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[330 U.S. 567, 569] Mr. Daniel H. Kunkel, of Washington, D.C., for appellant.
A District Court of three judges enjoined in part an order of the Interstate Commerce Commission, and the case is here on appeal under 28 U. S.C. 47, 47a, and 345, 28 U.S.C.A. 47, 47a, 345. The Commission order specifically relates to the railroad rate for grain transported from Chicago, Illinois, to New York and other eastern points,1 after that grain has been transported to Chicago from the west by connecting rail or water carriers on through bills of lading. In such through shipments the through rate is a combination of distinctly separate rates charged respectively for shipments from the west to Chicago and from Chicago to the east. The charge fixed for the last leg of the shipment is called, in railroad parlance, a 'reshipping' or 'proportional' rate. It is lower from Chicago to the east than a 'local' rate charged for a shipment from Chicago to the east which originates in Chicago. See Atchison, T. & S.F.R. Co. v. United States, 279 U.S. 768, 771 , 49 S.Ct. 494, 495.
For many years eastern railroads have carried grain east from Chicago at reshipping rates 8 1/2 cents per hundred pounds lower than local rates. Up to 1939 this Chicago-to-the-east reshipping rate had been identical for grain, whether brought to Chicago by a connecting railroad, connecting lake steamer, or connecting barge. Although barge lines were much slower than railroads, they were less expensive to operate and therefore could afford to transport freight much more cheaply than railroads. The result was that the barge-rail rate from a point in the west to eastern destinations was considerably cheaper [330 U.S. 567, 571] than the all-rail rate from that point-the difference being measured by the relative cheapness of shipping over the barge leg of the through route. Because of the cheaper barge rates, much of the railroads' grain freight business from localities which could be served by either barge or rail shifted to the barges2 after 1933 when barge service from western grain localities to Chicago was resumed. 3 This was the barge versus rail competitive situation which existed when in 1939 the eastern railroads filed schedules with the Commission which imposed on ex-barge grain the local rate from Chicago east, but allowed ex-rail and exlake grain the benefit of the 8 1/2 cent lower 'reshipping' rates on the eastern haul. The result of this rate schedule would have b en that, although barge lines could still have carried grain from the west to Chicago much more cheaply than the railroads could, by the time the grain had been reshipped to New York or other eastern points, the barge-rail carriage would have been more expensive to the shipper than all-rail carriage. This would have put the barge lines at a competitive disadvantage with railroads in barge- served localities. At the Commission hearing to test the validity of the higher ex-barge grain rates, a railroad representative candidly stated that the purpose of the proposal was to 'drive this business off the water and back onto the rails where it belongs.' 248 I.C.C. 307, 321. This purpose would most probably have been accomplished had the high ex-barge reshipping rates gone into effect.
Appellees5 then filed this action in the District Court against the Commission and the United States to cancel, annul, and enjoin enforcement of the order, insofar as it permitted the railroads to put these new higher ex-barge grain rates into effect. The complaints charged that the order was in violation of the Interstate Commerce Act, as amended by the Transportation Act of 1940, 54 Stat. 898. It was contended that the order was void because it approved railroad rates which penalized ex-barge grain to the extent of 3 cents perhundred pounds, solely because the grain had been transported to Chicago in barges, and without evidence or adequate findings that it cost the railroads 3 cents more to transport ex-barge than it cost to transport ex-rail or ex-lake grain. The United States, represented by the Department of Justice, appearing as a defendant, admitted these allegations. The Interstate Commerce Commission intervened and defended the order. After a hearing, the District Court found that the allegations were sustained. Accordingly, it set aside and enjoined enforcement of the order to the extent that it permitted the 3 cent extra charge. 6 The result of the [330 U.S. 567, 574] District Court's judgment was to leave in effect the long-existing eastern railroad rates which provide the same rates for carrying ex-barge, ex-lake, and ex-rail grain east from Chicago.
Judicial review of the findings of fact and the expert judgments of the Interstate Commerce Commission where the Commission acts within its statutory authority is extremely limited. And 307(d) of the 1940 Act7 authorizes the Commission 'in the case of a through route' to 'prescribe such reasonable differentials as it may find to be justified between all- rail rates and the joint rates in connection with such common carrier by water.' Cf. United States v. Chicago Heights Trucking Co., 310 U.S. 344, 352 , 353 S., 60 S.Ct. 931, 935, 936; Board of Trade of Kansas City v. United States, 314 U.S. 534, 546 , 62 S.Ct. 366, 372. But the congressional debates and committee reports on the 1940 Act and the statutory provisions which emerged from this legislative background show that Congress enunciated positive policies and specific limiting standards which it expected the Commission to follow in fixing rates, including 'differentials' between all-rail and water-rail rates. The provisions of the Trans- [330 U.S. 567, 575] portation Act of 1940 which brought water carriers under Interstate Commerce Commission jurisdiction were vigorously opposed in Congress by those who feared that the Commission might raise barge rates in order to enable railroads better to compete with inherently cheaper water transportation. These opponents were repeatedly assured by sponsors of the 1940 Act who advocated Commission regulation of water ransportation that the questioned legislation unequivocally required the Commission to fix rates which would preserve for shippers the inherent advantages of barge transportation: lower cost of equipment, operation, and therefore service. 8 As Senator Wheeler, spokes- [330 U.S. 567, 576] man of the Interstate Commerce Committee of which he was chairman, pointed out on the floor of the Senate, the 1940 Act contains at least three separate provisions, a prime purpose of which is to protect the water carrier's natural advantages. 9 The Act's declaration of policy emphasizes that the Act must be 'so administered as to recognize and preserve the inherent advantages' of 'all modes of transportation subject to the provisions of this Act.' 54 Stat. 898, 899, 49 U.S.C. notes preceding 1, 301, 901, 49 U.S.C.A. notes preceding sections 1, 301, 901. In order that the inherent advantages might be preserved 305(c), 54 Stat. 898, 935, 49 U.S.C. 905(c), 49 U.S.C.A. 905(c), provided that 'Differences in ... rates ... and practices of a water carrier in respect of water transportation from those in effect by a rail carrier with respect to rail transportation shall not be deemed to constitute unjust discrimination ... or an unfair or destructive competitive practice ....' And 307( f), 54 Stat. 898, 938, 49 U.S. 907(f), 49 U.S.C.A. 907(f), requiring the Commission, in fixing rates, to consider 'the effect of rates upon the movement of traffic by the ... carriers for which the rates are prescribed' emphasized that the Commission must consider in fixing rates ' ... the need, in the public interest, of adequate and efficient water transportation service at the lowest cost consistent with the furnishing of such service.' In addition 3(4) of the preexisting Act which forbade carriers 'to ... discriminate in their rates, fares, and charges between connecting lines,' 41 Stat. 479, ws amended by the 1940 Act specifically to include water carriers, such as these barge lines, within the definition of connecting carriers. 54 Stat. 898, 903, 904, 49 U.S.C. 3(4 ), 49 U.S.C.A. 3(4). Finally 2 of the pre-existing Act has long forbidden the Commission to authorize railroads to charge one person more than another for 'a like and contemporaneous service in the transportation of a like kind of traffic under substan- [330 U.S. 567, 577] tially similar circumstances and conditions.' 24 Stat. 379, 380, 49 U.S.C . 2, 49 U.S.C.A. 2.
The foregoing provisions flatly forbid the Commission to approve barge rates or barge-rail rates which do not preserve intact the inherent advantages of cheaper water transportation, but discriminate against water carriers and the goods they transport. Concretely, the provisions mean in this case that Chicago-to-the east railroads cannot lawfully charge more for carrying ex-barge than for carrying exlake or ex-rail grains to and from the same localities, unless the eastern haul of the ex-barge grain costs the eastern railroads more to haul than does ex-rail or ex-lake grain. And 307(d) authorizing the Commission to fix differentials as between through water-rail and through all-rail rates, does not authorize the Commission to neutralize the effective prohibitions of the other provisions which were strengthened in 1940 expressly to prevent a discrimination against water carriers.
The basic error of the Commission here is that it seemed to act on the assumption that the congressional prohibitions of railroad rate discriminations against water carriers were not applicable to such discriminations if accomplished by through rates. But this assumption would permit the destruction or curtailment of the advantages to shippers of cheap barge transportation whenever the transported goods were carried beyond the end of the barge line. This case proves that. For while Chicago is a great grain center, it cannot consume all barge-transported grain. That grain, like other grain coming to Chicago for marketing or processing, is reshipped to distant destinations. To penalize its transportation in barges by charging discriminatory rates from Chicago to its final destination has precisely the same consequence as would follow from raising barge rates inbound to Chicago. Recognizing that it could not require these barge carriers [330 U.S. 567, 578] to raise these inbound rates which it accepted as reasonable,10 the Commission has here approved an order which would bring about the same prohibited result by raising the railroad rates charged by eastern roads for ex-barge grain shipments east from Chicago. Congress has forbidden this.
The Commission did not approve increases in these reshipping rates on the ground that the eastern roads were not receiving a fair return for carrying ex-barge grain. And the grounds on which the Commission rested its order do not support the rates approved. Most of the argument of the Commission in support of its conclusions and order treated matters which had no relation to what the reshipping rates from Chicago should be. The length of the total barge-rail haul emphasized by the Commission, however significant it might be under other circumstances, has no relevance here. For the lower rates allowed ex-rail and ex-lake grains include carriage for distances identical with the ex-barge hauls. Nor is the Commission's order supported by its conclusion that it is 'inequitable' for the barges to charge a much lower rate for the inbound grain haul than the competitive western railroads can afford to charge for the same haul, resulting in barge-rail rates lower than all-rail rates from the same localities. 11 For this is no reason for authorizing [330 U.S. 567, 579] a higher rate to eastern railroads which do not compete with the barges at all. If the western railroads need relief from the com etition of barges, that is a question wholly unrelated to the rates of eastern roads. Furthermore, Congress has decided this question of equitable rates as between railroads and barges. It has declared in unmistakable terms that the 'inherent advantage' of the lower cost of barge carriage as compared with that of railroads must be passed on to those who ship by barge. It is therefore not within the province of the Commission to adjust rates, either to equalize the transportation cost of barge shippers with that of shippers who do not have access to barge service or to protect the traffic of railroads from barge competition. For Congress left the Commission no discretionary power to approve any type of rates which would reduce the 'inherent advantage' of barge transportation in whole or in part. Cf. Mitchell v. United States, 313 U.S. 80, 97 , 61 S.Ct. 873, 878.
Related to the question just discussed, is the Commission's contention here that permitting reshipping rates for ex-barge grain to remain equal to the rates for [330 U.S. 567, 580] ex-rail and ex-lake grain will cause 'incurable chaos' in and disrupt the national rail rate structure which reflects many interrelated conditions governing the transportation of grain from west of Chicago to eastern markets. The Commission does not show how any possible disruption of railroad rates structure arises from giving shippers the full inherent advantage of cheaper barge rates, other than that competing railroads have lost traffic to the barge lines. As we have pointed out, Congress knew that barge line rates were cheaper than rail rates, wanted the shippers to get full benefit of them, and left the Commission no power to take that benefit away from shippers by adjusting rail-barge traffic competition or rates. But we note incidentally that these rates had been equal prior to 1939 without any apparent disruption of the total structure. The possibility of such a disruption does not remotely justify discriminations against barge traffic which actually deprive shippers and the barge companies of the inherent advantages of water transportation guaranteed to them by Congress. See United States v. Chicago, M. & St. P.R. Co., 294 U.S. 499 , 506-510, 55 S.Ct. 462, 465-467. Nor is the fact that barge-rail rates, from certain places in the west through Chicago to the e st, are less than local rail rates from Chicago east, and adequate reason for increasing the east-of-Chicago part of the through barge-rail rate. The initiation of new rates with such a disparity in through rail rates as compared with local rail rates would, of course, be forbidden by 4 of the Act as amended in the absence of Commission approval. 12 But, insofar as the inherent cheapness of the barge leg of the through route produces a disparity between barge-rail rates and local rail rates, Congress has said that the Act must be so administered as to preserve, not eliminate or reduce the disparity. [330 U.S. 567, 581] Carriage of ex-barge grain by eastern roads may conceivably entail more service and therefore greater costs than are involved in carrying ex- rail or ex-lake grain. If so, the eastern roads may, in certain circumstances, be justified in receiving an extra charge for that extra service wherever it is rendered. But the extra service must fit the extra charge and cannot justify lump sum rate increases which cut into the inherent advantages of cheaper barge transportation which Congress intended to guarantee to shippers. Here the Commission found in broad general terms, without limitation to the localities where barge and rail compete, that 'on the average' ex-rail grain from all the west requires less terminal and transit service east of Chicago than does grain moving by barge from the relatively few barge terminals. 13 As to terminal service, it noted that some rail grain traffic going through Chicago without stopping receives no terminal service at all, whereas all barge grain shipments must be unloaded in Chicago and reloaded on freight cars. But all ex-lake grain reshipped from Chicago and an unspecified amount of ex- rail grain stopped in Chicago for processing requires exactly the same terminal service as is rendered there for ex-barge grain. 14 Yet there is no greater rate charged for ex-barge and ex-rail grain which receives this same [330 U.S. 567, 582] terminal service. The formula used here which lumps all through rail grain rates, irrespective of the services rendered, to give rail-carried grain a preferred rate over barge-carried grain, is indistinguishable in cause and consequence from an order which directly raises barge rates to relieve the railroads from barge competition. In any event, there has been no showing by the Commission as to how much, if any, of the 3 cent reshipping rate increase is attributable to the fact that ex-barge grain requires more terminal service on the average than does ex-rail grain.
To justify increasing the reshipping rates of ex-barge grain the Commission would have to make findings supported by evidence to show how much greater is the cost to the eastern roads of reshipping ex-barge grain than of ex-lake or ex-rail grain moving from the same localities and requiring the same service as does the ex-barge grain. Cf. State of Florida v. United States, 282 U.S. 194, 212 , 51 S.Ct. 119, 124; State of North Carolina v. United States, 325 U.S. 507, 520 , 65 S.Ct. 1260, 1267. The unsifted averages put forward by the Commission do not measure the allegedly greater costs nor indeed show that they exist.
Mr. Justice FRANKFURTER would sustain the order of the Interstate Commerce Commission, because he deems it amply supported by adequate findings of the Commission differentiating the average circumstances and condi- [330 U.S. 567, 584] tions surrounding all-rail and lake-rail transportation from those affecting barge-rail transportation, 262 I.C.C. 27-28, and these findings are not without support in evidence.
It appears to me that the Court in this case not only ignores findings of fact by the Interstate Commerce Commission contrary to our own oft-repeated pronouncements about the finality of administrative findings, but it also legislates out of the Transportation Act of 1940 at least two specific provisions which Congress put in and departs from the policy laid down in 1 of the Act, 49 U.S.C.A. note preceding section 901. Whether the Congressional law or the Court's amendments are the better for the country is a complicated problem of policy which, in my conception of our judicial function, I am not privileged to decide.
In the Transportation Act of 1940, 54 Stat. 937 et seq., Congress authorized the Commission to establish through rates by water and rail carriers. It also said, 'In the case of a through route, where one of the carriers is a common carrier by water, the Commission shall prescribe such reasonable differentials as it may find to be justified between all-rail rates and the joint rates in connection with such common carrier by water.' 307(d), 49 U.S.C.A. 907(d). The Court reads this discretionary power out of the statute and holds that the Commission may not establish any differential other than that created by the carriers themselves; that is to say, the only permissible differential is the difference between barge rates and rail rates for the water leg of the through journey.
Because this decision seems to me to deprive the Commission of these discretionary powers to adjust through rates to general shipping conditions and rate structures I dissent.
[ Footnote 1 ] The eastern points are in New York and adjacent states and in New England. It is around shipments from Chicago to this territory that this rate controversy chiefly revolves. The proposed new rate increases also related to grain shipments from Chicago to the so-called central territory. The reasons supporting the conclusion we reach apply equally to the central territory increases, and consequently we need not treat them separately.
[ Footnote 2 ] See 246 I.C.C. 353, 361, 364, 383; 262 I.C.C. 7, 41.
[ Footnote 3 ] There was barge service from the grain section west of Chicago to that city from 1886 to 1907 when it was discontinued. Such barge service was resumed in 1933. See 262 I.C.C. 7, 20.
[ Footnote 4 ] The ex-barge proportionals fixed by the Commission were uniformly 5. 5 cents lower than local rates from Chicago to the east and 3 cents higher than exbarge and ex-lake proportionals.
[ Footnote 5 ] Appellees are (1) A. L. Mechling, a barge water carrier between Chicago and points in Illinois, Missouri, and Iowa; (2) Inland Waterways corporation which transports grain by barges between, among other points, Kansas City and Chicago; (3) the Secretary of Agriculture, who is authorized by statute to make complaints to the Interstate Commerce Commission, and to seek judicial relief with respect to rates and charges for the transportation of farm products.
[ Footnote 6 ] Two procedural points are raised by the Commission which need not be discussed at length. The first is that the District Court's preliminary injunction was too broad because it enjoined the Commission from permitting the controversial rates to become effective. This question is now moot, but see Inland Steel Co. v. United States, 306 U.S. 153, 159 , 160 S., 59 S.Ct. 415, 418, 419. The second procedural point urged relates to the District Court's order requiring the Commission to serve notice of appeal on the United States. We see no error in this, and even if there were, it could not be prejudicial in connection with the Commission's rights on this appeal. Since the United States was necessarily a party in the District Court, 28 U.S.C. 46, 28 U.S.C.A. 46, Lambert Run Coal Co. v. Baltimore & O.R. Co., 258 U.S. 377, 382 , 42 S.Ct. 349, 351, we think the District Court cannot be held in error for requiring service of the notice of the Commission's appeal.
[ Footnote 7 ] 54 Stat. 899, 937, 49 U.S.C. 907(d), 49 U.S.C.A. 907(d). In the original proceedings before the Commission, the last evidence was heard and the record was closed before the 1940 Transportation Act became a law. Interstate Commerce Commission v. Inland Waterway Corp., 319 U.S. 671, 678 , 63 S.Ct. 1296, 1300. The present proceedings are fully governed by the 1940 Act.
'Mr. Lucas. ... The town in which I live is a focal point for the transportation of wheat and corn down the Illinois. The price of wheat and corn at the elevator there is always 2 or 3 cents higher than it is at elevators some 25 or 30 miles farther inland because of the difference between the rates by rail and those by water.
'Under the bill, as I understand it, the Interstate Commerce Commission would have the power, and it would be its duty, to fix rates on the Illinois River with respect to the transportation of that wheat and corn. Would it be possible for the Interstate Commerce Commission to fix the rate the same as the railroad rate from that point to St. Louis?
'Mr. Wheeler. Not if the Commission does its duty, because the bill specifically provides that it must take into consideration the inherent advantages of the water carrier. Everyone agrees that goods can be shipped more cheaply by water than by rail.' 84 Cong.Rec. 5879 (1940).
'The bill very plainly, about as plainly as language can be written, provides for the protection of the inherent advantages of water transportation as contrasted with other means of transportation. In fixing rates the water carrier is assured the advantages of the cheaper rate at which he can transport property.' 84 Cong.Rec. 9862 (1940).
See also 84 Cong.Rec. 5883, 6126-6128, 6131, 6149 (1940), and Conference Report, 86 Cong.Rec. 10172 (1940).
[ Footnote 9 ] 84 Cong.Rec. 5873-5876, 5883, 6131 (1940).
[ Footnote 10 ] The Commission stated that 'The barge rates yield fair returns to the barge carriers, and for the purpose of this proceeding, may be accepted as reasonable.' 262 I.C.C. 7, 19.
[ Footnote 12 ] See 6, Transportation Act of 1940, 54 Stat. 898, 904, 49 U.S.C. 4, 49 U.S.C.A. 4.
[ Footnote 14 ] The Commission's statement was that 'Like the lake-rail traffic, the barge-rail traffic requires transfer of lading and a full origin terminal service at the interchange port .... (I)t never moves in continuous through transportation.' 262 I.C.C. 7, 21.
A similar precise statement does not appear in the Commission's decision with reference to terminal services rendered ex-rail grain. It assumed throughout its discussion, however, as shown by its reliance on averages, that a large but unspecified amount of all-rail grain shipments receive the same terminal services as does ex-barge grain.
[ Footnote 15 ] There is apparently no processing of barge carried grain in Chicago. The railroads there charge 3.25-4.5 cents per hundred lbs. to switch barge grain at Chicago from riverside elevators to processing plants. 262 I.C.C. 7, 24.
[ Footnote 16 ] It is noteworthy that in its previous consideration of these same ex-barge grain reshipment rates, the Commission was satisfied that 'the physical carriage beyond the reshipping point is substantially the same' in ex-rail, ex-lake, and ex-barge shipments, 248 I.C.C. 307, 311.

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From time to time I am asked about the legislative process, so I teamed up with Jill and we created a handy one-pager (life at the capitol is driven by the proverbial one-pager) to walk you through how a bill becomes a law.
Bills are introduced by legislators – By rule, each legislator is permitted to introduce five bills in each legislative session. Exceptions are made (and made often) to the five bill limit.
Bills are introduced – First Reading by the House clerk. Other than reading the title to the bill nothing really happens at this juncture. This just gets the ball rolling.
The bill is assigned to a committee of reference (committee) by the Speaker of the House.
The committee meets to consider the bill after a notice is published.
The committee hears testimony from the general public and from experts. The bill can be amended by the committee.
If the committee approves the bill it goes back to the full House for consideration.
Non-partisan legislative staff prepares a “fiscal note” that details the cost to the State of Colorado.
The bill has an additional committee to review the bill for the fiscal impact to the state – this committee is the Appropriations Committee in each house.
If the Appropriations Committee agrees to the cost of the bill, that committee amends the bill with an appropriations clause and the bill moves to the floor for Second Reading.
The report of the committee is considered; including any amendments.
The bill is debated by the “committee of the whole” additional amendments can be offered and considered.
If bill passes on Second Reading it is listed on the next day’s calendar for Third and final reading in the House.
If the bill passes on Third Reading it is sent to the Senate where the process starts anew – First Reading, assigned to committee, committee review, sent to floor for consideration on Second and Third Reading.
If the bill passes the Senate without any changes the bill goes to the Governor.
If the Senate makes changes to the bill the House has the option of agreeing to the changes (concur) or rejecting the changes and asking for a conference committee to iron out the differences.
Comprised of three members from each house. The conference committee meets to reach an agreement (conference committee report) on the final form of a bill.
A majority (four or more) is required to move a bill from a conference committee back to the House and Senate.
After a conference committee report is submitted, the Senate and the House each have a final “yay” or “nay” vote on the bill.
Once the bill passes both houses, the bill becomes law when the Governor signs it.
During the session, from the day the Governor receives the bill she/he has 10-days to sign, veto, or let the become law without her or his signature.
Within the last 10-days of the session the governor has up to 30 days after the legislature adjourns to sign, veto, or let the bill become law without a signature.
The Governor must send a veto message to the legislature.
The legislature can override a veto with a two-thirds majority vote in BOTH houses.
If the Governor vetoes a bill after the legislature adjourns for the year there is not an opportunity to override that veto.
For a fun view of the life of how a bill becomes a law, please click here to check out the flow-chart developed by the wonderful nonpartisan staff of the Colorado General Assembly.
On Thursday, June 6, 2013, the Colorado Court of Appeals issued nine published opinions and 16 unpublished opinions.
Medical Lien Management, Inc. v. Allstate Insurance Co.
Ruiz v. Hope for Children, Inc.
The Tenth Circuit Court of Appeals published its opinion in Pahls v. Thomas on Tuesday, June 4, 2013.
President George W. Bush visited Los Ranchos, New Mexico, for a fundraiser in August 2007. The Secret Service was in charge of overall security, and Special Agent Sheehan, as the “site agent,” was tasked with designing and implementing the site security plan. Lt. Thomas of the Bernalillo County Sheriff’s Department (“BCSD”) was in charge of local law enforcement personnel for the event. Among other tasks, he was responsible for making decisions regarding the treatment of demonstrators, including where they would be permitted to stand. Sgt. Mims’s primary responsibility was security of the outer perimeter, which included the area where plaintiffs eventually stood.
For events of this type, BCSD had in place a general policy of directing demonstrators to a designated protest zone. Pursuant to their responsibilities, Lt. Thomas and Sgt. Mims decided that all demonstrators who attended the event should be directed to gather at what was named the “southern checkpoint,” which was approximately 150 yards from where the President would arrive.
As the morning progressed on the day the President was to arrive, many people, including plaintiffs, began arriving at the site to protest. Law enforcement personnel had no reason to believe the protesters posed any threat to the President or the public. Various plaintiffs were subjected to the requirement to gather at the southern perimeter.
At some point prior to President Bush’s arrival, an individual approached Special Agent Sheehan and identified himself as the owner of the property directly opposite the driveway where the President was to arrive. The landowner asked Special Agent Sheehan if he would be allowed to stand on the portion of his property that would allow him to watch the President’s motorcade as it passed. After satisfying himself that the landowner was not a security risk, Special Agent Sheehan told him that security officials would not interfere with his property rights so long as he did not interfere with the motorcade. Soon after, a small group of supporters gathered in this area, which was approximately 15 feet from where the President’s motorcade would pass.
When the President arrived, the motorcade never passed by the protesters at the southern checkpoint, and the President’s view of these protesters was obstructed by distance and a police barricade. The supporters, by contrast, were up close and easily visible to the President.
Plaintiffs filed a complaint in January 2008, asserting claims pursuant to § 1983 and alleging viewpoint discrimination by various government entities and five unnamed officials. Plaintiffs claimed that they received disparate treatment vis-à-vis the Bush supporters in violation of their First and Fourteenth Amendment rights. After extensive discovery, they moved to amend their complaint to include, among others, Special Agent Sheehan, Lt. Thomas, and Sgt. Mims as defendants in their individual capacities. The district court granted the motion. In September 2010, Special Agent Sheehan moved for summary judgment, invoking qualified immunity. Lt. Thomas and Sgt. Mims did the same in November 2010. The district court denied summary judgment to all three officials. Each official appealed.
The Tenth Circuit began its analysis by setting forth the relevant legal standards that govern its decision.
42 U.S.C. § 1983 provides a cause of action against state officials who violate constitutional or other federally protected rights. A second avenue is a Bivens action—the federal analog to a § 1983 suit—which provides a “private action for damages against federal officers” who violate certain constitutional rights. See Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). Common to all § 1983 and Bivens claims is the requirement that liability be predicated on a violation traceable to a defendant-official’s own individual actions.
The Supreme Court has recognized that public officials enjoy qualified immunity in civil actions that are brought against them in their individual capacities and that arise out of the performance of their duties. A plaintiff seeking to overcome that presumption must make a two-part showing: first, that a public official violated the plaintiff’s constitutional (or, in the case of a § 1983 action, more generally, federally protected) rights; and second, that these rights were clearly established at the time of the alleged violation.
At the core of the First Amendment is the idea that “government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.” Police Dep’t of Chi. v. Mosley, 408 U.S. 92, 95 (1972). In traditional public forums, such as sidewalks and streets, a content-based regulation of speech must meet strict scrutiny. A content-neutral regulation, by contrast, must meet intermediate scrutiny. See Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989). Viewpoint discrimination is a subset—and a particularly “egregious form”—of content discrimination. Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819, 829 (1995). In § 1983 and Bivens actions, a claim of viewpoint discrimination in contravention of the First Amendment requires a plaintiff to show that the defendant acted with a viewpoint-discriminatory purpose.
In light of these principles, the Tenth Circuit held the district court improperly denied qualified immunity to Special Agent Sheehan, Lt. Thomas, and Sgt. Mims on plaintiffs’ viewpoint-discrimination claim.
The Tenth Circuit held that the district court’s mode of analysis ran afoul of the standards that must be met if plaintiffs were to make out viable § 1983 and Bivens claims and overcome defendants’ assertions of qualified immunity. Liability under § 1983 and Bivens requires personal involvement. Plaintiffs had to have established that each defendant caused plaintiffs to be subjected to viewpoint discrimination and acted with a viewpoint-discriminatory purpose.
The first decisionmaker was Special Agent Sheehan. On the day of the President’s visit, Special Agent Sheehan’s primary responsibility was the security of the inner perimeter. The second set of decisionmakers consisted of Lt. Thomas and Sgt. Mims of BCSD. Their primary responsibility on the day in question was outer-perimeter security, including operation of the southern checkpoint.
The Court noted that neither the Secret Service’s policy nor BCSD’s policy was itself a content- or viewpoint-based restriction on speech. The rub of this case was that these two viewpoint-neutral policies came together and were implemented in such a way as to produce a viewpoint-discriminatory effect.
However, disparate impact alone is not enough to render a speech restriction content- or viewpoint-based. For a discrimination claim rooted in the First Amendment, a plaintiff must show that a government official acted with discriminatory purpose. Where, as here, the government policies are themselves viewpoint-neutral but in tandem create a disparate impact, plaintiffs must show that the policies were brought together for the purpose of discriminating against or in favor of a particular viewpoint. See Hoye v. City of Oakland, 653 F.3d 835, 854 (9th Cir. 2011).
Even taking all of the district court’s factual determinations as true and granting plaintiffs all reasonable inferences in their favor, they do not demonstrate a constitutional violation—i.e., that any defendant acted, or implemented his agency’s policy, for the purpose of discriminating against plaintiffs’ anti-Bush message or in favor of the supporters’ pro-Bush message.
The most that the evidence showed with respect to Special Agent Sheehan was that he knew his actions, though consistent with Secret Service policy, would, in conjunction with the independent actions of BCSD officials, result in disparate treatment of supporters and protesters. This was legally insufficient to establish viewpoint discrimination.
Turning to Lt. Thomas, there was no evidence that he had any hand in Special Agent Sheehan’s decision to allow Bush supporters to remain on private property. The only activity that connected Lt. Thomas to that decision was his knowledge of and acquiescence in it. That, however, was plainly insufficient to allow a reasonable jury to infer a discriminatory purpose.
The facts with respect to Sgt. Mims were identical in all material respects to the facts with respect to Lt. Thomas. The district court predicated Sgt. Mims’s personal liability for viewpoint discrimination on the fact that he possessed responsibility for Sheehan’s policy and that he knew of and did not interfere with the pro-Bush supporters’ demonstration. But Sgt. Mims did not personally participate in Special Agent Sheehan’s decision and was not responsible for it in a supervisory capacity. His mere knowledge of and acquiescence in that decision were insufficient as a matter of law to amount to a viewpoint discriminatory purpose.
The Court therefore reversed the district court’s denial of qualified immunity to Special Agent Sheehan, Lt. Thomas and Sgt. Mims.
On Wednesday, June 5, 2013, the Tenth Circuit Court of Appeals issued one published opinion and eight unpublished opinions.


Georgia first enacted a public records statute in 1831. See Georgia First Amendment Foundation, A Timeline of Georgia's Public Records Laws. The current Open Records Act may be found at Ga. Code Ann. § 50-18-70.
The Georgia Open Records Act restricts access to motor vehicle accident reports only to those with a demonstrated "need" for the records. Ga. Code Ann. § 50-18-72(a)(5). Ga. Code Ann. § 15-6-96 authorizes the clerk of the superior court to profit from the sale or distribution of records of their office. A Georgia court, in Powell v. VonCanon, 1996, 219 Ga.App. 840, 467 S.E.2d 193, differentiated between the Open Records and § 15-6-96 and ruled that greater fees for intended commercial use of records could be charged under §15-6-96, but could not under the Open Records Act.
While § 28-9-3 refers only to the codification of Georgia laws, case law makes it clear that the texts of the statutes themselves are not copyrightable. In State of Ga., on Behalf of & for Benefit of Gen. Assembly of Ga., By & Through Code Revision Comm'n v. Harrison Co., 548 F. Supp. 110 (N.D. Ga. 1982) vacated sub nom. State of Ga. on Behalf of Gen. Assembly of Georgia By & Through Code Revision Comm'n v. Harrison Co., 559 F. Supp. 37 (N.D. Ga. 1983), a Georgia court held that the basic texts of statutes are in the public domain, and that merely descriptive chapter titles were insufficiently original to merit copyright protection. Annotations and other content added by a third party may still be copyrighted. Section 28-9-3 must therefore be interpreted to only apply to portions of the code not in the public domain.
Georgia has an unusually high number of statutory authorizations for government entity copyright ownership (see examples above). At least four of these statutes, explicitly granting authority to hold copyrights, were enacted after the passage of the 1976 federal copyright act.
The current version of the Georgia Open Records Act does not restrict records requests to Georgia citizens. A Georgia court expanded the right of access beyond state residents in Atchison v. Hosp. Auth. of City of St. Marys, 245 Ga. 494, 265 S.E.2d 801 (1980), and the Open Records Law was later changed to omit the citizens-only language. See Ga. Op. Att'y Gen. 76 (1993).
The Georgia code explicitly refers to records as "public property" in Ga. Code Ann. § 50-18-102 ("All records created or received in the performance of duty and paid for by public funds are deemed to be public property"), however it also specifies that title to records transferred under the state records management program either remains with the originating agency or is transferred to the State Archives. Ga. Code Ann. § 50-18-98. The Georgia code also prohibits the transfer of public records to the custody of private individuals without special authorization. Ga. Code Ann. § 50-18-102.
Georgia Attorney General, Open Government website, available at http://law.ga.gov/open-government.
Georgia State Archives, available at http://www.georgiaarchives.org/.
Reporters Committee for Freedom of the Press, Open Government Guide: Access to Public Records and Meetings in Georgia, available at http://www.rcfp.org/rcfp/orders/docs/ogg/GA.pdf.
Powell v. VonCanon, 1996, 219 Ga.App. 840, 467 S.E.2d 193, available at https://scholar.google.com/scholar_case?case=7502810486150418482.
Atchison v. Hosp. Auth. of City of St. Marys, 245 Ga. 494, 265 S.E.2d 801 (1980), available at https://scholar.google.com/scholar_case?case=16329321878136818078.
Ga. Code Ann. § 50-18-70, available at http://law.ga.gov/sites/law.ga.gov/files/imported/vgn/images/portal/cit_1210/62/51/186385699r1.pdf.
Ga. Code Ann. § 50-18-72, available at http://law.justia.com/codes/georgia/2014/title-50/chapter-18/article-4/section-50-18-72/.
Ga. Code Ann. § 15-6-96, available at http://law.justia.com/codes/georgia/2014/title-15/chapter-6/article-2/section-15-6-96/.
Ga. Code Ann. § 28-9-3, available at http://law.justia.com/codes/georgia/2014/title-28/chapter-9/section-28-9-3/.
Ga. Code Ann., § 50-18-34, available at http://law.justia.com/codes/georgia/2014/title-50/chapter-18/article-2/section-50-18-34/.
Ga. Code Ann. § 40-2-60.1, available at http://law.justia.com/codes/georgia/2014/title-40/chapter-2/article-3/section-40-2-60.1/.
Ga. Code Ann. § 40-2-85.3, available at http://law.justia.com/codes/georgia/2014/title-40/chapter-2/article-3/section-40-2-85.3/.
Ga. Code Ann. § 40-2-86.1, available at http://law.justia.com/codes/georgia/2014/title-40/chapter-2/article-3/section-40-2-86.1/.
Ga. Code Ann. § 50-27-9, available at http://law.justia.com/codes/georgia/2014/title-50/chapter-27/article-1/section-50-27-9/.
Ga. Code Ann. § 50-7-8, available at http://law.justia.com/codes/georgia/2014/title-50/chapter-7/article-1/section-50-7-8/.
Ga. Code Ann. § 50-18-98, available at http://law.justia.com/codes/georgia/2014/title-50/chapter-18/article-5/section-50-18-98/.
Ga. Code Ann. § 50-18-102, available at http://law.justia.com/codes/georgia/2014/title-50/chapter-18/article-5/section-50-18-102/.
1993 Ga. Op. Att'y Gen. 76 (1993).
Georgia First Amendment Foundation, A Timeline of Georgia's Public Records Laws, available at http://www.gfaf.org/resources/timeline.htm.
 Judicial opinions cannot be copyrighted. The Supreme Court in Banks v. Manchester, 128 U.S. 244, 9 S. Ct. 36, 32 L. Ed. 425 (1888) invalidated an asserted copyright by a private publisher, an Ohio citizen, for copyright in the state court reports, holding that any content written by a judge cannot be copyrighted because "[t]he whole work done by the judges constitutes the authentic exposition and interpretation of the law, which, binding every citizen, is free for publication to all, whether it is a declaration of unwritten law, or an interpretation of a constitution or a statute." See also Nash v. Lathrop, 142 Mass. 29, 35, 6 N.E. 559, 560 (1886) and Wheaton v. Peters, 33 U.S. 591, 668, 8 L. Ed. 1055 (1834). Only materials ancillary to the court opinion such as the "title-page, table of cases, head notes, statements of facts, arguments of counsel, and index" may be copyrighted. Callaghan v. Myers, 128 U.S. 617, 649, 9 S. Ct. 177, 185, 32 L. Ed. 547 (1888). Ga. Code Ann., § 50-18-34 must, therefore, only apply to the materials added to the reports by the reporter or publisher, and not to the judicial decisions themselves.