Party Name: Jeannette P. TAMAYO, Plaintiff-Appellant, v. Rod R. BLAGOJEVICH, Governor, Brian Hamer, sued in his individual and official capacity, Alonzo Monk, sued in his individual capacity, et al., Defendants-Appellees.
Rod R. BLAGOJEVICH, Governor, Brian Hamer, sued in his individual and official capacity, Alonzo Monk, sued in his individual capacity, et al., Defendants-Appellees.
Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 06 c 3151-Samuel Der-Yeghiayan, Judge.
Michael W. Condon, Michael D. Bersani, Jason Rose (argued), Hervas, Condon & Bersani, Itasca, IL, for Plaintiff-Appellant.
Gino L. Divito, Timothy A. Hudson (argued), Tabet, Divito & Rothstein, Chicago, IL, for Defendant-Appellee Blagojevich.
Kenneth M. Sullivan (argued), Sullivan & Associates, Chicago, IL, for Defendants-Appellees Hamer and Monk.
William M. Walsh (argued), Kakacek & Lingner, Steven J. Rosenberg, Chicago, IL, for Defendant-Appellee Illinois Department of Revenue.
Rachel A. Hoover (argued), Office of the Attorney General, Chicago, IL, for Defendant-Appellee Illinois Gaming Board.
Before POSNER, RIPPLE and TINDER, Circuit Judges.
Jeannette Tamayo brought this action under Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq.; the Equal Pay Act, 29 U.S.C. § 206 et seq.; and 42 U.S.C. § 1983. The district court dismissed her complaint for failure to state a claim. See Fed. R. Civ. P. 12(b)(6). Ms. Tamayo timely appealed. For the reasons set forth in this opinion, we affirm in part and reverse in part the judgment of the district court.
Because this case comes to us after the district court dismissed the complaint for failure to state a claim, we must take as true the facts alleged in Ms. Tamayo's complaint. Killingsworth v. HSBC Bank Nevada, N.A., 507 F.3d 614, 618 (7th Cir. 2007).
In 1990, in an effort to increase tax and licensing revenue for the state, the Illinois legislature enacted the Riverboat Gambling Act, 230 ILCS 10/1 et seq. In addition to legalizing riverboat gambling operations within the state, the Act established the Illinois Gaming Board ("IGB"), a five-member regulatory and licensing board, whose members are appointed by the Governor and confirmed by the Senate. 230 ILCS 10/1. The IGB is charged with regulating, administering and enforcing the riverboat gambling system. Id. It operates under the Illinois Department of Revenue ("IDOR"), an executive agency broadly empowered to oversee the collection of revenue for the state.
Jeannette Tamayo began her work with the IGB in October 1999, when she was hired as its Deputy Chief Counsel. Her duties included representing the IGB in licensing investigations and enforcement matters and drafting rules for the IGB. Her salary as Deputy Chief Counsel was $107,000 per year.
The daily work of the IGB is the responsibility of an Administrator, who is charged with overseeing the agency's operations and maintaining the IGB's records. The Administrator's salary is determined by the IGB, but it is subject to approval by the Director of the IDOR. On July 1, 1999, the IGB appointed Sergio Acosta, a male, as its Administrator. Acosta received a salary of $140,000 per year during his tenure as Administrator. In September 2001, Acosta resigned, and the IGB appointed another man, Thomas Swoik, to serve as the Interim Administrator. He also received a salary of $140,000. In November of that year, the IGB appointed another male Administrator, Philip Parenti, at a salary of $160,000.
In January 2003, Rod Blagojevich became Governor of Illinois. A few months later, in June 2003, Parenti resigned his position as Administrator of the IGB. Soon thereafter, the IGB appointed Ms. Tamayo as its Interim Administrator. She was the first female ever to hold the position. With this promotion, Ms. Tamayo was promised a salary of $160,000 per year, significantly more than she had made in her previous position as Deputy Chief Counsel.
attempting to force the IGB to hire, and to pay out of its own budget, personnel who actually worked for the IDOR or the Governor; attempting to assume control of the IGB's administrative hearings; interfering with the established casino bidding process; demanding that the IGB cease its investigation of certain casinos; demanding that it release the confidential financial information of other casinos; and interfering with the IGB's command and control personnel structure. Ms. Tamayo made it known that she objected to these practices; consequently, she became quite unpopular with the Governor's office and the IDOR. Her complaint alleges that she was warned twice by Mr. Hamer to cooperate.
Ms. Tamayo also had significant disputes with the IGB and IDOR regarding her compensation. Despite the fact that she had been promised an annual salary of $160,000 upon assumption of the Interim Administrator position, Ms. Tamayo never saw an increase in her paychecks. During the time that she acted as Interim Administrator, she continued to be paid at her previous salary of $107,000 per year. In August 2003, Ms. Tamayo complained to both the IGB and the IDOR that she was not receiving the correct salary; however, her monthly paychecks never increased.
In November and December of 2003, after being paid at the lower Deputy Chief Council salary rate for a number of months, Ms. Tamayo advised the IGB that she believed her lack of compensation was based on the fact that (1) she was a woman, and (2) she was not cooperating with the Governor's office and the IDOR in their attempts to control the IGB. The IGB thereafter attempted to remedy the situation, but its efforts allegedly were stymied by the Governor's office and the IDOR, which controlled the IGB's personnel and budget. In March 2004, the IGB advised Ms. Tamayo to file a discrimination charge with the EEOC.
On April 6, 2004, Ms. Tamayo took the advice of the IGB and filed a discrimination charge. The charge named the IDOR as her employer. It complained that the IDOR had failed to approve her promised salary increase at least in part because she was a woman, and it alleged gender-based discrimination in violation of Title VII. Ms. Tamayo immediately informed the IGB of her actions.
On February 24, 2005, Ms. Tamayo publicly testified before the Illinois House Gaming Committee about the Governor and the IDOR's alleged interference with IGB operations, their alleged misuse of public funds and their alleged attempts to influence the outcome of licensing investigations and sales of casinos. In March, after this testimony, the Governor replaced the entire IGB Board with new Commissioners. Ms. Tamayo alleges that, immediately after the new Commissioners were appointed, she began to be excluded from all meetings and activities necessary for the proper performance of her duties as IGB Administrator. On November 4, 2005, Ms. Tamayo was removed officially from the Administrator position. Her replacement was Mark Ostrowski, a male, and he was paid substantially more than Ms. Tamayo had been paid during her time as Administrator.
On June 8, 2006, Ms. Tamayo filed a complaint in the United States District Court for the Northern District of Illinois. The complaint named as defendants the IGB and the IDOR; it also named Governor Blagojevich, IDOR Director Hamer and Chief of Staff Monk ("the individual defendants") in both their official and their individual capacities. The defendants filed motions to dismiss on numerous grounds. On December 22, 2006, the district court dismissed the claims against the individual defendants in their official capacities with prejudice, and it dismissed the claims against the individual defendants in their individual capacities without prejudice.
On January 15, 2007, Ms. Tamayo filed an amended complaint, the complaint at issue in this appeal. Her complaint alleged six counts, four naming the IDOR and the IGB, and two naming the individual defendants. Against the IDOR and the IGB, she alleged both retaliation and discrimination claims under the Equal Pay Act and Title VII. Against the individual defendants, she alleged violations of the First and Fourteenth Amendments, pursuant to 42 U.S.C. § 1983.


APPR is the term used to describe NY State's teacher and principal evaluation system. In the 2015-16 academic year, 606 districts, BOCES and charter schools were operating under Education Law §3012-c with an approved Hardship Waiver; 122 districts and BOCES implemented APPR plans under Education Law §3012-d. Below are 2015-16 Education Law §3012-d APPR data for teachers and principals. Data has only been included for those districts and BOCES with an approved APPR plan for the 2015-16 school year under Education Law §3012-d, and includes both original and transition (as applicable) scores and ratings. Each classroom teacher and building principal must receive an overall rating based on the ratings received by the teacher or principal in the Student Performance and Teacher Observation/Principal School Visit Categories and determined using a State-prescribed matrix.
Each classroom teacher and building principal must receive an overall rating based on the ratings received by the teacher or principal in the Student Performance and Observation/School Visit categories and determined using a State-prescribed matrix. View more detailed information about the Overall rating.
Education Law §3012-d requires that one component of a teacher's or principal's evaluation be based on one required measure of student growth (State-provided growth scores or Student Learning Objectives (SLOs)) and one optional measure of student growth (a second State-provided growth score on a State-created or administered test or a growth score based on a State-designed supplemental assessment). All measures in the Student Performance category must measure student growth. View more detailed information about the Student Performance category rating.
Education Law §3012-d requires that teachers' and principals' evaluations be based on at least two observations (for teachers) or school visits (for principals) scored using a State-approved rubric. The Teacher Observation/Principal School Visit category includes two required subcomponents and an optional subcomponent . View more detailed information about the Teacher Observation/Principal School Visit category rating.
Each classroom teacher and building principal must receive an overall rating based on the ratings received by the teacher or principal in the Student Performance and Observation/School Visit categories and determined using a State-prescribed matrix. View more detailed information about the Overall rating or about Transition Scores/Ratings.
Education Law §3012-d requires that one component of a teacher's or principal's evaluation be based on one required measure of student growth (State-provided growth scores or Student Learning Objectives (SLOs)) and one optional measure of student growth (a second State-provided growth score on a State-created or administered test or a growth score based on a State-designed supplemental assessment). All measures in the Student Performance category must measure student growth. During the 2015-16 through 2018-19 school years, transition scores and ratings will also be calculated by districts/BOCES that exclude the results of the grades 3-8 ELA/math State assessments and any State-provided growth scores. During the 2015-16 through 2018-19 school years, transition scores and ratings will also be calculated by districts/BOCES that exclude the results of the grades 3-8 ELA/math State assessments and any State-provided growth scores. View more detailed information about the Student Performance category rating or about Transition Scores/Ratings.
Education Law §3012-d requires that teachers' and principals' evaluations be based on at least two observations (for teachers) or school visits (for principals) scored using a State-approved rubric. The Teacher Observation/Principal School Visit category includes two required subcomponents and an optional subcomponent. View more detailed information about the detailed information about the Teacher Observation/Principal School Visit category rating or about Transition Scores/Ratings.


text:
The Alabama Supreme Court partly granted a mandamus petition in this discovery dispute. It first held that the substantively unchallenged affidavit of the plaintiff’s lawyer, describing an unrecorded hearing in the trial court, provided sufficient evidence to defeat the mandamus petition. It then held that the trial court had exceeded its discretion by compelling wider discovery than the plaintiff had sought. Ex parte Guaranty Pest Control, Inc., No. 1080386 (Ala. Apr. 24, 2009).
A trial court’s order adjudicated the wife’s contempt petition but did not address her request for a change in the husband’s child-support obligation. The order therefore was not final and would not support an appeal. Cooper v. Cooper, No. 2080210 (Ala. Civ. App. Apr. 24, 2009).
Posted in child support, Final Judgment	| Tagged "child support"
The Court of Civil Appeals addressed two issues in probate appeals. Section 12-22-21(1) of the Alabama Code, the court first held, allows direct appeals from non-final judgments of both the probate and circuit courts. The circuit court’s non-final summary judgment therefore did not need to be certified under Rule 54(b). Moreover, once a probate case is removed to circuit court, exclusive jurisdiction remains in the circuit court for as long as the case is pending there. The appellant thus could not have appealed from a probate court order that was void for lack of subject matter jurisdiction. Brown v. Brown, No. 2080018 (Ala. Civ. App. Apr. 24, 2009).
Posted in bench trial, custody, modification, non-jury, nonjury, Preservation of Error and Waiver	| Tagged custody modification nonjury non-jury "bench trial"
An appellate court may not issue an advisory opinion. A decision may constitute an advisory opinion when the party whose conduct is at issue is not before the court so that the court’s decision will have no effect. BWT v. Haynes, No. 2071235 (Ct. Civ. App. April 17, 2009). In BWT, the plaintiff sought a declaratory judgment concerning an attorney’s fee. Rule 1.5 of the Alabama Rules of Professional Conduct governed the issue, and the Alabama State Bar, that has jurisdiction over conduct issues, was not a defendant in the declaratory judgment action. The Court of Civil Appeals dismissed the appeal from a judgment concerning the fee.
Proctor v. Classic Automotive, Inc.
Phillips v. Dickey et al.
Southland Bank v. A&A Drywall Supply Company, Inc.
B.W.T. v. Haynes & Haynes, P.C.
T.B. v. T.H. and S.H.
R. Scott Ricks v. Riddle Equipment, Inc.
In Bon Harbor, LLC v. United Bank, the Alabama Supreme Court dismissed two consolidated appeals due to lack of subject matter jurisdiction: one appeal was from a non-final judgment; the other was from a judgment that was void because it was entered while the first order was on appeal.

matches: v. v. v. v. v. v. v. v. v. v.


Justia › US Law › US Case Law › US Supreme Court › Volume 375 › Carey v. Westinghouse Elec. Corp.
Carey v. Westinghouse Electric Corp.
Petitioner union (IUE) and respondent employer entered into a collective bargaining agreement covering workers at several plants, including one where the dispute here involved occurred. The agreement states that the employer recognizes IUE and its locals as exclusive bargaining representatives for each of those units for which IUE or its locals have been certified by the National Labor Relations Board as the exclusive bargaining representative, and the agreement lists among those units for which IUE has been certified a unit of "all production and maintenance employees" at the plant where the controversy arose, "but excluding all salaried technical . . . employees." The agreement also contains a grievance procedure for the use of arbitration in case of unresolved disputes, including those involving the "interpretation, application or claimed violation" of the agreement. IUE filed a grievance asserting that certain employees in the engineering laboratory at the plant in question, represented by another union which had been certified as the exclusive bargaining representative for a unit of "all salaried, technical" employees, excluding "all production and maintenance" employees, were performing production and maintenance work. The employer refused to arbitrate on the ground that the controversy presented a representation matter for the National Labor Relations Board. IUE petitioned a New York state court for an order compelling arbitration.
Held: Whether the dispute be considered one involving work assignment or one concerning representation, it is not within the exclusive jurisdiction of the National Labor Relations Board, and there is no barrier to use of the arbitration procedure. Pp. 375 U. S. 263-273.
11 N.Y.2d 452, 184 N.E.2d 298, reversed.
The petitioner union (IUE) and respondent employer (Westinghouse) entered into a collective bargaining agreement covering workers at several plants, including one where the present dispute occurred. The agreement states that Westinghouse recognizes IUE and its locals as exclusive bargaining representatives for each of those units for which IUE or its locals have been certified by the National Labor Relations Board as the exclusive bargaining representative, and the agreement lists among those units for which IUE has been certified a unit of "all production and maintenance employees" at the plant where the controversy arose, "but excluding all salaried technical . . . employees." The agreement also contains a grievance procedure for the use of arbitration in case of unresolved disputes, including those involving the "interpretation, application or claimed violation" of the agreement.
Relations Board. IUE petitioned the Supreme Court of New York for an order compelling arbitration. That court refused. The Appellate Division affirmed, one judge dissenting, 15 A.D.2d 7, 221 N.Y.S.2d 303. The Court of Appeals affirmed, one judge dissenting, holding that the matter was within the exclusive jurisdiction of the Board, since it involved a definition of bargaining units. 11 N.Y.2d 452, 230 N.Y.S.2d 703, 184 N.E.2d 298. The case is here on certiorari. 372 U.S. 957.
with the purpose as stated even by the minority spokesman in Congress [Footnote 5] -- "that full opportunity is given the parties to reach a voluntary accommodation without governmental intervention if they so desire." 93 Cong.Rec. 4035; 2 Leg. Hist. L.M.R.A. (1947) 1046. And see Labor Board v. Radio Engineers, 364 U. S. 573, 364 U. S. 577.
"The underlying objective of the national labor laws is to promote collective bargaining agreements and to help give substance to such agreements through the arbitration process."
11 N.Y.2d 452, 458, 230 N.Y.S.2d 703, 706, 184 N.E.2d 298.
union of its assumption of jurisdiction. The railroad, not being able to have notice served on the other union, sued in the courts for relief. We adopted a hands-off policy, saying, "Railroad's resort to the courts has preceded any award, and one may be rendered which could occasion no possible injury to it." Id. at 349 U. S. 373.
Since § 10(k) not only tolerates but actively encourages voluntary settlements of work assignment controversies between unions, we conclude that grievance procedures pursued to arbitration further the policies of the Act.
states. Or the unions, instead of filing such a charge, might petition the Board under § 9(c)(1) to obtain a clarification of the certificates they already have from the Board; and the employer might do the same.
"an accretion to the existing certified production and maintenance unit, and are not embraced in the classification of laboratory employees excluded from the established unit."
N.L.R.B. 862; Lumber & Millwork Industry Labor Committee, 136 N.L.R.B. 1083.
If this is truly a representation case, either IUE or Westinghouse can move to have the certificate clarified. But the existence of a remedy before the Board for an unfair labor practice does not bar individual employees from seeking damages for breach of a collective bargaining agreement in a state court, as we held in Smith v. Evening News Assn., 371 U. S. 195. We think the same policy considerations are applicable here; and that a suit either in the federal courts, as provided by § 301(a) of the Labor Management Relations Act of 1947 (61 Stat. 156, 29 U.S.C. § 185(a); Textile Workers v. Lincoln Mills, 353 U. S. 448), or before such state tribunals as are authorized to act (Charles Dowd Box Co. v. Courtney, 368 U. S. 502; Teamsters Local v. Lucas Flour Co., 369 U. S. 95) is proper, even though an alternative remedy before the Board is available, which, if invoked by the employer, will protect him.
". . . a Board certification in a representation proceeding is not a jurisdictional award; it is merely a determination that a majority of the employees in an appropriate unit have selected a particular labor organization as their representative for purposes of collective bargaining. It is true that such certification presupposes a determination that the group of employees involved constitute an appropriate unit for collective bargaining purposes, and that, in making such determination, the Board considers the general nature of the duties and work tasks of such employees. However, unlike a jurisdictional award, this determination by the Board does not freeze the duties or work tasks of the employees in the unit found appropriate. Thus, the Board's unit finding does not per se preclude the employer from adding to, or subtracting from, the employees' work assignments. While that finding may be determined by, it does not determine, job content; nor does it signify approval, in any respect, of any work task claims which the certified union may have made before this Board or elsewhere."
Plumbing Contractors Assn., 93 N.L.R.B. 1081, 1087.
Primary Jurisdiction of the NLRB, 76 Harv.L.Rev. 529, 574-575 (1963)) or other aspects of work assignment disputes. If that is true, there is work for the arbiter whatever the Board may decide.
"There is no question that the Board is not precluded from adjudicating unfair labor practice charges even though they might have been the subject of an arbitration proceeding and award. Section 10(a) of the Act expressly makes this plain, and the courts have uniformly so held. However, it is equally well established that the Board has considerable discretion to respect an arbitration award and decline to exercise its authority over alleged unfair labor practices if to do so will serve the fundamental aims of the Act."
"The Act, as has repeatedly been stated, is primarily designed to promote industrial peace and stability by encouraging the practice and procedure of collective bargaining. Experience has demonstrated that collective bargaining agreements that provide for final and binding arbitration of grievance and disputes arising thereunder, 'as a substitute for industrial strife,' contribute significantly to the attainment of this statutory objective."
International Harvester Co., 138 N.L.R.B. 923, 925-926.
Thus, the weight of the arbitration award is likely to be considerable, if the Board is later required to rule on phases of the same dispute. The Board's action and the awards of arbiters are at times closely brigaded. Thus, where grievance proceedings are pending before an arbiter, the Board defers decision on the eligibility of discharged employees to vote in a representation case, until the awards are made. See Pacific Tile & Porcelain Co., 137 N.L.R.B 1358, 1365-1367, overruling Dura Steel Products Co., 111 N.L.R.B. 590. See 137 N.L.R.B., p. 1365, n. 11.
Should the Board disagree with the arbiter, by ruling, for example, that the employees involved in the controversy are members of one bargaining unit or another, the Board's ruling would, of course, take precedence; and if the employer's action had been in accord with that ruling, it would not be liable for damages under § 301. But that is not peculiar to the present type of controversy. Arbitral awards construing a seniority provision (Carey v. General Electric Co., 315 F.2d 499, 509-510), or awards concerning unfair labor practices, may later end up in conflict with Board rulings. See International Association of Machinists, 116 N.L.R.B. 645; Monsanto Chemical Co., 97 N.L.R.B. 517. Yet, as we held in Smith v. Evening News Assn., supra, the possibility of conflict is no barrier to resort to a tribunal other than the Board.
However the dispute be considered -- whether one involving work assignment or one concerning representation -- we see no barrier to use of the arbitration procedure. If it is a work assignment dispute, arbitration conveniently fills a gap and avoids the necessity of a strike to bring the matter to the Board. If it is a representation matter, resort to arbitration may have a pervasive, curative effect even though one union is not a party.
By allowing the dispute to go to arbitration, its fragmentation is avoided to a substantial extent; and those conciliatory measures which Congress deemed vital to "industrial peace" (Textile Workers v. Lincoln Mills, supra, at 353 U. S. 455) and which may be dispositive of the entire dispute are encouraged. The superior authority of the Board may be invoked at any time. Meanwhile, the therapy of arbitration is brought to bear in a complicated and troubled area.
"(4) (i) to engage in, or to induce or encourage any individual employed by any person engaged in commerce or in an industry affecting commerce to engage in, a strike or a refusal in the course of his employment to use, manufacture, process, transport, or otherwise handle or work on any goods, articles, materials, or commodities or to perform any services; or (ii) to threaten, coerce, or restrain any person engaged in commerce or in an industry affecting commerce, where in either case an object thereof is --"
"(D) forcing or requiring any employer to assign particular work to employees in a particular labor organization or in a particular trade, craft, or class rather than to employees in another labor organization or in another trade, craft, or class, unless such employer is failing to conform to an order or certification of the Board determining the bargaining representative for employees performing such work."
29 U.S.C. (Supp. IV) § 158(b)(4)(D).
"Whenever it is charged that any person has engaged in an unfair labor practice within the meaning of paragraph (4)(D) of section 8(b), the Board is empowered and directed to hear and determine the dispute out of which such unfair labor practice shall have arisen, unless, within ten days after notice that such charge has been filed, the parties to such dispute submit to the Board satisfactory evidence that they have adjusted, or agreed upon methods for the voluntary adjustment of, the dispute. Upon compliance by the parties to the dispute with the decision of the Board or upon such voluntary adjustment of the dispute, such charge shall be dismissed."
". . . unless . . . the parties to such dispute submit to the Board satisfactory evidence that they have adjusted, or agreed upon methods for the voluntary adjustment of, the dispute."
"Final adjustment by a method agreed upon by the parties is hereby declared to be the desirable method for settlement of grievance disputes arising over the application or interpretation of an existing collective bargaining agreement. The Service is directed to make its conciliation and mediation services available in the settlement of such grievance disputes only as a last resort and in exceptional cases."
61 Stat. 154, 29 U.S.C. § 173(d).
Senator Murray of Montana. And see S. Rep. No. 105, 80th Cong., 1st Sess., p. 27, 1 Leg.Hist.L.M.R.A. (1947) 433.
"It shall be an unfair labor practice for an employer -- . . . to refuse to bargain collectively with the representatives of his employees, subject to the provisions of section 9(a)."
Section 9(a) provides that the representatives shall be chosen by the majority of employees "in a unit appropriate" for collective bargaining. 29 U.S.C. § 159(a). Section 9(b) gives the Board authority to determine what unit is the appropriate one -- "the employer unit, craft unit, plant unit, or subdivision thereof." 29 U.S.C. § 159(b).
"Whenever a petition shall have been filed, in accordance with such regulations as may be prescribed by the board --"
"(A) by an employee or group of employees or any individual or labor organization acting in their behalf alleging that a substantial number of employees (i) wish to be represented for collective bargaining and that their employer declines to recognize their representative as the representative defined in section 9(a), or (ii) assert that the individual or labor organization, which has been certified or is being currently recognized by their employer as the bargaining representative, is no longer a representative as defined in section 9(a); or"
"(B) by an employer, alleging that one or more individuals or labor organizations have presented to him a claim to be recognized as the representative defined in section 9(a); the Board shall investigate such petition and if it has reasonable cause to believe that a question of representation affecting commerce exists shall provide for an appropriate hearing upon due notice. Such hearing may be conducted by an officer or employee of the regional office, who shall not make any recommendations with respect thereto. If the Board finds upon the record of such hearing that such a question of representation exists, it shall direct an election by secret ballot and shall certify the results thereof."
"In the recently decided International Harvester Company case, a majority of the Board indicated that it would give 'hospitable acceptance to the arbitral process' in order 'to promote industrial peace and stability by encouraging the practice and procedure of collective bargaining.' Relying on various statutory provisions, particularly Section 203(d) of the Labor-Management Relations Act, 1947, and on decisions of the United States Supreme Court which recognize arbitration as 'an instrument of national labor policy for composing contractual differences,' the Board concluded that it would withhold its undoubted authority to adjudicate unfair labor practice charges and give effect to arbitration awards involving the same subject matter"
" unless it clearly appears that the arbitration proceedings were tainted by fraud, collusion, or serious procedural irregularities or that the award was clearly repugnant to the purposes and policies of the Act."
"While it is true that International Harvester, as well as other cases in which the Board honored arbitration awards, involved unfair labor practice proceedings, we believe that the same considerations which moved the Board to honor arbitration awards in unfair labor practice cases are equally persuasive to a similar acceptance of the arbitral process in a representation proceeding such as the instant one. Thus, where, as here, a question of contract interpretation is in issue, and the parties thereto have set up in their agreement arbitration machinery for the settlement of disputes arising under the contract, and an award has already been rendered which meets Board requirements applicable to arbitration awards, we think that it would further the underlying objectives of the Act to promote industrial peace and stability to give effect thereto. It is true, of course, that, under Section 9 of the Act, the Board is empowered to decide questions concerning representation. However, this authority to decide questions concerning representation does not preclude the Board, in a proper case, from considering an arbitration award in determining whether such a question exists."
Monsanto Chemical Co., 97 N.L.R.B. 517; Wertheimer Stores Corp., 107 N.L.R.B. 1434.
I join the Court's opinion with a brief comment. As is recognized by all, neither position in this case is without its difficulties. Lacking a clear-cut command in the statute itself, the choice, in substance, lies between a course which would altogether preclude any attempt at resolving disputes of this kind by arbitration and one which, at worst, will expose those concerned to the hazard of duplicative proceedings. The undesirable consequences of the first alternative are inevitable, those of the second conjectural. As between the two, I think the Court at this early stage of experience in this area rightly chooses the latter.
MR. JUSTICE BLACK, with whom MR. JUSTICE CLARK joins, dissenting.
the same or greater weight in any judicial review of the Board's final order involving the same "phases of the same dispute."
Moreover, the Court holds that suits for damages can be filed against the employer in state courts or federal courts under § 301 of the Taft-Hartley Act, 29 U.S.C. § 185, for the "unfair labor practice" of failing to bargain with the right union when two unions are engaged in a jurisdictional dispute. The employer, caught in that jurisdictional dispute, is ordinarily in a helpless position. He is trapped in a cross-fire between two unions. All he can do is guess as to which union's members he will be required by an arbitrator, the Labor Board, or a court to assign to the disputed jobs. If he happens to guess wrong, he is liable to be mulcted in damages. I assume it would be equally difficult for him to prophesy what award an arbitrator, the Labor Board, or a judge will make as to guess how big a verdict a court or a jury would give against him. It must be remembered that the employer cannot make a choice which will be binding on either an arbitrator, the Board, or a court. The Court's holding, thus subjecting an employer to damages when he has done nothing wrong, seems to me contrary to the National Labor Relations Act, as well as to the basic principles of common everyday justice.
The Board can make final settlements of such disputes. Arbitration between some but not all the parties cannot. I fear that the Court's recently announced leanings to treat arbitration as an almost sure and certain solvent of all labor troubles has been carried so far in this case as unnecessarily to bring about great confusion and to delay final and binding settlements of jurisdictional disputes by the Labor Board, the agency which I think Congress intended to do that very job.
11 N.Y.2d 452, 230 N.Y.S.2d 703, 184 N.E.2d 298.
See Labor Board v. Radio & Television Broadcast Engineers Union, 364 U. S. 573; cf. Order of Railway Conductors v. Pitney, 326 U. S. 561, 326 U. S. 567.


On May 13, 2016, the Federal Circuit, in Merck & Cie v. Watson Laboratories, Inc., held that an offer for sale that qualifies as a commercial offer under the law governing contracts, is enough to trigger an on-sale bar under 35 U.S.C. §102(b), even when an actual sale has not been actually consummated.
Merck & Cie and Bayer Pharma (collectively “Merck”) sued Watson Laboratories, Inc. (“Watson”), accusing Watson of infringing a patent claim directed to a pharmaceutical ingredient, MTHF, by filing an Abbreviated New Drug Application (“ANDA”) with the FDA, seeking approval of Watson’s generic versions of the oral contraceptives Safyral® and Beyaz®. Over a year before filing the patent application, Merck explored the possibility of entering into a joint venture with Weider Nutrition International, Inc. (“Weider”) to market MTHF. Weider backed out of the joint venture, but was still interested in purchasing MTHF. In response, Merck sent a fax detailing terms of the offer such as the price, payment terms, as well as shipping and delivery terms. Shortly thereafter, Weider cancelled what it characterized as its “existing order” and the sale never took place.
Validity of the patent hinged on whether the fax qualified as a commercial offer for sale even though the sale was never completed. Because Merck’s patent application was filed in 2000, pre-AIA § 102(b) applied, which states that a patent claim is invalid if “the invention was . . . on sale in this country, more than one year prior to the date of the application for patent in the United States.” In Pfaff v. Wells Electronics, Inc., the Supreme Court articulated that the on-sale bar requires proof of two conditions: (1) the product is "ready for patenting," and (2) the invention is "the subject of a commercial offer for sale." Merck agreed that the invention was ready for patenting at the time of the fax. Therefore, the only remaining issue for the court was to determine whether a commercial offer for sale had occurred.
This is a cautionary tale and the moral of the story here is to consider filing a patent application as soon as the invention is ready for patenting, before engaging in sales negotiations because sales activity, including offers for sale will continue to be important given the uncertainty surrounding the on-sale clause of 35 U.S.C. §102(a)(1) of the Leahy-Smith America Invents Act (“AIA”), enacted in 2011. In addition, under AIA 35 U.S.C. §102(a)(1), offers for sale will qualify as “disclosures,” thereby triggering the one-year clock under AIA 35 U.S.C. §102(b)(1).
This decision comes just a week after the Federal Circuit heard oral arguments in another case involving an on-sale bar, Medco v Hospira, where the issue presented was whether an agreement with a third party to manufacture the invention was sufficient to trigger the on sale bar under AIA, a decision has not yet been issued in that case.


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It is difficult to overstate the extent to which term limits would change Congress. They are supported by large majorities of most American demographic groups; they are opposed primarily by incumbent politicians and the special interest groups which depend on them. Term limits would ameliorate many of America's most serious political problems by counterbalancing incumbent advantages, ensuring congressional turnover, securing independent congressional judgment, and reducing election-related incentives for wasteful government spending. Perhaps most important, Congress would acquire a sense of its own fragility and temporariness, possibly even coming to learn that it would acquire more legitimacy as an institution by doing better work on fewer tasks.
Legislative resistance to term limits is in sharp contrast with private citizens' strong support for them.
The only serious opponents of term limits are incumbent politicians and the special interests -- particularly labor unions -- that support them.
The movement to limit political terms is steamrolling through American politics. Voters have approved term limits for Congressmen in each of the fifteen states where referenda have been held, with votes averaging over 66 percent in support, and another four to ten states will permit their citizens to vote on congressional term limits this November. If past elections and current polls are any indication, these proposals also will pass easily. In addition, eighteen states and hundreds of cities and counties across the country have adopted term limits for state and local officials.
Such substantial public support suggests widespread distaste for careerism in politics, as well as a conviction that continual infusion of fresh blood into the federal legislature will be good for both the Congress and the country. Support for term limits extends to significant majorities of diverse demographic groups: polls show that majorities of men, women, blacks, whites, Republicans, Democrats, and Independents all favor term limits, typically by 60 percent or better. (New York Times/CBS survey of 1,515 adults, April 1990.) Such politically diverse figures as Ed Koch, Doug Wilder, Ralph Nader, Paul Tsongas, and George Will support term limits; over 100 Members of Congress have signed a discharge petition to force a vote in the House of Representatives on a constitutional amendment; and both Ross Perot and numerous United We Stand America chapters have made term limits a central goal. The United States Supreme Court has preempted a major argument of opponents -- that term limits are clearly unconstitutional -- by accepting a state case for review. Regardless of the outcome of the case, however, term limits are here to stay as an important issue on the American political landscape.
Term limits are a powerful political force, as demonstrated by the results of numerous state referenda, state legislative outcomes, and candidate election results.
Term limits are a vital political reform that would bring new perspectives to Congress, mandate frequent legislative turnover, and diminish incentives for wasteful election-related federal spending that currently flourish in a careerist congressional culture.
Term limits as enacted on the state level are constitutional as a legitimate exercise of the states' power to regulate their own elections.
Term limits are opposed primarily by elected officials and the special-interest groups that depend on them because the weakness of the case against term limits does not appeal to the public.
Term limits have a promising future on numerous political fronts, such as candidate elections, state referenda, state and federal legislative action, and congressional and presidential politics.
When Americans are polled about their respect for the people in charge of their major institutions, Congress consistently comes out next to the bottom. (Law firms are the only group that the poll identifies as more unpopular than Congress. Louis Harris and Associates, "Confidence in Institutions" poll, 1966-1993.) By substantial majorities, Americans have fixed firmly on term limits as the solution to problems in Congress, and will not easily be persuaded to change their minds. In one case, pollsters -- after asking about subjects' views on term limits -- gave four leading arguments against them; after the subjects heard these arguments, their support for term limits rose from 71 percent to 74 percent. (Americans Talk issues poll, January 1994.) Moreover, in contrast to other issues which are initially popular but fade under criticism, term limits are supported in actual voting nearly as strongly as in initial polls.
Skepticism about and distaste for long-term political careerism are central to the American experience. Term limits were contained in America's first governing document, the Articles of Confederation; they do not appear in the Constitution primarily because its drafters saw them as "entering into too much detail" for a short document. (John H. Fund, "Term Limitation: An Idea Whose Time Has Come," Cato Institute Policy Analysis No. 141, October 30, 1990.) Several modern Presidents, including Truman and Eisenhower, have supported congressional term limits. Since the Constitution was amended in 1951 to limit Presidents to two terms, many political scientists have observed that congressional term limits could cure the imbalance between these two branches of the federal government.
As a political movement, term limits first achieved statewide success in September 1990 when Oklahoma opened the floodgates for statewide referenda by limiting the terms of its state legislators. Two months later, Colorado became the first state to place term limits on its congressional delegation. California, however, because of its size and influence on the rest of the nation, by its 1990 action in limiting the terms of state legislators may have been more influential in laying the groundwork for the victories that were to follow in 1992.
That year, fourteen more states passed term limit referenda the same day they helped elect a new President. In each of these fourteen states, term limits received more votes than did Bill Clinton; when added together, term limits received more votes in fourteen states than Ross Perot did nationwide. The appeal of limiting the terms of elected officials is also evident in the passage of term limits laws for hundreds of cities and counties across the country, including Los Angeles and New York City.
Although opponents have attempted to create mass movements to fight term limits, they have been singularly unsuccessful because of term limits' widespread popularity. The term limits movement shows signs of becoming in the 1990s what the tax revolt became in the 1970s: a popular movement which politicians ignore at their peril. Although numerous state legislatures have dealt with term limits, to date only Utah's has successfully passed a bill (in March 1994), and a state referendum drive is currently under way there to correct what some activists see as weaknesses in the measure. More typically, state legislatures have resorted to various maneuvers in order to sidestep term limits. Last year in New Hampshire, the House successfully passed a term limits measure, but the Senate added a "killer amendment" that emasculated the legislation. The New Jersey House also passed a term limits measure in 1993, but the state Senate, relying on an advisory opinion from its in-house counsel that term limits are unconstitutional, refused to vote on the bill. In Wyoming, some members of the state legislature unsuccessfully attempted to amend the term limits referendum already passed by the voters by adding a proviso that term limits would not go into effect until every state in the Union passed them.
Legislative resistance to term limits is in sharp contrast with private citizens' strong support for them. Texas Republican Jim Tallas, a state legislator who bottled up a term limits measure in a subcommittee he chaired, was ousted in a March 1994 primary when his challenger, who made Tallas's opposition to term limits the center of his campaign, received 71 percent of the vote. The intensity of citizen support for term limits was demonstrated most recently in Nebraska after a May 1994 decision by the state supreme court voiding a successful term limits initiative on a technicality. Despite the fact that organizers had only nine weeks to gather signatures to place a second initiative on the November ballot, the names rolled in: over 60,000 in one week alone. As a result, Nebraskans almost certainly will re-enact term limits this fall. Speculation about whether the Supreme Court will find that state-imposed term limits on Members of Congress are constitutional diverts attention from the real story: a nationwide grassroots movement that has won popular votes in fifteen of fifteen states, has convinced a state legislature to pass them in a sixteenth (Utah), and almost certainly will expand its reach this November to as many as ten more states. This movement is animated by the conviction that the American people have lost control of their government but can take it back by using the most direct means available to control their elected representatives: frequent, mandated rotation that ensures they are truly of -- not just from -- their communities.
The only serious opponents of term limits are incumbent politicians and the special interests -- particularly labor unions -- that support them. The specter of term limits creates powerful emotional reactions in opponents, at least two elected legislators (one the chairman of the House Administration Subcommittee on elections) having publicly compared the term limits movement to Nazism. Such overheated rhetoric indicates both the threat that term limits poses to established special interests and the urgency of the battle for them.
It is clear that special interests do not believe term limits will help them. Among the major contributors to an anti-term limits campaign in Michigan, for instance, were Chrysler Corporation, Blue Cross-Blue Shield of Michigan, Michigan Bell Telephone Company, Detroit Edison Company, Southern California Edison Company, The Coastal Corporation, Kellogg Company, USX Corporation, and Pacific Telesis Group (Norman Leahy, "Corporate Interests: Why Big Business Hates Term Limits," U.S. Term Limits Foundation, Term Limits Outlook Series, Vol II, No. 1 (March 1993).) -- all large, heavily regulated businesses. Their unlikely allies were a coalition of unions, such as the Teamsters, the United Auto Workers, the Michigan Education Association, and the AFL-CIO, who rely on specific forms of government intervention in labor markets. All these groups' efforts were coordinated by Debbie Dingell, wife of Michigan Democrat and House Energy and Commerce Committee Chairman John Dingell. A similar assortment of regulated industries and unions that fought term limits in Washington State was spearheaded by Heather Foley, the spouse and unpaid chief of staff of Speaker of the House Tom Foley.
Special interests oppose term limits because they do not want to lose their valuable investments in incumbent legislators. Many are organized to extract programs, subsidies, and regulations from the federal government -- to use the law, in other words, as a lever to benefit their own constituencies or harm their rivals. The zero-sum transfer economy from which skilled lobbyists profit -- as well as their own high-paying jobs -- will be decimated by term limits that force lobbyists to relearn the priorities of new Members and make arguments on the merits, not on the strength of personal connections. The number of groups listed in the Encyclopedia of Associations has quadrupled in the last four decades from fewer than 5,000 in 1956 to over 20,000 today as special interests have taken advantage of legislators' vulnerability to proposals that concentrate benefits but disperse costs. Such growth in lobbies and organizations is anything but a sign of democratic vigor.
Term limits are needed at all levels of government. However, because of the large electoral advantages wielded by incumbents, the historically low rate of turnover, the greater threat from special interests, and the unique power that federal legislators hold, it is especially important to apply term limits to Congress.
Term limits counterbalance incumbent advantages.
Congressional term limits are a necessary corrective to inequalities which inevitably hinder challengers and aid incumbents. Each House Member, for instance, receives nearly a million dollars per year to pay for franked (free) mail, staff salaries, and office and travel expenses. While campaigning, incumbents continue to receive salaries upwards of $130,000 a year, which typically dwarf the income of challengers (who often must resign from their jobs while running for office). A small army of congressional staffers does volunteer work during campaign season; they have every motivation to do so, since they are campaigning for perpetuation of their jobs. On official time, these political aides perform all sorts of jobs unrelated to legislation but closely tied to reelection, such as soliciting media attention and doing favors for constituents. The power of the frank permits each Member to send thinly disguised reelection propaganda to every residence in his district several times per term. The money allotted to each incumbent for franking alone -- over $160,000 per year -- is higher than the average challenger's total campaign expenditures. State legislators, who recognize the benefits to their state from long-term congressional incumbency, redraw election districts to maximize incumbents' electoral chances. The extent of incumbent resources prevents their exhaustive listing here, but their electoral impact is sizable; both the House and the Senate, for instance, have authorized taxpayer-funded lawyers to intervene in term limits litigation. When these benefits are added to such natural incumbent advantages as name recognition, media access, and higher political contributions, it is no wonder that challengers unseat incumbents so rarely. Despite increasing complaints about the drudgery of life in Congress, a remarkable number of incumbents continue to seek (and secure) reelection. Term limits ensure congressional turnover.
Term limits secure Congress's independent judgment.
In one of the few cases where Congress itself has established term limits, service on the House and Senate intelligence Committees is limited on the grounds that long-term membership might cause Members to develop a loyalty to the intelligence bureaucracy that would undermine their ability to exercise critical and independent judgment over it. This mandatory term limit is based on a sound theory of human conduct, but it deserves wider application; in an age where scores of federal agencies and special interests continually lobby for funding, there is a very real danger that Congressmen will become enmeshed in a culture that is overfamiliar with the federal government and insulated from the communities they ostensibly represent. Public sentiment in favor of term limits is likely influenced by the fear that Congressmen will become captured by this alien federal culture, as well as by frustration with the sclerotic representation that results from incumbents of all political stripes routinely getting reelected.
Term limits are a reality check.
Term limits also would provide inescapable, bracing reminders of what life in the real world is like. After former Senator George McGovern tried (and failed) to succeed in small business after spending eighteen years in Congress, he observed: "I wish I had known a little more about the problems of the private sector.... I have to pay taxes, meet a payroll -- I wish I had a better sense of what it took to do that when I was in Washington." (Fund, op. cit., p. 10.) Ensuring that Members eventually are exposed to life outside of Congress should inculcate a more sophisticated understanding of the logic and the limits of federal regulation.
Term limits minimize Members' incentives for reelection-related "pork- barrel" legislation.
As government has grown larger, legislative careerism has become more prominent in Congress. Because long-tenured Congressmen have increasing power over the fate of federal projects due to the seniority system, senior members of both parties now routinely campaign by stressing their ability to bring federal projects to their home districts rather than by explaining their views on the important issues of the day. When Members express their preferences in committee assignments, they are aware of the electoral impact of federal spending directed at their districts. After the 1992 elections, so many freshman Congressmen chose the Public Works and Transportation Committee that new seats had to be created, making Public Works the largest committee in Congress. (Jackie Calmes, "Tables Turned: Candidates of Change in 1992 Find Congress Reforms Them Instead," The Wall Street Journal, May 6, 1994, p. A1.) Term limits, by eliminating incentives for careerism, would curb reelection-oriented federal spending which is targeted to particular districts but contributes little to the general welfare of the country.
Term limits thus provide an escape from the Faustian bargain that voters face: they know that returning an incumbent for another term may help their district, but in the long run it has dire institutional and national consequences. Long-term officeholders, less vulnerable because of a well-honed reelection machine fueled by public resources, come gradually to identify their interests more and more with those of the federal government. There is a strong correlation between length of legislative service and votes in favor of more public expenditures. (See James L. Payne, The Culture of Spending (San Francisco: ICS Press, 1991), chapters 5, 11.) Political scientist John Armor, for example, has calculated the effects of term limits on congressional votes by eliminating the votes of senior legislators who would be locked out by term limits and replacing them by the proportion of votes for and against legislation made by junior members of their parties (in order to simulate the additional, hypothetical term- limited legislators); he found that the President's 1993 tax increase would not have made it through the House, while last year's Penny- Kasich federal spending cuts would have passed the House overwhelmingly. (See Pat Buchanan, "Term Limits Revolution," The Washington Times, July 7, 1994, p. A16.) Longer-serving Congressmen are also more hostile generally to other fiscally conservative measures, such as a balanced budget amendment to the Constitution, (Payne, The Culture of Spending, pp. 178-179.) and a forthcoming study by Cato Institute analysts Steve Moore and Aaron Steelman finds that term limits would push numerous other congressional vote totals in a more fiscally conservative direction.
Term limits would restore respect for Congress.
Use of discreditable tactics like pork-barreling that have powerful electoral effects is a major cause of declining respect for and satisfaction with Congress. Term limits would arrest the decline of congressional legitimacy, ensuring that Members would be more truly representative of their communities, and would renew American citizenship by writing into law the principle that people can govern themselves -- and that this representation falls within the competence of any reasonably interested and well-educated citizen. The objection that long service is essential to understanding the complex legislative process says far more about the current congressional system than it does about the concept of term limits.
In short, the best way to reinvigorate government is to bring in legislators with fresh outlooks, new ideas, and better incentives. Term limits are the only realistic way to change the culture of legislative careerism in Congress -- a culture that undermines the public interest.
Argument #1: Term limits are undemocratic.
Perhaps the most popular argument against term limits is that they restrict the choices available to voters. Voters, say opponents, should be able to vote for as wide a field of candidates as possible. Additionally, the ballot box makes statutory term limits unnecessary. "In effect, there are term limits in place every two years -- candidates have to go before constituents and get reelected," says Jeff Biggs, press secretary for House Speaker Tom Foley. (Debbie Howlett, "Speaker Foley Challenges Home State Term Limit," USA Today, June 8, 1993, p. 8A.) But arguments that term limits are undemocratic because they restrict voters' choices run into two problems: (1) the tremendous electoral advantages enjoyed by incumbents make it difficult to argue that the elections they win are truly democratic, and (2) term limits would be more likely to expand the field of candidates than to restrict it.
Because the perquisites of office present huge barriers to entry by challengers, incumbents always have the privilege of fighting a defensive war. Taxpayer-funded benefits like franking, staff, and travel allowances tilt the field in incumbents' favor, and political donors -- who typically view their contribution as wasted if it does not go to the winning candidate -- magnify these incumbent advantages by disproportionately favoring candidates already in office. In 1992, House challengers raised 28 cents for every campaign dollar received by incumbents, while Senate challengers raised 47 cents. (Ornstein, Mann, and Malbin, Vital Statistics on Congress 1993-1994, p. 81, table 3-5.) Challengers' donations relative to those of incumbents have been dwindling more or less steadily since 1980. It is no wonder that challengers facing such long odds routinely lose to incumbents over 90 percent of the time.
By creating more choices for voters, increased filings like those in Maine and California aid democracy. Nationwide, congressional term limits likewise will create more choices for voters, more competitive elections, and more democracy.
Argument #2: There already is high congressional turnover.
Some opponents note the scores of new Members in the 103rd Congress, or predict that Members seated after 1990 will be the majority in the House after the November elections, in order to resist term limits. In fact, however, the large number of new faces in Congress results primarily from Members resigning or seeking other office. In the 1992 House races, over 88 percent of incumbents running for reelection were victorious, but incumbents typically fare much better even than that: the 1992 reelection rate was the lowest in two decades.
Even with a healthy influx of new Members, the seniority system allows entrenched Congressmen to control newcomers and encourages newcomers to behave like the long-term incumbents they replace. Until term limits force a change in the seniority system and in the incentives of new Congressmen, those who control the passage of legislation will remain in control for decades, not years, at a time. As noted above, while some turnover takes place every election, members of the congressional leadership have been in office for decades, and it is they who set the agenda; for example, Representative Jack Brooks, a 21-term representative who has been in office since the Truman Administration, as chairman of the House Judiciary Committee can routinely block term limit measures from coming to the floor for a vote.
Argument #3: Term limits will harm small states.
Some opponents argue that states with smaller populations (and thus fewer representatives in Congress) will be systematically disadvantaged by term limits; Democratic Senator Ernest Hollings of South Carolina, for instance, makes this argument on behalf of the Southern states. (See his "Term Limits: Beware the Yankee Conspiracy," The State (Columbia, S.C.), May 22, 1994, p. D-3.) Historically, some smaller states have attempted to compensate for this by continually reelecting incumbents regardless of their views on issues in order to accumulate power through seniority. Without such seniority, goes the argument, smaller states will be at the mercy of states like California which, by virtue of their size, can send scores of representatives to Congress and are assured seats on numerous important committees.
Such an argument ignores the tremendous institutional changes that congressional term limits would trigger. Instead of confining important committee chairmanships and other positions of power to incumbents who have spent decades in office, term limits would shut down the seniority system. Important legislative positions would be assigned by merit and willingness to shoulder responsibilities. The infusion of new perspectives would cause legislative positions to rotate so frequently that it would be difficult for any one legislator to hold onto power long enough to abuse it. Furthermore, the central qualification by which candidates for Congress are judged would shift in a healthy direction, toward being a voice for sound federal policy and away from being a siphon from the federal treasury.
Argument #4: Term limits will lock out experienced legislators.
Experience in one's profession is a good thing, but even House Members who only serve one term -- two years -- clearly have time to develop significant experience. Despite the protestations of some foes of term limits that Members need a great deal of seasoning before they can make real decisions, no other profession requires two years of on-the-job training. Moreover, the skills developed by years of legislative service surely will find numerous other outlets under term limits; those Members who reach the end of permitted service can still work to improve people's lives in the law, in business, in academies and think-tanks, or even in other branches of government.
Many freshman legislators have worked as congressional staff or state legislators. Under term limits, legislators are more likely to have the freshness of outlook that enables them to envision solutions for problems after their more experienced colleagues have conceded defeat. The claim that the legislative process takes years and years to understand is less an indictment of inexperienced legislators than of the current legislative process. Any system not readily understandable to the average well-informed person raises troubling questions about what has happened to representative democracy in America.
Argument #5: Campaign finance reform is needed, not term limits.
The centerpiece of the campaign reform bills currently under consideration (S. 3 and H.R. 3) is their limit on the amount congressional candidates can spend, but these spending caps are the same for challengers and incumbents, despite the tremendous incumbent advantages described above. Twenty years ago, the Supreme Court declared that spending limits are an unconstitutional limit on First Amendment freedoms. (Buckley v. Valeo, 424 U.S. 1 (1976).) The pending bills circumvent this problem by calling their spending limits "voluntary," even though candidates who exceed them are penalized harshly through punitive taxation, subsidies to opponents, and the suspension of opponents' spending limits. Incumbent advantages make incumbent spending effectively far higher than challenger spending. The cleverness of the spending limit penalty is that it is the challenger, not the incumbent, who will have to break it.
Challengers who wish to avoid the problem by running cheaper campaigns will face another difficulty: it takes a substantial amount of spending just to reach parity with incumbents' natural advantages in media access and name recognition. The proposed spending limit of $600,000 for House candidates is less than the average amount a House challenger needed to defeat an incumbent in 1988. The 1992 House general election statistics are even more instructive. They indicate clearly that success rates for challengers rise with their spending totals.
No challenger who spent less than $200,000 defeated an incumbent.
Fewer than 15 percent of those who spent between $200,000 and $400,000 toppled sitting officeholders, but 25 percent of those who spent between $400,000 and $600,000 did.
Over half -- 54 percent -- of all challengers who spent over $600,000 won election.
Under the proposed campaign finance reforms, this last set of victories no longer will be an option; the genius of the spending limit is that it is set just at the point where challengers become dangerous.
Instead of eliminating the tremendous advantages incumbents hold in congressional elections today, the proposed campaign reform bills attempt to increase them. This is probably to be expected, however; one can hardly expect a legislature to pass a law that targets its own privileges for destruction. Real reform measures almost certainly will have to emerge from outside the Beltway -- as term limits have done so far in fifteen states nationwide.
Argument #6: Under term limits, unelected people will run Congress.
Many opponents of term limits argue that to oppose them will increase the deficiencies of today's congressional culture, which grants tremendous discretionary power to people other than elected legislators. This argument typically relies on a "vacuum theory," according to which the departure of senior incumbents will create a vacuum in which more and more decisions will be made by the unelected. Such an argument is a simplistic portrayal of how Congress works, however, and ignores the tremendous systemic changes that term limits would create. In fact, term limits would decimate the power of unelected Washington operatives.
Lobbyists. Some argue that a vacuum formed by the departure of veteran incumbents would be filled by special-interest lobbyists, but the strength of special interests actually would be vastly diminished by term limits. Special-interest lobbyists thrive precisely because of the relationships they have with and the investments they have made in long-term incumbents. Many former staffers, and even some ex- Congressmen, become lobbyists to trade on their relationships they have with former colleagues; according to Congress Daily/A.M., for example, 40 percent of the Members of the House of Representatives who left in January 1993 cashed in on their incumbency by taking jobs as lobbyists. The rapid turnover created by term limits would make these connections less useful and confine lobbyists' influence to the strength of the arguments they make on the merits of issues.
Staff. A related argument by opponents of term limits is that congressional staff somehow would have more influence on freshman Congressmen than they do on long-term incumbents. Anyone who has ever seen a congressional office in action, however, knows that Congressmen give assignments rather than taking them. More important, however, term limits would empower Members to make far more efficient use of their staff. Instead of responding to constituent inquiries, writing press releases, sending mass mailings to everyone in the district, and in general pursuing activities that increase the likelihood of reelection, aides would be able to do more substantive research on legislation and give their Members more sophisticated counsel. In any case, the specter of career staff employees manipulating freshman Members has little support in reality; while the average Member today has spent more than ten years in office, (Ornstein, Mann, and Malbin, Vital Statistics on Congress 1993-1994, pp. 19, 21.) staff employees on average work for Congress for between five and six years. (Staff data from Congressional Management Foundation, 1992 U.S. House of Representatives Employment Practices and 1993 U.S. Senate Employment Practices.) Under term limits, these figures would likely shrink as new Members replace aides inherited from former Congressmen with their own loyalists.
As former Representative Vin Weber (R-MN) has noted, "We create the government that screws you, and then you're supposed to thank us for protecting you from it." Under term limits, Members of Congress would be motivated to solve problems, not create them. If Congressmen know they will not be around to micromanage the bureaucracy, they will be more careful about the powers they delegate. Term-limited Congressmen would have every reason to work for major reforms that transfer responsibility away from bureaucrats and back to Congress. Instead of transferring power among branches, term limits are likely to result in overall restraints on government activity.
Ultimately, critics who suggest that new Members will fall under the thrall of unelected Beltway insiders miss the point: term limits would create major changes in the way Congress works. Under term limits, Congress would attract talented candidates with demonstrated expertise and diverse life experience. Such candidates have little reason to seek election to Congress today, when it takes decades of incumbency to reach a position of legislative influence. Under term limits, citizen-legislators could exercise real policy influence for a few years and then return to private life.
Although the Arkansas case recently accepted by the United States Supreme Court for review -- U.S. Term Limits v. Thornton (Arkansas Supreme Court, case no. 93-1240 (1994).) -- will likely be the most crucial in establishing whether state-imposed term limits are constitutional, several other cases have been moving through state and federal trial and appeal courts.
At the center of these cases are the "qualifications" and "times, places, and manner" clauses of the Constitution. (U. S. Constitution, Art. I, sec. 2, cl. 2; sec. 3, cl. 3.) The qualifications clause often is held to prevent imposition of any requirements for Members of Congress other than the age, citizenship, and state residency requirements mentioned in that section of the Constitution. Some argue that Powell v. McCormack, a 1969 case, supports this reading of the qualifications clause.
Two of the seven justices dissented from the Arkansas decision, arguing that the court should have upheld congressional term limits. The Arkansas decision gives the Supreme Court an opportunity to distinguish Powell -- which dealt with Congress's power to control the seating of elected representatives -- from questions of how the states may regulate their own congressional elections. Whether states can write new qualifications for federal officeholders has never been litigated.
In February, a federal judge struck down Washington State's term limit law in Thorsted v. Munro, using arguments similar to those of the Arkansas Supreme Court and suggesting that First and Fourteenth Amendment liberties would be violated by term limits. (If such an argument were taken seriously, numerous state and local term limits laws -- including those that currently apply to the governors of 34 states -- would have to be struck down on constitutional grounds.) The judge also suggested that although term limits are unconstitutional, legislators could enact "politically neutral" reform measures such as public financing of campaigns. Such comments suggest that the court's decision was grounded more in politics than in law. That ruling was appealed to the Ninth Circuit Court of Appeals in San Francisco. The U.S. Supreme Court considered, but eventually decided against, reviewing the Washington case simultaneously with the one from Arkansas.
In Nebraska, despite the 68 percent victory won by the state's term limits amendment in 1992, the state Supreme Court voided that amendment in May on a technicality, ruling that an insufficient number of ballot petition signatures had been gathered. As noted above, the outcry this provoked led to a second wave of petition signatures by angered and energized citizens. And in Florida, federal court hearings on that state's term limits law took place in June.
Using the Storer balancing test, courts have upheld numerous election regulations, such as "reasonable" filing fees, (Bullock v. Carter, 405 U.S. 134 (1972).) petition signature requirements for independent candidates, (Jenness v. Fortson, 403 U.S. 431 (1971).) and denial of ballot access for five years to those found guilty of violating campaign finance disclosure laws. (Lukens v. Brown, 368 F. Supp. 1340 (S.D. Ohio 1974).) These cases suggest that state- imposed term limits must be designed to protect the interests of a state and its people: for instance, to mandate fair and competitive elections, or to broaden the opportunities for citizens to serve in Congress, or to ensure that citizens elect legislators truly representative of their districts.
Ultimately, the power of the states to restrict the ballot access of their congressional delegations is supported not only by the "times, places, and manner" clause of the Constitution, but also by the Tenth Amendment, which states that all powers not reserved to the federal government but not prohibited to the states, rest with the states and the people. As the Constitution is silent on the issue of rotation in office, the Tenth Amendment gives the states the authority to implement an organizational structure for election of their Congressmen and Senators which would encourage such rotation. As Justice Sandra Day O'Connor observed in Gregory v. Ashcroft, which upheld Missouri's right to require mandatory retirement for its state judges despite federal age discrimination statutes: "The ability of the states and the people to determine for themselves who will represent them goes to the very heart of representative government."
At least five arguments suggest that state-imposed term limits are a permissible exercise of a state's authority to regulate federal elections rather than an impermissible additional qualification for office.
Second, Powell clearly is motivated by the fear that Congress, if not barred by the Constitution, might well create new qualifications for federal office protecting incumbents from electoral competition. (See, e.g., ibid., pp. 547-548.) Term limits evade that danger, by, if anything, making it easier for newcomers to enter Congress.
Third, the Supreme Court has interpreted election laws as "manners" regulations far more often than as additional qualifications.
Fourth, the Tenth Amendment to the Constitution assigns to the states and their citizens all powers not reserved to the federal government. This distribution of powers creates strong constitutional opportunities for congressional term limits.
Fifth (and perhaps most important), two-thirds of state term limit laws deny ballot access, not election, to long-term incumbents who remain free to run, and win, as write-in candidates.
Although the Supreme Court has not yet ruled explicitly on the question, appellate courts in three different circuits have held that a state law which prevents a candidate's name from being printed on the ballot does not run afoul of the qualifications clause. As the First Circuit ruled, "The test to determine whether or not the 'restriction' amounts to a 'qualification'... is whether the candidate 'could be elected if his name were written in by a sufficient number of electors '" (Hopfman v. Connolly, 746 F. 2d (1st Cir. 1984), at 103, vacated in part, 471 U.S. 459.) The Ninth and Eleventh Circuits also have found that a state's refusal to print a candidate's name on the ballot creates no constitutional problem. (Joyner v. Mofford, 706 F.2d 1523, 1531 (9th Cir.), cert. denied, 464 U.S. 1002 (1983); Public Citizen, Inc. v. Miller, 992 F.2d 1548 (11th Cir. 1993).) Although a write-in candidacy obviously poses disadvantages to a candidate, its challenges can be met. Three Members of Congress are there today because of write-in elections: Representatives Ron Packard of California and Joe Skeen of New Mexico, and Senator Strom Thurmond of South Carolina.
Numerous fronts in the battle for term limits will open up in the weeks and months ahead.
The Supreme Court's announcement on June 20 that it would hear the appeal of the Arkansas case preempts a major argument of those who have claimed term limits are clearly and unambiguously unconstitutional. The Court will likely hear the case by early 1995.
As many as nine or ten additional states, as well as the District of Columbia, are expected to hold statewide votes on term limits this November. Alaska, Maine, Massachusetts, and Oklahoma will have measures on the ballot, and activists continue to gather signatures in efforts to secure statewide votes in the District of Columbia, Idaho, Illinois, Mississippi, Nevada, and Utah. Nebraska will likely hold a second successful vote on term limits.
Over 100 Members of the U.S. House of Representatives have signed a discharge petition that would take control over a term limits constitutional amendment from the House Judiciary Committee. The amendment limits Senators and Representatives to twelve years of service in each House. Nearly half of the cosponsors -- 47 out of 100 -- are freshmen, demonstrating once again how new Members often are more sympathetic to public sentiments than those who have served for decades.
Republican Representative Peter Hoekstra of Michigan has introduced H.R. 3835, the Voter Opportunity to Inform Congress Effectively (VOICE) Act, which would provide for a nationwide, non-binding referendum on term limits. Hoekstra argues that his measure, by permitting the American electorate to speak with a unified voice on term limits, would be more effective than scattered referenda in different states. H.R. 3835 has 57 cosponsors so far.
Two recent special congressional elections produced two term limits advocates as victors. Newly elected Republican Congressman Ron Lewis of Kentucky, for example, used term limits as one of his main issues, according to an aide. Term limits also were an issue in the previous House election cycle in many districts: for instance, in South Carolina, where Republican Bob Inglis used them as his principal campaign issue.
Term limits even may be a factor in the 1996 Presidential race. Lamar Alexander, William Bennett, Dan Quayle, and Ross Perot all have announced their support for term limits. President Clinton opposes them.
Perhaps most important, numerous state legislatures -- especially in Iowa, Kansas, North Carolina, and Texas -- probably will be considering term limits measures in the near future. In the long run, grass-roots organizing in the states is probably the most important facet of term limits activism, especially in light of the Supreme Court's pending decision, because it lays the groundwork for future state legislation and referenda, as well as federal legislation and constitutional amendment.
Many arguments against term limits, on the other hand, are either mistaken (the claim that there already is high congressional turnover) or irrelevant (the attempt to change the subject to proposals for campaign finance reform). Although many opponents claim that term limits are plainly unconstitutional, the Supreme Court's recent acceptance of the Arkansas case undercuts their argument; indeed, federal cases on election law strongly suggest that the states are constitutionally empowered to regulate such matters as the terms of federal officeholders.
The term limits phenomenon is a tribute to public involvement in politics and is one of the few reforms devised and implemented by people who live beyond the Beltway. It is substantive, not cosmetic; both allies and enemies concede that limiting political terms would create fundamental change in American politics. At the most practical level, the term limits movement has demonstrated political strength and, no matter what the nature of the Supreme Court decision handed down, is here to stay.

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1. Under Jud.Code § 24(20), as amended, a suit against the United States to recover internal revenue taxes wrongfully collected, in excess of $10,000, will not lie in the District Court unless the overpayment was collected by a collector who could have been sued personally but who, when the proceeding began, was dead or out of office. P. 304 U. S. 304.
2. Where the claim against the United States was for an overpayment for 1917, more than $10,000, alleged to have resulted from the action of the Commissioner in crediting against a barred deficiency of that year an overpayment for 1918, held that the suit would not lie in the District Court under Jud.Code § 24(20) as amended, since the action of the Commissioner, if a collection, was not the action of the collector, and occurred in a later year in which no overpayment was made. P. 304 U. S. 306.
3. Application of an overpayment to an earlier deficiency is effected through the Commissioner's approval of the schedule of overpayments. The certification of the overpayment by the collector to the Commissioner, a mere ministerial act, could subject the collector to no personal liability. Id.
Certiorari, 303 U.S. 633, to review the affirmance of a judgment dismissing a suit to recover an alleged overpayment of taxes from the United States.
The question for decision is whether the District Courts of the United States have jurisdiction, under § 24(20) of the Judicial Code, of a suit brought against the United States to recover income and excess profits taxes in an amount in excess of $10,000 when the recovery sought is of an overpayment of taxes for one year, effected by crediting against a barred deficiency for that year an overpayment for another year.
Petitioner * overpaid income and excess profits taxes for 1918. The Commissioner, on May 15, 1924, signed a schedule of overpayments by which he approved a credit as of April 24, 1924, of a part of the 1918 overpayment, in an amount exceeding $10,000, against a tax deficiency of petitioner for 1917, the collection of which was then barred by the statute of limitations. The collector in office in 1924, when the credit was allowed, having retired, petitioner brought the present suit against the United States in the District Court for Southern Ohio to recover the amount of the credit. The petition alleges overpayment of the 1917 tax by reason of the credit, and demands its recovery. Petitioner has neither alleged nor proved any claim for refund of the 1918 overpayment, recovery of which, without such claim, was barred by limitation.
1917 tax since the credit is "void" under the applicable sections, 607 and 609, of the Revenue Act of 1928. The Circuit Court of Appeals for the Sixth Circuit affirmed on a different ground, holding that the District Court was without jurisdiction, under the provisions of § 24(20) of the Judicial Code, 28 U.S.C. § 41(20), which confers jurisdiction on the District Court of suits against the United States to recover taxes erroneously assessed or collected in excess of $10,000, only if the collector by whom the tax was collected is dead or is not in office when the suit is brought. 92 F.2d 905. We granted certiorari upon a petition presenting the single question of the jurisdiction of the District Court in order to resolve an asserted conflict between the decision below and that of the Circuit Court of Appeals for the Fourth Circuit in United States v. Piedmont Mfg. Co., 89 F.2d 296.
The Circuit Court of Appeals, following United States v. Piedmont Manufacturing Co., supra, and its own decision in United States v. John Gallagher Co., 83 F.2d 368, thought that the credit of the 1918 overpayment of the 1917 tax was not void, but voidable only, at the election of the taxpayer, and was consequently an overpayment of 1917 taxes for which recovery might be had in a court having jurisdiction. But, following its own decision in United States v. Reeves Bros. Co., 83 F.2d 121, and that of the Circuit Court of Appeals for the Second Circuit in Moses v. United States, 61 F.2d 791, it held that the District Court was without jurisdiction because the collection of the 1917 tax, effected by the allowance of the credit, was not made by a collector, and thus did not satisfy the jurisdictional requirement.
"claims not exceeding ten thousand dollars founded upon . . . any law of Congress . . . or upon any contract, express or implied, with the Government of the United States. . . ."
Chapter 231, 36 Stat. 1093. Both before and after the amendment, District Courts also had jurisdiction of suits against a collector of internal revenue brought to recover, in any amount, internal revenue taxes which he had erroneously collected. § 24(5), Jud.Code, 28 U.S.C. § 41(5). Such suits brought against the collector survive his retirement from office, and do not abate upon his death. Patton v. Brady, 184 U. S. 608; Smietanka v. Indiana Steel Co., 257 U. S. 1; Union Trust Co. v. Wardell, 258 U. S. 537.
"even if the claim exceeds $10,000, if the collector of internal revenue by whom such tax . . . was collected is dead or is not in office as collector of internal revenue at the time such suit or proceeding is commenced."
Since the suit allowed against the collector before the amendment was based on his personal liability, Sage v. United States, 250 U. S. 33; Smietanka v. Indiana Steel Co., supra, no such suit will lie unless he has collected the tax. The obvious purpose of the amendment was to permit a substitution of a suit against the United States for the suit previously allowed against the collector whenever the amount claimed exceeds $10,000 and the collector is out of office. This is made evident by the words of the amendment which authorize the substitution only when the collection is made by the collector when in office.
As we think it plain that no suit could have been maintained against the collector to recover the alleged overpayment, it follows that the District Court was without jurisdiction to entertain the present suit. If the 1917 tax can be said to have been collected at all, as to which we express no opinion, it was collected by the action of the Commissioner in crediting against the 1917 deficiency the 1918 overpayment. In 1924, the year of the claimed overpayment, the collector received no overpayment of petitioner's tax for any year. If the 1917 taxes were then collected, it was by virtue of the application to the 1917 deficiency of moneys already in the treasury. The collector was without authority to make such application. It was the Commissioner's approval of the schedule of overpayments which was effective for that purpose. Girard Trust Co. v. United States, 270 U. S. 163, 270 U. S. 170-171; United States v. Swift & Co., 282 U. S. 468. The certification of the overpayment by the collector to the Commissioner, a mere ministerial act, could subject the collector to no personal liability.
It is true that, under the statutes of the United States, the collector is relieved from the personal liability except in the case where the District Court is of opinion that he acted without probable cause, Sage v. United States, supra, 250 U. S. 37, and that such suits against the collector are commonly but a means of collecting the overpayment from the United States. Moore Ice Cream Co. v. Rose, 289 U. S. 373, 289 U. S. 382. But no statute has enlarged the collector's common law liability to suit, and we cannot ignore the words of the amendment of § 24(20), which, in providing for a suit against the United States in lieu of one against the collector, make collection by him the sine qua non of jurisdiction.
for one year against a deficiency for another, Boston Pressed Metal Co. v. United States, 42 F.2d 312, was a suit brought in the Court of Claims for less than $10,000.
As petitioner stands in the place of its corporate predecessor by virtue of a merger, and as their rights and interests in the present suit may be treated as identical, both will be referred to as "petitioner."