Respondents, who are nonresident enemy aliens, were captured in China by the United States Army and tried and convicted in China by an American military commission for violations of the laws of war committed in China prior to their capture. They were transported to the American-occupied part of Germany and imprisoned there in the custody of the Army. At no time were they within the territorial jurisdiction of any American civil court. Claiming that their trial, conviction, and imprisonment violated Articles I and III, the Fifth Amendment, and other provisions of our Constitution, laws of the United States, and provisions of the Geneva Convention, they petitioned the District Court for the District of Columbia for a writ of habeas corpus directed to the Secretary of Defense, the Secretary of the Army, and several officers of the Army having directive power over their custodian.
whether he is an alien enemy. Once these jurisdictional facts have been determined, courts will not inquire into any other issue as to his internment. P. 339 U. S. 775.
(e) A nonresident enemy alien, especially one who has remained in the service of the enemy, does not have even this qualified access to our courts. P. 339 U. S. 776.
2. These nonresident enemy aliens, captured and imprisoned abroad, have no right to a writ of habeas corpus in a court of the United States. Ex parte Quirin, 317 U. S. 1; In re Yamashita, 327 U. S. 1, distinguished. Pp. 339 U. S. 777-781.
3. The Constitution does not confer a right of personal security or an immunity from military trial and punishment upon an alien enemy engaged in the hostile service of a government at war with the United States. Pp. 339 U. S. 781-785.
(a) The term "any person" in the Fifth Amendment does not extend its protection to alien enemies everywhere in the world engaged in hostilities against us. Pp. 339 U. S. 782-783.
(b) The claim asserted by respondents and sustained by the court below would, in practical effect, amount to a right not to be tried at all for an offense against our armed forces. P. 339 U. S. 782.
4. The petition in this case alleges no fact showing lack of jurisdiction in the military authorities to accuse, try, and condemn these prisoners, or that they acted in excess of their lawful powers. Pp. 339 U. S. 785-790.
(a) The jurisdiction of military authorities, during or following hostilities, to punish those guilty of offenses against the laws of war is long established. P. 339 U. S. 786.
(b) It being within the jurisdiction of a military commission to try these prisoners, it was for it to determine whether the laws of war applied, and whether they had been violated. Pp. 339 U. S. 786-788.
(c) It is not the function of the Judiciary to entertain private litigation -- even by a citizen -- which challenges the legality, wisdom, or propriety of the Commander in Chief in sending our armed forces abroad or to any particular region. P. 339 U. S. 789.
(d) Nothing in the Geneva Convention makes these prisoners immune from prosecution or punishment for war crimes. P. 339 U. S. 789.
(e) Article 60 of the Geneva Convention, requiring that notice of trial of prisoners of war be given to the protecting power, is inapplicable to trials for war crimes committed before capture. Pp. 339 U. S. 789-790.
procedure as in the case of persons belonging to the armed forces of the detaining Power," is likewise inapplicable to trials for war crimes committed before capture. P. 339 U. S. 790.
5. Since there is no basis in this case for invoking federal judicial power, it is not necessary to decide where, if the case were otherwise, the petition should be filed. Pp. 339 U. S. 790-791.
84 U.S.App.D.C. 396, 14 F.2d 961, reversed.
The District Court dismissed a petition for a writ of habeas corpus to inquire into the confinement of respondents by the United States Army in occupied Germany. The Court of Appeals reversed. 84 U.S.App.D.C. 396, 174 F.2d 961. This Court granted certiorari. 338 U.S. 877. Reversed, p. 339 U. S. 791.
executed an act of unconditional surrender, expressly obligating all forces under German control at once to cease active hostilities. These prisoners have been convicted of violating laws of war by engaging in, permitting, or ordering continued military activity against the United States after surrender of Germany and before surrender of Japan. Their hostile operations consisted principally of collecting and furnishing intelligence concerning American forces and their movements to the Japanese armed forces. They, with six others who were acquitted, were taken into custody by the United States Army after the Japanese surrender, and were tried and convicted by a Military Commission constituted by our Commanding General at Nanking by delegation from the Commanding General, United States Forces, China Theater, pursuant to authority specifically granted by the Joint Chiefs of Staff of the United States. The Commission sat in China, with express consent of the Chinese Government. The proceeding was conducted wholly under American auspices, and involved no international participation. After conviction, the sentences were duly reviewed and, with immaterial modification, approved by military reviewing authority.
The prisoners were repatriated to Germany to serve their sentences. Their immediate custodian is Commandant of Landsberg Prison, an American Army officer under the Commending General, Third United States Army, and the Commanding General, European Command. He could not be reached by process from the District Court. Respondents named in the petition are Secretary of Defense, Secretary of the Army, Chief of Staff of the Army, and the Joint Chiefs of Staff of the United States.
in immediate physical custody of an officer or officers not parties to the proceeding, respondents named in the petition have lawful authority to effect that release.
The petition prays an order that the prisoners be produced before the District Court, that it may inquire into their confinement and order them discharged from such offenses and confinement. It is claimed that their trial, conviction, and imprisonment violate Articles I and III of the Constitution, and the Fifth Amendment thereto, and other provisions of the Constitution and laws of the United States and provisions of the Geneva Convention governing treatment of prisoners of war.
A rule to show cause issued, to which the United States made return. Thereupon the petition was dismissed on authority of Ahrens v. Clark, 335 U. S. 188.
The Court of Appeals reversed and, reinstating the petition, remanded for further proceedings. 84 U.S.App.D.C. 396, 174 F.2d 961. It concluded that any person, including an enemy alien, deprived of his liberty anywhere under any purported authority of the United States is entitled to the writ if he can show that extension to his cases of any constitutional rights or limitations would show his imprisonment illegal; that, although no statutory jurisdiction of such cases is given, courts must be held to possess it as part of the judicial power of the United States; that, where deprivation of liberty by an official act occurs outside the territorial jurisdiction of any District Court, the petition will lie in the District Court which has territorial jurisdiction over officials who have directive power over the immediate jailer.
The obvious importance of these holdings to both judicial administration and military operations impelled us to grant certiorari. 338 U.S. 877. The case is before us only on issues of law. The writ of habeas corpus must be granted "unless it appears from the application" that the applicants are not entitled to it. 28 U.S.C. § 2243.
an outlaw, subject to both public and private slaughter, cruelty, and plunder. But even by the most magnanimous view, our law does not abolish inherent distinctions recognized throughout the civilized world between citizens and aliens, nor between aliens of friendly and of enemy allegiance, [Footnote 2] nor between resident enemy aliens who have submitted themselves to our laws and nonresident enemy aliens who at all times have remained with, and adhered to, enemy governments.
With the citizen we are now little concerned, except to set his case apart as untouched by this decision and to take measure of the difference between his status and that of all categories of aliens. Citizenship as a head of jurisdiction and a ground of protection was old when Paul invoked it in his appeal to Caesar. The years have not destroyed nor diminished the importance of citizenship, nor have they sapped the vitality of a citizen's claims upon his government for protection. If a person's claim to United States citizenship is denied by any official, Congress has directed our courts to entertain his action to declare him to be a citizen "regardless of whether he is within the United States or abroad." 54 Stat. 1171, 8 U.S.C. § 903. This Court long ago extended habeas corpus to one seeking admission to the country to assure fair hearing of his claims to citizenship, Chin Yow v.
United States, 208 U. S. 8, and has secured citizenship against forfeiture by involuntary formal acts, Perkins v. Elg, 307 U. S. 325. [Footnote 3] Because the Government's obligation of protection is correlative with the duty of loyal support inherent in the citizen's allegiance, Congress has directed the President to exert the full diplomatic and political power of the United States on behalf of any citizen, but of no other, in jeopardy abroad. When any citizen is deprived of his liberty by any foreign government, it is made the duty of the President to demand the reasons and, if the detention appears wrongful, to use means not amounting to acts of war to effectuate his release. [Footnote 4] It is neither sentimentality nor chauvinism to repeat that "Citizenship is a high privilege." United States v. Manzi, 276 U. S. 463, 276 U. S. 467.
this Court has steadily enlarged his right against Executive deportation except upon full and fair hearing. The Japanese Immigrant Case, 189 U. S. 86; Low Wah Suey v. Backus, 225 U. S. 460; Tisi v. Tod, 264 U. S. 131; United States ex rel. Vajtauer v. Comm'r, 273 U. S. 103; Bridges v. Wixon, 326 U. S. 135; Wong Yang Sung v. McGrath, 339 U. S. 33. And, at least since 1886, we have extended to the person and property of resident aliens important constitutional guaranties -- such as the due process of law of the Fourteenth Amendment. Yick Wo v. Hopkins, 118 U. S. 356.
"These provisions are universal in their application, to all persons within the territorial jurisdiction, without regard to any differences of race, of color, or of nationality. . . ."
"an alien who has entered the country, and has become subject in all respects to its jurisdiction, and a part of its population, although alleged to be illegally here."
189 U.S. 86, 189 U. S. 101.
and endurable than the experience of our citizens in some enemy lands, it is still not a happy one. But disabilities this country lays upon the alien who becomes also an enemy are imposed temporarily as an incident of war, and not as an incident of alienage. Judge Cardozo commented concerning this distinction: "Much of the obscurity which surrounds the rights of aliens has its origin in this confusion of diverse subjects." Techt v. Hughes, 229 N.Y. 222, 237, 128 N.E. 185, 189.
"every individual of the one nation must acknowledge every individual of the other nation as his own enemy -- because the enemy of his country."
regards him as part of the enemy resources. It therefore takes measures to disable him from commission of hostile acts imputed as his intention because they are a duty to his sovereign.
which has prevailed among any of our enemies and some of our allies. This statute was enacted or suffered to continue by men who helped found the Republic and formulate the Bill of Rights, and although it obviously denies enemy aliens the constitutional immunities of citizens, it seems not then to have been supposed that a nation's obligations to its foes could ever be put on a parity with those to its defenders.
"A lawful residence implies protection, and a capacity to sue and be sued. A contrary doctrine would be repugnant to sound policy, no less than to justice and humanity."
"The ancient rule against suits by resident alien enemies has survived only so far as necessary to prevent use of the courts to accomplish a purpose which might hamper our own war efforts or give aid to the enemy. This may be taken as the sound principle of the common law today."
Ex parte Kawato, 317 U. S. 69, 317 U. S. 75.
We are here confronted with a decision whose basic premise is that these prisoners are entitled, as a constitutional right, to sue in some court of the United States for a writ of habeas corpus. To support that assumption, we must hold that a prisoner of our military authorities is constitutionally entitled to the writ, even though he (a) is an enemy alien; (b) has never been or resided in the United States; (c) was captured outside of our territory and there held in military custody as a prisoner of war; (d) was tried and convicted by a Military Commission sitting outside the United States; (e) for offenses against laws of war committed outside the United States; (f) and is at all times imprisoned outside the United States.
protection. No such basis can be invoked here, for these prisoners at no relevant time were within any territory over which the United States is sovereign, and the scenes of their offense, their capture, their trial and their punishment were all beyond the territorial jurisdiction of any court of the United States.
Another reason for a limited opening of our courts to resident aliens is that among them are many of friendly personal disposition to whom the status of enemy is only one imputed by law. But these prisoners were actual enemies, active in the hostile service of an enemy power. There is no fiction about their emnity. Y et the decision below confers upon them a right to use our courts, free even of the limitation we have imposed upon resident alien enemies, to whom we deny any use of our courts that would hamper our war effort or aid the enemy.
writ to these prisoners might mean that our army must transport them across the seas for hearing. This would require allocation of shipping space, guarding personnel, billeting, and rations. It might also require transportation for whatever witnesses the prisoners desired to call, as well as transportation for those necessary to defend legality of the sentence. The writ, since it is held to be a matter of right, would be equally available to enemies during active hostilities as in the present twilight between war and peace. Such trials would hamper the war effort, and bring aid and comfort to the enemy. They would diminish the prestige of our commanders not only with enemies, but with wavering neutrals. It would be difficult to devise more effective fettering of a field commander than to allow the very enemies he is ordered to reduce to submission to call him to account in his own civil courts and divert his efforts and attention from the military offensive abroad to the legal defensive at home. Nor is it unlikely that the result of such enemy litigiousness would be a conflict between judicial and military opinion highly comforting to enemies of the United States.
Moreover, we could expect no reciprocity for placing the litigation weapon in unrestrained enemy hands. The right of judicial refuge from military action, which it is proposed to bestow on the enemy, can purchase no equivalent for benefit of our citizen soldiers. Except England, whose law appears to be in harmony with the views we have expressed, and other English-speaking peoples in whose practice nothing has been cited to the contrary, the writ of habeas corpus is generally unknown.
claimed to be, a citizen. They were tried by a Military Commission sitting in the District of Columbia at a time when civil courts were open and functioning normally. They were arrested by civil authorities, and the prosecution was personally directed by the Attorney General, a civilian prosecutor, for acts committed in the United States. They waived arraignment before a civil court, and it was contended that the civil courts thereby acquired jurisdiction, and could not be ousted by the Military. None of the places where they were acting, arrested, tried, or imprisoned was, it was contended, in a zone of active military operations, was not under martial law or any other military control, and no circumstances justified transferring them from civil to military jurisdiction. None of these grave grounds for challenging military jurisdiction can be urged in the case now before us.
Nor can the Court's decision in the Yamashita case aid the prisoners. This Court refused to receive Yamashita's petition for a writ of habeas corpus. For hearing and opinion, it was consolidated with another application for a writ of certiorari to review the refusal of habeas corpus by the Supreme Court of the Philippines over whose decisions the statute then gave this Court a right of review. 28 U.S.C. § 349 (1940), repealed by Act of June 25, 1948, c. 646, § 39, 62 Stat. 992, 1000. By reason of our sovereignty at that time over these insular possessions, Yamashita stood much as did Quirin before American courts. Yamashita's offenses were committed on our territory, he was tried within the jurisdiction of our insular courts, and he was imprisoned within territory of the United States. None of these heads of jurisdiction can be invoked by these prisoners.
support and to show some reason in the petition why they should not be subject to the usual disabilities of nonresident enemy aliens. This is the same preliminary hearing as to sufficiency of application that was extended in Quirin, supra, Yamashita, supra, and Hirota v. MacArthur, 338 U. S. 197. After hearing all contentions they have seen fit to advance and considering every contention we can base on their application and the holdings below, we arrive at the same conclusion the Court reached in each of those cases, viz.: that no right to the writ of habeas corpus appears.
of habeas corpus is the established, time-honored process in our law for testing the authority of one who deprives another of his liberty -- 'the best and only sufficient defense of personal freedom.' . . ."
84 U.S.App.D.C. 396, 398-399, 174 F.2d 961, 963-964.
"by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law."
method by which any violations of the laws of war endangering the United States forces could be reached or punished, if it were not by a Military Commission in the theater where the offense was committed.
The Court of Appeals has cited no authority whatever for holding that the Fifth Amendment confers rights upon all persons, whatever their nationality, wherever they are located and whatever their offenses, except to quote extensively from a dissenting opinion in In re Yamashita, 327 U. S. 1, 327 U. S. 26. The holding of the Court in that case is, of course, to the contrary.
The decision below would extend coverage of our Constitution to nonresident alien enemies denied to resident alien enemies. The latter are entitled only to judicial hearing to determine what the petition of these prisoners admits: that they are really alien enemies. When that appears, those resident here may be deprived of liberty by Executive action without hearing. Ludecke v. Watkins, 335 U. S. 160. While this is preventive, rather than punitive, detention, no reason is apparent why an alien enemy charged with having committed a crime should have greater immunities from Executive action than one who it is only feared might at some future time commit a hostile act.
If the Fifth Amendment confers it rights on all the world except Americans engaged in defending it, the same must be true of the companion civil rights Amendments, for none of them is limited by its express terms, territorially or as to persons. Such a construction would mean that, during military occupation, irreconcilable enemy elements, guerrilla fighters, and "were-wolves" could require the American Judiciary to assure them freedoms of speech, press, and assembly as in the First Amendment, right to bear arms as in the Second, security against "unreasonable" searches and seizures as in the Fourth, as well as rights to jury trial as in the Fifth and Sixth Amendments.
Such extraterritorial application of organic law would have been so significant an innovation in the practice of governments that, if intended or apprehended, it could scarcely have failed to excite contemporary comment. Not one word can be cited. No decision of this Court supports such a view. Cf. 182 U. S. Bidwell, 182 U.S.
244. None of the learned commentators on our Constitution has ever hinted at it. The practice of every modern government is opposed to it.
The Court of Appeals appears to have been of opinion that the petition shows some action by some official of the United States in excess of his authority which confers a private right to have it judicially voided. Its Second and Third propositions were that "action of government officials in violation of the Constitution is void," and "a basic and inherent function of the judicial branch . . . is to set aside void action by government officials. . . ." For this reason, it thought the writ could be granted.
"the detention of the prisoners as convicted war criminals is illegal, and in violation of Articles I and III of the Constitution of the United States and of the Fifth Amendment thereto, and of other provisions of said Constitution and laws of the United States . . in that: "
"(a) There being no charge of an offense against the laws of war by the prisoners, the Military Commission was without jurisdiction."
dated February 4, 1943, and May 4, 1943, and between Germany and China, dated May 18, 1921, the Military Commission was without jurisdiction."
The petition does not particularize and neither does the court below the specific respects in which it is claimed acts of the Military were ultra vires.
"The German Government recognizes the right of the Allied and Associated Powers to bring before military tribunals persons accused of having committed acts in violation of the laws and customs of war."
"power of the military to exercise jurisdiction over members of the armed forces, those directly connected with such forces, or enemy belligerents, prisoners of war, or others charged with violating the laws of war."
facts. Correction of their errors of decision is not for the courts, but for the military authorities which are alone authorized to review their decisions."
327 U. S. 327 U.S. 1, 327 U. S. 8. "We consider here only the lawful power of the commission to try the petitioner for the offense charged." Ibid.
That there is a basis in conventional and long established law by which conduct ascribed to them might amount to a violation seems beyond question. Breach of the terms of an act of surrender is no novelty among war crimes.
"That capitulations must be scrupulously adhered to is an old customary rule, since enacted by Article 35 of the Hague Regulations. [Footnote 13] Any act contrary to a capitulation would constitute an international delinquency if ordered by a belligerent Government, and a war crime if committed without such order. Such violation may be met by reprisals or punishment of the offenders as war criminals."
"If any of the subjects, whether military men or private citizens, offend against the truce . . . , the delinquents should be compelled to make ample compensation for the damage, and severely punished. . . ."
"If . . . the breach of the conditions agreed upon is the act of unauthorized individuals, the side that suffers . . . may demand the punishment of the guilty parties and an indemnity for any losses it has sustained."
Principles of International Law (5th ed.) p. 566. It being within the jurisdiction of a Military Commission to try the prisoners, it was for it to determine whether the laws of war applied and whether an offense against them had been committed.
We can only read "(b)" to mean either that the presence of the military forces of the United States in China at the times in question was unconstitutional, or, if lawfully there, that they had no right under the Constitution to set up a Military Commission on Chinese territory. But it can hardly be meant that it was unconstitutional for the Government of the United States to wage a war in foreign parts. Among powers granted to Congress by the Constitution is power to provide for the common defense, to declare war, to raise and support armies, to provide and maintain a navy, and to make rules for the government and regulation of the land and naval forces, Art. I, § 8, Const. It also gives power to make rules concerning captures on land and water, ibid., which this Court has construed as an independent substantive power. Brown v. United States, 8 Cranch 110, 12 U. S. 126. Indeed, out of seventeen specific paragraphs of congressional power, eight of them are devoted in whole or in part to specification of powers connected with warfare. The first of the enumerated powers of the President is that he shall be Commander-in-Chief of the Army and Navy of the United States. Art. II, § 2, Const. And, of course, grant of war power includes all that is necessary and proper for carrying these powers into execution.
Certainly it is not the function of the Judiciary to entertain private litigation -- even by a citizen -- which challenges the legality, the wisdom, or the propriety of the Commander-in-Chief in sending our armed forces abroad or to any particular region. China appears to have fully consented to the trial within her territories, and, if China had complaint at the presence of American forces there, China's grievance does not become these prisoners' right. The issue tendered by "(b)" involves a challenge to conduct of diplomatic and foreign affairs, for which the President is exclusively responsible. United States v. Curtiss-Wright Export Corp., 299 U. S. 304; Chicago & Southern Air Lines v. Waterman Steamship Corp., 333 U. S. 103.
These prisoners do not assert, and could not, that anything in the Geneva Convention makes them immune from prosecution or punishment for war crimes. [Footnote 14] Article 75 thereof expressly provides that a prisoner of war may be detained until the end of such proceedings and, if necessary, until the expiration of the punishment. 47 Stat. 2021, 2055.
notice of the trial as specified in Article 60 of the Convention. This claim the Court has twice considered and twice rejected, holding that such notice is required only of proceedings for disciplinary offenses committed during captivity, and not in case of war crimes committed before capture. Ex parte Quirin, supra; Ex parte Yamashita, supra.
The District Court dismissed this petition on authority of Ahrens v. Clark, 335 U. S. 188. The Court of Appeals considered only questions which it regarded as reserved in that decision and in Ex parte Endo, 323 U. S. 283. Those cases dealt with persons both residing and detained within the United States and whose capacity and standing to invoke the process of federal courts somewhere was unquestioned. The issue was where.
not debate as to where, if the case were otherwise, the petition should be filed.
For reasons stated, the judgment of the Court of Appeals is reversed, and the judgment of the District Court dismissing the petition is affirmed.
From January, 1948, to today, motions for leave to file petitions for habeas corpus in this Court, and applications treated by the Court as such, on behalf of over 200 German enemy aliens confined by American military authorities abroad were filed and denied. Brandt v. United States and 13 companion cases, 333 U.S. 836; In re Eichel (one petition on behalf of three persons), 333 U.S. 865; Everett v. Truman (one petition on behalf of 74 persons), 334 U.S. 824; In re Krautwurst, and 11 companion cases, 334 U.S. 826; In re Ehlen et al., and In re Girke et al., 334 U.S. 836; In re Gronwald et al., 334 U.S. 857; In re Stattmann, and 3 companion cases, 335 U.S. 805; In re Vetter, and 6 companion cases, 335 U.S. 841; In re Eckstein, 335 U.S. 851; In re Heim, 335 U.S. 856; In re Dammann, and 4 companion cases, 336 U.S. 922-923; In re Muhlbauer, and 57 companion cases, covering at least 80 persons, 336 U. S. 964; In re Felsch, 337 U.S. 953; In re Buerger, 338 U.S. 884; In re Hans, 339 U.S. 976; In re Schmidt, 339 U.S. 976; Lammers v. United States, 339 U.S. 976. And see also Milch v. United States, 332 U.S. 789.
These cases and the variety of questions they raised are analyzed and discussed by Fairman, Some New Problems of the Constitution Following the Flag, 1 Standard L.Rev. 587.
". . . In the primary meaning of the words, an alien friend is the subject of a foreign state at peace with the United States; an alien enemy is the subject of a foreign state at war with the United States. 1 Kent, Comm. p. 55; 2 Halleck, Int.L. (Rev.1908) p. 1; Hall, Int.Law (7th Ed.) p. 403, § 126; Baty & Morgan, 'War: Its Conduct and Legal Results,' p. 247; 1 Halsbury, Laws of England, p. 310; Sylvester's Case, 7 Mod. 150; The Roumanian, 1915, Prob.Div. 26; aff'd, 1916, 1 A.C. 124; Griswold v. Waddington, 16 Johns. 437 [438,] 448; White v. Burnley, 20 How. 235, 61 U. S. 249; The Benito Estenger, 176 U. S. 568, 176 U. S. 571; Kershaw v. Kelsey, 100 Mass. 561; so all the lexicographers, as, e.g., Webster, Murray, Abbott, Black, Bouvier. . . ."
Cardozo, J., in Techt v. Hughes, 229 N.Y. 222, 229, 128 N.E. 185, 186.
For cases in lower courts, see Note, 18 Geo.Wash.L.Rev. 410.
15 Stat. 224, 8 U.S.C. § 903b.
See Delaney, The Alien Enemy and the Draft, 12 Brooklyn L.Rev. 91.
". . . In 1798, the 5th Congress passed three acts in rapid succession, "An Act concerning Aliens," approved June 25, 1798 (1 Stat. 570), "An Act respecting Alien Enemies," approved July 6, 1798 (1 Stat. 577), and "An Act in addition to the act, entitled An act for the punishment of certain crimes against the United States,'" approved July 14, 1798. [1 Stat. 596.] The first and last were the Alien and Sedition Acts, vigorously attacked in Congress and by the Virginia and Kentucky Resolutions as unconstitutional. But the members of Congress who vigorously fought the Alien Act saw no objection to the Alien Enemy Act. [8 Annals of Cong. 2035 (5th Cong., 1798).] In fact, Albert Gallatin, who led that opposition, was emphatic in distinguishing between the two bills and in affirming the constitutional power of Congress over alien enemies as part of the power to declare war. [Id. at 1980.] James Madison was the author of the Virginia Resolutions, and, in his report to the Virginia House of Delegates the ensuing year after the deluge of controversy, he carefully and with some tartness asserted a distinction between alien members of a hostile nation and alien members of a friendly nation, disavowed any relation of the Resolutions to alien enemies, and declared,"
"With respect to alien enemies, no doubt has been intimated as to the federal authority over them; the Constitution having expressly delegated to Congress the power to declare war against any nation, and, of course, to treat it and all its members as enemies."
"[Madison's Report, 4 Elliot's Deb. 546, 554 (1800).] Thomas Jefferson wrote the Kentucky Resolutions, and he was meticulous in identifying the Act under attack as the Alien Act 'which assumes power over alien friends.' [Kentucky Resolutions of 1798 and 1799, 4 Elliot's Deb. 540, 541.] It is certain that, in the white light which beat about the subject in 1798, if there had been the slightest question in the minds of the authors of the Constitution or their contemporaries concerning the constitutionality of the Alien Enemy Act, it would have appeared. None did."
"The courts, in an unbroken line of cases from Fries' Case [Case of Fries, C.C.D.Pa.1799, 9 Fed.Cas. at pages 826, 830 et seq., No. 5,126], in 1799 to Schwarzkopf's case [United States ex rel. Schwarzkopf v. Uhl, 1943, 137 F.2d 898] in 1943, have asserted or assumed the validity of the Act and based numerous decisions upon the assumption. [Brown v. United States, 1814, 8 Cranch 110; De Lacey v. United States, 1918, 249 F. 625, L.R.A.1918E, 1011; Grahl v. United States, 1919, 261 F. 487; Lockington's Case, 1813, Brightly, N.P., Pa. 269, 283; Lockington v. Smith, C.C.D.Pa. 1817, 15 Fed.Cas. page 758, No. 8,448; Ex parte Graber, D.C.N.D.Ala.1918, 247 F. 882; Minotto v. Bradley, D.C.N.D.Ill.1918, 252 F. 600; Ex parte Fronklin, D.C.Miss.1918, 253 F. 984; Ex parte Risse, D.C.S.D.N.Y.1919, 257 F. 102; Ex parte Gilroy, D.C.S.D.N.Y.1919, 257 F. 110.] The judicial view has been without dissent."
"At common law, 'alien enemies have no rights, no privileges, unless by the king's special favour, during the time of war.' [1 Blackstone * 372, 373.]"
Prettyman, J. in Citizens Protective League v. Clark, 81 U.S.App.D.C. 116, 119, 155 F.2d 290, 293.
See also Notes, 22 So.Cal.L.Rev. 307; 60 Harv.L.Rev. 456; 47 Mich.L.Rev. 404; 17 Geo.Wash.L.Rev. 578; 27 N.C.L.Rev. 238; 34 Corn.L.Q. 425. In this respect, our courts follow the practice of the English courts. 44 Am.J.Int.L. 382.
See cases collected in Annotations, 137 A.L.R. 1335, 1355; 1918B L.R.A. 189, 191. See also Borchard, The Right of Alien Enemies to Sue in Our Courts, 27 Yale L.J. 104; Gordon, The Right of Alien Enemies to Sue in American Courts, 36 Ill.L.Rev. 809, 810; Battle, Enemy Litigants in Our Courts, 28 Va.L.Rev. 429; Rylee, Enemy Aliens as Litigants, 12 Geo.Wash.L.Rev. 55, 65; notes, 5 U. of Detroit L.J. 106, 22 Neb.L.Rev. 36, 30 Cal.L.Rev. 358, 54 Harv.L.Rev. 350.
"Unless the application for the writ and the return present only issues of law, the person to whom the writ is directed shall be required to produce at the hearing the body of the person detained."
"Habeas Corpus . . . thou [shalt] have the body [sc. in court]."
"A writ issuing out of a court of justice . . . requiring the body of a person to be brought before the judge or into the court for the purpose specified in the writ; . . . requiring the body of a person restrained of liberty to be brought before the judge or into court, that the lawfulness of the restraint may be investigated and determined."
The Oxford English Dictionary (1933), Vol. V, p. 2.
"All merchants, if they were not openly prohibited before, shall have their safe and sure conduct to depart out of England, to come into England, to tarry in, and go through England, as well by land as by water, to buy and sell without any manner of evil tolles by the old and rightful customs, except in time of war; and if they be of a land making war against us, and be found in our realm at the beginning of the wars, they shall be attached without harm of body or goods, until it be known unto us, or our chief justice, how our merchants be entreated who are then found in the land making war against us, and if our merchants be well intreated there, theirs shall be likewise with us."
(Emphasis added.) C. 30 of the Magna Carta, in 3 The Complete Statutes of England (Halsbury's Laws of England 1929) at p. 27.
See Green, The Military Commission, 42 Am.J.Int.L. 832.
"Capitulations agreed upon between contracting parties must take into account the rules of military honour."
"Once settled, they must be scrupulously observed by both parties."
"If there is one rule of the law of war more clear and peremptory than another, it is that compacts between enemies, such as truces and capitulations, shall be faithfully adhered to, and their nonobservance is denounced as being manifestly at variance with the true interest any duty not only of the immediate parties, but of all mankind. Mr. Webster, Sec. of State, to Mr. Thompson, Apr. 5, 1842, 6 Webster's Works, 438."
We are not holding that these prisoners have no right which the military authorities are bound to respect. The United States, by the Geneva Convention of July 27, 1929. 47 Stat. 2021, concluded with forty-six other countries, including the German Reich, an agreement upon the treatment to be accorded captives. These prisoners claim to be and are entitled to its protection. It is, however, the obvious scheme of the Agreement that responsibility for observance and enforcement of these rights is upon political and military authorities. Rights of alien enemies are vindicated under it only through protests and intervention of protecting powers as the rights of our citizens against foreign governments are vindicated only by Presidential intervention.
cogent reasons given for its decision. The board reach of today's opinion, however, requires discussion.
First. In 339 U. S. the Court apparently bases its holding that the District Court was without jurisdiction on its own conclusion that the petition for habeas corpus failed to show facts authorizing the relief prayed for. But jurisdiction of a federal district court does not depend on whether the initial pleading sufficiently states a cause of action; if a court has jurisdiction of subject matter and parties, it should proceed to try the case, beginning with consideration of the pleadings. Bell v. Hood, 327 U. S. 678, 327 U. S. 682-683; Ex parte Kawato, 317 U. S. 69, 317 U. S. 71. [Footnote 2/2] Therefore, 339 U. S. and lends no support whatever to the Court's holding that the District Court was without jurisdiction.
Moreover, the question of whether the petition showed on its face that these prisoners had violated the laws of war, even if it were relevant, is not properly before this Court. The trial court did not reach that question, because it concluded that their imprisonment outside its district barred it even from considering the petition; its doors were "summarily closed." And, in reversing, the Court of Appeals specifically rejected requests that it consider the sufficiency of the petition, properly remanding the cause to the District Court for that determination -- just as this Court did in the Hood and Kawato cases, supra. The Government's petition for certiorari here presented no question except that of jurisdiction, and neither party has argued, orally or in briefs, that this Court should pass on the sufficiency of the petition.
To decide this unargued question under these circumstances seems an unwarranted and highly improper deviation from ordinary judicial procedure. At the very least, fairness requires that the Court hear argument on this point.
failure to remand deprives these petitioners of any right to meet alleged deficiencies by amending their petitions.
"consideration by the courts of petitioners' contentions that the Constitution and laws of the United States constitutionally enacted forbid their trial by military commission."
make such inquiry into the authority of the commission as may be made by habeas corpus."
Id. at 327 U. S. 9. That we went on to deny the requested writ, as in the Quirin case, in no way detracts from the clear holding that habeas corpus jurisdiction is available even to belligerent aliens convicted by a military tribunal for an offense committed in actual acts of warfare.
Since the Court expressly disavows conflict with the Quirin or Yamashita decisions, it must be relying not on the status of these petitioners as alien enemy belligerents, but rather on the fact that they were captured, tried, and imprisoned outside our territory. The Court cannot, and, despite its rhetoric on the point, does not, deny that, if they were imprisoned in the United States, our courts would clearly have jurisdiction to hear their habeas corpus complaints. Does a prisoner's right to test legality of a sentence then depend on where the Government chooses to imprison him? Certainly the Quirin and Yamashita opinions lend no support to that conclusion, for, in upholding jurisdiction, they place no reliance whatever on territorial location. The Court is fashioning wholly indefensible doctrine if it permits the executive branch, by deciding where its prisoners will be tried and imprisoned, to deprive all federal courts of their power to protect against a federal executive's illegal incarcerations.
Third. It has always been recognized that actual warfare can be conducted successfully only if those in command are left the most ample independence in the theater of operations. Our Constitution is not so impractical or inflexible that it unduly restricts such necessary independence. It would be fantastic to suggest that alien enemies could hail our military leaders into judicial tribunals to account for their day to day activities on the battlefront. Active fighting forces must be free to fight while hostilities are in progress. But that undisputable axiom has no bearing on this case or the general problem from which it arises.
provision of the Bill of Rights in controlling temporarily occupied countries. But that does not mean that the Constitution is wholly inapplicable in foreign territories that we occupy and govern. See Downes v. Bidwell, 182 U. S. 244.
The question here involves a far narrower issue. Springing from recognition that our government is composed of three separate and independent branches, it is whether the judiciary has power in habeas corpus proceedings to test the legality of criminal sentences imposed by the executive through military tribunals in a country which we have occupied for years. The extent of such a judicial test of legality under charges like these, as we have already held in the Yamashita case, is of most limited scope. We ask only whether the military tribunal was legally constituted, and whether it had jurisdiction to impose punishment for the conduct charged. Such a limited habeas corpus review is the right of every citizen of the United States, civilian or soldier (unless the Court adopts the Government's argument that Americans imprisoned abroad have lost their right to habeas corpus). Any contention that a similarly limited use of habeas corpus for these prisoners would somehow give them a preferred position in the law cannot be taken seriously.
to executive and military agencies completely free from judicial scrutiny. Our Constitution has emphatically expressed a contrary policy.
As the Court points out, Paul was fortunate enough to be a Roman citizen when he was made the victim of prejudicial charges; that privileged status afforded him an appeal to Rome, with a right to meet his "accusers face to face." Acts 25:16. But other martyrized disciples were not so fortunate. Our Constitution has led people everywhere to hope and believe that, wherever our laws control, all people, whether our citizens or not, would have an equal chance before the bar of criminal justice.
Conquest by the United States, unlike conquest by many other nations, does not mean tyranny. For our people "choose to maintain their greatness by justice, rather than violence." [Footnote 2/4] Our constitutional principles are such that their mandate of equal justice under law should be applied as well when we occupy lands across the sea as when our flag flew only over thirteen colonies. Our nation proclaims a belief in the dignity of human beings as such, no matter what their nationality or where they happen to live. Habeas corpus, as an instrument to protect against illegal imprisonment, is written into the Constitution. Its use by courts cannot, in my judgment, be constitutionally abridged by Executive or by Congress. I would hold that our courts can exercise it whenever any United States official illegally imprisons any person in any land we govern. [Footnote 2/5] Courts should not for any reason abdicate this, the loftiest power with which the Constitution has endowed them.
Cases are occasionally dismissed where the claims are "wholly insubstantial and frivolous," Bell v. Hood, supra, but the very complexity of this Court's opinion belies any such classification of this petition.
The Court indicates that not even today can a nonresident German or Japanese bring even a civil suit in American courts. With this restrictive philosophy compare Ex parte Kawato, 317 U. S. 69; See also McKenna v. Fisk, 1 How. 241, 42 U. S. 249.
This goal for government is not new. According to Taxitus, it was achieved by another people almost 2,000 years ago. See 2 Works of Taxitus 326 (Oxford trans., New York, 1869).
See the concurring opinion of MR. JUSTICE DOUGLAS in Hirota v. MacArthur, 338 U. S. 197, 338 U. S. 199.


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The speedy trial clock is reset when charges are dismissed or a mistrial is granted. The clock resets on, the date of dismissal in cases where the accused remains in pretrial restraint; the date of mistrial, or; the earlier of re-preferral or imposition of restrain for all other cases. R.C.M. 707(b)(3)(A).
A commander may dismiss charges even when there is an intent to re-institute the same charges at a later date. United States v. Bolado, 34 M.J. 732 (N.M.C.M.R. 1991); aff’d, 36 M.J. 2 (C.M.A. 1992). In Bolado, convening authority ordered charges dismissed as two NIS witnesses were deployed for an uncertain time period. Charges were re-preferred nine months later, upon the return of the witnesses. Note that a withdrawal of the charges does not toll the speedy trial clock. United States v. Weatherspoon, 39 M.J. 762 (A.C.M.R. 1994).
The intent to dismiss charges must be clear. In United States v. Young, appellant deserted his unit after he was found guilty of various offenses, but prior to sentencing. The court sentenced him, in abstentia, to confinement for life and after his initial trial his command preferred a new charge for desertion. Upon apprehension, appellant began serving his sentence and the desertion charge was not acted upon until the Chief of Staff at the USBD signed a DA form 4833 which stated, “the prior command and the USBD have declined prosecution of the desertion offense.” Upon appeal, the life sentence was set aside and the command proceeded with the desertion charge, preferring it anew (four years later). Appellant moved the trial court to dismiss the desertion charge, as there had been no dismissal of the original desertion charge and the speedy trial clock had continuously run for four years. The trial court found the DA form 4833 equivalent to a dismissal. The ACCA disagreed and reversed the trial court, finding that the DA form 4833 was not a dismissal but a decision to take “no action” and appellant’s right to a speedy trial had been violated.
In addition, circumvention of the accused’s right to a speedy trial is a violation of R.C.M. 707. In United States v. Robinson, 47 M.J. 506 (N.M.C.C.A. 1997), the Court held that subterfuge was employed in order to avoid the 120 day speedy trial clock when charges were dismissed on day 115, then repreferred one week later with virtually no change in appellant’s status. The factors used to determine subterfuge include, Convening Authority intent; notice and documentation of action; restoration of rights and privileges of the accused’ prejudice to the accused; and amended or additional charges.
When the accused is released from pretrial restraint for a significant period, the time under the 120 day speedy trial rule shall run from the earliest date on which the charges are preferred, or restraint is re-instituted, or entry on active duty. R.C.M. 707(b)(3)(B). The requirement to wait a “significant period” of time applies only to those cases involving re-imposition of restraint. The government is not required to wait a “significant period” before preferring charges upon release from confinement. The purpose of R.C.M. 707(b)(3)(B) is to avoid subterfuge. United States v. Ruffin, 48 M.J. 211 (C.A.A.F. 1998).
In cases in which multiple charges are preferred at different times, each charge may have a separate starting date, based on the date of preferral, restraint, or entry on active duty related to the particular charge. R.C.M. 707(b)(2). In cases in which the accused is placed into pretrial confinement, the speedy trial clock begins to run for all offenses the government knows (or reasonably should know) are part of the misconduct. United States v. Bray, 52 M.J. 659 (A.F. Ct. Crim. App. 2000).
A third restart of the speedy trial clock occurs when the government appeals under R.C.M. 908 and begins to run upon notice to all parties. R.C.M. 707(b)(3)(C). A fourth restart is triggered upon a rehearing and begins on the date the “responsible convening authority receives the record of trial and the opinion authorizing or direction a rehearing.” R.C.M. 707(b)(3)(D). Finally, a fifth restart begins upon the return of the accused from the custody of the Attorney General. R.C.M. 707(b)(3)(E).
(1) Did not have initial action taken within 120 days of the completion of the trial; (2) was not docketed within 30 days of the convening authority’s action; or (3) did not have appellate review completed by the Court of Criminal Appeals within 18 months of docketing. Once the post-trial delay is determined to be unreasonable, the court must balance: (1) the length of the delay against; (2) the reason for the delay; (3) the appellant’s assertion of the right to timely review and appeal; and, (4) prejudice.
In United States v. Tippit, 65 M.J. 69 (C.A.A.F. 2007), the Special Court-Martial Convening authority signed a withdrawal of charges (not referred). The Court of Appeals honored the SPCMCA’s intent to dismiss charges despite the misnomer and found no violation of R.C.M. 707.
The government may rebut the presumption of prejudice by showing the delay was not unreasonable. Moreno, 63 M.J. at 129.

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On behalf of Clark Firm PLLC posted in employment law on Friday, April 20, 2012.
In a decision filed on April 10, 2012, the Ninth Circuit in United States of America v. Nosal, No. 10-10038 (9th Cir. 2012), put itself squarely in conflict with the Fifth, Eleventh and Seventh Circuits by holding that the district court properly dismissed a portion of the government's indictment against David Nosal charging him with a violation of the Computer Fraud and Abuse Act ("CFAA"), 18 U.S.C. § 1030(a)(4) by knowingly and with intent to defraud accessing or exceeding access of a computer in contravention of a written company policy in order to obtain confidential company information to start a competing business.
Nosal left an executive search firm but convinced some of his colleagues still working there to use their log-in credentials to download source lists, names and contact information from a confidential database on the company's computer, then transferring that data to Nosal. The employer had a policy which forbade disclosing confidential information, and the opening screen of the database contained the warning: "This product is intended to be used by Korn/Ferry employees for work on Korn/Ferry business only."
The government indicted Nosal on 20 counts, including the CFAA for aiding and abetting the KF employees in exceeding their authorized access with intent to defraud. Nosal filed a motion to dismiss this portion of the indictment, arguing that the CFAA only targets hackers, not persons who access a computer with authorization but then misuse the information they obtain through such access. The district court initially declined to dismiss, but reconsidered in light of the 9th Circuit's decision in LVRC Holdings, LLC v. Brekka, 581 F.3d 1127 (9th Cir. 2009), which narrowly construed the phrases "without authorization" and "exceeds authorized access" in the CFAA.
The 9th Circuit rejected the government's interpretation of "exceeds authorized access" because it would make every violation of a private computer use policy a federal crime. The Court expressly noted its decision was contrary to the decisions of the 5th Circuit, 11th and 7th Circuits, and urged them to reconsider their holdings. See United States v. John, 597 F.3d 263 (5th Cir. 2010); United States v. Rodriguez, 628 F.3d 1258 (11th Cir. 2010); Int'l Airport Ctrs., LLC v. Citrin, 440 F.3d 418 (7th Cir. 2006). According to the 9th Circuit, "the plain language of the CFAA 'target[s] the unauthorized procurement or alteration of information, not its misuse or misappropriation.'" Thus, "exceeds authorized access" in the CFAA is limited to violations of restrictions on accessto information, not restrictions on its use. The dissent argued the majority's interpretation conflicts with the plain language of the statute.
A district court in Minnesota recently granted a motion to dismiss a similar indictment under the CFAA. See Walsh Bishop Assoc., Inc. v. O'Brien, CA 11-2673 (D. Minn. Feb. 28, 2012).
In United States v. John, the 5th Circuit held a Citigroup employee exceeded her authorized access in violation of 18 U.S.C. § 1030 (a)(2), by accessing confidential customer information in violation of her employer's computer use restrictions and used that information to commit fraud. The 5thCircuit indicated that "[a]n employee would 'exceed authorized access' if he or she used that access to obtain or steal information as part of a criminal scheme. 597 F.3d at 271.
The CFAA provides civil remedies in the event the plaintiff can show economic damages aggregating at least $5,000 in value during any 1 year period. See 18 U.S.C. § 1030(c)(4)(A)(i)(1) and (g). In Meats by Linz Inc. v. Dear, 2011 WL 1515028 (N.D.Tex. Apr. 20, 2011), Judge Fitzwater denied a former employee's motion to dismiss the CFAA count against him where it was alleged that immediately before resigning his position as general manager, Dear accessed a password-protected hard drive from a remote computer to download a gross profit report which listed company customers, with pricing, cost of goods sold and profit margin for each customer. He then, in violation of a confidentiality agreement and restrictive covenant agreement, began soliciting customers for a direct competitor. In seeking to dismiss the CFAA count, he maintained he had authorization to access the report and did not exceed his authority by accessing it or downloading it. Rejecting the argument and denying the motion to dismiss, the Court noted pursuant to the John decision, the 5thCircuit has interpreted the CFAA to encompass limits placed on the use of information obtained by permitted access to a computer system and data available on that system.
It is obviously important to analyze the jurisdiction to determine whether unauthorized use of confidential data accessed through a computer states a criminal and/or civil claim under the CFAA. In jurisdictions such as Texas, in situations where there has been unauthorized access of confidential data via a computer system, consideration should be given to including a count under the CFAA if it is clear that there has been an economic loss which exceeds $5000 in a 1 year period. The presence of such a claim may be persuasive to a court in granting injunctive relief to prevent further access and use of the misappropriated data.
There are also federal and state trade secrets theft statutes which may form an additional claim if the data taken and misappropriated by the employee meets the definition of a trade secret, proprietary information that provides a competitive advantage to its owner. See, 18 U.S.C. § 1832(a); Texas Penal Code § 31.03.
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Ermakova O.N., Ermakov A.M., Evdokimovsky E.V.
Investigation of melatonin membrane receptors expression in planarians Schmidtea mediterranea revealed that melatonin receptor orthologs Smed-mt 1, Smed-mt 2 и Smed-mel 1c are highly expressed in the head area whereas in the tail region their expression is minimal. Regeneration of dissected head and tail parts in planarians was accompanied by a decrease of expression level of all three type melatonin receptors. RNA interference of melatonin receptor Smed-mt 2 caused defects in process of head regeneration. The data obtained could explain the distoproximal inhibitory effect of melatonin on planarian regeneration and shed light on a new role of melatonin and its receptors as regulators of planarian regeneration and morphogenesis.We investigated 117 depressive patients using several neuroimaging methods. We found functional and structural abnormalities in limbic structures ingressed to the cortico-strio- thalamic-cortical neural circles within the all groups of patients. Functional neuroimaging methods (functional magnetic resonance imaging, positron emission tomography), basically, allow to reveal neuroimaging features at "neurotic" and "endogenous" depressions, in the form of various reaction patterns to emotionally-provocative stimulus (functional magnetic resonance imaging) and metabolism changes 18F-deoxyglucose (positron emission tomography). Structural neuroimaging methods (voxel-based morphometry, diffusion-tensor imaging) in more extent reflect morphofunctional features of "organic" depression in the form of grey substance density and anisotropy fraction change.
planarian, melatonin receptors, expression, regeneration, stem cells.
1. Pandi-Perumal S.R., Srinivasan V., Maestroni G.J.M., Cardinali G.P., Poeggeler B. Hardeland R. Melatonin. Nature’s most versatile biological signal? FEBS Journal, 2006, V. 273, P. 2813–2838.
2. Maharaj D.S, Glass B.D., Daya S. Melatonin: New Places in Therapy. Biosci. Rep, 2007, V. 27, P. 299–320.
3. Dubocovich M.L., Cardinali D.P., Delagrange P., Krause D.N., Strosberg D., Sugden D., Yocca F.D. Melatonin receptors. In The IUPHAR Compendium of Receptor Characterization and Classification, 2nd edn. (IUPHAR, ed.), 2000, P. 271–277. IUPHAR Media, London.
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7. Becker-Andre M., Wiesenberg I., Schaeren-Wiemers N., Andre E., Missbach M., Saurat J.H., Carlberg C. Pineal gland hormone melatonin binds and activates an orphan of the nuclear receptor superfamily. J. Biol. Chem, 1994, V. 269, P. 28531–28534.
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D.C. Law Library - § 47–4222. Abatements — tax, interest, and penalty.
↪ Subchapter III. Waiver and Abatement.
↪ § 47–4222. Abatements — tax, interest, and penalty.
§ 47–4221. Waiver of penalty — reasonable cause.
§ 47–4222. Abatements — tax, interest, and penalty.
(2) Erroneously or illegally assessed, in whole or in part.
(b)(1) In the case of an assessment of interest on a deficiency attributable in whole or in part to an unreasonable error or delay by the Mayor, the Mayor may abate the assessment of all or a part of the interest. The Mayor may refuse to abate the assessment of interest if a significant aspect of the error or delay is attributable to the taxpayer involved.
(2) The Mayor shall abate the assessment of all interest on an erroneous refund under § 47-4201 until the date that demand for repayment is made, unless the taxpayer (or a related party) has in any way caused the erroneous refund.
(c)(1) The Mayor shall abate any portion of interest or penalty attributable to erroneous advice furnished to the taxpayer in writing by the Mayor.
(B) The portion of the penalty or addition to tax did not result from a failure by the taxpayer to provide adequate or accurate information.
(A) “Notice” means a document specifically stating the amount of the taxpayer’s liability and the basis for the liability.
(B) “Abatement date” means the day after the expiration of the one-year period beginning on the later of: (i) the date on which the return is filed, or (ii) the due date of the return determined without regard to extensions.
(2) If an individual files a timely individual income tax return imposed by this title (determined with regard to extensions) and the Mayor does not provide a notice to the individual before the abatement date, the Mayor shall abate any interest or penalty for a failure relating to the return for the period (A) beginning on the abatement date, and (B) ending 21 days after the date on which the notice is provided by the Mayor.
(4) This subsection shall apply only to an individual income tax return.
D.C. Law 14-282, in subsec. (d)(2), substituted “individual income tax return” for “return of tax” and substituted “individual” for “taxpayer”; and added subsec. (d)(4).
For temporary (90 day) amendment of section, see § 12(iii) of Tax Clarity and Recorder of Deeds Emergency Act of 2002 (D.C. Act 14-381, June 6, 2002, 49 DCR 5674).
For temporary (90 day) amendment of section, see § 12(jjj) of Tax Clarity and Related Amendments Emergency Act of 2002 (D.C. Act 14-456, July 23, 2002, 49 DCR 8107).
For temporary (90 day) amendment of section, see § 12(jjj) of Tax Clarity and Related Amendments Congressional Review Emergency Act of 2002 (D.C. Act 14-510, October 23, 2002, 49 DCR 10247).
For temporary (225 day) amendment of section, see 12(jjj) of Tax Clarity and Recorder of Deeds Temporary Act of 2002 (D.C. Law 14-191, October 5, 2002, law notification 49 DCR 9549).
For temporary (225 day) amendment of section, see 12(jjj) of Tax Clarity and Related Amendments Temporary Act of 2003 (D.C. Law 14-228, March 23, 2003, law notification 50 DCR 2741).


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Mr. David F. Smith, Washington, D.C., for appellant.
Mr. Fred L. McIntyre, Asst. U.S. Atty., with whom Messrs. Leo A. Rover, U.S. Atty., Lewis Carroll and Victor Caputy, Asst. U.S. Attys., were on the brief, for appellee.
He was charged with stealing four shotguns and three rifles. The facts are somewhat complicated, involving transactions and associations of the accused with a Mrs. Neff, from whom the guns apparently were stolen, and with one Leighton Williams, a friend of hers. These associations and transactions revolved around the proposed purchase by [98 U.S.App.D.C. 98] Mrs. Neff from Lee of a certain restaurant. The parties were together at Mrs. Neff's premises the evening of the alleged theft. The next morning she discovered the guns were missing.
The police were notified. Several days later, about midnight, the police received word from 'a reliable source' that Lee had attempted to sell several guns, that he had one in the back of his automobile, and that the guns were those stolen from the home of Mrs. Neff. Captain Shiman of the Metropolitan Police Department, in the company of another officer, proceeded almost immediately to Lee's apartment. At first they were unable to arouse anyone. They went away and returned with a third officer about two hours later. There were some differences in the testimony as to whether Lee had the door open when they returned or just what were the circumstances surrounding their entry into the apartment. In any event, although they did not use force, they carried with them such compulsion of authority that the subsequent search cannot be said to have been with the acquiescence of Lee. Judd v. United States, 89 U.S.App.D.C. 64, 190 F.2d 649. After the officers had gained entry Captain Shiman asked Lee if he had any shotguns in the apartment. He replied, 'Yes.' He was asked to show them, and said, 'It is in the closet.' A shotgun, in a case, was found by one of the officers in a closet. The officers identified it as belonging to Mrs. Neff. A .22 caliber rifle also was recovered from the apartment, and a little later a shotgun also recognized by the police as belonging to Mrs. Neff was recovered from the trunk of Lee's car, which was parked near his apartment. The officers had no arrest warrant or search warrant.
A motion to suppress the guns as evidence because allegedly seized unlawfully by the officers was the subject of a hearing before trial, and was denied. The motion was renewed when the case was called for trial, followed by another hearing. It was again denied, and the guns were admitted in evidence.
In support of the refusal of the court to suppress the evidence the United States contends that the search and seizure were incident to a lawful arrest. United States v. Rabinowitz, 339 U.S. 56, 70 S.Ct. 430, 94 L.Ed. 653. It is argued that the arrest was lawful because the officers had probable cause to know that a felony had been committed and, based on the tip, that Lee had committed it. But we do not reach that question because the search and seizure were not in reality incident to the arrest. The testimony shows that the search and seizure preceded the arrest, and that the officers intended by the entry and search to secure evidence upon which to predicate the subsequent arrest. Captain Shiman, who was in charge, was asked if he had placed Lee under arrest. Replying that he had, he stated, 'Before we left, I said, 'I am going to take you in and charge you with these guns, unless you can explain them'.' He also said, 'He was arrested when the guns were produced, as soon as we identified the guns.' Officer Sears, who accompanied Captain Shiman, when asked whether he had placed Lee under arrest replied affirmatively, adding, 'We had to take him down as a result of these guns being here * * *.'2 All this testimony shows that the guns were seized before the arrest, and that the arrest in fact was caused by the discovery of the guns. The police had gone to appellant's apartment with the purpose of checking on the tip from the 'reliable source' that the guns were there, and upon verifying that tip they arrested appellant. A number of courts have held in similar circumstances that such a search is not incident to the arrest,[98 U.S.App.D.C. 99] but rather the arrest is in truth incident to the search. United States v. Pollack, D.C.D.N.J., 64 F.Supp. 554, 558; United States v. Sully, D.C.S.D.N.Y., 56 F.Supp. 942; Henderson v. United States, 4 Cir., 12 F.2d 528, 51 A.L.R. 420; Cf. McKnight v. United States, 87 U.S.App.D.C. 151, 183 F.2d 977; United States v. McCunn, D.C.S.D.N.Y., 40 F.2d 295; United States v. Setaro, D.C.D.Conn., 37 F.2d 134. And of course the search cannot be justified by what it turned up. United States v. Di Re, 332 U.S. 581, 68 S.Ct. 222, 92 L.Ed. 210; Byars v. United States, 273 U.S. 28, 47 S.Ct. 248, 71 L.Ed. 520.
See, also, McDonald v. United States, 335 U.S. 451, 456, 69 S.Ct. 191, 93 L.Ed. 153; Johnson v. United States, 333 U.S. 10, 14-15, 68 S.Ct. 367, 92 L.Ed. 436; cf. Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543; Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879.
The taking of the gun from the trunk of the car is not justified by the fact that a car is a movable vehicle; for the taking here was a direct consequence of the occurrences in the apartment [98 U.S.App.D.C. 100] shortly before. Accordingly, it also should have been excluded from the evidence. And since we cannot agree with the contention of the United States that there was a waiver of the erroneous admission of this material evidence, a new trial is required. It has long been settled that evidence obtained in violation of the Fourth Amendment is inadmissible against one whose home-- here Lee's apartment-- has been the subject of the violation.
WILBUR K. MILLER, Circuit Judge, dissents.
1 There is no question about the timeliness and adequacy of the defendant's motions to suppress the evidence. See Rule 41(e), Fed.R.Crim.P., 18 U.S.C.A.
2 This officer created some doubt by later stating that Lee was arrested before the officers saw the shotguns, but upon being pressed he said, 'It just depends upon when you determine he was actually placed under arrest,' and he twice refused to say Captain Shiman erred in testifying that Lee was arrested after the guns were identified. A reading of all the testimony leaves a conviction that Captain Shiman correctly described what occurred.
3 'The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.' U.S.Const. amend. IV.
4 No such admission was sought or made in the case at bar, but the fact is obvious.

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MacANDREWS & FORBES 'HOLDINGS, INC., a Delaware corporation, Plaintiff Below, Appellee.
In this battle for corporate control of Revlon, Inc. ('Revlon), the Court of Chancery enjoined certain transactions designed to thwart the efforts of Pantry Pride, Inc. (Pantry Pride) to acquire Revlon.[1 ] The defendants are Revlon, its board of directors, and Forstmann Little & Co. and the latter's affiliated limited partnership (collectively, Forstmann). The injunction barred consummation of an option granted Forstmann to purchase certain Revlon assets (the lockup option), a promise by Revlon to deal exclusively with Forstmann in the face of a takeover (the no-shop provision), and the payment of a $25 million cancellation fee to Forstmann if the transaction was aborted. The Court of Chancery found that the Revlon directors had breached their duty of care by entering into the foregoing transactions 176*176 and effectively ending an active auction for the company. The trial court ruled that such arrangements are not illegal per se under Delaware law, but that their use under the circumstances here was impermissible. We agree. See MacAndrews & Forbes 'Holdings, Inc. v. Revlon, Inc., Del. Ch., 501 A.2d 1239 (1985). Thus, we granted this expedited interlocutory appeal to consider for the first time the validity of such defensive measures in the face of an active bidding contest for corporate control.[2 ] Additionally, we address for the first time the extent to which a corporation may consider the impact of a takeover threat on constituencies other than shareholders. See Unocal Corp. v. Mesa Petroleum Co., Del.Supr., 493 A.2d 946, 955 (1985).
Thus, under all the circumstances we must agree with the Court of Chancery that the enjoinedRevlon defensive measures were inconsistent with the directors' duties to the stockholders. Accordingly, we affirm.
The somewhat complex maneuvers of the parties necessitate a rather detailed examination of the facts. The prelude to this controversy began in June 1985, when Ronald O. Perelman, chairman of the board and chief executive officer of Pantry Pride, met with his counterpart atRevlon, Michel C. Bergerac, to discuss a friendly acquisition of Revlon by Pantry Pride. Perelman suggested a price in the range of $40-50 per share, but the meeting ended with Bergerac dismissing those figures as considerably below Revlon's intrinsic value. All subsequent Pantry Pride overtures were rebuffed, perhaps in part based on Mr. Bergerac's strong personal antipathy to Mr. Perelman.
Thus, on August 14, Pantry Pride's board authorized Perelman to acquire Revlon, either through negotiation in the $42-$43 per share range, or by making a hostile tender offer at $45. Perelman then met with Bergerac and outlined Pantry Pride's alternate approaches. Bergerac remained adamantly opposed to such schemes and conditioned any further discussions of the matter on Pantry Pride executing a standstill agreement prohibiting it from acquiring Revlonwithout the latter's prior approval.
On August 19, the Revlon board met specially to consider the impending threat of a hostile bid by Pantry Pride.[3 ] At the meeting, Lazard Freres, Revlon's investment 177*177 banker, advised the directors that $45 per share was a grossly inadequate price for the company. Felix Rohatyn and William Loomis of Lazard Freres explained to the board that Pantry Pride's financial strategy for acquiring Revlon would be through "junk bond" financing followed by a break-up ofRevlon and the disposition of its assets. With proper timing, according to the experts, such transactions could produce a return to Pantry Pride of $60 to $70 per share, while a sale of the company as a whole would be in the "mid 50" dollar range. Martin Lipton, special counsel forRevlon, recommended two defensive measures: first, that the company repurchase up to 5 million of its nearly 30 million outstanding shares; and second, that it adopt a Note Purchase Rights Plan. Under this plan, each Revlon shareholder would receive as a dividend one Note Purchase Right (the Rights) for each share of common stock, with the Rights entitling the holder to exchange one common share for a $65 principal Revlon note at 12% interest with a one-year maturity. The Rights would become effective whenever anyone acquired beneficial ownership of 20% or more of Revlon's shares, unless the purchaser acquired all the company's stock for cash at $65 or more per share. In addition, the Rights would not be available to the acquiror, and prior to the 20% triggering event the Revlon board could redeem the rights for 10 cents each. Both proposals were unanimously adopted.
The Revlon board met again on August 26. The directors advised the stockholders to reject the offer. Further defensive measures also were planned. On August 29, Revlon commenced its own offer for up to 10 million shares, exchanging for each share of common stock tendered one Senior Subordinated Note (the Notes) of $47.50 principal at 11.75% interest, due 1995, and one-tenth of a share of $9.00 Cumulative Convertible Exchangeable Preferred Stock valued at $100 per share. Lazard Freres opined that the notes would trade at their face value on a fully distributed basis.[4 ] Revlon stockholders tendered 87 percent of the outstanding shares (approximately 33 million), and the company accepted the full 10 million shares on a pro rata basis. The new Notes contained covenants which limited Revlon's ability to incur additional debt, sell assets, or pay dividends unless otherwise approved by the "independent" (nonmanagement) members of the board.
At this point, both the Rights and the Note covenants stymied Pantry Pride's attempted takeover. The next move came on September 16, when Pantry Pride announced a new tender offer at $42 per share, conditioned upon receiving at least 90% of the outstanding stock. Pantry Pride also indicated that it would consider buying less than 90%, and at an increased price, ifRevlon removed the impeding Rights. While this offer was lower on its face than the earlier $47.50 proposal, Revlon's investment banker, Lazard Freres, described the two bids as essentially equal in view of the completed exchange offer.
178*178 In the meantime, Revlon's negotiations with Forstmann and the investment group Adler & Shaykin had produced results. The Revlon directors met on October 3 to consider Pantry Pride's $53 bid and to examine possible alternatives to the offer. Both Forstmann and Adler & Shaykin made certain proposals to the board. As a result, the directors unanimously agreed to a leveraged buyout by Forstmann. The terms of this accord were as follows: each stockholder would get $56 cash per share; management would purchase stock in the new company by the exercise of their Revlon "golden parachutes";[5 ] Forstmann would assume Revlon's $475 million debt incurred by the issuance of the Notes; and Revlon would redeem the Rights and waive the Notes covenants for Forstmann or in connection with any other offer superior to Forstmann's. The board did not actually remove the covenants at the October 3 meeting, because Forstmann then lacked a firm commitment on its financing, but accepted the Forstmann capital structure, and indicated that the outside directors would waive the covenants in due course. Part of Forstmann's plan was to sell Revlon's Norcliff Thayer and Reheis divisions to American Home Products for $335 million. Before the merger, Revlon was to sell its cosmetics and fragrance division to Adler & Shaykin for $905 million. These transactions would facilitate the purchase by Forstmann or any other acquiror of Revlon.
Again privately armed with Revlon data, Forstmann met on October 11 with Revlon's special counsel and investment banker. On October 12, Forstmann made a new $57.25 per share offer, based on several conditions.[6 ] The principal demand was a lock-up option to purchaseRevlon's Vision Care and National Health Laboratories divisions for $525 million, some $100-$175 million below the value ascribed to them by Lazard Freres, if another acquiror got 40% ofRevlon's shares. Revlon also was required to accept a no-shop provision. The Rights and Notes covenants had to be removed as in the October 3 agreement. There would be a $25 million cancellation fee to be placed in escrow, and released to Forstmann if the new agreement terminated or if another acquiror got more than 19.9% of Revlon's stock. Finally, there would be no participation by Revlon management in the merger. In return, Forstmann agreed to support the par value 179*179 of the Notes, which had faltered in the market, by an exchange of new notes. Forstmann also demanded immediate acceptance of its offer, or it would be withdrawn. The board unanimously approved Forstmann's proposal because: (1) it was for a higher price than the Pantry Pride bid, (2) it protected the noteholders, and (3) Forstmann's financing was firmly in place.[7 ] The board further agreed to redeem the rights and waive the covenants on the preferred stock in response to any offer above $57 cash per share. The covenants were waived, contingent upon receipt of an investment banking opinion that the Notes would trade near par value once the offer was consummated.
On October 15, the Court of Chancery prohibited the further transfer of assets, and eight days later enjoined the lock-up, no-shop, and cancellation fee provisions of the agreement. The trial court concluded that the Revlon' directors had breached their duty of loyalty by making concessions to Forstmann, out of concern for their liability to the noteholders, rather than maximizing the sale price of the company for the stockholders' benefit. MacAndrews & Forbes'Holdings, Inc. v. Revlon, Inc., 501 A.2d at 1249-50.
To obtain a preliminary injunction, a plaintiff must demonstrate both a reasonable probability of success on the merits and some irreparable harm which will occur absent the injunction.Gimbel v. Signal Companies, Del.Ch., 316 A.2d 599, 602 (1974), aff'd, Del.Supr., 316 A.2d 619 (1974). Additionally, the Court shall balance the conveniences of and possible injuries to the parties. Id.
We turn first to Pantry Pride's probability of success on the merits. The ultimate responsibility for managing the business and affairs of a corporation falls on its board of directors. 8 Del.C. § 141(a).[8 ] In discharging this function the directors owe fiduciary duties of care and loyalty to the corporation and its shareholders. Guth v. Loft, Inc., 23 Del.Supr. 255, 5 A.2d 503, 510 (1939); Aronson v. Lewis, Del.Supr., 473 A.2d 805, 811 (1984). These principles apply with equal force when a board approves a corporate merger pursuant to 8 Del.C. § 251(b);[9 ] Smith v. Van Gorkom, Del.Supr., 488 A.2d 858, 873 (1985); and of course they are the bedrock of our law regarding corporate takeover issues. Pogostin v. Rice, Del.Supr., 480 A.2d 619, 624 (1984); Unocal Corp. v. Mesa 180*180Petroleum Co., Del.Supr., 493 A.2d 946, 953, 955 (1985);Moran v. Household International, Inc., Del.Supr., 500 A.2d 1346, 1350 (1985). While the business judgment rule may be applicable to the actions of corporate directors responding to takeover threats, the principles upon which it is founded — care, loyalty and independence — must first be satisfied.[10 ] Aronson v. Lewis, 473 A.2d at 812.
If the business judgment rule applies, there is a "presumption that in making a business decision the directors of a corporation acted on an informed basis, in good faith and in the honest belief that the action taken was in the best interests of the company." Aronson v. Lewis,473 A.2d at 812. However, when a board implements anti-takeover measures there arises "the omnipresent specter that a board may be acting primarily in its own interests, rather than those of the corporation and its shareholders ..." Unocal Corp. v. Mesa Petroleum Co., 493 A.2d at 954. This potential for conflict places upon the directors the burden of proving that they had reasonable grounds for believing there was a danger to corporate policy and effectiveness, a burden satisfied by a showing of good faith and reasonable investigation. Id. at 955. In addition, the directors must analyze the nature of the takeover and its effect on the corporation in order to ensure balance — that the responsive action taken is reasonable in relation to the threat posed. Id.
The first relevant defensive measure adopted by the Revlon board was the Rights Plan, which would be considered a "poison pill" in the current language of corporate takeovers — a plan by which shareholders receive the right to be bought out by the corporation at a substantial premium on the occurrence of a stated triggering event. See generally Moran v. Household International, Inc., Del.Supr., 500 A.2d 1346 (1985). By 8 Del.C. §§ 141 and 122(13),[11 ] the board clearly had the power to adopt the measure. See Moran v. Household International, Inc.,500 A.2d at 1351. Thus, the focus becomes one of reasonableness and purpose.
The Revlon board approved the Rights Plan in the face of an impending hostile takeover bid by Pantry Pride at $45 per share, a price which Revlon reasonably concluded was grossly inadequate. Lazard Freres had so advised the directors, and had also informed them that Pantry Pride was a small, highly leveraged company bent on a "bust-up" takeover by using "junk bond" financing to buy Revlon cheaply, sell the acquired assets to pay the 181*181 debts incurred, and retain the profit for itself.[12 ] In adopting the Plan, the board protected the shareholders from a hostile takeover at a price below the company's intrinsic value, while retaining sufficient flexibility to address any proposal deemed to be in the stockholders' best interests.
The second defensive measure adopted by Revlon to thwart a Pantry Pride takeover was the company's own exchange offer for 10 million of its shares. The directors' general broad powers to manage the business and affairs of the corporation are augmented by the specific authority conferred under 8 Del.C. § 160(a), permitting the company to deal in its own stock.[13 ] Unocal,493 A.2d at 953-54; Cheff v. Mathes, 41 Del.Supr. 494, 199 A.2d 548, 554 (1964); Kors v. Carey, 39 Del.Ch. 47, 158 A.2d 136, 140 (1960). However, when exercising that power in an effort to forestall a hostile takeover, the board's actions are strictly held to the fiduciary standards outlined in Unocal. These standards require the directors to determine the best interests of the corporation and its stockholders, and impose an enhanced duty to abjure any action that is motivated by considerations other than a good faith concern for such interests.Unocal, 493 A.2d at 954-55; see Bennett v. Propp, 41 Del.Supr. 14, 187 A.2d 405, 409 (1962).
The Revlon directors concluded that Pantry Pride's $47.50 offer was grossly inadequate. In that regard the board acted in good faith, and on an informed basis, with reasonable grounds to believe that there existed a harmful threat to the corporate enterprise. The adoption of a defensive measure, reasonable in relation to the threat posed, was proper and fully accorded with the powers, duties, and responsibilities conferred upon directors under our law. Unocal,493 A.2d at 954; Pogostin v. Rice, 480 A.2d at 627.
However, when Pantry Pride increased its offer to $50 per share, and then to $53, it became apparent to all that the break-up of the company was inevitable. The Revlon board's authorization permitting management to negotiate a merger or buyout with a third party was a recognition that the company was for sale. The duty of the board had thus changed from the preservation of Revlon as a corporate entity to the maximization of the company's value at a sale for the stockholders' benefit. This significantly altered the board's responsibilities under theUnocal standards. It no longer faced threats to corporate policy and effectiveness, or to the stockholders' interests, from a grossly inadequate bid. The whole question of defensive measures became moot. The directors' role changed from defenders of the corporate bastion to auctioneers charged with getting the best price for the stockholders at a sale of the company.
The original threat posed by Pantry Pride — the break-up of the company — had become a reality which even the directors embraced. Selective dealing to fend off a hostile but determined bidder was no longer a proper objective. Instead, obtaining the highest price for the benefit of the stockholders should have been the central theme guiding director action. Thus, the Revlonboard could not make the requisite showing of good faith by preferring the noteholders and ignoring its duty of loyalty to the shareholders. The rights of the former already were fixed by contract. Wolfensohn v. Madison Fund, Inc., Del.Supr., 253 A.2d 72, 75 (1969); Harff v. Kerkorian, Del.Ch., 324 A.2d 215 (1974). The noteholders required no further protection, and when the Revlon board entered into an auction-ending lock-up agreement with Forstmann on the basis of impermissible considerations at the expense of the shareholders, the directors breached their primary duty of loyalty.
The Revlon board argued that it acted in good faith in protecting the noteholders becauseUnocal permits consideration of other corporate constituencies. Although such considerations may be permissible, there are fundamental limitations upon that prerogative. A board may have regard for various constituencies in discharging its responsibilities, provided there are rationally related benefits accruing to the stockholders. Unocal, 493 A.2d at 955. However, such concern for non-stockholder interests is inappropriate when an auction among active bidders is in progress, and the object no longer is to protect or maintain the corporate enterprise but to sell it to the highest bidder.
Revlon also contended that by Gilbert v. El Paso Co., Del. Ch., 490 A.2d 1050, 1054-55 (1984), it had contractual and good faith obligations to consider the noteholders. However, any such duties are limited to the principle that one may not interfere with contractual relationships by improper actions. Here, the rights of the noteholders were fixed by agreement, and there is nothing of substance to suggest that any of those terms were violated. The Notes covenants specifically contemplated a waiver to permit sale of the company at a fair price. The Notes were accepted by the holders on that basis, including the risk of an adverse market effect stemming from a waiver. Thus, nothing remained for Revlon 183*183 to legitimately protect, and no rationally related benefit thereby accrued to the stockholders. Under such circumstances we must conclude that the merger agreement with Forstmann was unreasonable in relation to the threat posed.
The Forstmann option had a similar destructive effect on the auction process. Forstmann had already been drawn into the contest on a preferred basis, so the result of the lock-up was not to foster bidding, but to destroy it. The board's stated reasons for approving the transactions were: (1) better financing, (2) noteholder 184*184 protection, and (3) higher price. As the Court of Chancery found, and we agree, any distinctions between the rival bidders' methods of financing the proposal were nominal at best, and such a consideration has little or no significance in a cash offer for any and all shares. The principal object, contrary to the board's duty of care, appears to have been protection of the noteholders over the shareholders' interests.
In addition to the lock-up option, the Court of Chancery enjoined the no-shop provision as part of the attempt to foreclose further bidding by Pantry Pride. MacAndrews' & Forbes 'Holdings,Inc. v. Revlon, Inc., 501 A.2d at 1251. The no-shop provision, like the lock-up option, while notper se illegal, is impermissible under the Unocal standards when a board's primary duty becomes that of an auctioneer responsible for selling the company to the highest bidder. The agreement to negotiate only with Forstmann ended rather than intensified the board's involvement in the bidding contest.
It is ironic that the parties even considered a no-shop agreement when Revlon had dealt preferentially, and almost exclusively, with Forstmann throughout the contest. After the directors authorized management to negotiate with other parties, Forstmann was given every negotiating advantage that Pantry Pride had been denied: cooperation from management, access to financial data, and the exclusive opportunity to present merger proposals directly to the board of directors. Favoritism for a white knight to the total exclusion of a hostile bidder might be justifiable when the latter's offer adversely affects shareholder interests, but when bidders make relatively similar offers, or dissolution of the company becomes inevitable, the directors cannot fulfill their enhanced Unocal duties by playing favorites with the contending factions. Market forces must be allowed to operate freely to bring the target's shareholders the best price available for their equity.[16 ] Thus, as the trial court ruled, the shareholders' interests necessitated that the board remain free to negotiate in the fulfillment of that duty.
Having concluded that Pantry Pride has shown a reasonable probability of success on the merits, we address the issue of irreparable harm. The Court of Chancery ruled that unless the lock-up and other aspects of the agreement were enjoined, Pantry Pride's opportunity to bid forRevlon was lost. The court also held that the need for both bidders to compete 185*185 in the marketplace outweighed any injury to Forstmann. Given the complexity of the proposed transaction between Revlon and Forstmann, the obstacles to Pantry Pride obtaining a meaningful legal remedy are immense. We are satisfied that the plaintiff has shown the need for an injunction to protect it from irreparable harm, which need outweighs any harm to the defendants.
[1 ] The nominal plaintiff, MacAndrews' & Forbes 'Holdings, Inc., is the controlling stockholder of Pantry Pride. For all practical purposes their interests in this litigation are virtually identical, and we hereafter will refer to Pantry Pride as the plaintiff.
[2 ] This appeal was heard on an expedited basis in light of the pending Pantry Pride offer and the Revlon-Forstmann transactions. We accepted the appeal on Friday, October 25, 1985, received the parties' opening briefs on October 28, their reply briefs on October 29, and heard argument on Thursday, October 31. We announced our decision to affirm in an oral ruling in open court at 9:00 a.m. on Friday, November 1, with the proviso that this more detailed written opinion would follow in due course.
[3 ] There were 14 directors on the Revlon board. Six of them held senior management positions with the company, and two others held significant blocks of its stock. Four of the remaining six directors were associated at some point with entities that had various business relationships with Revlon. On the basis of this limited record, however, we cannot conclude that this board is entitled to certain presumptions that generally attach to the decisions of a board whose majority consists of truly outside independent directors. See Polk v. Good & Texaco, Del.Supr., ___ A.2d ___, ___ (1986); Moran v. Household International, Inc., Del.Supr., 500 A.2d 1346, 1356 (1985); Unocal Corp. v. Mesa Petroleum Co., Del.Supr., 493 A.2d 946, 955 (1985); Aronson v. Lewis,Del.Supr., 473 A.2d 805, 812, 815 (1984); Puma v. Marriott, Del. Ch., 283 A.2d 693, 695 (1971).
[4 ] Like bonds, the Notes actually were issued in denominations of $1,000 and integral multiples thereof. A separate certificate was issued in a total principal amount equal to the remaining sum to which a stockholder was entitled. Likewise, in the esoteric parlance of bond dealers, a Note trading at par ($1,000) would be quoted on the market at 100.
[5 ] In the takeover context "golden parachutes" generally are understood to be termination agreements providing substantial bonuses and other benefits for managers and certain directors upon a change in control of a company.
[6 ] Forstmann's $57.25 offer ostensibly is worth $1 more than Pantry Pride's $56.25 bid. However, the Pantry Pride offer was immediate, while the Forstmann proposal must be discounted for the time value of money because of the delay in approving the merger and consummating the transaction. The exact difference between the two bids was an unsettled point of contention even at oral argument.
[7 ] Actually, at this time about $400 million of Forstmann's funding was still subject to two investment banks using their "best efforts" to organize a syndicate to provide the balance. Pantry Pride's entire financing was not firmly committed at this point either, although Pantry Pride represented in an October 11 letter to Lazard Freres that its investment banker, Drexel Burnham Lambert, was highly confident of its ability to raise the balance of $350 million. Drexel Burnham had a firm commitment for this sum by October 18.
[10 ] One eminent corporate commentator has drawn a distinction between the business judgment rule, which insulates directors and management from personal liability for their business decisions, and the business judgment doctrine, which protects the decision itself from attack. The principles upon which the rule and doctrine operate are identical, while the objects of their protection are different. See Hinsey, Business Judgment and the American Law Institute's Corporate Governance Project: The Rule, the Doctrine and the Reality, 52 Geo. Wash. L.Rev. 609, 611-13 (1984). In the transactional justification cases, where the doctrine is said to apply, our decisions have not observed the distinction in such terminology. See Polk v. Good & Texaco, Del.Supr., ___ A.2d ___, ___ (1986); Moran v. Household International, Inc., Del. Supr., 500 A.2d 1346, 1356 (1985); Unocal Corp. v. Mesa Petroleum Co., Del.Supr., 493 A.2d 946, 953-55 (1985); Rosenblatt v. Getty Oil Co., Del. Supr., 493 A.2d 929, 943 (1985). Under the circumstances we do not alter our earlier practice of referring only to the business judgment rule, although in transactional justification matters such reference may be understood to embrace the concept of the doctrine.
(13) Make contracts, including contracts of guaranty and suretyship, incur liabilities, borrow money at such rates of interest as the corporation may determine, issue its notes, bonds and other obligations, and secure any of its obligations by mortgage, pledge or other encumbrance of all or any of its property, franchises and income, ...". 8Del.C. § 122(13).
[12 ] As we noted in Moran, a "bust-up" takeover generally refers to a situation in which one seeks to finance an acquisition by selling off pieces of the acquired company, presumably at a substantial profit. See Moran, 500 A.2d at 1349, n. 4.
(a) Every corporation may purchase, redeem, receive, take or otherwise acquire, own and hold, sell, lend, exchange, transfer or otherwise dispose of, pledge, use and otherwise deal in and with its own shares. 8 Del.C.§ 160(a).
[14 ] For further discussion of the benefits and detriments of lock-up options, also see: Nelson, Mobil Corp. v. Marathon Oil Co. — The Decision and Its Implications for Future Tender Offers, 7 Corp. L.Rev. 233, 265-68 (1984); Note, Swallowing the Key to Lock-up Options: Mobil Corp. v. Marathon Oil Co., 14 U.Tol.L.Rev. 1055, 1081-83 (1983).
[15 ] The federal courts generally have declined to enjoin lock-up options despite arguments that lock-ups constitute impermissible "manipulative" conduct forbidden by Section 14(e) of the Williams Act [15 U.S.C. § 78n(e)]. See Buffalo Forge Co. v. Ogden Corp., 717 F.2d 757 (2nd Cir.1983), cert. denied, 464 U.S. 1018, 104 S.Ct. 550, 78 L.Ed.2d 724 (1983); Data Probe Acquisition Corp. v. Datatab, Inc., 722 F.2d 1 (2nd Cir.1983); cert. denied 465 U.S. 1052, 104 S.Ct. 1326, 79 L.Ed.2d 722 (1984); but see Mobil Corp. v. Marathon Oil Co., 669 F.2d 366 (6th Cir.1981). The cases are all federal in nature and were not decided on state law grounds.
[16 ] By this we do not embrace the "passivity" thesis rejected in Unocal. See 493 A.2d at 954-55, nn. 8-10. The directors' role remains an active one, changed only in the respect that they are charged with the duty of selling the company at the highest price attainable for the stockholders' benefit.