Izumi Seimitsu Kogyo Kabushiki Kaisha v. U. S. Philips Corp., 510 U.S. 27, 11 (1993) (per curiam)

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Cite as: 510 U. S. 27 (1993)

Stevens, J., dissenting

Even if I were to concede that the intervention question is not "fairly included" in the question presented, I would still think it inappropriate to dismiss the writ of certiorari as improvidently granted. In view of the fact that petitioner raised and discussed the issue in its petition for certiorari, the Court's decision today rests purely on the technicality that the petition failed to frame a separate question to introduce this argument. Given the Court's occasional practice of ordering parties to address questions they have not raised,5 it is ironic that the omission in this case should be given critical weight. Indeed, the Court's decision punishes this technical error much more severely than it has ever punished similar violations. Until today, the Court had never dismissed a case because of a violation of Rule 14.1(a) or its predecessors.6

To justify its decision, the majority quotes Yee v. Escon-dido, 503 U. S. 519 (1992), for the proposition that Rule 14.1(a), although prudential, is disregarded " ' "only in the most exceptional cases," ' " 7 ante, at 32. But the majority omits the very next words, which explain that it is proper to

5 Christianson v. Colt Industries Operating Corp., 484 U. S. 985 (1987) (directing parties to brief and argue jurisdictional question); Eisen v. Carlisle & Jacquelin, 414 U. S. 908 (1973) (same); Payne v. Tennessee, 498 U. S. 1076 (1991); Patterson v. McLean Credit Union, 485 U. S. 617 (1988).

6 Rule 14.1(a) itself dates only to 1990, but the 1990 revisions merely renumbered a rule which has not substantially changed since 1954. Rule 21.1(a) (1980) (identical language to present rule); Rule 23.1(c) (1954) ("Only the questions set forth in the petition or fairly comprised therein will be considered by the court"). The Court never dismissed certiorari under either of these earlier rules. Even under the harsher rule that governed between 1939 and 1954, which allowed consideration only of "questions specifically brought forward by the petition," the Court never sanctioned violations with dismissal of certiorari as improvidently granted. Rule 38.2 (1939).

7 The Court also notes that jurisdictional questions are a traditional exception to the rule that an issue must fall under a question presented, ante, at 33, but the Court fails to recognize that the issue here—the propriety of intervention—is jurisdictional and thus falls within that exception.


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