume
the challenged practices. Id.
Judicial Review of Agency Action
Judge Breyer seems inclined to provide agencies with as much room as
possible as a procedural matter to reach decisions without what he sees as
premature action by the judiciary. He has consistently opposed judicial
review of questions that might st ill be subject to agency action and
possible resolution. He has stressed the need for a "workable allocation"
of business between courts and agencies, Distrigas of Massachusetts v.
Boston Gas Co., 693 F.2d, 1113, 1118 (1st Cir. 1983), and respect for
agency expertise and agencies' ability to correct their own mistakes,
Ezratty v. Puerto Rico, 648 F.2d at 770, 774 (1st Cir. 1981). In reaching
this result, he has relied on various legal doctrines including
ripeness56, primary jurisdiction57, exhaustion58, and abstention.59
Private Rights of Action
Judge Breyer has only once held that a statute created an implied
private right of action. He reached that result by apparently
uncontroversial application of controlling Supreme Court precedent. See
Interface Group, Inc. v. Massachusetts Port Auth ority, 816 F.2d 9, 16
(1st Cir. 1987). Judge Breyer has indicated in several decisions that he
would avoid implying a private right of action under a federal statute in
any case where the Administrative Procedure Act provides a vehicle for
judicial revie w of agency action pursuant to that statute. NAACP v.
Secretary of HUD, 817 F.2d 149, 152 (1st Cir. 1987); see also Cousins v.
Secretary of Transportation, 880 F.2d 603 (1st Cir. 1989) (en banc);
Munoz-Mendoza v. Pierce, 711 F.2d 421, 429 (1st Cir. 1983) .60
Attorney's Fees and Sanctions
Judge Breyer appears favorably disposed to awarding attorney's fees
in civil rights cases. In most cases, Judge Breyer has affirmed the lower
court's determination on fees in the face of challenges to the fact or
size of an award.61
On two occasions, moreover, he has written opinions reversing orders
declining to grant fees, on the ground that the trial court had
interpreted too narrowly the "prevailing party" requirement of the Civil
Rights Attorney's Fees Awards Act. In Coalition for Basic Human Needs v.
King, 691 F.2d 597 (1st Cir. 1982) Judge Breyer concluded that plaintiffs
who had obtained an injunction requiring Massachusetts to resume AFDC
payments were "prevailing parties" entitled to attorney's fees even though
the st ate passed a budget that mooted the case before the injunction took
effect. And in Aubin v. Fudala, 782 F.2d 287, 291 (1st Cir. 1986), he
decided that the plaintiff was entitled to "significant fees when he has
won a partial victory on a civil rights claim while receiving
substantially the relief there sought, though the jury awards it on a
factually or legally related pendent state claim." See also Guglietti v.
HHS, 900 F.2d 397, 405 (1st Cir. 1990) (Breyer, J., dissenting) (discussed
infra p. 80).
In his 1990 lecture on federal appellate case loads, see supra p. 64,
Judge Breyer did suggest that Congress consider adopting some version of a
"loser pays" fee shifting system that would reduce incentives to commence
or to prolong litigation. Judge Breyer did not advocate any specific fee
shifting system, and cautioned that any such system should be "carefully
tailored" to ensure, inter alia, that litigants with limited funds not be
unduly deterred from seeking relief in the courts.62
Judge Breyer also has tended to defer to the lower courts in cases
involving sanctions. In four cases, he affirmed relatively severe
sanctions.63 But he also affirmed a reprimand-only sanction while
intimating that a stronger sanction could also have been "appropriate"
under Rule 11. Unanue-Casal v. Unanue-Casal, 898 F.2d 839, 842-43 (1st
Statute of Limitations
Judge Breyer showed less concern for ensuring access in his one
statute of limitations decision. In Lopez v. Citibank, N.A., 808 F.2d 905
(1st Cir. 1987), Judge Breyer wrote the court's opinion affirming the
district court's refusal to toll the statute of limitations in a Title
VII suit because of the mental incapacity of the plaintiff. Judge Breyer
held that because the plaintiff was represented by counsel before the
onset of his mental illness, his failure to file a timely complaint would
not be excused.
Judge Breyer wrote several opinions dealing with the qualified
immunity of Puerto Rico officials from damages in the spate of political
firing cases following a change in local government in 1985.64 These
opinions rely heavily on the facts about the particular job at issue, and
are written narrowly to emphasize the distinction between the qualified
immunity standard for damages and the lower standard for injunctive
relief.65 In several cases, Judge Breyer found qualified immunity where
the position "potentially concerned matters of partisan political interest
and involved at least a modicum of policy making responsibility, access to
confidential information, or official communication." Mendez-Palou v.
Rohena-Betancourt, 813 F.2d 1255, 1259 (1st Cir. 1987).66 In other cases,
Judge Breyer rejected claims of qualified immunity where the position was
"purely technical" and did not "even potentially concern matters of
partisan political interest." Hernandez-Tirado v. Artau, 835 F.2d 377,
378 (1st Cir. 1987) (internal citations omitted) (horse racing sport
administrator); see also Figueroa-Rodriguez, 878 F.2d at 1485-86 (denying
summary judgment as to qualified immunity of assistant chief of supply
division of electric power authority).
In the context of prison officials accused of deliberate indifference
to the safety of a prisoner, Judge Breyer rejected qualified immunity
where the law as to the Eighth Amendment violation was well-established,
and officials had actual notice of unconstitutional conditions through
prior court decree. Cortes-Quinones v. Jimenez-Nettleship, 842 F.2d 556
(1st Cir.), cert. denied, 488 U.S. 823 (1988).
Judge Breyer has construed federal sovereign immunity relatively
broadly in the few opinions he has written on the subject. In Mercado del
Valle v. United States, 856 F.2d 406 (1st Cir. 1988), Judge Breyer
affirmed the dismissal of a complaint under the Federal Tort Claims Act on
the ground that the Air Force ROTC's decision on how to supervise an
unofficial student group was a policy choice falling within the FTCA's
discretionary function exception. In Maine v. Department of Navy, 973
F.2d 1007, 1011 (1st Cir. 1992), in which Maine attempted to impose
punitive fines and fees on the Navy for violations of state hazardous
waste law, Judge Breyer rejected Maine's contention that a waiver of
federal immunity from such state civil penalties could be implied from
federal environmental statutes.
In a similar vein, although in apparently non-controversial contexts,
Judge Breyer held that state action immunity precluded a Sherman Act suit
against the Massachusetts Port Authority, Interface Group, Inc. v.
Massachusetts Port Authority, 816 F.2d 9 (1st Cir. 1987), and against the
town of Methuen, Fisichelli v. Town of Methuen, 956 F.2d 12 (1st Cir.
On the other hand, Judge Breyer held that the Eleventh Amendment did
not bar a suit against the Puerto Rico Ports Authority (PRPA) because
PRPA, "in operating and maintaining the San Juan docks, is not an 'arm' of
the Commonwealth government." Royal Caribbean Corp. v. Puerto Rico Ports
Authority, 973 F.2d 8, 9 (1st Cir. 1992). Judge Breyer also wrote the
opinion for the court holding that the federal government may not immunize
an employee under the Westfall Act, which provides for federal employee
immunity from tort suits arising out of acts within the scope of
employment, simply by denying plaintiff's allegations, but instead must
certify that the alleged incident fell within the scope of employment.
Wood v. United States, 995 F.2d 1122 (1st Cir . 1993) (en banc).
Reviewing Agency Decisionmaking
Although in his published writings Judge Breyer has recognized the
importance of the judicial function in scrutinizing the decisionmaking
processes of administrative agencies, he has defined the challenge of the
administrative state as one of controlling the process of agency
decisionmaking rather than questioning the substance or philosophy of New
Deal programs.67 He has said that court procedures and judicial review are
likely to help when society is concerned with fairness of outcome but not
when society is "vitally interested in the accuracy of the result."68
"[P]articularly where legislative facts are involved, one must be less
sanguine about the usefulness of legalistic procedures."69
Judge Breyer has taken a different tack than most in articulating the
proper standard for review of agency decisions interpreting their
statutory mandates under Chevron, USA v. Natural Resources Defense
Council, 467 U.S. 837 (1984). According to the common view of Chevron,70
if the statutory provision in question is either silent as to the question
at issue or ambiguous, a reviewing court is to defer to any reasonable
interpretation of the statute. 467 U.S. at 842. If the statute speaks to
the issue and there is no ambiguity, the court is to apply the statute's
plain meaning, even if this means striking down an agency interpretation.
Id. at 843-45.
Judge Breyer has characterized this focus on statutory silence and
ambiguity as simplistic and "seriously overbroad,"71 and as taking the
Chevron decision too literally.72 According to Judge Breyer, a reviewing
court should determine whether the statutory provision at issue is
central to the overall statutory scheme. If it is not, then deference to
the agency's interpretation is appropriate because the question of law is
tied to the everyday administration of the statute.73
If, however, the provision is central to the statutory scheme, he has
indicated that the agency is not entitled to deference, because
interpretation of these crucial provisions is "primarily [a] judicial, not
[an] administrative" function. Mayburg v. Secretary of HHS, 740 F.2d
100, 107 (1st Cir. 1984). In such cases, Judge Breyer has been willing to
strike down an administrative interpretation if it ran contrary to his
reading of the statute. Id. (holding invalid HHS' interpretation of
"spell of illness" limitation in Medicare Act to deny Medicare benefits
to nursing home residents who were receiving only custodial care).
In one decision, Judge Breyer appears to have given serious attention
to protecting the limits imposed on federal judicial authority by concepts
of federalism. In Piper v. Supreme Court of New Hampshire, 723 F.2d 110
(1st Cir. 1983) (en banc), aff'd 470 U.S. 274 (1985), the First Circuit
affirmed by an equally divided vote the district court's holding that New
Hampshire's residency requirement for admission to the State Bar violated
the Privileges and Immunities clause of the Constitution. Judge Breyer
would have reversed the district court.74 He found that principles of
federalism require giving weight to the right of each state court to set
bar standards. Id. at 118. Justice Rehnquist reasoned along similar
lines in his dissent when the case r eached the Supreme Court. See
Supreme Court of New Hampshire v. Piper, 470 U.S. 274, 289 (1985).
In two cases in which he wrote, Judge Breyer addressed the
interpretation and application of consent orders and the degree of
flexibility that the court's have in overseeing their implementation. In
one case, he turned aside an effort to read the consent order to permit
the government to do less; in the other, he turned aside an effort to
require the government to do more. In each, he stated that the courts and
the parties were bound to do no more and no less than the language of the
underlying order required.
In Inmates of the Suffolk County Jail v. Kearney, 928 F.2d 33 (1st
Cir. 1991), Judge Breyer rejected government assertions that a consent
decree on prison conditions should be interpreted flexibly to allow
efficient prison management and that federal courts should not interfere
with the "daily management of state prisons and jails." Instead, he held
the government to the clear language of the decree. Id. at 35.
On the other hand, Judge Breyer wrote for the court in overturning an
order of the district court requiring Massachusetts to develop and pay for
a program of legal assistance for mentally ill and retarded people.
Brewster v. Dukakis, 687 F.2d 495 (1 st Cir. 1982). Judge Breyer's
analysis turned on the interpretation of a consent decree under which
Massachusetts agreed to provide a "less restrictive" system of mental
health care. He found no basis in the language, structure and purpose of
the decree for finding "a grant by the parties to the court of the power
to order the Commonwealth, over its objection, to pay for a general legal
services program in Western Massachusetts to represent mentally ill and
retarded persons on all issues related to their disabilities." 687 F.2d
at 500; see id. at 497-500. He distinguished precedent relating to a
court's general "equitable" powers to cure violations of constitutional
violations on the ground that "there has been no finding of any such
violation." Id. at 501.
Judge Breyer Derives Statutory Meaning from
Language, Context, and Purpose.
As determined from his written opinions, Judge Breyer's philosophy of
statutory construction can best be described as "rest[ing] primarily upon
the language of the statute as read in the context of its structure and in
light of its purposes." Evans v. Commissioner, Maine Dep't of Human
Svcs., 933 F.2d 1, 5 (1st Cir. 1991). His decisions suggest that in
interpreting statutory language, he is as interested in the purpose and
context of statutory language as he is in the asserted "plain meaning" of
the words. Indeed, he looks at context and purpose even in interpreting
statutory language that is not obviously ambiguous.
Judge Breyer has acknowledged that "the starting point in statutory
interpretation is `the language [of the statute] itself.'" Irons v. FBI,
880 F.2d 1446, 1449 (1st Cir. 1989) (quoting Blue Chip Stamps v. Manor
Drug Stores, 421 U.S. 723, 756 (1975) ). However, he consistently has
turned to the overall statutory scheme, to legislative history, and to
precedent to provide an informed reading of particular language in light
of the statute's basic purpose.75 He has sought to avoid statutory
anomalies, 76 to weigh administrative burden,77 and, most important, to
effectuate congressional intent.
Judge Breyer's Method for Establishing a
Statute's Plain Meaning
Judge Breyer frequently has begun with common sense and dictionary
definitions to ascertain the meaning of particular words. Nevertheless,
he generally has not concluded his analysis without examining the
statute's purpose and history as well.
Common Usage and Natural Meaning
Judge Breyer typically has attempted to construe words to have their
common sense, or "natural" meanings, unless the context makes it clear
that the word or phrase is a term of art. Thus, in examining the meaning
of the term "intimidate" in a statute involving the criminal use of
explosives, he looked at dictionary definitions to arrive at the
"plausible common modern legal usage." United States v. Norton, 808 F.2d
908, 910 (1st Cir. 1987). Similarly, in interpreting the words "domestic
sewage" as used in an environmental context, he first turned to Webster's
for the "ordinary English" meaning. Comite Pro Rescate De La Salud v.
Puerto Rico Aqueduct & Sewer Auth., 888 F.2d 180, 184 (1st Cir. 1989).
Importance of Context
Judge Breyer generally has not stopped with the "ordinary meaning" of
statutory language, but also has examined a statute's history and purpose
in order to confirm that its language should be taken literally. His
opinion in St. Luke's Hospital v. Secretary of HHS, 810 F.2d 325 (1st
Cir. 1987), is aptly summarizes this approach:
First, we simply read the statute to mean what
it says; we interpret the language literally,
and we find no initial ambiguity.
Furthermore, our detailed analysis convinces
us that our initial, literal reading is also
consistent with the statute's history and
810 F.2d at 331.78 Only after undertaking this analysis has he given
"effect to the language of the statute as it is written." Ciampa v.
Secretary of HHS, 687 F.2d 518, 526 (1st Cir. 1982).
Judge Breyer, in applying this context-based approach, has been
mindful that "a clever and literal reading of a statute may go directly
counter to everything Congress intended." Dickenson v. Petit, 692 F.2d
177, 180 (1st Cir. 1982). In that instance, he thus rejected plaintiffs'
interpretation of language determining how income is treated under certain
AFDC provisions because their argument was "linguistic" and because "[i]n
the face of hostile legislative history and administrative interpretation
they are unable to muster convincing policy reasons in support of their
interpretation." 692 F.2d at 181-82. Judge Breyer has also avoided a
strict statutory interpretation if "it would require courts to make the
very finest of political judgments about possibilities and effects --
judgments well beyond their capacities." Latino Political Action Comm. v.
City of Boston, 784 F.2d 409, 412 (1st Cir. 1986).
In the same vein, Judge Breyer has been willing to expand language
beyond its literal meaning if doing so achieves a more logical result.
For example, in Guglietti v. Secretary of HHS, 900 F.2d 397, 405 (1st Cir.
1990) (Breyer, J., dissenting), Judge Breyer was willing to award to
treat as a "prevailing party" a social security disability claimant who
would have prevailed as to her claim of wrongful termination of benefits,
but for the fact that Congress enacted legislation that gave her the
relief she sought while her claim was pending. In interpreting the
meaning of the phrase "prevailing party," Judge Breyer thought that
"circumstances" peculiar to this action "ma[d]e it proper, as a matter of
ordinary English usage, as well as a matter of law, to say that the
claimant `prevailed' in her legal action."
Judge Breyer's Sources for Establishing
Judge Breyer has viewed Congressional intent, or statutory purpose,
as the wellspring from which statutory meaning flows. Judge Breyer has
started by reading a statute as a whole, and has analyzed the meaning of
one section in light of other provisions. See, e.g., Wood v. United
States, 995 F.2d 1122, 1125 (1st Cir. 1993) ("surrounding statutory
provisions support our natural reading of the provision's language"). He
is willing, however, to disregard a section that conflicts with the
interpretation he believes matches congressional intent most closely. For
example, in concluding that the National Labor Relations Act did not
forbid state agencies from entering into pre-hire agreements, Judge Breyer
conceded that the key "exceptions" provision uses the word "employer,"
which a different provision defines as excluding States. "That fact,
however, does not destroy the relevance of the exceptions as an indication
of Congress's preemptive intent." Associated Builders v. Massachusetts
Water Res. Auth., 935 F.2d 345, 360 (1st Cir. 1991) (Breyer, J.,
In determining congressional intent or statutory purpose, Judge
Breyer has relied upon legislative history. Indeed, it would be difficult
to find an instance in which he did not turn to a statute's legislative
history in order to illuminate its language in his effort to interpret
the language according to the statute's overall purpose.
He has, moreover, drawn upon a wide variety of sources to establish
the important elements of the statutory purpose. He has examined the
evolution of bills into finished statutes, comparing iterations of various
sections. Associated Builders v. Massachusetts Water Res. Auth., 935
F.2d 345, 360 (1st Cir. 1991) (Breyer, J., dissenting). He has drawn upon
statements by sponsors and other individual legislators,79 hearing
testimony, legislative reports,80 and the language of predecessor
statutes.81 ( He seems to agree, however, that courts should not look to
post-enactment congressional activity or statements.82)
When faced with silence in the statute and insufficient legislative
history to discern a statutory purpose, Judge Breyer has fallen back on
general canons of construction. Even here, however, he has endeavored to
evaluate the reasonableness of the conclusions to which the canons of
construction lead him against the backdrop of a statute's underlying
For example, in United States v. Angiulo, 744 F.2d 969, (1st Cir.
1985), the question was whether the new Bail Reform Act should apply
"retroactively" to persons already in custody on the date it became
effective. While he used canons of construction to conclude that the
statute should apply to those in custody, he also noted that, given the
Act's purposes, he found it "difficult to see why Congress would not want
the new law to apply to those incarcerated at the time it was enacted."
744 F.2d at 9 71.
1 See, e.g., Gaztambide-Barbosa v. Torres-Gaztambide, 902 F.2d 112 (1990);
Caro v. Aponte-Roque, 878 F.2d 1 (1989); Hernandez-Tirado v. Artau, 874
F.2d 866 (1989); Figueroa-Rodriguez v. Lopez-Rivera, 878 F.2d 1478 (1989).
See also McGurrin Ehrhard v. Connolly, 867 F.2d 92 (1989) (director of
Western Massachusetts office of Sec. of State fired for allegedly
2 For a decision by Judge Breyer addressing the role of political
affiliation in employment from a different angle, see Estrada-Adorno v.
Gonzalez, 861 F.2d 304 (1st Cir. 1988) (reversing the lower court's denial
of a motion for summary judgment based on qualified immunity, on the
ground that "we can find no clearly established federal right not to be
dismissed for refusing to use political affiliation as a condition for
hiring Bank employees").
3 In November of 1979, President Carter responded to the taking of
American hostages in Iran by freezing Iranian assets subject to U.S.
jurisdiction. To carry out this order, the Treasury Department
promulgated regulations that prohibited injunctions, attachments,
judgments, or other relief against Iranian property, absent a license or
authorization from the Department. In 1981, Iran and the United States
agreed to the release of the hostages in exchange for release of the
frozen assets, termination o f all litigation between each government and
the nationals of the other, and submission of all such claims to binding
arbitration under the auspices of the Iran-United States Claims Tribunal.
The President then revoked all licenses to proceed against the blocked
Iranian assets, "suspended" all claims against Iranian defendants that
might be presented to the Claims Tribunal, and ordered transfer of the
blocked assets to the Federal Reserve Bank of New York for ultimate
transfer to Iran or to the Claims Tribunal's security fund. 651 F.2d at
4 In a 5-4 decision, the United States Supreme Court reversed the First
Circuit's decision in this case. Regan v. Wald, 468 U.S. 222 (1984). The
majority opinion, written by Chief Justice Rehnquist, rested its decision
on the language of a "grandfather " clause in the IEEPA, and concluded
that neither the legislative history of, nor the congressional purpose
for, the IEEPA supported the lower court's reading of the statute. 468
U.S. at 232.
See also Allende v. Shultz, 845 F.2d 1111 (1st Cir. 1988) (denial of
visa violated First Amendment because the alleged harm to U.S. foreign
policy flowed from the content of the speeches that the applicant was
expected to make in this country; Judge Breyer concurred, joining
explicitly in the court's opinion on this issue) (Allende also discussed
infra pp. 67-68).
5 See also Alexander v. Trustees of Boston University, 766 F.2d 630 (1st.
Cir. 1985), discussed supra pp. 14-15.
6 See Ristaino v. Ross, 424 U.S. 589, 597 (1976) (right to individually
question jurors on possible racial prejudice only when explicit racial
issues are "inextricably bound up with the conduct of the trial").
7 In one case worth noting despite the fact that Judge Breyer did not
write an opinion in it, he joined in the majority opinion in Massachusetts
v. Secretary of HHS, 899 F.2d 53 (1st Cir. 1990) (en banc), vacated sub
nom. Sullivan v. Massachusetts, 500 U .S. 949 (1991), which held that the
gag rule regulations preventing abortion counseling in programs funded
under Title X were unconstitutional because they were "a significant
obstacle to a Title X client's decision to terminate her pregnancy." 899
F.2d a t 65. The court also found that the regulations violated the First
Amendment. Id. at 72. The United States Supreme Court rejected the First
Circuit's position on this issue in Rust v. Sullivan, 500 U.S. 173 (1991).
8 But see Lopez v. Citibank, N.A., 808 F.2d 905 (1st Cir. 1987), discussed
infra p. 71.
9 But see Archibald v. Mosel, 677 F.2d 5 (1st Cir. 1982) (Breyer, J.)
(warrantless search of home constitutional because of exigent
10 Judge Breyer's Irizarry dissent mirrors the dissenting opinions by
Justices Powell and O'Connor in Arizona v. Hicks, 480 U.S. 321 (1987), a
case involving similar facts and issues.
11 Cf. Davis v. United States, 62 U.S.L.W. 4587 (U.S. June 24, 1994)
(after waiving right to counsel, defendant must make clear statement
invoking right before police must suspend questioning; equivocal statement
12 See also United States v. Ferrer-Cruz, 899 F.2d 135 (1st Cir. 1990)
(upholding validity of waiver of Miranda rights); United States v.
Abou-Saada, 785 F.2d 1 (1st Cir. 1986) (same).
13 See also McCown v. Callahan, 726 F.2d 1 (1st Cir. 1984) (upholding the
district court's conclusion that Miranda did not apply because the
defendant was not in custody); United States v. Timpani, 665 F.2d 1 (1st
Cir. 1981) (concluding that Miranda does not apply because the defendant
was neither arrested nor interrogated).
14 See, e.g., United States v. Porter, 924 F.2d 395 (1st Cir. 1991)
(claimed deficiencies in counsel's performance determined to have been
reasonable exercises of judgment); United States v. Levy, 870 F.2d 37 (1st
Cir. 1989) (rejecting claim of ineffective assistance of counsel where
counsel failed to raise meritless claims); United States v. Victoria, 876
F.2d 1009 (1st Cir. 1989) (same); Doucette v. Vose, 842 F.2d 538 (1st Cir.
1988) (refusing to second guess attorney's tactical strategy); Guaraldi v.
Cunningham, 819 F.2d 15 (1st Cir. 1987) (concluding that none of the
alleged "foregone strategies" supported claim that dual representation
adversely affected attorney's performance); see also United States v.
Hensel, 699 F.2d 18 (1st Cir.), cert. denied, 461 U.S. 958 (1983)
(applying Supreme Court precedent regarding the right to counsel at
identification sessions and concluding that no harm resulted from
counsel's absence where the identification was accidental).
15 See also Guaraldi v. Cunningham, 819 F.2d 15 (1st Cir. 1987)
(defendant's right to compulsory process not violated where state could
not locate witness and defendant failed to show how failure to obtain
testimony from witness prejudiced his case).
16 See United States v. Young, 955 F.2d 99, 102-04 (1st Cir. 1992); United
States v. Gomez-Ruiz, 931 F.2d 977, 978-79 (1st Cir. 1991); United States
v. Donlon, 909 F.2d 650, 655-56 (1st Cir. 1990); United States v.
Maravilla, 907 F.2d 216, 218-19 (1st Cir. 1990), cert. denied, 112 S. Ct.
1960 (1992); United States v. Ferrer-Cruz, 899 F.2d 135, 136-37 (1st Cir.
1990); United States v. Victoria, 876 F.2d 1009, 1011-12 (1st Cir. 1989);
United States v. Vachon, 869 F.2d 653, 657 (1st Cir. 1983); United State s
v. Buckalew, 859 F.2d 1052, 1053-54 (1st Cir. 1988); United States v.
Rubio-Estrada, 857 F.2d 845, 850-51 (1st Cir. 1988); United States v.
Robinson, 843 F.2d 1, 8-10 (1st Cir.), cert. denied, 488 U.S. 834 (1988);
United States v. Lau, 828 F.2d 871, 872-73 (1st Cir. 1987), cert. denied,
486 U.S. 1005 (1988); United States v. Anello, 765 F.2d 253, 261-63 (1st
Cir.), cert. denied, 474 U.S. 996 (1985); United States v. Butler, 763
F.2d 11, 15 (1st Cir. 1985); United States v. Ferrera, 746 F.2d 908, 910
(1s t Cir. 1984); United States v. O'Connell, 703 F.2d 645, 647-48 (1st
Cir. 1983); United States v. Hensel, 699 F.2d 18, 33 (1st Cir.), cert.
denied, 461 U.S. 958 (1983); United States v. Cordero, 668 F.2d 32, 38-43
(1st Cir. 1982); United States v. Attick, 649 F.2d 61, 64-66 (1st Cir.),
cert. denied, 454 U.S. 861 (1981).
17 Compare United States v. Moore, 923 F.2d 910, 916 (1st Cir. 1991)
("[w]hether some sort of potential prejudice outweighed [the testimony's]
usefulness in this respect is a matter for the district court, not this
court"), and United States v. Vachon, 8 69 F.2d 653, 657 (1st Cir. 1989)
("We are not certain whether [the statements] were significantly
prejudicial. But, in any event, it is up to the trial court, not this
court, to weigh probative value against prejudicial effect.") with United
States v. Maravilla, 907 F.2d 216, 220-23 (1st Cir. 1990) (examining the
record closely to determine whether trial court correctly balanced
probative value against prejudicial effect), cert. denied, 112 S. Ct. 1960
(1992), and United States v. Mazza, 792 F.2d 1210, 1 215-22 (1st Cir.
1986) (finding upon close examination that trial court's incorrect
balancing was harmless error), cert. denied, 479 U.S. 1086 (1987).
18 See, e.g., United States v. Malik, 928 F.2d 17, 22-23 (1st Cir. 1991);
United States v. Maravilla, 907 F.2d 216, 222 (1st Cir. 1990), cert.
denied, 112 S. Ct. 1960 (1992); United States v. Ferrer-Cruz, 899 F.2d
135, 137-39 (1st Cir. 1990); United States v. Rubio-Estrada, 857 F.2d
845, 846-49 (1st Cir. 1988); United States v. Simon, 842 F.2d 552, 553-54
(1st Cir. 1988); United States v. Lau, 828 F.2d 871, 873-74 (1st Cir.
1987), cert. denied, 486 U.S. 1005 (1988); United States v. Mazza, 792
F.2d 1210, 1223 (1st Cir. 1986), cert. denied, 479 U.S. 1086 (1987);
United States v. Ferrera, 746 F.2d 908, 912 (1st Cir. 1984).
19 See United States v. Gendron, 18 F.3d 955, 969 (1st Cir. 1994)
(misidentification of child pornography tape as involving "rape" did not
have greater effect on jury than tape itself); United States v. Cox, 752
F.2d 741, 746 (1st Cir. 1985) (prosecutor violated Griffin v. California
by commenting on defendant's failure to testify, but evidence against
defendant was overwhelming); United States v. Gallagher, 735 F.2d 641,
644 (1st Cir. 1984) (speech suggesting jury had duty to stop "tip of the
iceberg" of organized crime ring not prejudicial where evidence was
strong); Capone, 683 F.2d at 587.
20 United States v. Quesada-Bonilla, 952 F.2d 597, 602 (1st Cir. 1991).
21 United States v. Cox, 752 F.2d 741, 746 (1st Cir. 1985).
22 Gallagher, 735 F.2d at 644.
23 United States v. Victoria, 876 F.2d 1009, 1012 (1st Cir. 1989).
24 See United States v. Reyes, 926 F.2d 96, 98 (1st Cir. 1991) (failure to
disclose evidence of additional meetings between defendant and
confidential informant not material, where evidence contained both
inculpatory and exculpatory elements); Lau, 828 F .2d at 877 (failure to
disclose tapes of defendant speaking with federal agents not material,
where defense could not demonstrate that evidence would be admissible).
25 See United States v. Oyegbola, 961 F.2d 11, 14-15 (1st Cir. 1992) (no
breach where government misestimated Guideline range; agreement did not
mention any duty in case of mistake); United States v. Maling, 942 F.2d
808, 811 (1st Cir. 1991) (no breach o f agreement not to recommend fine
where prosecution had remained silent on this point); United States v.
Doherty, 867 F.2d 47, 72 (1st Cir.), cert. denied, 492 U.S. 918 (1989) (no
breach of agreement where government recommended sentence in brief but not
26 United States v. Vachon, 869 F.2d 653, 656 (1st Cir. 1989); United
States v. Jessup, 757 F.2d 378, 389 (1st Cir. 1985).
27 United States v. Angiulo, 755 F.2d 969, 974 (1st Cir. 1985).
28 See Naftali Bendavid, "Judicial Traitor or Consensus Builder?," Legal
Times, May 16, 1994, p. 7.
29 See, e.g. Stephen G. Breyer and Kenneth R. Feinberg, Federal Sentencing
Guidelines: A Dialogue 26 Crim. Law Bulletin 5 (1990); Symposium: Equality
vs. Discretion in Sentencing 26 Amer. Crim. L. Rev. 1820.
30 See, e.g., Stephen Breyer, The Federal Sentencing Guidelines and the
Key Compromises Upon Which They Rest 17 Hofstra L. Rev. 1 (1988); 26
Amer. Crim. L. Rev., supra.
31 See Testimony of Sentencing Commissioner Stephen Breyer Before the
Senate Committee on the Judiciary, reprinted in Federal Sentencing
Guidelines (Practicing Law Institute, Criminal Law & Urban Problems,
Litigation and Administrative Practice Course Handbook Series) at 811
(December 14, 1987).
32 See 26 Crim. Law Bulletin, supra, at 16-22.
33 "Breyer on Mandatory Minimums; These 'Very Rotten Bananas' Should Be
Discarded," Legal Times, May 23, 1994, at p. 14 (report on 1993 ABA panel
34 "Lawyers Get Advice On Advocacy Under New Sentencing Guidelines," 54
Antitrust & Trade Reg. Rep. 160 (BNA February 4, 1988) (report on Breyer
35 See Testimony, supra, at 811.
36 See Testimony, supra, at 811; See also 26 Crim. Law Bulletin, supra, at
15; 26 Amer. Crim. L. Rev., supra, at 1822.
37 See 26 Criminal Law Bulletin, supra, at 15-16.
38 Legal Times, May 23, 1994, supra, at p. 14.
39 See Testimony, supra, at 811; see also 26 Criminal Law Bulletin, supra,
40 See 26 Amer. Crim. L. Rev., supra, at 1825; "The Next Page in Federal
Sentencing," Legal Times, Aug. 28, 1989.
41 Legal Times, Aug. 28, 1989, supra.
42 See, e.g., United States v. Cruz-Santiago, 12 F.3d 1, 3-4 (1st Cir.
1993) (affirming inclusion of the value of a getaway car, taken only
temporarily, in calculation of loss for purpose of sentencing for bank
robbery); United States v. Hunnewell, 10 F.3d 805 (Table, Text in Westlaw
at 1993 WL 483252), No. 93-1551 (1st Cir. Nov. 24, 1993) (defendant
claimed two previous robbery convictions were part of a common scheme or
plan designed to run homosexuals out of the area and rob them in the
process, and thus were a single predicate offense not supporting treatment
of him as a "career offender" under the Guidelines; court, per Breyer, J.,
avoided that issue by finding that two prior state drug convictions
provided the necessary predicates to treat defendant as a "career
offender"); United States v. Havener, 905 F.2d 3, 5 (1st Cir. 1990)
(affirming refusal to reduce base offense level for acceptance of
responsibility); United States v. Ramirez, 948 F.2d 66, 67 (1st Cir. 1991)
(affirming finding that defendant had a supervisory role in criminal
activity, warranting an increase in the base offense level); United States
v. Blanco, 888 F.2d 907, 909 (1st Cir. 1989) (affirming court's finding on
amount of drugs appropriate for calculation of "base offense" level).
43 See, e.g., United States v. Doe, 18 F.3d 41, 48 (1st Cir. 1994)
(deference to reasonableness of departures from the Sentencing Guidelines
appropriate because of "the sentencing court's 'superior feel' for the
case" (citation omitted)); United States v. Wright, 873 F.2d 437, 442
(1st Cir. 1989) (affirming the trial court's refusal to grant downward
departure based on defendant's cooperation with the government, where the
government opposed the departure because it was unable to prosecute the
individual s implicated by the defendant); United States v. Porter, 924
F.2d 395, 398-99 (1st Cir. 1991); (affirming decision that pretrial
detention under unconstitutional conditions did not warrant downward
departure, and affirming upward departure based on factual finding that
defendant urged his son to commit robbery to obtain bail money for him).
44 See Stathos v. Bowden, 728 F.2d 15 (1st Cir. 1984) (upholding jury
verdict in favor of plaintiff alleging sex discrimination in government
employment); Cortes-Quinones v. Jiminez-Nettleship, 842 F.2d 556 (1st
Cir.) (upholding jury verdict in favor of parent of Puerto Rico prisoner
beaten to death by fellow prisoners), cert. denied, 488 U.S. 823 (1988).
See also discussion of these decisions supra pp. 25, 47-48.
45 See, e.g., Archibald v. Mosel, 677 F.2d 5 (1st Cir. 1982).
46 Estrada-Adorno v. Gonzalez, 861 F.2d 304 (1st Cir. 1988).
47 Stephen Breyer, Administering Justice in the First Circuit, 24 Suffolk
U. L. Rev. 29 (1990).
48 In the lecture, Judge Breyer expressed support for the creation of an
additional tier of federal appellate review, to be inserted either between
the district courts and the courts of appeal or between the courts of
appeal and the Supreme Court. 24 Suffolk U. L. Rev, at 41-42. He felt
that this change would permit more efficient processing of the federal
case load, and he expressed the belief that the creation of such an
additional level of appellate review would be the inevitable result of the
large increase in the case load. Id.
49 See, e.g., Caterino v. Barry, 8 F.3d 878, 882 (1st Cir. 1993); Ozonoff
v. Berzak, 744 F.2d 224, 228 (1st Cir. 1984); but see Munoz-Mendoza v.
Pierce, 711 F.2d 421, 429 (1st Cir. 1983) (holding that African-American
and Puerto Rican, but not Asian, plaintiffs could claim irreparable
injury of less integrated neighborhood arising out of HUD commercial
development grant, when neighborhood predominantly Asian and low-income).
50 See also Ozonoff v. Berzak, 744 F.2d 224, 229 (1st Cir. 1984), holding
that a job applicant for the World Health Organization (WHO) had standing
to challenge the executive order governing loyalty checks on Americans
seeking work with WHO, and distinguishing Laird v. Tatum, 408 U.S. 1
(1972). (Ozonoff also discussed supra p. 7.)
51 Judge Breyer's other personal jurisdiction decision followed a
straightforward "minimum contacts" analysis to hold that a Brazilian
manufacturer was subject to suit in Puerto Rico. Benitez-Allende, et al.
v. Alcan Aluminio do Brasil, 857 F.2d 26, 29-31 (1st Cir. 1988), cert.
denied, 489 U.S. 1018 (1989).
52 The Supreme Court found that: (1) New Hampshire's interest in the
litigation was sufficient because some of defendant's magazines and
therefore some of plaintiff's injury occurred in New Hampshire; (2)
although plaintiff's residence was relevant to the inquiry, plaintiff did
not need minimum contacts with the forum state for the state to assert
jurisdiction over a nonresident defendant; (3) the "single publication"
rule, whereby multi-state libel damages are assessed in a single
proceeding, further demonstrated New Hampshire's interest in cooperating
with other states in application of the rule; and (4) the fact that all
other states' statutes of limitations had run was irrelevant to personal
jurisdiction analysis. 465 U.S. at 775-81.
53 See Allende v. Shultz, 845 F.2d 1111 (1st Cir. 1988) (Breyer, J.,
concurring); Beacon Prods. Corp. v. Reagan, 814 F.2d 1 (1st Cir. 1987);
Berkshire Cablevision of Rhode Island, Inc. v. Burke, 773 F.2d 382 (1st
Cir. 1985); Sanchez-Mariani v. Ellingwood , 691 F.2d 592 (1st Cir. 1982).
54 The plaintiffs claimed that since the legislative veto provisions of
the NEA were unconstitutional under INS v. Chadha, 462 U.S. 919 (1983),
unless that portion was severable, the entire statute was unconstitutional
and the President's imposition of an embargo under another provision of
the NEA was invalid.
55 The majority had found that the State Department's interpretation of
Section 27 violated the First Amendment. See supra p.21 n.4. Judge
Breyer expressly joined in the majority's opinion on the merits. 845 F.2d
56 Roosevelt Campobello International Park Commission v. EPA, 684 F.2d
1034 (1st Cir. 1982) (review of challenge to EPA-awarded construction
permit held premature when permit expired and reactivation of the permit
was still pending).
57 Distrigas of Massachusetts v. Boston Gas Co., supra (requiring Federal
Energy Regulatory Commission to interpret language in tariff).
58 Doyle v. Secretary of HHS, 848 F.2d 296 (1st Cir. 1988), Ezratty v.
Puerto Rico, supra. 59 Kercado-Melendez v. Aponte-Roque, 829 F.2d 255 (1st
Cir. 1987) (Breyer, J., dissenting) (finding that the Younger abstention
doctrine applied to a non-coercive administrative appeal process that
plaintiff had opted to bypass), cert. denied, 486 U.S. 1044 (1988).
See also New England Telephone & Telegraph Co. v. Pub. Utilities Comm.
of Maine, 742 F.2d 1, 4 (1st Cir. 1984) (private party could not challenge
state utility commission "rule," under Federal Communications Act because
Act contemplates only challenges to agency "orders"), cert. denied, 476
U.S. 1174 (1986); Mayburg v. Secretary of HHS, 740 F.2d 100, 107 (1st Cir.
60 See also supra pp. 34-35 (discussion of NAACP decision), 32 (discussion
of Cousins decision).
61 See, e.g., Maceira v. Pagan, 698 F.2d 38 (1st Cir. 1983)
(higher-than-local fees awarded, with upward adjustment for contingency,
difficulty, and exemplary quality of work); Miles v. Sampson, 675 F.2d 5
(1st Cir. 1982) (not abuse of discretion to reduce fees where plaintiff
only partially successful); Puerto Rico Maritime Shipping Authority v.
Crowley Towing and Transportation Co., 747 F.2d 803 (1st Cir. 1984).
62 Stephen Breyer, Administering Justice in the First Circuit, 24 Suffolk
U. L. Rev. 29, 45-47 (1990).
63 Bay State Towing Co. v. Barge American 21, 899 F.2d 129 (1st Cir.
1990); Ryan v. Clemente, 901 F.2d 177 (1st Cir. 1990); Ganapolsky v.
Keltron Corp., 823 F.2d 700 (1st Cir. 1987); Alessandri v. April
Industries, Inc., 934 F.2d 1 (1st Cir. 1991).
64 See discussion of the First Amendment issues raised by these cases,
supra pp. 1-3.
65 "[T]he Constitution provide[s] protection from politically-based
discharge to public employees other than those in jobs where `party
affiliation is an appropriate requirement for the effective performance of
the public office involved.'" Juarbe-Angueira v. Arias, 831 F.2d 11, 13
(1st Cir. 1987) (quoting Branti v. Finkel, 445 U.S. 507, 518 (1980)),
cert. denied, 485 U.S. 960 (1988). An employee fired in violation of that
rule may obtain reinstatement, but in order to collect damages, she must
show th at the conduct's unlawfulness was "clearly established" at the
time it occurred, Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).
66 See, e.g., Figueroa-Rodriguez v. Lopez-Rivera, 878 F.2d 1478 (1st Cir.
1989) (en banc) (director of board of appeals of Department of Social
Services and zone fire chiefs); Estrada-Adorno v. Gonzalez, 861 F.2d 304
(1st Cir. 1988) (personnel director o f government development bank);
Bonilla v. Nazario, 843 F.2d 34 (1st Cir. 1988) (regional managers of
Automobile Accident Compensation Administration); Alvarado-Cordero v.
Hernandez, 837 F.2d 26 (1st Cir. 1988) (special assistant to executive
director of highway authority); Morales v. Arias, 834 F.2d 255 (1st Cir.
1987) (director of internal audit of building authority); Juarbe-Angueira
v. Arias, 831 F.2d 11 (1st Cir. 1987) (regional director of building
authority); Zayas-Rodriguez v. Hernandez, 830 F.2d 1 (1st Cir. 1987)
(division directors, director of personnel, director of internal audit,
and administrative assistant to executive director of highway authority).
67 Afterword, The Legacy of the New Deal: Problems and Possibilities in
the Administrative State, 92 Yale L.J. 1614, 1614 (1983).
68 Id. at 1618.
70 See, e.g., Railway Labor Executives' Ass'n v. United States R.R.
Retirement Bd., 749 F.2d 856, 860 (D.C. Cir. 1984); Rettig v. Pension
Benefit Guar. Corp., 744 F.2d 133, 141 (D.C. Cir. 1984).
71 Stephen Breyer, "Judicial Review of Law and Policy," 38 Admin. L.J.
363, 373 (1986).
72 Id. at 379.
73 See, e.g., Da Conceicao Rodrigues v. INS, 994 F.2d 32, 34 (1st Cir.
1993) ([W]e owe [the agency's] interpretation of statutory words . . . a
considerable degree of respect, particularly where, as here, the
interpretation concerns an interstitial matte r, related to the
administration of a complex statutory scheme, in respect to which the
agency is expert"); Wilcox v. Ives 864 F.2d 915, 926-27 (1st Cir. 1988)
(Breyer, J. concurring) ("[i]n a case like this one, where the statutory
provision is minor and interstitial, where the agency has a firm
understanding of the relationship of that provision to other, more
important, provisions of the statute, and where that understanding grows
out of both the agency's daily experience in administering its statute and
its familiarity with the initial legislative drafting process, the
Secretary's argument has considerable `power to persuade'").
74 It is unclear whether Breyer wrote, or merely joined in, this opinion.
75 A typical example is Wood v. United States, 995 F.2d 1122 (1st Cir.
1993), in which Judge Breyer found that the Attorney General could not
simply deny that a tort occurred in issuing a Westfall Act certificate.
"This `no' answer finds support in the statutory language, read together
with related provisions; the legislative history; the relevant case law
background; and direct precedent from other circuits." Id. at 1123. See
also Irons v. FBI, 880 F.2d at 1448 (in deciding whether language must be
read "rather literally . . . we have examined the statute, its history,
and the case law"); United States v. Norton, 808 F.2d 908, 911 (1st Cir.
1987) (accepting particular interpretation of word "intimidate" as
"consistent with other criminal statutes using similar language, with
dictionary definitions, with the history of the statute and with prior
76 See, e.g., Mayburg v. Secretary of HHS, 740 F.2d 100, 103 (1st Cir.
1984) (rejecting Secretary's interpretation because it "creates a curious
anomaly"); Constance v. Secretary of HHS, 672 F.2d 990, 995 (1st Cir.
1982) (district court's interpretation of language "threatens the creation
of an administrative anomaly").
77 See, e.g., Mayburg v. Secretary of HHS, 740 F.2d at 103 (noting there
would not be "significant administrative" burden from particular
78 See also Irons v. FBI, 880 F.2d 1446, 1448 (1st Cir. 1989) (en banc)
("To answer this question, we have examined the statute, its history, and
the case law in some detail. We have concluded that we must take the
statute here to mean what it says."); Ciampa v. Secretary of HHS, 687
F.2d 518, 526 (1st Cir. 1982) ("appellants have not demonstrated that
either the purpose of the statute or administrative difficulties require
us to ignore its unambiguous language"); United States v. 6.92 Acres of
Land, 85 2 F.2d 633, 634 (1st Cir. 1988) (noting that "the legislative
history of the . . . amendments indicate that its effective-date language
means what it literally says").
79 Massachusetts Laborers' Health & Welfare Bd. v. Starrett Paving, 845
F.2d 23, 25 (1st Cir. 1988).
81 United States v. Norton, 808 F.2d 908, 910 (1st Cir. 1987).
82 Massachusetts Medical Soc'y v. Dukakis, 815 F.2d 790, 794 (1st Cir.
1987) ("we would be reluctant to use the history of a later, unsuccessful
amendment as evidence of what Congress intended in drafting an earlier
act"); see also Mayburg v. Secretary of HHS, 740 F.2d 100, 103
(disregarding legislative history from two years after statute enacted).
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