REPORT REVIEWING AND ANALYZING THE CIVIL RIGHTS AND CIVIL LIBERTIES RECORD OF STEPHEN BREY

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REPORT REVIEWING AND ANALYZING THE CIVIL RIGHTS AND CIVIL LIBERTIES RECORD OF STEPHEN BREYER The American Civil Liberties Union July 1, 1994 PREFACE 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 community. 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 Supreme Court. 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 which follows. TABLE OF CONTENTS PREFACE............................................ OVERVIEW........................................... I. FIRST AMENDMENT............................. A. Freedom Of Speech....................... 1. Public Employee Speech and Association......................... 2. Obscenity........................... 3. Restrictions on Fundraising......... 4. The Scope of Protected Protest Activities.......................... 5. Loyalty Checks...................... 6. University Recognition of Student Groups.............................. B. Freedom Of Religion..................... II. FREEDOM OF INFORMATION ACT.................. III. NATIONAL SECURITY........................... A. Executive Authority..................... B. Constitutionality of Draft Registration Program................................. C. Conscientious Objection................. IV. EQUAL RIGHTS AND REPRODUCTIVE FREEDOM....... A. Constitutional Protections.............. 1. Race and Affirmative Action......... 2. Gender Discrimination and Reproductive Rights................. 3. Rational Basis Review under the Equal Protection Clause............. B. Statutory Protections................... 1. Title VII........................... a. Burdens of Proof................ b. Remedies........................ 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 Self-Incrimination.................. 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 Discretion.......................... 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......... I. Entrapment.............................. J. Sentencing Guidelines................... 1. Articles and Public Statements...... 2. Legal Opinions...................... VI. DECISIONS UNDER 42 U.S.C. Sec. 1983......... VII. IMMIGRATION/ASYLUM.......................... VIII. ACCESS TO JUSTICE........................... A. Standing................................ B. Personal Jurisdiction................... C. Mootness................................ D. Judicial Review of Agency Action........ E. Private Rights of Action................ F. Attorney's Fees and Sanctions........... G. Statute of Limitations.................. H. Immunity................................ IX. JUDICIAL FUNCTION........................... A. Reviewing Agency Decisionmaking......... B. Federalism.............................. C. Consent Orders.......................... D. Statutory Construction.................. 1. Judge Breyer Derives Statutory Meaning from Language, Context, and Purpose......................... 2. Judge Breyer's Method for Establishing a Statute's Plain Meaning....................... a. Common Usage and Natural Meaning................. b. Importance of Context........... 3. Judge Breyer's Sources for Establishing Congressional Intent... FIRST AMENDMENT 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 Obscenity 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 materials. 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. Loyalty Checks 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. at 645. 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 group appealed. 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 (Pa. 1979)). 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 safety. 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 poorly. Id. 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. Id. 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 public. 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 confidential. Id. 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 prohibiting disclosure. 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. NATIONAL SECURITY Executive Authority 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 presented. 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. Conscientious Objection 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 Constitutional Protections 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 Rights 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 Protection Clause 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 advantage. Id. at 661. Statutory Protections Although Judge Breyer has not written many opinions under the various civil rights statutes, his opinions have supported defendants' positions more often than not. Title VII 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 ATDT9-267-6432 +++ 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. Remedies 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 consent degree). Voting Rights 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. Age Discrimination 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 at 279. 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. Fair Housing 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. Fourth Amendment 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 approach. 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 563-64. 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 seizure. 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. Fifth Amendment Miranda Warnings 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 Miranda's reach. 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 1551.13 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). Double Jeopardy In Judge Breyer's opinions concerning the Double Jeopardy Clause, he again has applied relevant Supreme Court precedent in a "pragmatic" manner. 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 at 7. 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. 23-24. 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 1976-77. 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. Prosecutorial Conduct Improper Comments 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 material.24 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). Plea Agreements 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 agreements.25 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 Jury Instructions 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. Entrapment 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. Sentencing Guidelines 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 Legal Opinions 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. IMMIGRATION/ASYLUM 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 Standing 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 Personal Jurisdiction 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 Mootness 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 Cir. 1990). 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. Immunity 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. 1992). 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). JUDICIAL FUNCTION 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). Federalism 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). Consent Orders 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. Statutory Construction 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 purposes. 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 Congressional Intent 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., dissenting). 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 purpose. 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. Notes ------------------------------------------------------- 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 political reasons). 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 803-05. 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 circumstances). 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 not enough). 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 at hearing). 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 discussion). 34 "Lawyers Get Advice On Advocacy Under New Sentencing Guidelines," 54 Antitrust & Trade Reg. Rep. 160 (BNA February 4, 1988) (report on Breyer speech). 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, at 15-16. 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 at 1121-22. 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. 1984). 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. 69 Id. 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 case law"). 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 interpretation). 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). 80 Id. 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). ============================================================= ACLU Free Reading Room | A publications and information resource of the gopher://aclu.org:6601 | American Civil Liberties Union National Office ftp://aclu.org | mailto:infoaclu@aclu.org | "Eternal vigilance is the price of liberty"

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