Court dismisses putative class action claims against Yahoo! for allegedly improper disclosure of user information in response to a subpoena.
24 of 18 U.S.C. §§ 2701, et seq. (“Stored Communications Act”); (3) violation of Cal. Bus. & Prof.
This disposition is not designated for publication in the official reports.
8 voluntarily filed the FAC and concurrently filed a motion to transfer the action to this Court. (Id.
28 respond timely to the FAC she is entitled to default judgment.
15 December 2008. (Granick Decl., Ex. 3 (emphasis in original); see also Mot. to Dismiss, 4:6-8).
17 Granick Decl., Ex.’s 2 & 3; Mot. to Dismiss, 4-10).
3 cognizable legal theory or sufficient facts to support a cognizable legal theory.” Mendiondo v.
13 F.3d 245, 248 (9th Cir. 1995).
25 Sams’s request for entry of default. See Kipkirwa v. Santa Clara County Probation Dept., 2 Fed.
6 motion to dismiss on its merits.
Feiner and Co., Inc., 896 F.2d 1542, 155 n. 19 (9th Cir. 1990) (citing Amfac Mtg. Corp. v.
Arizona Mall of Tempe, 583 F.2d 426 (9th Cir. 1978)).
6 subpoena” and thus cannot rely on the defense. Finally, she contends that Yahoo!
motion to dismiss where the defense is “apparent from the face of the [c]omplaint.” Goddard v.
establish that ground . . . .”). Sams’s pleading itself raises questions as to whether Yahoo!
information, and whether it complied fully with the terms of the subpoena. Id.
6 condition has been met here.
13 between the various prosecuting authorities in order to compel out-of-state witnesses to testify.
22 the grand jury investigation is, at a time and place specified in the subpoena.” Id.
24 produce documents by out-of-state subpoenas. (Pl.’s Opp., 17: 8-11 (citing People v.
Georgia’s version of the Uniform Act is codified in Ga. Code. Ann. § 24-10-94(a).
19 (Def.’s Reply, 9:13-15.) Yahoo! points out that in Tamburo v. Dworkin, No. 04-C-3317 (N.D.
2 not support a post hoc finding that Yahoo! failed to comply with the terms of the subpoena.
4 the person viewed.” See United States v. Forrester, 512 F.3d 500, 510 (9th Cir. 2008).
11 suggests that the information subject to that provision is not content-based.
22 555 (2007). Here, Sams’s allegations are both conclusory and devoid of factual support.
28 leave to amend will be granted.
3 AMEND. Any amended complaint shall be filed within (30) days of the date of this order.
Bible Believers v. Wayne County, et al.
AMERICAN FREEDOM DEFENSE INITIATIVE; PAMELA GELLER; ROBERT SPENCER, Plaintiffs,-v.- COMPLAINT KING COUNTY, Defendant.
Adaptix v. Asustek Et. Al.


This report is provided for case identification and background information only and does not reflect the views of the court. When a case is heard or reheard en banc, the en banc court assumes jurisdiction over the entire case, see 28 U.S.C. § 46(c), regardless of the issue or issues that may have caused any member of the Court to vote to hear the case en banc. Summerlin v. Stewart, 309 F.3d 1193 (9th Cir. 2002). In those cases where the parties have filed petitions for rehearing en banc and oppositions, you can access the pdfs by clicking the case title.
Subject Matter: Petition for review of the Board of Immigration Appeals’ determination that Marcelo Martinez-Cedillo’s conviction for child endangerment, in violation of California Penal Code § 273a(a), constitutes a crime of child abuse that renders him removable under 8 U.S.C. § 1227(a)(2)(E)(i).
Subject Matter: Appeal from the district court's imposition of a sentence of life without parole on a juvenile offender.
Subject Matter: Appeal from the district court's dismissal of plaintiff’s 42 U.S.C. § 1983 action alleging that the County of Hawaii's denial of his application for a handgun license violated his Second Amendment right to carry a loaded firearm in public for self-defense.
Subject Matter: Petition for review from the Environmental Protection Agency’s 2017 order maintaining a tolerance for (i.e. a limited allowance for the use of) the pesticide chlorpyrifos.
Subject Matter: Appeal from the district court’s denial of California inmate Ezzard Ellis’s habeas corpus petition in which he contended that he was denied his Sixth Amendment right to effective assistance of counsel because his trial attorney held deeply racist beliefs about African Americans in general and him in particular.
Subject Matter: Appeal from the district court’s judgment, entered following a bench trial, in an action challenging under the First, Fourteenth and Fifteenth Amendments, and § 2 of the Voting Rights Act, two state of Arizona election practices: (1) Arizona’s requirement that in-person voters cast their ballots in their assigned precinct, which Arizona enforces by not counting ballots cast in the wrong precinct; and (2) House Bill 2023, which makes it a felony for third parties to collect early ballots from voters, unless the collector falls into one of several exceptions.
Subject Matter: Appeal from the district court's grant, on summary judgment, of qualified immunity to a police officer in a 42 U.S.C. § 1983 action alleging that the officer used excessive force when he shot plaintiff three times following a traffic stop.
Subject Matter: Petition for review of a Board of Immigration Appeals decision denying alien minor's applications for asylum, withholding of removal, and relief under the Convention against Torture.
Subject Matter: Appeal from convictions and sentence for fraud and conspiracy in connection with a mortgage fraud scheme.
Holding: Affirming the convictions and sentence, the en banc court reaffirmed the distinction between waiver and forfeiture of sentencing challenges: a defendant waives his rights and precludes plain error review only when there is evidence that he knew of his rights at the time and nonetheless relinquished them.
Subject Matter: Appeal from the district court's order granting class certification in a nationwide class action settlement arising out of misstatements by defendants Hyundai Motor America, Inc. and its affiliate, Kia Motors, Inc., regarding the fuel efficiency of their vehicles.
Subject Matter: Appeal from the district court's denial of all but one of the claims raised in California state prisoner Jesse James Andrews's petition for a writ of habeas corpus under 28 U.S.C. § 2254, and cross-appeal by state from the district court's grant of relief on Andrews's claim that his counsel's assistance was ineffective at the penalty phase of his capital murder trial.
Subject Matter: Petition for review of the Board of Immigration Appeals' decision finding petitioner Aracely Marinelarena ineligible for cancellation of removal because she had failed to meet her burden of proof to show that her conviction was not for a disqualifying controlled substance offense.
Subject Matter: Appeal from the district court’s denial of the plaintiff Associations’ motion for a preliminary injunction, seeking to enjoin the implementation of the City and County of San Francisco’s ordinance that would require warnings about the health effects of certain sugar-sweetened beverages on specific types of fixed advertising within San Francisco.
Holding: The en banc court reversed the district court’s denial of a preliminary injunction and remanded in an action challenging the City and County of San Francisco’s Sugar-Sweetened Beverage Warning Ordinance, which requires health warnings on advertisements for certain sugar-sweetened beverages.
Subject Matter: Appeal from the district court’s award of attorney’s fees and expenses pursuant to the Equal Access to Justice Act and the Supreme Court’s decision in Hensley v. Eckerhart, 461 U.S. 424 (1983).
Holding: The en banc court reversed the district court, vacated the award of attorneys’ fees under the Equal Access to Justice Act, and remanded with instructions to recalculate the fees for the civil rights law firm that represented Dr. Rahinah Ibrahim in her successful challenge to her inclusion on the Transportation Security Administration’s "No Fly" list.


text:
(hereinafter referred to as MERCHCOWBOY / MERCHCOWBOY online shops).
The protection of personal data is paramount to us. We comply with data protection law when operating our website and offering the option to order via our website. We would like you to know when we collect, process and use which data as well as your rights regarding the use of your data.
Personal data is information that can be used to establish your identity, including your name, address, postal address, phone number, IP address and email address. Information not associated with your identity (such as the number of website users) is not included. You can generally use our website without disclosing your identity, in other words without entering personal data. This information (such as time and date of access, URL from which you have been referred to our website and which you may access from our website, browser, operating system, internet service provider, IP address) is stored in a log file. The legal basis is Art. 6 (1) lit. f GDPR. The information is stored to ensure the functionality, optimisation and security of our website. It is collected automatically and there is no option to object. The log files are deleted after a maximum period of seven days or modified to an extent that makes it impossible to allocate them. Exceptions apply to the correspondingly marked areas, such as the use of our contact form.
In accordance with Art. 6 (1) lit. a GDPR, we generally may only collect and process your personal data with your consent, unless obtaining prior consent is impossible or the law has stipulated an exception.
We process the personal data collected from you for fulfilling or negotiating our agreement. The legal basis is Art. 6 (1) lit. b GDPR. Further legal bases for the processing of personal data include the fulfilment of our legal obligations in accordance with Art. 6 (1) lit c GDPR and the maintenance of vital interests of yourself or another natural person in accordance with Art. 6 (1) lit d GDPR.
In accordance with Art. 6 (1) lit. f GDPR, we may further process personal data if our company has a justified interest in the event of an obligatory assessment showing that your interests, basic rights and basic freedoms do not outweigh our interests.
We must point out to you that data transfer via the internet carries security risks and the complete protection of the data against third-party access can therefore not be guaranteed. Please ensure that your data and device are protected against unauthorised third-party access by installing and always updating security software.
We store your information on specially protected servers located in Germany. We continuously improve our security measures in line with technical developments. Our website is encrypted with SSL, for instance. Apart from the special cases regulated in this Data Protection Policy, your data is stored, processed and used exclusively for contacting you and for processing any potential contractual relationships. The data can only be accessed by a small number of authorised persons who work on the technical aspects and contents of the order process.
We have marked mandatory information as opposed to voluntary information in our contact form and also refer to our Data Protection Policy. The legal basis for an intended conclusion of agreement is Art. 6 (1) lit. b GDPR. We delete your message and email address if it is obvious that a contractual relationship will not be concluded or has been terminated. You can object to the processing of your personal data at any time by writing to info@merchcowboy.com. We will delete all of your data as soon as we receive your objection.
You must give us separate consent with reference to our Data Protection Policy. You can do this by ticking the notice before subscribing to the Newsletter. Apart from that, you only have to provide your email address. The legal basis for sending the Newsletter is Art. 6 (1) lit. a GDPR. We collect your IP address, date and time of your subscription in compliance with the double-opt-in method. If you have subscribed properly, we will forward your email address on the basis of the consent you have given. You can unsubscribe from this Newsletter at any time at info@merchcowboy.com, free of charge except the costs incurred for the internet transfer according to the basic tariffs. By doing so, you withdraw your consent and we will delete the email address stated by you. We will also initiate the deletion of the data by the partner who has sent the Newsletter with your consent. A corresponding unsubscribe option is also included in the Newsletter sent by our partner.
We only use your personal information within MERCHCOWBOY to fulfil and process your order. We do not transfer your data to third parties without your explicit consent. We transfer your data to the dispatcher engaged with delivering your order for the fulfilment of the agreement and insofar as this is necessary for delivering the goods you have ordered. To process payments, we forward the required payment data to the credit institution tasked with processing the payment and any payment service provider potentially engaged by us. We oblige ourselves to transfer data to instances entitled to obtain such information in accordance with legal requirements.
MERCHCOWBOY uses Google Maps within the scope of ticket sales to indicate the event location and to check the address during checkout. Google Maps is operated by Google Inc., 1600 Amphitheatre Parkway, Mountain View, CA 94043, USA (“Google”). We use this service due to our justified interests within the meaning of Art. 6 (1) lit. f GDPR to make it easier for you to find the event locations and/or prevent errors during the registration process.
You can read Google’s data protection policy at: https://policies.google.com/privacy?hl=de. You can block advertising at: https://policies.google.com/technologies/ads.
We use this service due to our justified interests within the meaning of Art. 6 (1) lit. f GDPR to create a visually pleasing and standardised website for you.
Google Fonts via Google APIs (https://developers.google.com/apis-explorer/#search/fonts/webfonts/v1/). You can read Google’s data protection policy at: https://policies.google.com/privacy?hl=de. When you access our website, your IP address is transferred to Google and the WebFonts are loaded in your browser cache. You can block advertising at: https://policies.google.com/technologies/ads.
FontAwesome via bootstrapcdn.com (https://fontawesome.com/) Your IP address is also indicated to FontAwesome. You can read their data protection policy here: https://fontawesome.com/privacy.
When accessing our website, a banner is displayed which informs you that we install cookies and technically required cookies. Our banner also contains a link to this Data Protection Policy. The banner discloses essential information about our website.
General data protection regulations regarding the inclusion of references to our social networks and video platforms used by us.
Please be aware that we are also represented on the social networks Facebook, Instagram, Twitter and the YouTube video platform. You can find these references on our website in the form of the corresponding icons (images).
All icons are only links, not plug-ins. In contrast to a link, a plug-in sends information directly to the server of the respective social network provider and/or video platform as soon as you access our website containing the respective icon. Your bowser only creates a direct link to the servers of the social network provider and/or video platform if you click on the link in the form of the icon on our website, even if you do not have a profile or are not logged there. By linking up, the respective social network operator and/or video platform are sent the information (including disclosure of your IP address) that your browser has accessed the respective page on our website. This information is sent to, and stored on, the server of the respective operator. If you have a profile and are logged in, the respective network operator can directly allocate the visit to our website to your profile and store it. If you wish to prevent the network operator from directly allocating the data collected through our website to your profile, you must log out from the social network before visiting our website. You can fully prevent the loading of plug-ins by installing browser add-ons.
Facebook is operated by Facebook Inc., 1601 Willow Road, Menlo Park, California, 94025, USA (“Facebook”). For further information on the purpose, scope and processing of the data collection and information on the optional privacy settings, please read the data protection policy of Facebook at: https://www.facebook.com/policy.php .
Instagram is operated by Instagram LLC., 1601 Willow Road, Menlo Park, CA 94025, USA (“Instagram”). You can read comprehensive information on the data protection policy of Instagram at: https://help.instagram.com/519522125107875?helpref=page_content.
Twitter is operated by Twitter Inc., 1355 Market St, Suite 900, San Francisco, CA 94103, USA (“Twitter”). For further information on the purpose, scope and processing of the data collection and information on the optional privacy settings, please read the data protection policy of Twitter at: https://twitter.com/privacy?lang=de.
YouTube is operated by Google Inc., 1600 Amphitheatre Parkway, Mountain View, CA 94043, USA (“YouTube”). For information on the purpose, scope and processing of the data collection and information on the optional privacy settings, please read the data protection policy of YouTube at (this link takes you directly to Google’s data protection policy): https://www.google.de/intl/de/policies/privacy/.
Right of affected persons (right to information, correction and limitation, deletion, withdrawal and data transfer, your right regarding automatic decisions, right to objection, information and complain to supervisory authorities).
The General Data Protection Regulation strengthens your right as the affected person regarding the processing of personal data. You may exercise your rights free of charge.
Right to information: In accordance with Art. 15 GDPR, we are obliged to provide you with information about the stored data which relates to your person upon request by you, as long as this information relates to the origin, recipient or category of recipients, purpose and duration of the storage of the data, if applicable whilst stating your criteria.
Right to correction: In accordance with Art. 16 GDPR, your right to correction comprises personal data that we have collected and/or are processing incompletely or incorrectly.
Right to deletion: In accordance with Art. 17 (1) GDPR, you have the right to deletion if personal data has been processed improperly, the purpose for processing the data has ceased to exist, you have withdrawn your consent or objected and there is no further legal basis for processing the data. We are also obliged to inform third parties about the fact that you have requested the deletion of all personal data and copies made thereof. You do not have a right to deletion if we may refer to the fulfilment of our legal claims, a legal obligation, reasons relating to public interests, the execution of public authority transferred to us and the right to freedom of expression.
Right to limitation: In accordance with Art. 18 GDPR, you have the right to limit the processing of your personal data if you request limitation instead of deletion, you require your data for your own legal claims or you dispute the accuracy of the personal data.
Right to withdrawal: In accordance with Art. 7 (3) GDPR, you may withdraw your previously issued declaration of consent at any time and with future effect.
Right to data transfer: In accordance with Art. 20 GDPR, you have the right to data transfer to the effect that you shall receive your personal data in a structured, common and computer-readable format. You further have the right to transfer this data to potential third parties if it is processed on the basis of an automated method or consent has been given or is based on a contractual relationship. Public interest or the execution of public authority may exclude the right to data transfer.
In accordance with Art. 22 GDPR, your right regarding automatic decisions in individual cases, including profiling means that you do not have to suffer a decision based on automatic processing which would have serious consequences for you. Apart from you giving your consent, an exception could exist if the necessity for this decision has been confirmed within the scope of a contractual relationship or if such decision is mandatory by law and at the same time measures have been implemented to provide you with sufficient protection. Art. 9 (1) and (2) lit. a and g GDPR also apply for special categories of personal data.
Right to objection: In accordance with Art. 21 GDPR, you have a right to object to the processing of your personal data if it is processed on the basis of Art. 6 (1) lit. e or f GDPR. You have this right, in particular, to object to direct advertising.
Right to complain to supervisory authorities In accordance with Art. 77 GDPR, you have the right to complain to supervisory authorities if you are of the opinion that the processing of your personal data violates data protection regulations, and particularly the General Data Protection Regulation. In this case, the supervisory authorities will provide you with information in accordance with Art. 78 GDPR. The supervisory authorities in the place where the violation complained about by you has taken place, your place of work, or in the member state of your place of residence shall be responsible for dealing with your complaint. This shall not affect any further rights to appeal.
In accordance with Art. 19 GDPR, if you have exercised your rights as an affected person against us, you have the right to information to the effect that we shall notify all of the recipients to whom we have disclosed your personal data about the fact that you have exercised your rights as an affected person.
We only store your data for as long as permitted by the relevant provisions of the General Data Protection Regulation and as long as it is required for implementing and processing the order through our website and/or we need to be able to contact you to send you the Newsletter. This shall not affect data storage in order to secure our own claims, legal retention periods and potentially related requests to release data. The personal data is deleted or blocked in all other cases.
MERCHCOWBOY reserves the right to amend the Data Protection Policy on the basis of legal requirements or for the purpose of updating the website.
You can read and print out the current version of the Data protection Policy at any time on our website.

matches:
Art. 6
Art. 6
Art. 6
Art. 6
Art. 6
Art. 6
Art. 6
Art. 6
Art. 6
Art. 6
Art. 15
Art. 16
Art. 17
Art. 18
Art. 7
Art. 20
Art. 22
Art. 9
Art. 21
Art. 6
Art. 77
Art. 78
Art. 19


MCNARY v. HAITIAN REFUGEE CENTER., INC.
The District Court had federal question jurisdiction to hear respondents' constitutional and statutory challenges to the INS procedures. Pp. 491-499.
(a) There is no clear congressional language mandating preclusion of jurisdiction. Section 210(e)(1)'s language prohibiting judicial review "of a determination respecting an application" refers to the process of direct review of individual denials of SAW status, not to general collateral challenges to unconstitutional practices and policies used by the INS in processing applications. The reference to "a determination" describes a single act, as does the language of 210(e)(3), which provides for "judicial review of such a denial." Section 210(e)(3)(B), which specifies that judicial review is to be based on the administrative record, and that factual [498 U.S. 479, 480] determinations contained in such a record shall be conclusive absent a showing of an abuse of discretion, supports this reading. A record emerging from the administrative appeals process does not address the kind of procedural and constitutional claims respondents have brought, and the abuse-of-discretion standard does not apply to constitutional or statutory determinations, which are subject to de novo review. Limiting judicial review of general constitutional and statutory challenges to the provisions set forth in 210(e) therefore is not contemplated. Moreover, had Congress intended the limited review provisions of 210(e) to encompass challenges to INS procedures and practices, it could easily have used broader statutory language. Pp. 481-494.
(b) As a practical matter, the individual respondents would be unable to obtain meaningful judicial review of their application denials or of their objections to INS procedures if they were required to avail themselves of the INA's limited judicial review procedures. Under the statutory scheme, review of an individual determination would be limited to the administrative record, which respondents have alleged is inadequate; aliens would have to surrender themselves for deportation in order to receive any judicial review, which is tantamount to a complete denial of such review; and a court of appeals reviewing an individual determination would most likely not have an adequate record as to a pattern of allegedly unconstitutional practices, and would lack a district court's factfinding and record-developing capabilities. Given this Court's well settled presumption favoring interpretations of statutes that allow judicial review of administrative action, the Court cannot conclude that Congress so intended to foreclose all forms of meaningful judicial review of SAW application denials and general collateral challenges to INS procedures. This case is therefore controlled by Bowen v. Michigan Academy of Family Physicians, 476 U.S. 667 , which interpreted the Medicare statute to permit individuals to challenge a payment regulation's validity even though the statute barred judicial review of individual claims for payment under the regulation. Heckler v. Ringer, 466 U.S. 602 , distinguished. Pp. 494-499.
STEVENS, J., delivered the opinion of the Court, in which MARSHALL, BLACKMUN, O'CONNOR, KENNEDY, and SOUTER, JJ., joined, and in Parts I, II, III, and IV of which WHITE, J., joined. REHNQUIST, C.J., filed a dissenting opinion, in which SCALIA, J., joined, post, p. 499.
Michael R. Dreeben argued the cause for petitioners. With him on the briefs were Solicitor General Starr, Assistant [498 U.S. 479, 481] Attorney General Gerson, Deputy Solicitor General Shapiro, and David V. Bernal.
[ Footnote * ] Briefs of amici curiae urging affirmance were filed for the State of California et al. by Joseph R. Austin, John K. Van de Kamp, Attorney General of California, Andrea Sheridan Ordin, Chief Assistant Attorney General, Fredric D. Woocher, Robert A. Ginsburg, Niels Frenzen, Jorge L. Fernandez, and Richard K. Mason; for the American Bar Association by John J. Curtin, Jr., Robert E. Juceam, Sandra M. Lipsman, Craig H. Baab, and Carol L. Wolchok; for the American Federation of Labor and Congress of Industrial Organizations by Michael Rubin, Marsha S. Berzon, and Laurence Gold; and for the Farm Labor Alliance et al. by Peter A. Schey, Wayne H. Matelski, Monte B. Lake, Ralph Santiago Abascal, and Robert Gibbs.
The Immigration Reform and Control Act of 1986 (Reform Act) 1 constituted a major statutory response to the vast tide of illegal immigration that had produced a "shadow population" of literally millions of undocumented aliens in the United States. On the one hand, Congress sought to stem the tide by making the plight of the undocumented alien even more onerous in the future than it had been in the past; thus, the Reform Act imposed criminal sanctions on employers who hired undocumented workers 2 and made a number [498 U.S. 479, 482] of federally funded welfare benefits unavailable to these aliens. 3 On the other hand, in recognition that a large segment of the shadow population played a useful and constructive role in the American economy, 4 but continued to reside in perpetual fear, 5 the Reform Act established two broad [498 U.S. 479, 483] amnesty programs to allow existing undocumented aliens to emerge from the shadows.
The first amnesty program permitted any alien who had resided in the United States continuously and unlawfully since January 1, 1982, to qualify for an adjustment of his or her status to that of a lawful permanent resident. See 100 Stat. 3394, as amended, 8 U.S.C. 1255a. The second program required the Attorney General to adjust the status of any alien farmworker who could establish that he or she had resided in the United States and performed at least 90 days of qualifying agricultural work during the 12-month period prior to May 1, 1986, provided that the alien could also establish his or her admissibility in the United States as an immigrant. The Reform Act required the Attorney General first to adjust the status of these aliens to "Special Agricultural Workers" (SAW) lawfully admitted for temporary residence, see 100 Stat. 3417, as amended, 8 U.S.C. 1160(a)(1), and then eventually to aliens lawfully admitted for permanent residence, see 1160(a)(2).
This case relates only to the SAW amnesty program. Although additional issues were resolved by the District Court and the Court of Appeals, the only question presented to us is whether 210(e) of the Immigration and Nationality Act (INA), which was added by 302(a) of the Reform Act and sets forth the administrative and judicial review provisions of the SAW program, see 8 U.S.C. 1160(e), precludes a federal district court from exercising general federal question jurisdiction over an action alleging a pattern or practice of procedural due process violations by the Immigration and Naturalization Service (INS) in its administration of the SAW program. We hold that, given the absence of clear congressional [498 U.S. 479, 484] language mandating preclusion of federal jurisdiction and the nature of respondents' requested relief, the District Court had jurisdiction to hear respondents' constitutional and statutory challenges to INS procedures. Were we to hold otherwise and instead require respondents to avail themselves of the limited judicial review procedures set forth in 210(e) of the INA, meaningful judicial review of their statutory and constitutional claims would be foreclosed.
The Reform Act provided three important benefits to an applicant for SAW status. First, the mere filing of a "nonfrivolous application" entitled the alien to a work authorization that would remain valid during the entire period that the application was being processed. See 8 U.S.C. 1160(d)(2)(B). Second, regardless of the disposition of the application, the Reform Act expressly prohibited the Government from using any information in the application for enforcement purposes. Thus, the application process could not be used as a means of identifying deportable aliens; rather, the initiation of a deportation proceeding had to be based on evidence obtained from an independent source. See 1160(b)(6). Third, if SAW status was granted, the alien became a lawful temporary resident, see 1160(a)(1), and, in due course, could obtain the status of a permanent resident, see 1160(a)(2).
In recognition that the fear of prosecution or deportation would cause many undocumented aliens to be reluctant to come forward and disclose their illegal status, the Reform Act directed the Attorney General to enlist the assistance of a variety of nonfederal organizations to encourage aliens to apply and to provide them with counsel and assistance during the application process. These "Qualified Designated Entities" (QDE's), which included private entities such as farm labor organizations and associations of agricultural [498 U.S. 479, 485] employers as well as qualified state, local, and community groups, were not allowed to forward applications for SAW status to the Attorney General unless the applicant consented. See 1160(b)(2), (b)(4).
The Reform Act provided that SAW status applications could be filed with a specially created Legalization Office (LO), or with a QDE, which would forward applications to the appropriate LO, during an 18-month period commencing on June 1, 1987. See 1160(b)(1)(A). Regulations adopted by the INS to administer the program provided for a personal interview of each applicant at an LO. See 8 CFR 210.2(c)(2)(iv) (1990). In the application, the alien had to prove by a preponderance of the evidence that he or she worked the requisite 90 days of qualifying seasonal agricultural services. See 210.3(a), (b)(1). To meet the burden of proof, the applicant was required to present evidence of eligibility independent of his or her own testimony. See 210.3(b)(2). The applicant could meet this burden through production of his or her employer's payroll records, see 8 U.S.C. 1160(b)(3)(B)(ii), or through submission of affidavits "by agricultural producers, foremen, farm labor contractors, union officials, fellow employees, or other persons with specific knowledge of the applicant's employment." See 8 CFR 210.3(c)(3) (1990). At the conclusion of the interview and of the review of the application materials, the LO could deny the application or make a recommendation to a regional processing facility that the application be either granted or denied. See 210.1(q). A denial, whether at the regional or local level, could be appealed to the legalization appeals unit, which was authorized to make the final administrative decision in each individual case. See 103.3(a)(2)(iii).
This action was filed in the District Court for the Southern District of Florida by the Haitian Refugee Center, the Migration and Refugee Services of the Roman Catholic Diocese of Palm Beach, 7 and 17 unsuccessful individual SAW applicants. The plaintiffs sought relief on behalf of a class of alien farmworkers who either had been or would be injured by unlawful practices and policies adopted by the INS in its administration of the SAW program. The complaint alleged that the interview process was conducted in an arbitrary fashion that deprived applicants of the due process guaranteed by the Fifth Amendment to the Constitution. Among other charges, the plaintiffs alleged that INS procedures did not allow SAW applicants to be apprised of or to be given opportunity to challenge adverse evidence on which denials were [498 U.S. 479, 488] predicated, that applicants were denied the opportunity to present witnesses on their own behalf, that non-English speaking Haitian applicants were unable to communicate effectively with LOs because competent interpreters were not provided, and that no verbatim recording of the interview was made, thus inhibiting even any meaningful administrative review of application denials by LOs or regional processing facilities. See App. 44-45; Haitian Refugee Center, Inc. v. Nelson, 694 F.Supp. 864, 867 (SD Fla. 1988).
"In Jean v. Nelson, 727 F.2d 957 (11th Cir. 1984) (in banc), aff'd, 472 U.S. 846 (1985), we reaffirmed that section 106 of the INA (codified at 8 U.S.C. 1105a) does not deprive district courts of jurisdiction to review allegations of systematic abuses by INS officials. Jean, 727 F.2d at 980. We explained that to postpone `judicial resolution of a disputed issue that affects an entire class of aliens until an individual petitioner has an opportunity to litigate it on habeas corpus would foster the very delay and procedural redundancy that Congress sought to eliminate in passing 1105a.' Id. In this action, appellees do not challenge the merits of any individual status determination; rather . . . they contend that defendants' policies and practices in processing SAW applications deprive them of their statutory and constitutional rights." Haitian Refugee Center, Inc. v. Nelson, 872 F.2d 1555, 1560 (CA11 1989).
We preface our analysis of petitioners' position with an identification of matters that are not in issue. First, it is undisputed that SAW status is an important benefit for a previously undocumented alien. This status not only protects the alien from deportation; it also creates job opportunities that are not available to an alien whose application is denied. Indeed, the denial of SAW status places the alien in an even worse position than he or she was in before the Reform Act was passed, because lawful employment opportunities are no [498 U.S. 479, 491] longer available to such persons. Thus, the successful applicant for SAW status acquires a measure of freedom to work and to live openly without fear of deportation or arrest that is markedly different from that of the unsuccessful applicant. Even disregarding the risk of deportation, the impact of a denial on the opportunity to obtain gainful employment is plainly sufficient to mandate constitutionally fair procedures in the application process. At no time in this litigation have petitioners asserted a right to employ arbitrary procedures, or questioned their obligation to afford SAW status applicants due process of law.
Nor, at this stage of the litigation, is there any dispute that the INS routinely and persistently violated the Constitution and statutes in processing SAW applications. Petitioners do not deny that those violations caused injury in fact to the two organizational plaintiffs as well as to the individual members of the plaintiff class. Although it does not do so explicitly, petitioners' argument assumes that the District Court would have federal question jurisdiction over the entire case if Congress had not, through the Reform Act, added 210(e) to the INA. The narrow issue, therefore, is whether 210(e), which bars judicial review of individual determinations except in deportation proceedings, also forecloses this general challenge to the INS's unconstitutional practices.
This reading of the Reform Act's review provision is supported by the language in 210(e)(3)(B) of the INA, which provides that judicial review "shall be based solely upon the administrative record established at the time of the review by the appellate authority and the findings of fact and determinations contained in such record shall be conclusive unless the applicant can establish abuse of discretion or that the findings are directly contrary to clear and convincing facts contained in the record considered as a whole." 8 U.S.C. 1160(e)(3)(B). This provision incorporates an assumption that the limited review provisions of 210(e) apply only to claims that have been subjected to administrative consideration and that have resulted in the creation of an adequate administrative record. However, the record created during the SAW administrative review process consists solely of a completed application form, a report of medical examination, any documents or affidavits that evidence an applicant's agricultural employment and residence, and notes, if any, from an LO interview - all relating to a single SAW applicant. Because the administrative appeals process does not address the kind of procedural and constitutional claims respondents bring in this action, limiting judicial review of these claims to the procedures set forth in 210(e) is not contemplated by the language of that provision.
Moreover, the "abuse of discretion" standard of judicial review under 210(e)(3)(B) would make no sense if we were to read the Reform Act as requiring constitutional and statutory challenges to INS procedures to be subject to its specialized review provision. Although the abuse-of-discretion standard is appropriate for judicial review of an administrative adjudication of the facts of an individual application for SAW status, such a standard does not apply to constitutional or statutory claims, which are reviewed de novo by the courts. The language of 210(e)(3)(B) thus lends substantial credence to the conclusion that the Reform Act's review provision [498 U.S. 479, 494] does not apply to challenges to INS's practices and procedures in administering the SAW program.
Finally, we note that, had Congress intended the limited review provisions of 210(e) of the INA to encompass challenges to INS procedures and practices, it could easily have used broader statutory language. Congress could, for example, have modeled 210(e) on the more expansive language in the general grant of district court jurisdiction under Title II of the INA by channeling into the Reform Act's special review procedures "all causes . . . arising under any of the provisions" of the legalization program. 66 Stat. 230, 8 U.S.C. 1329. It moreover could have modeled 210(e) on 38 U.S.C. 211(a), which governs review of veterans' benefits claims, by referring to review "on all questions of law and fact" under the SAW legalization program.
Given Congress' choice of statutory language, we conclude that challenges to the procedures used by INS do not fall within the scope of 210(e). Rather, we hold that 210(e) applies only to review of denials of individual SAW applications. Because respondents' action does not seek review on the merits of a denial of a particular application, the District Court's general federal question jurisdiction under 28 U.S.C. 1331 to hear this action remains unimpaired by 210(e).
Moreover, unlike in Heckler, if not allowed to pursue their claims in the District Court, respondents would not as a practical matter be able to obtain meaningful judicial review of their application denials or of their objections to INS procedures, notwithstanding the review provisions of 210(e) of the amended INA. It is presumable that Congress legislates with knowledge of our basic rules of statutory construction, and, given our well settled presumption favoring interpretations of statutes that allow judicial review of administrative action, see Bowen v. Michigan Academy of Family Physicians, 476 U.S. 667, 670 (1986), coupled with the limited review provisions of 210(e), it is most unlikely that Congress intended to foreclose all forms of meaningful judicial review.
Additionally, because there is no provision for direct judicial review of the denial of SAW status unless the alien is later apprehended and deportation proceedings are initiated, most aliens denied SAW status can ensure themselves review in courts of appeals only if they voluntarily surrender themselves for deportation. Quite obviously, that price is tantamount [498 U.S. 479, 497] to a complete denial of judicial review for most undocumented aliens.
Finally, even in the context of a deportation proceeding, it is unlikely that a court of appeals would be in a position to provide meaningful review of the type of claims raised in this litigation. To establish the unfairness of the INS practices, respondents in this case adduced a substantial amount of evidence, most of which would have been irrelevant in the processing of a particular individual application. Not only would a court of appeals reviewing an individual SAW determination therefore most likely not have an adequate record as to the pattern of INS' allegedly unconstitutional practices, but it also would lack the factfinding and record-developing capabilities of a federal district court. As the American Bar Association, as amicus, points out, statutes that provide for only a single level of judicial review in the courts of appeals "are traditionally viewed as warranted only in circumstances where district court factfinding would unnecessarily duplicate an adequate administrative record - circumstances that are not present in "pattern and practice" cases where district court factfinding is essential [given the inadequate administrative record]." Brief for American Bar Association as Amicus Curiae 7. It therefore seems plain to us, as it did to the District Court and the Court of Appeals, that restricting judicial review to the courts of appeals as a component of the review of an individual deportation order is the practical equivalent of a total denial of judicial review of generic constitutional and statutory claims.
"The reticulated statutory scheme, which carefully details the forum and limits of review of `any determination . . . of . . . the amount of benefits under part A,' 42 U.S.C. 1395ff(b)(1)(C) (1982 ed., Supp. II), and of the "amount of . . . payment" of benefits under Part B, 42 U.S.C. 1395u(b)(3)(C), simply does not speak to challenges mounted against the method by which such amounts are to be determined, rather than the determinations themselves. As the Secretary has made clear, "the legality, constitutional or otherwise, of any provision of the Act or regulations relevant to the Medicare Program" is not considered in a "fair hearing" held by a carrier to resolve a grievance related to a determination of the amount of a Part B award. As a result, an attack on the validity of a regulation is not the kind of administrative action that we described in Erika, as an `amount determination' which decides `the amount of the Medicare payment to be made on a particular claim' and with respect to which the Act impliedly denies judicial review. 456 U.S., at 208 ." 476 U.S., at 675 -676 (emphasis in original).
Inherent in our analysis was the concern that, absent such a construction of the judicial review provisions of the Medicare statute, there would be "no review at all of substantial statutory and constitutional challenges to the Secretary's administration of Part B of the Medicare program." Id., at 680.
As we read the Reform Act and the findings of the District Court, therefore, this case is controlled by Bowen, rather than by Heckler. The strong presumption in favor of judicial review of administrative action is not overcome either by the [498 U.S. 479, 499] language or the purpose of the relevant provisions of the Reform Act.
Fn [498 U.S. 479, 481] JUSTICE WHITE joins only Parts I, II, III, and IV of this opinion.
[ Footnote 1 ] Pub.L. 99-603, 100 Stat. 3359.
[ Footnote 2 ] Prior to November 6, 1986, the enactment date of the Reform Act, the employment of undocumented aliens did not violate federal law. See 66 Stat. 228, as amended, 8 U.S.C. 1324(a) (1982 ed.) (providing that "for the purposes of this section [criminalizing the bringing in and harboring of aliens not lawfully entitled to enter and reside in the United States] employment (including the usual and normal practices incident to employment) shall not be deemed to constitute harboring"). Section 101 of the [498 U.S. 479, 482] Reform Act, however, authorized both civil and criminal penalties against employers who hire unauthorized aliens either knowingly or without complying with specified verification requirements. See 8 U.S.C. 1324a.
[ Footnote 3 ] Section 121 of the Reform Act amended several federal programs to deny benefits to aliens who could not verify their lawful status. See Pub.L. 99-603, 100 Stat. 3384-3394.
"The United States has a large undocumented alien population living and working within its borders. Many of these people have been here for a number of years, and have become a part of their communities. Many have strong family ties here which include U.S. citizens and lawful residents. They have built social networks in this country. They have contributed to the United States in myriad ways, including providing their talents, labor and tax dollars. However, because of their undocumented status, these people live in fear, afraid to seek help when their rights are violated, when they are victimized by criminals, employers or landlords or when they become ill.
"Continuing to ignore this situation is harmful to both the United States and the aliens themselves. However, the alternative of intensifying interior enforcement or attempting mass deportations would be both costly, ineffective, and inconsistent with our immigrant heritage.
"The Committee believes that the solution lies in legalizing the statuts [sic] of aliens who have been present in the United States for several years, recognizing that past failures to enforces [sic] the immigration laws have allowed them to enter and to settle here.
"This step would enable INS to target its enforcement efforts on new flows of undocumented aliens and, in conjunction with the proposed employer sanctions programs, help stem the flow of undocumented people to the United States. It would allow qualified aliens to contribute openly to society, and it would help to prevent the exploitation of this vulnerable population in the work place." H.R.Rep. No. 99-682, pt. 1, p. 49 (1986).
[ Footnote 5 ] Senator Simpson, one of the sponsors of the Reform Act, described the vulnerability of this "subculture of human beings who are afraid to go [498 U.S. 479, 483] to the cops, afraid to go to a hospital, afraid to go to their employer, who says" `One peep out of you, buster, and you are down the road.' 132 Cong.Rec. 33222 (1986).
"There shall be no administrative or judicial review of a determination respecting an application for adjustment of status under this section except in accordance with this subsection.
"The Attorney General shall establish an appellate authority to provide for a single level of administrative appellate review of such a determination.
"Such administrative appellate review shall be based solely upon the administrative record established at the time of the determination on the application and upon such additional or newly discovered evidence as may not have been available at the time of determination.
"(A) Limitation to review of exclusion or deportation There shall be judicial review of such a denial only in the judicial review of an order of exclusion or deportation under section 1105a of this title.
"Plaintiff MIGRATION AND REFUGEE SERVICES OF THE ROMAN CATHOLIC DIOCESE OF PALM BEACH ("RCDPB") is a component of the Roman Catholic Diocese of Palm Beach. Its principle [sic] place of business is West Palm Beach, Florida. Many members of parishes within the diocese of Palm Beach are foreign agricultural workers who worked at least 90 man-days in the 1985 and 1986 season, and are therefore potentially eligible for the SAW program. In addition, Plaintiff MIGRATION AND REFUGEE SERVICES OF THE RCDPB has been designated by Defendant INS as a "Qualified Designated Entity" (QDE) under IRCA. QDE's are authorized to provide counseling to aliens about the legalization program, to assist them in filing out applications and obtain documentation, and receive applications for adjustment to temporary resident status. Under IRCA, applications filed with a QDE are deemed to have been filed as of the same date with INS to whom the QDE's forward the applications for processing. QDE's are authorized to receive fees from applicants and reimbursement from INS for counseling and filing services. The actions of Defendants complained of in this case discourages otherwise eligible SAW applicants from seeking counseling and filing of their applications by Plaintiffs MIGRATION AND REFUGEE SERVICES OF THE RCDPB, and prevents them from fulfilling its basic mission of assisting aliens to qualify under IRCA." App. 24.
"HRC has alleged that the `[d]efendants' refusal to recognize that such persons [HRC's members] are eligible under IRCA both directly and indirectly injures HRC. It directly injures the organization because it makes HRC's work of assisting the Haitian refugee community more difficult and results in the diversion of HRC's limited resources away from members and clients having other urgent needs.' Complaint at § 17. HRC also alleges an indirect injury through the adverse effect upon its members. Id. The plaintiff MRS is a QDE under IRCA authorized to provide counseling to aliens about the legalization process and to assist them in obtaining documentation. It also receives applications and fees from aliens and is reimbursed by the INS for counseling and filing services. MRS alleges that the defendants' behavior has discouraged otherwise eligible SAW applicants from seeking counseling and/or filing their claims and MRS is prevented from fulfilling its basic mission of assisting aliens to qualify under IRCA. Id., at 874-875.
[ Footnote 9 ] Although many employers did not maintain payroll records for seasonal workers, some LOs routinely denied applications that were not supported by such records. The District Court found that the INS maintained a secret list of employers whose supporting affidavits were routinely discredited, without giving applicants an opportunity to corroborate the affiants' statements. See id., at 871-872. The District Court, moreover, found that interpreters were not provided at LO interviews, even though many Haitian applicants spoke only Creole and no personnel in a particular LO understood that language, and that no recordings or transcripts of LO interviews were made, despite the fact that the interview "is the only face-to-face encounter between the applicant and the INS allowing the INS to assess the applicant's credibility." See id., at 869.
"(4) The INS shall vacate those denials issued by the Legalization Offices during the period June 1, 1987, to March 29, 1988, unless the government can show that the applications were clearly frivolous based upon the documentation submitted by the applicant or that the applicant admitted fraud or misrepresentation in the application process." Id., at 881.
"(8) The interviewers shall be directed to particularize the evidence offered, testimony taken credibility determinations, and any other relevant information on the form I-696." Ibid.
"The Act declares in all-encompassing terms: `There shall be no administrative or judicial review of a determination respecting an application for adjustment of status under this section except in accordance with this [498 U.S. 479, 492] subsection.' 8 U.S.C. 1160(e)(1). In the following paragraphs, the subsection spells out the precise procedures intended to provide the exclusive method of review. The subsection requires the establishment of a `a single level of administrative appellate review of such a determination,' and unequivocally states that `[t]here shall be judicial review of such a denial [of a SAW application] only in the judicial review of an order of exclusion or deportation under section 1105a of this title.' 8 U.S.C. 1160(e)(2)(A) and (e)(3)(A). Section 1105a(a), in turn, provides that a petition for review in the court of appeals `shall be the sole and exclusive procedure for the judicial review of all final orders of deportation,' while exclusion orders are reviewable exclusively in habeas corpus proceedings. 8 U.S.C. 1105a(b). Congress could hardly have chosen clearer or more forceful language to express its intention to preclude any judicial review of a `determination respecting an application' for SAW status other than in the specified review proceedings applicable to individual deportation or exclusion orders.
"In light of IRCA's clear directions, district courts are not free to draw on their federal question jurisdiction under 28 U.S.C. 1331, or on their jurisdiction granted under the immigration laws, 8 U.S.C. 1329, to entertain collateral attacks on procedures used to adjudicate SAW applications. The exercise of either source of general power is barred by the precise and specific language of IRCA." Brief for Petitioners 11-13 (footnotes omitted).
[ Footnote 13 ] The Court in Heckler also concluded that the fourth respondent's claim was "essentially one requesting the payment of benefits for BCBR surgery, a claim cognizable only under 405(g)," 466 U.S., at 620 , and held that the "claim for future benefits must be construed as a `claim arising under' the Medicare Act because any other construction would allow claimants substantially to undercut Congress' carefully crafted scheme for administering the Medicare Act." Id., at 621.
[ Footnote 14 ] Then-JUSTICE REHNQUIST did not participate in the case.
"[F]inal agency action for which there is no other adequate remedy in a court [is] subject to judicial review. A preliminary, procedural, or intermediate agency action or ruling not directly reviewable is subject to review on the review of the final agency action. 5 U.S.C. 704.
The Court's reasoning is thus a classic non sequitur. It reasons that, because Congress limited judicial review only of what were in effect final administrative decisions, it must not have intended to preclude separate challenges to procedures used by the agency before it issued any final decision. But the type of judicial review of agency action which the Court finds that Congress failed to preclude is a type not generally available, even without preclusion. In the light of this settled rule, the natural reading of "determination respecting an application" in 1160(e) encompasses both final decisions and procedures used to reach those decisions. Each of respondents' claims attacks the process used by Immigration and [498 U.S. 479, 501] Naturalization Service (INS) to make a determination respecting an application.
We have on several occasions rejected the argument advanced by respondents that individual plaintiffs can bypass restrictions on judicial review by purporting to attack general policies, rather than individual results. For instance, in United States v. Erika, Inc., 456 U.S. 201 (1982), we found that, in the context of the "precisely drawn provisions" of the Medicare statute, the provision of judicial review for awards made under Part A of the statute, coupled with the omission of judicial review for awards under Part B, "provides persuasive evidence that Congress deliberately intended to foreclose further review of such claims." Id., at 208 (citations omitted). Similarly, in Heckler v. Ringer, 466 U.S. 602 (1984), we addressed a challenge to a ruling issued by the Secretary of Health and Human Services that precluded payment under Medicare for a particular medical procedure. The Medicare Act permits judicial review of "any claim arising under" the Act, 42 U.S.C. 405(g), (h), only after a claimant seeks payment and exhausts administrative remedies. The plaintiffs contended that their lawsuits challenging the Secretary's refusal to reimburse the procedure at issue were permissible without exhausting administrative remedies because they challenged only the Secretary's "`procedure' for reaching her decision," not the underlying decision on their particular claims. 466 U.S., at 614 . We rejected this distinction, finding that "it makes no sense to construe the claims . . . as anything more than, at bottom, a claim that they should be paid for their . . . surgery." Ibid. This holding was based on the recognition that a contrary result would allow claimants "to bypass the exhaustion requirements of the Medicare Act by simply bringing declaratory judgment actions in federal court before they undergo the medical procedure in question." Id., at 621. We expressly rejected the contention - also urged by the respondents here - that "simply because a claim somehow can be construed [498 U.S. 479, 502] as `procedural,' it is cognizable in federal district court by way of federal question jurisdiction." Id., at 614.
It is well settled that, when Congress has established a particular review mechanism, courts are not free to fashion alternatives to the specified scheme. See United States v. Fausto, 484 U.S. 439, 448 -449 (1988); Whitney National Bank v. Bank of New Orleans & Trust Co., 379 U.S. 411, 419 -422 (1965). In creating the Reform Act and the SAW program, Congress balanced the goals of the unprecedented amnesty programs with the need "to insure reasonably prompt determinations" in light of the incentives and opportunity for ineligible applicants to delay the disposition of their cases and derail the program. The Court's ponderously reasoned gloss on the statute's plain language sanctions an unwarranted intrusion into a carefully drafted congressional program, a program which placed great emphasis on a minimal amount of paperwork and procedure in an effort to speed the process of adjusting the status of those aliens who demonstrated their entitlement to adjustment. "If the balance is to be struck anew, the decision must come from Congress, and not from this Court." Ringer, supra, at 627.
The Court bases its conclusion that district courts have jurisdiction to entertain respondents' pattern and practice allegations in part out of respect for the "strong presumption" that Congress intends judicial review of administrative action. Ante, at 498. This presumption, however, comes into play only where there is a genuine ambiguity as to whether Congress intended to preclude judicial review of administrative action. In this case, two things are evident: first, in drafting the Reform Act, Congress did not preclude all judicial review of administrative action; as detailed earlier, Congress provided for judicial review of INS action in the courts of appeals in deportation proceedings, and in the district courts in orders of exclusion. Second, by enacting [498 U.S. 479, 503] such a scheme, Congress intended to foreclose all other avenues of relief. Therefore, since the statute is not ambiguous, the presumption has no force here.
The Court states that this presumption of judicial review is particularly applicable in cases raising constitutional challenges to agency action. Ante, at 496-499. I believe that Congress intended to preclude judicial review of such claims in this instance, and that, in this context, it is permissible for it to do so.
Given the structure of the Act and the status of these alien respondents, it is extremely doubtful that the operation of the administrative process in their cases would give rise to any colorable constitutional claims. "`An alien who seeks political rights as a member of this Nation can rightfully obtain them only upon terms and conditions specified by Congress. Courts are without authority to sanction changes or modifications; their duty is rigidly to enforce the legislative will in respect of a matter so vital to the public welfare.'" INS v. Pangilinan, 486 U.S. 875, 884 (1988) (quoting United States v. Ginsberg, 243 U.S. 472, 474 (1917)).


text:
BILL IN EQUITY filed in the Superior Court on April 5, 1968.
The suit was heard by J.P. Sullivan, J., on a master's report.
Robert S. Wolfe for the defendants.
Sumner Z. Kaplan (Jerry E. Benezra & Lawrence C. Zalcman with him) for the plaintiffs.
BRAUCHER, J. This is a suit in equity to enforce an agreement for the settlement of an earlier suit. Successive references and recommittals to masters resulted in a procedural nightmare and eventually in a final decree enforcing the settlement agreement. We hold, on the basis of the findings of the masters, that the settlement agreement was valid and enforceable in equity, and affirm the final decree.
and discussions were held between counsel with a view to settlement.
In April, 1968, the plaintiffs brought the present suit, claiming that an offer to compromise made by them to the defendants had been accepted on or about March 4, 1968, and that the acceptance had been confirmed by Wallach's counsel in a letter dated March 5, 1968. The second suit was referred to the same master, and he filed his report on February 20, 1969. By consent the report was recommitted to the master for the purpose of attaching objections under Rule 90 of the Superior Court (1954), objections were filed by the defendants, and the master filed a summary of evidence relating to the objections. After hearing an interlocutory decree was entered confirming the master's report, and on November 5, 1969, a final decree was entered enforcing the settlement agreement. The defendants appealed from both decrees.
On June 16, 1970, this court by consent remanded the case to the Superior Court for a new trial based on newly discovered evidence. After further proceedings in the Superior Court not fully disclosed in the record, this court on June 30, 1971, vacated its order of June 16, 1970, and entered new orders vacating the interlocutory and final decrees and remanding the case for filing of a motion to recommit to a master. Early in 1973 the case was recommitted to a different master to hear evidence and report on three issues: (1) whether Wallach's counsel was authorized to accept the settlement offer, (2) whether Wallach accepted the offer, and (3) whether there was such a disproportion between the settlement and the value of the claim as to warrant denial of enforcement. The second master filed his report on June 6, 1973, and the defendants appeal from denial of a motion to recommit, from an interlocutory decree confirming the report, and from a final decree enforcing the settlement agreement, entered August 6, 1973.
testimony is before us. At the time of oral argument the defendants filed a motion for leave to perfect the record by filing a tape recording admitted at the hearing before the second master.
We summarize the findings of the second master on the issues referred to him. Wallach's counsel in the prior suit had an extensive legal practice and experience in evaluating various types of businesses. After numerous discussions and offers on both sides, the plaintiffs, through Wallach's counsel, offered the Wallachs $45,000 unconditionally for their stock and in settlement of all claims by them. Counsel communicated the offer to the Wallachs. A tape recording of a telephone conversation between counsel and Mrs. Wallach was inconclusive as to her determination to accept the offer.
The offer was accepted by the Wallachs. Wallach's counsel on March 4, 1968, informed counsel for the plaintiffs of the acceptance and confirmed the acceptance by a letter addressed to and received by counsel for the plaintiffs. Half the $45,000 was to be paid approximately thirty days later, Wallach's counsel was to hold the stock in escrow as a pledge for the payment of the balance, and the balance was to be paid in October, 1968, or January, 1969, at the Wallachs' option. Wallach's counsel drew up a promissory note, guaranty and releases, the instruments were approved as to form by counsel for the plaintiffs, and April 4, 1968, was agreed on as the date for the first payment. The plaintiffs were ready to perform, but Wallach's counsel informed the plaintiffs that the Wallachs had decided not to go through with the settlement agreement. Thereafter, at a lobby conference in the Superior Court, the Wallachs disclosed to the judge that they had accepted the settlement but had later changed their minds.
to reduce his reputation as a salesman and as a result he had lost his effectiveness.
The master concluded that Wallach's counsel had authority to accept the settlement offer, that Wallach accepted it, and that there was not such a great disproportion between the settlement and the value of the claim as to warrant denial of specific performance.
1. Procedural issues. This case demonstrates again the confusion and delay which can arise from reference to a master. See O'Brien v. Dwight, 363 Mass. 256, 279-280 (1973). The Wallachs apparently ask us to review the transcript of more than 900 pages, to listen to the tape recording, and to decide that the master took an erroneous view of numerous questions of fact. This we decline to do.
"The main object of referring a suit to a master is to have the facts settled by him and to put the case in a position where nothing remains to be done except for the judge to apply correct principles of law to the facts found. Little is to be gained if after adverse findings a party can require a judge of the trial court and this court upon appeal to review all the evidence introduced before the master for the purpose of determining whether there is error in some finding of fact. A reference requiring a report of all the evidence is seldom issued." Shelburne Shirt Co. Inc. v. Singer, 322 Mass. 262, 265 (1948). See Kelley v. Arnold, 326 Mass. 611, 614 (1950).
When the evidence is reported, it may be used to show that a finding of the master is plainly wrong. Kuklinska v. Planning Bd. of Wakefield, 357 Mass. 123, 127 (1970), and cases cited. In the absence of such a showing, findings made by a master on oral testimony and confirmed by the judge are not to be reversed. From the master's subsidiary findings, we draw our own conclusions. Kannavos v. Annino, 356 Mass. 42, 46 (1969).
Co. Inc. v. Amaro, 346 Mass. 625, 627-628 (1964). Westinghouse Elec. Corp. v. J. J. Grace & Son, Inc. 349 Mass. 664, 668 (1965). Tzitzon Realty Co. Inc. v. Mustonen, 352 Mass. 648, 651 (1967). Cross Co. v. Clermont's, Inc. 361 Mass. 874 (1972).
The newly discovered evidence consisted of a tape recording, made by the Wallachs' son, of a telephone conversation between the Wallachs and Wallach's counsel on March 3, 1968. The second master admitted the recording as an exhibit, but found it inconclusive. The recording is not included in the record before us, and the Wallachs have moved for leave to file it to perfect the record. There is no certificate of the judge dispensing with reproduction. S.J.C. Rule 1:06 (1), 351 Mass. 735 (1967). Cf. Shapiro v. State Farm Mut. Ins. Co. 355 Mass. 54, 55 (1968). The Wallachs allege that they were unable to secure an accurate transcription from the stenographer, and that a motion for leave to file the recording directly in this court was made and denied in the Superior Court in October, 1974. No abuse of discretion is shown, and the present motion is denied.
Atl. 2d 123, 127 (Mun. App. D. C. 1951). Koht v. Dean, 220 Iowa 86, 93-94 (1935). Linthicum v. Pruden, 313 Ky. 527, 529 (1950). Baum v. Denn, 187 Ore. 401, 406-407 (1949). Koeber v. Somers, 108 Wis. 497, 503-504 (1901). Cf. Hatton v. Robinson, 14 Pick. 416, 422 (1834); Day v. Moore, 13 Gray 522, 524 (1859).
3. Specific enforcement. The Wallachs contend that an executory agreement to settle a preexisting claim is not enforceable, citing New York, N. H. & H. R.R. v. Martin, 158 Mass. 313, 316 (1893), Dalton v. West End St. Ry. 159 Mass. 221, 223 (1893), Prest v. Cole, 183 Mass. 283, 285 (1903), and Riley v. Boston Elev. Ry. 195 Mass. 318, 322 (1907). There is no such rule. Although an unexecuted accord does not operate as an accord and satisfaction, discharging the original claim, it is nonetheless enforceable as a contract. Hunt v. Brown, 146 Mass. 253, 254 (1888). Sherman v. Sidman, 300 Mass. 102, 105-107 (1938). Such an agreement may be specifically enforced, and may be set up as an equitable defense in an action on the original claim. G. L. c. 231, Section 31, as appearing in St. 1973, c. 1114, Section 164. Mass. R. Civ. P. 8 (c), 365 Mass. 750 . Cook v. Richardson, 178 Mass. 125, 128 (1901). Gadsby v. Gadsby, 275 Mass. 159, 167 (1931). Corrigan v. Payne, 312 Mass. 589, 592 (1942). See Restatement: Contracts, Section 417 (d) (1932); Williston, Contracts, Sections 1840-1845 (3d ed. 1972). Equity will also enforce specific performance of an agreement to sell closely held stock not purchasable in the market. Nigro v. Conti, 319 Mass. 480, 484 (1946). Cf. Herbits v. High-Speed Process Printing Corp. 358 Mass. 817 (1971). No question is raised under the statute of frauds. G. L. c. 106, Section 8-319. See Colt v. Fradkin, 361 Mass. 447, 451-454 (1972).
unclean hands and the effect of the Sunday laws are not open on this record. O'Brien v. Shea, 208 Mass. 528, 535 (1911). Holiver v. Department of Pub. Works, 333 Mass. 18, 20 (1955). Petrangelo v. Pollard, 356 Mass. 696, 703 (1970).
4. Interest. The Wallachs contend that the decree should provide for interest either from the date of the agreement or from the date of the suit. Payment of interest would be in essence damages for the plaintiffs' failure to pay at the time agreed on. Ratner v. Hill, 270 Mass. 249, 253 (1930). But the delay was caused by the Wallachs' own repudiation of the settlement agreement, and interest was properly denied. Davis v. Parker, 14 Allen 94, 104 (1867).
[Note 1] Paul S. Peters, father of Paul A. Peters, Paul Peters Brokerage, Inc., and Churny Company, Inc.
[Note 2] Shirley Wallach, his wife.

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