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410 U.S. 971

Roberto TORRES et al.
No. 71-5743.

Supreme Court of the United States

March 5, 1973

Petition for rehearing.

The motion of the American Federation of Labor and Congress of Industrial Organizations for leave to file a brief, as amicus curiae, is granted.

The petition for rehearing is denied.

Mr. Justice MARSHALL, with whom Mr. Justice DOUGLAS and Mr. Justice BRENNAN concur, dissenting.

By summarily denying this petition for rehearing, the Court finally disposes of important issues of constitutional law and statutory construction in a fashion which can only be characterized as bizarre. Although the case has now been before us on three separate occasions, by Brethren have yet to write so much as a single word in defense of a disposition which is seemingly inconsistent with a raft of our prior cases. See, e.g., Indiana Employment Security Division v. Burney, 409 U.S. 540 (1973); California Department of Human Resources Development v. Java, 402 U.S. 121 ( 1971); Goldberg v. Kelly, 397 U.S. 254 ( 1970). I cannot concur in this cavalier treatment of a question that is of vital importance to the thousands of citizens who, through no fault of their own, are temporarily unemployed. Even a brief chronological recitation of the tortured progression of this case makes plain that it has not been treated in accordance with the high standards that litigants before the Court have come to expect. Petitioners originally instituted this action in United States District Court to enjoin the enforcement of New York Labor Law McKinney's Consol. Laws, c. 31, 597, 598, and 620 'insofar as they authorize the suspension or termination of unemployment compensation benefits without a prior hearing.' They based their claim on the Due Process Clause, which had been interpreted in Goldberg v. Kelly, supra, to require a hearing prior to the suspension

Page 410 U.S. 971 , 972

of welfare benefits, and on the Social Security Act, which requires a state plan 'reasonably calculated to insure full payment of unemployment compensation when due.' 42 U.S.C. 503(a)(1). A three-judge court was convened, but that court, over a dissent by Judge Lasker, found both the constitutional and statutory claims to be without merit.

An appeal was timely noted and docketed in this Court. But before we had considered petitioner's jurisdictional statement, our decision in Department of Human Resources v. Java, supra, was handed down. In Java, a unanimous Court held that 42 U.S.C. 503(a)(1) invalidated a California statute which provided for the automatic suspension of unemployment compensation when the employer took an appeal from the initial eligibility determination.

Inasmuch as Java interpreted the very provision of the Social Security Act relied upon by the appellant in Torres, we entered an order vacating the District Court's decision in Torres and remanding for reconsideration in light of Java. See 402 U.S. 968d 133 (1971). When the case returned to the District Court, however, that court purported to find Java distinguishable from Torres and, in a brief per curiam, adhered to its prior decision. See Torres v. New York State Depart of Labor, 333 F.Supp. 341 (SDNY 1971).

Once again petitioners docketed an appeal in this Court, but this time an order was entered summarily affirming the District Court without the benefit of full briefing, oral argument, or an opinion. See 405 U.S. 949 (1972).* Shortly thereafter, however, the Court did note probable jurisdiction in Indiana Employment Security Division v. Burney, a case presenting iden- [410 U.S. 971 , 973]

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