Justice O’Connor delivered the opinion of the Court.
“Opportunity doesn’t always knock … sometimes it rings.” App. 113 (ETS Payphones promotional brochure). And sometimes it hangs up. So it did for the 10,000 people who invested a total of $300 million in the payphone sale-and-leaseback arrangements touted by respondent under that slogan.
JUSTICE O’CONNOR, with whom JUSTICE BLACKMUN joins, concurring in part and dissenting in part.
I agree with the Court’s construction of § 110 of the Amateur Sports Act, 92 Stat. 3048, 36 U.S.C. § 380, and with its holding that the statute is “within constitutional bounds.” Ante at 483 U. S. 535. Therefore, I join Parts I through III of the Court’s opinion. But largely for the reasons explained by JUSTICE BRENNAN in 483 U. S. I believe the United States Olympic Committee and the United States are joint participants in the challenged activity, and as such are subject to the equal protection provisions of the Fifth Amendment. Accordingly, I would reverse the Court of Appeals’ finding of no Government action and remand the case for determination of petitioners’ claim of discriminatory enforcement.
JUSTICE O’CONNOR, with whom JUSTICE SCALIA, JUSTICE SOUTER, and JUSTICE THOMAS join, dissenting.
Unlike the Court, I believe that general Medicare reporting and reimbursement regulations require provider costs to be treated according to “generally accepted accounting principles.” As a result, I would hold that contrary guidelines issued by the Secretary of Health and Human Services in an informal policy manual and applied to determine the timing of reimbursement in this case are invalid for failure to comply with the notice and comment procedures established by the Administrative Procedure Act, 5 U. S. C. § 553. Because the Court holds to the contrary, I respectfully dissent.
I
It is undisputed, as the Court notes, ante, at 90, that respondent, Guernsey Memorial Hospital (Hospital), is entitled to reimbursement for the reasonable advance refunding costs it incurred when it refinanced its capital improvement bonds in 1985. The only issue here is one of timing: whether reimbursement is to be made in a lump sum in the year of the refinancing, in accordance with generally accepted accounting principles (known in the accounting world as GAAP), or in a series of payments over the remaining life of the original bonds, as the Secretary ultimately concluded after applying § 233 of the Medicare Provider Reimbursement Manual (PRM). The Hospital challenged the Secretary’s reimbursement decision under the Medicare Act, 42 U. S. C. § 139500(f), which incorporates the Administrative Procedure
JUSTICE O’CONNOR, with whom JUSTICE BREYER joins, concurring.
Margaret Whitecotton was born in 1975 with a condition known as microcephaly, defined commonly (but not universally) as a head size smaller than two standard deviations below the norm. At the age of four months, she received a diphtheria, pertussis, and tetanus (DPT) vaccination. Prior to receiving her vaccine, Margaret had never had a seizure. The day after receiving her vaccine, she suffered a series of seizures that required three days of hospitalization. Over the next five years, Margaret had intermittent seizures. She now has cerebral palsy and hip and joint problems and cannot communicate verbally. In 1990, Margaret’s parents applied for compensation for her injuries under the National Childhood Vaccine Injury Act of 1986. The Special Master denied compensation, and the Court of Federal Claims agreed. The Court of Appeals for the Federal Circuit reversed, 17 F.3d 374 (1994), finding that the Whitecottons had made out a prima facie case for compensation.
Although I join the Court’s opinion rejecting the Court of Appeals’ reading of the pertinent statutory provision, I write separately to make two points. First, I wish to indicate an additional factor supporting my conclusion that the Court of Appeals’ reading of 42 U. S. C. § 300aa-ll(c)(1)(C)(i) is inconsistent with congressional intent. Second, I wish to underscore the limited nature of the question the Court decides. Examining the language of § 300aa-ll(c)(1)(C)(i
JUSTICE O’CONNOR, with whom THE CHIEF JUSTICE and JUSTICE SCALIA join, dissenting.
Relying primarily on Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio, 471 U. S. 626 (1985), the Court holds that States may not prohibit a form of attorney advertising that is potentially more pernicious than the advertising at issue in that case. I agree with the Court that the reasoning in Zauderer supports the conclusion reached today. That decision, however, was itself the culmination of a line of cases built on defective premises and flawed reasoning. As today’s decision illustrates, the Court has been unable or unwilling to restrain the logic of the underlying analysis within reasonable bounds. The resulting interference with important and valid public policies is so destructive that I believe the analytical framework itself should now be reexamined.
I
Zauderer held that the First Amendment was violated by a state rule that forbade attorneys to solicit or accept employment through advertisements containing information or advice regarding a specific legal problem. See id. at 471 U. S. 639 -647. I dissented from this holding because I believed that our precedents permitted, and good judgment required, that we give greater deference to the States’ legitimate efforts to regulate advertising by their attorneys. Emphasizing the important differences between professional services and standardized consumer products, I concluded that unsolicited legal advice was not analogous
JUSTICE O’CONNOR, concurring in part and dissenting in part.
I join Parts II-A, III, and VI of the Court’s opinion. I would reverse the judgment of the Court of Appeals on statutory grounds insofar as the membership “goal” and the Fund order are concerned, and I would not reach petitioners’ constitutional claims. I agree with JUSTICE WHITE, however, that the membership “goal” in this case operates as a rigid racial quota that cannot feasibly be met through good faith efforts by Local 28. In my view, § 703(j), 42 U.S.C. § 2000e-2(j), and § 706(g), 42 U.S.C. § 2000e-5(g), read together, preclude courts from ordering racial quotas such as this. I therefore dissent from the Court’s judgment insofar as it affirms the use of these mandatory quotas.
In Firefighters v. Stotts, 467 U. S. 561 (1984), the Court interpreted § 706(g) as embodying a policy against court-ordered remedies under Title VII that award racial preferences in employment to individuals who have not been subjected to unlawful discrimination. See id. at 467 U. S. 579 -583. The dissenting opinion in Stotts urged precisely the position advanced by JUSTICE BRENNAN’s plurality opinion today -that any such policy extends only to awarding make-whole relief to particular nonvictims of discrimination, and does not bar class-wide racial preferences in certain cases. Id. at 467 U. S. 612 -614 (BLACKMUN, J., dissenting). The Court unquestionably rejected that view in Stotts. Although technically dicta, the discussion of § 706(g)
JUSTICE O’CONNOR, dissenting.
I agree with the Court that the National Labor Relations Board (NLRB) could reasonably determine in this case that reimbursing the petitioner is not necessary to effectuate the objectives of the National Labor Relations Act (Act). My disagreement is with the Court’s conclusion that the Board provided an adequate explanation for its decision. The Board offered three reasons for its conclusion that reimbursing the petitioner would not effectuate the purposes of the Act. Each of its stated reasons was in error or inadequate to justify its conclusion. I would therefore remand the case to the Board in order to give it an opportunity to determine the appropriateness of reimbursement in light of the Court’s Opinion.
I
A brief review of the facts is useful in understanding the inadequacy of the Board’s explanation for its decision.
For over a decade, there has been a dispute between respondent Building Material and Dump Truck Drivers, Teamsters Local 36 (Union), and respondent California Dump Truck Owners Association (Association) over the availability of hauling jobs for nonunion truck operators. In June, 1977, three contractors’ associations, which are respondents in this case (Contractors), entered into a new master labor agreement (Agreement) with the Union which required signatory contractors to transport “all materials… to or from or on the site of the work by workmen furnished by the appropriate craft [union]….” App. 10. The Agreement also
JUSTICE O’CONNOR, with whom JUSTICE WHITE and JUSTICE REHNQUIST join, concurring in part and concurring in the judgment.
I agree with the Court’s treatment of the appellant’s arguments based on United States v. Vuitch, 402 U. S. 62 (1971), and Patterson v. New York, 432 U. S. 197 (1977). Accordingly, I Join Parts I and II of the Court’s opinion.
I concur in the judgment of the Court insofar as it affirms the conviction. For reasons stated in my dissent in Akron v Akron Center for Reproductive Health, ante p. 462 U. S. 416, I do not agree that the constitutional validity of the Virginia mandatory hospitalization requirement is contingent in any way on the trimester in which it is imposed. Rather, I believe that the requirement in this case is not an undue burden on the decision to undergo an abortion.
JUSTICE O’CONNOR, concurring in part and concurring in the judgment.
In most cases, an issue not presented to an administrative decisionmaker cannot be argued for the first time in federal court. On this underlying principle of administrative law, the Court is unanimous. See ante, at 108; post, at 114-115 (BREYER, J., dissenting). In the absence of a specific statute or regulation requiring issue exhaustion, however, such a rule is not always appropriate. The inquiry requires careful examination of “the characteristics of the particular administrative procedure provided.” McCarthy v. Madigan, 503 U. S. 140, 146 (1992). The Court’s opinion provides such an examination, and reaches the correct result. Accordingly, I join Parts I and II -A of the Court’s opinion, as well as its judgment. I write separately because, in my view, the agency’s failure to notify claimants of an issue exhaustion requirement in this context is a sufficient basis for our decision. Requiring issue exhaustion is particularly inappropriate here, where the regulations and procedures of the Social Security Administration (SSA) affirmatively suggest that specific issues need not be raised before the Appeals Council.
Although the SSA’s regulations warn claimants that completely failing to request Appeals Council review will forfeit the right to seek judicial review, see 20 CFR § 404.900(b) (1999), the regulations provide no notice that claimants must also raise specific issues before the Appeals Council to preserve
JUSTICE O’CONNOR, with whom THE CHIEF JUSTICE and JUSTICE KENNEDY join, concurring in the judgment.
“Capital sentencing proceedings must of course satisfy the dictates of the Due Process Clause,” Clemons v. Mississippi, 494 U. S. 738, 746 (1990), and one of the hallmarks of due process in our adversary system is the defendant’s ability to meet the State’s case against him. Cf. Crane v. Kentucky, 476 U. S. 683, 690 (1986). In capital cases, we have held that the defendant’s future dangerousness is a consideration on which the State may rely in seeking the death penalty. See California v. Ramos, 463 U. S. 992, 1002-1003 (1983). But “[w]here the prosecution specifically relies on a prediction of future dangerousness in asking for the death penalty,… the elemental due process requirement that a defendant not be sentenced to death ‘on the basis of information which he had no opportunity to deny or explain’ [requires that the defendant be afforded an opportunity to introduce evidence on this point].” Skipper v. South Carolina, 476 U. S. 1, 5, n. 1 (1986), quoting Gardner v. Florida, 430 U. S. 349, 362 (1977) (plurality opinion); see also 476 U. S., at 9-10 (Powell, J., concurring in judgment).
In this case, petitioner physically and sexually assaulted three elderly women-one of them his own grandmotherbefore killing a fourth. At the capital sentencing proceed
*Compare ante, at 162, n. 4 (refraining from addressing Simmons’ Eighth Amendment claim), with ante, at 173-174 (SOUTER,
