No. 81-6622. PARKER v. UNITED STATES. C. A. 6th Cir. Certiorari denied. Reported below: 672 F. 2d 918.

No. 81-1512. DOWDLE, SUPERINTENDENT, SAFFORD CONSERVATION CENTER, ET AL. v. WRIGHT. C. A. 9th Cir. Motion of respondent for leave to proceed in forma pauperis granted. Certiorari denied. Reported below: 659 F. 2d 1091.

No. 81-1833. MICHIGAN v. PAINTMAN. Sup. Ct. Mich. Motion of respondent for leave to proceed in forma pauperis granted. Certiorari denied. Reported below: 412 Mich. 518, 315 N. W. 2d 418.

No. 81-1585. WATT, SECRETARY OF THE INTERIOR, ET AL. v. HOLMES LIMESTONE CO. ET AL. C. A. 6th Cir. Certiorari denied. Reported below: 655 F. 2d 732.

JUSTICE WHITE, with whom JUSTICE BLACKMUN joins, dissenting.

This action was brought by respondents as a challenge to the validity of a regulation defining the term "cemetery" as used in §522(e)(5) of the Surface Mining Control and Reclamation Act of 1977, 91 Stat. 509, 30 U. S. C. § 1272(e)(5) (1976 ed., Supp. IV). The United States District Court for the Northern District of Ohio dismissed the complaint for lack of jurisdiction, holding that §526(a)(1) of the Act, 30 U. S. C. § 1276(a)(1) (1976 ed., Supp. IV), permits challenges to such regulations to be brought only in the United States District Court for the District of Columbia.

The United States Court of Appeals reversed and remanded the case for consideration of the merits. Holmes Limestone Co. v. Andrus, 655 F. 2d 732 (CA6 1981). It held that §526(a)(1)' permits review of challenges to national

'Section 526(a)(1) provides, in pertinent part:

"Any action by the Secretary promulgating national rules or regulations ... shall be subject to judicial review in the United States District Court for the District of Columbia. . . . A petition for review of any action sub

WHITE, J., dissenting

456 U. S. regulations in courts other than the United States District Court for the District of Columbia because while the statute provides that certain actions may be brought only in the district court where the mining operation is located, in the final version of the bill the word "only" was deleted from the phrase providing for judicial review of national regulations in the District of Columbia. 655 F. 2d, at 737. The court also concluded that there are "serious questions about the propriety" of the 60-day limitation on the filing of petitions for judicial review of rulemaking actions contained in §526(a)(1). 655 F. 2d, at 738.

The decision below is troubling for several reasons. First, § 526(a)(1) provides that regulations with a national impact be reviewed in the District of Columbia, those with a statewide impact in the district court for the district of the capital of the State involved, and all other regulations only in the district where the surface mining operation at issue is located. By allowing a national regulation to be challenged in federal courts other than those in the District of Columbia, the Court of Appeals here arguably frustrated Congress' carefully devised plan for judicial review. Second, the court below based its holding on the fact that both the House' and Senate versions of the bill provided that national regulations were to be reviewed only in the District Court for the District of Columbia, while the word "only" was omitted from the final version of the bill reported out of the Conference Committee. However, the Conference Committee's discussion of the changes made in the bill does not even mention this deletion, and it may well have been inadvertent. H. R. Rep. No. 95-493, p. 111 (1977). Finally, the only other

ject to judicial review under this subsection shall be filed in the appropriate Court within sixty days from the date of such action. . . ." 91 Stat. 512. 'H. R. 2, 95th Cong., 1st Sess., § 526(a)(1) (1977). See also H. R. Rep. No. 95-218, p. 46 (1977).

'S. 7, 95th Cong., 1st Sess., § 426(a)(1) (1977). See also S. Rep. No. 95-128, p. 41 (1977).

courts to rule on this question have both held that § 526(a)(1) provides for exclusive review of national regulations in the District Court for the District of Columbia. Reading Anthracite Co. v. Office of Surface Mining, Reclamation and Enforcement, No. 80-0667 (ED Pa., Oct. 8, 1980); Union Carbide Corp. v. Andrus, 13 ERC 1481, 1489 (SD W. Va. 1979).

Because there are serious questions whether the Court of Appeals properly interpreted § 526(a)(1) and because such an interpretation appears to conflict with the congressional intent that there be uniform national performance standards for surface mining, see S. Rep. No. 95-128, p. 49 (1977); H. R. Rep. No. 95-218, pp. 57-58 (1977), I would grant the petition for certiorari and set the case for oral argument. Delaying resolution of the issue could cause substantial disruption both to the coal mining industry and to the agencies charged with administering the Surface Mining Act.*

Certio

No. 81-1605. RED BALL MOTOR FREIGHT, Inc. v. NaTIONAL LABOR RELATIONS BOARD. C. A. 5th Cir. rari denied. Reported below: 660 F. 2d 626.

JUSTICE WHITE, with whom JUSTICE REHNQUIST joins, dissenting.

In Wright Line, a Division of Wright Line, Inc., 251 N. L. R. B. 1083, 1089 (1980), the National Labor Relations Board announced a test for identifying violations of § 8(a)(3) of the National Labor Relations Act, 29 U. S. C. § 158(a)(3): General Counsel must first "make a prima facie showing sufficient to support the inference that [an employer's opposition to] protected conduct was a 'motivating factor' in the employer's [discharge] decision. Once this is established, the burden will shift to the employer to demonstrate that the same action would have taken place even in the absence of the pro

'The Court of Appeals did not rule directly on the 60-day limitation period for filing petitions for judicial review of rulemaking actions. Accordingly, it would not be necessary for the Court to address that issue.

tected conduct." Most Courts of Appeals, including the Court of Appeals for the Fifth Circuit in this case, have endorsed the Board's test in its entirety. See NLRB v. Robin American Corp., 654 F. 2d 1022 (CA5 1981); NLRB v. Lloyd A. Fry Roofing Co., Inc., of Delaware, 651 F. 2d 442 (CA6 1981); Peavey Co. v. NLRB, 648 F. 2d 460 (CA7 1981); NLRB v. Nevis Industries, Inc., 647 F. 2d 905 (CA9 1981); NLRB v. Fixtures Manufacturing Corp., 669 F. 2d 547 (CA8 1982). The Court of Appeals for the Third Circuit and that for the First Circuit, however, disagree with the Board on the exact nature of the employer's burden after the General Counsel establishes a prima facie case. These two Circuits hold the burden to be one of production, rather than one of persuasion. See NLRB v. Wright Line, 662 F. 2d 899 (CA1 1981), cert. denied, 455 U. S. 989 (1982); Behring International, Inc. v. NLRB, 675 F. 2d 83 (CA3 1982). In order to resolve this conflict on what is obviously a recurring issue that should be resolved, I would grant the writ of certiorari.

No. 81-1715. RAILWAY LABOR EXECUTIVES' ASSN. v. SCOTT, TRUSTEE, ET AL. C. A. 3d Cir.; and

No. 81-1805. RAILWAY LABOR EXECUTIVES' ASSN. v. GIBBONS, TRUSTEE, ET AL. C. A. 7th Cir. Motion of petitioner to consolidate the petitions for writs of certiorari denied. Certiorari denied. Reported below: No. 81-1715, 673 F.2d 1301; No. 81-1805, 672 F. 2d 920.

No. 81-1813. FOUST ET AL. v. GARMON. C. A. 8th Cir. Motion of respondent for leave to proceed in forma pauperis denied. Certiorari denied. Reported below: 668 F. 2d 400.

No. 81-1820. CFS CONTINENTAL, INC., ET AL. v. ADAMS EXTRACT Co. ET AL. C. A. 5th Cir. Certiorari denied. JUSTICE POWELL took no part in the consideration or decision of this petition. Reported below: 643 F. 2d 195 and 659 F.2d 1322.

No. 81-1890. BECKMAN v. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION ET AL. C. A. 10th Cir. Motion of petitioner for leave to proceed as a veteran granted. Certiorari denied.

No. 81-6171. BROOKS v. OKLAHOMA. C. A. 10th Cir. Certiorari denied.

JUSTICE BRENNAN, dissenting.

During the evening of August 2, 1974, petitioner Alfred Brooks and a male companion abducted two women at gunpoint. After robbing the women, the men took the victims into a field and shot them, wounding one and killing the other. Petitioner was thereafter charged, tried, and convicted in District Court, Oklahoma County, Okla., for the offense of murder in the first degree. He was sentenced to death. On appeal, the conviction was affirmed, but the sentence was modified to life imprisonment. Brooks v. State, 556 P. 2d 147 (Okla. Crim. App. 1977). The State later prosecuted petitioner for two additional offenses related to the events of August 2, 1974: assault and battery with a deadly weapon with intent to kill, and robbery with firearms. Petitioner pleaded guilty to both charges, and was sentenced to two concurrent 20-year terms of imprisonment. Seeking postconviction relief in the Oklahoma court, petitioner challenged the later convictions on double jeopardy grounds, inter alia. Following the denial of relief, which was affirmed on appeal, Brooks filed a petition for a writ of habeas corpus in the United States District Court for the Western District of Oklahoma. That court dismissed the petition, and the Court of Appeals for the Tenth Circuit affirmed.

Although all the charges leveled against petitioner arose out of the same criminal transaction or episode, they were prosecuted by the State in two separate proceedings. Accordingly, I would grant the petition for certiorari, vacate the judgment of the Court of Appeals, and remand for fur